The Ombudsman's final decision
Summary: We will not investigate Mr C’s complaint that his property has been damaged due to the Council’s failure to maintain adjoining land. This is because it is reasonable for Mr C to take the Council to court.
The complaint
Mr C says parts of his property have been damaged because the Council has not maintained the adjoining land which it owns. Mr C would like the Council to pay his repair costs, which are likely to be around £30,000, and to put in place measures to prevent any further damage.
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 C.
I considered the Ombudsman’s Assessment Code.
My assessment
Our role is to consider complaints of administrative fault. We do not normally investigate complaints about property damage. This is because such complaints are that an organisation has been negligent.
We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts. Only the courts can decide if an organisation has been negligent and make an order for damages. We cannot order a party to pay damages and do not recommend payments that ‘punish’ an organisation.
Mr C may pursue this matter by putting in a claim to the Council’s insurers, and if needed, taking the Council to court.
Because of the seriousness of the issue complained about and the significant sum Mr C is seeking, I find it is reasonable and proportionate to expect Mr C to do this.
So, we will not investigate this complaint.
Final decision
We will not investigate Mr C’s complaint because it is reasonable for him to take the Council to court.
Investigator's decision on behalf of the Ombudsman