The Ombudsman's final decision
Summary: We will not investigate this complaint about damage caused to the complainant’s fence. This is because it is reasonable to expect the complainant to go to court to determine any liability owed by the Council.
The complaint
In summary, Mrs X complains that negligence caused by the Council’s contractors and tenants has damaged her fence. She would like the Council to pay for a new fence.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
I will not exercise discretion to investigate because the matter of liability for damages is usually between the Council’s insurers and the courts.
Mrs X’s request for reimbursement has been rejected by the Council. I note the Council also says the boundary fence is Mrs X’s responsibility. Therefore, I consider it is reasonable for her now to take the matter to court to protect her private property and decide the boundary dispute. The court can decide liability and if Mrs X is entitled to damages.
There is a simple procedure in the county court for dealing with small claims. Usually, solicitors are not required so the only costs will be the court fees.
Final decision
I will not exercise discretion to investigate. This is because it is reasonable to expect Mrs X to go to court to decide the Council’s liability.
Investigator's decision on behalf of the Ombudsman