The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance. This is because the courts are better placed to consider the complaint.
The complaint
Mr Y complained the Council failed to discuss the extent of the cutting back on his hedge by the Council during pavement resurfacing works despite a complaint being made, before carrying out the work. The Council also cut back Mr Y’s hedge, causing significant aesthetic damage to it.
This has caused upset to Mr Y and the hedge has been diminished in its value and aesthetic. Mr Y says it will cost a significant sum to restore.
The Ombudsman’s role and powers
The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6)) It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
How I considered this complaint
I considered information Mr Y provided and the Ombudsman’s Assessment Code.
My assessment
After receiving a letter from the Council in March 2022, Mr Y wrote to the Council asking to discuss the planned works to the footpath outside his home, which would include the cutting back of a hedge outside Mr Y’s property. After being unable to gain a response initially, Mr Y complained to the Council later in March.
After the hedge was cut back, he further complained to the Council in August. The Council responded, denying fault in September, saying the footpath had been obstructed by the hedge and it had to remove the obstruction to allow for the resurfacing works. Mr Y then approached us in October.
Analysis The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs or a replacement hedge, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through the courts. We will not investigate this complaint.
As we are not investigating the substantive matter, it is not a good use of our resources to investigate how the Council dealt with Mr Y’s complaint correspondence.
Final decision
We will not investigate Mr Y’s complaint because the courts are better placed to consider the complaint.
Investigator's decision on behalf of the Ombudsman