The Ombudsman's final decision
Summary: We will not investigate this complaint about how the Council responded, after it admitted damaging Mrs X’s hedge. Only a court can determine liability and it would be reasonable for Mrs X to make a claim to the Council’s insurers in the first instance and then pursue her claim through the courts if necessary.
The complaint
Mrs X said the Council is at fault because it did not resolve her claim for damaging her hedge. She complained about this and said the Council gave her inaccurate information about how it was handling the matter. Mrs X wants the Council to pay for the hedge to be replaced like for like.
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 Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council trimmed Mrs X’s hedge to clear a footpath and she then contacted the Council saying it had cut the hedge too far back, causing irreparable damage. The Council admitted liability.
After a while, because Mrs X had not heard anything further, she complained to the Council. After the Council’s response, she complained to us asking us to help her resolve her claim and investigate what the Council previously told her.
We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts. It is normal procedure for people claiming damages caused by the Council, to submit an insurance claim against the Council. This will then be treated as a claim, rather than a complaint and passed on to its insurers or legal team for a response on liability. A court can then make a judgement where the Council does not accept insurance liability.
We will not consider how the Council dealt with Mrs X after she raised this issue with the Council. It is not a good use of public resources to investigate complaints about complaint matters where we are unable to deal with the substantive issue.
Final decision
We will not investigate Mrs X’s complaint because only a court can decide on liability.
Investigator's decision on behalf of the Ombudsman