The Ombudsman's final decision
Summary: We will not investigate Mr B’s complaint that his vehicle was damaged by a fallen tree which the Council had failed to maintain. This is because it is reasonable for Mr B to pursue his claim against the Council at court.
The complaint
Mr B complains his vehicle was damaged by a Council owned tree which fell during strong winds. Mr B says the Council has wrongly refused his compensation claim. Mr B says the Council is responsible for trees in the area and should pay for the costs he has incurred.
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 Act 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 Mr B.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr B complains his vehicle was damaged because the Council failed to maintain a tree it is responsible for. So, in effect, Mr B’s complaint is that the Council has been negligent.
The Council’s insurers have considered Mr B’s claim for compensation but did not accept the Council is liable for the damage to his vehicle.
Mr B may now pursue his claim by taking the Council to court.
The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
Only the court can decide if the Council has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his insurers.
I do not consider there is any exceptional reason why Mr B cannot do this. So, we will not investigate this complaint.
Final decision
We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.
Investigator's decision on behalf of the Ombudsman