The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about damage caused to a memorial bench near a relative’s grave. This is because Miss X has a right to take the matter to court.
The complaint
Miss X complained the Council damaged a memorial bench she installed for her relative near the relative’s grave. Miss X said the matter caused her distress.
Miss X wants the Council to pay compensation for the damage to the bench.
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
We will not investigate Miss X’s complaint about damage caused to a memorial bench she installed near a relative’s grave.
This is because Miss X’s complaint is mainly that the Council has been negligent. Deciding about 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. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the Council.
We cannot decide whether the Council has been negligent, have no powers to enforce an award of damages, or recommend the Council pay compensation. Because Miss X’s desired outcome is to receive compensation for the damages claimed, we would usually expect someone in her position to seek a remedy in the courts. I consider it is reasonable to expect Miss X to use the court for the reasons outlined above. Therefore, we will not investigate this complaint.
Final decision
We will not investigate Miss X’s complaint because it is reasonable for her to take the matter to court.
Investigator's decision on behalf of the Ombudsman