The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint. This is because this is a complaint about negligence and it is reasonable to expect Mrs X to pursue her claim for damages via the Council’s insurers and if this is refused to make a court claim. We cannot decide a negligence claim, it is a legal matter for the courts to consider and decide.
The complaint
The complainant, whom I shall call Mrs X, complains her clothes were damaged and lost when she sank into mud after the Council failed to cordon off works in a field. She was pulled out of the mud by her husband and then walked home in the cold with bare, muddy feet. Mrs X also complains the Council delayed in responding to her complaint.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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 and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X complained to the Council that her clothing was lost and damaged when she sank up to her knees in mud due to the Council’s failure to cordon off works in a field and light the area.
The Council advised Mrs X the most suitable route for her to pursue her claim for compensation is to make a claim via its insurers. It provided Mrs X with a link to information on how to make a claim and the relevant contact details.
We will not investigate Mrs X’s complaint. This is because it is reasonable to expect her to make a claim for damages via the Council’s insurers, as set out in the Council’s response. If the claim is refused then it is reasonable to expect Mrs X to use her right to pursue her claim in the small claims court.
We cannot decide a negligence claim and make a ruling on whether Mrs X’s losses were caused by negligence on the Council’s part. Only the courts can make such a ruling and, if so, decide whether to award any damages Mrs X seeks. Making a court claim is a simple, low cost and accessible process with fees set on a sliding scale depending on the level of the monetary claim. Those on a low income can apply for help with the fees.
Mrs X also complains the Council delayed in responding to her complaint. We do not consider complaint handling issues in isolation where we are not also considering the substantive matter. This is because it is not a good use of our limited public resources for us to do so.
Final decision
We will not investigate Mrs X’s complaint because it is a complaint about negligence which is a legal matter for the courts to decide. It is reasonable to expect Mrs X to make a claim via the Council’s insurers in the first instance and if this is refused to make a court claim for damages.
Investigator's decision on behalf of the Ombudsman