The Ombudsman's final decision
Summary: We will not investigate this complaint about damage to Ms X’s property caused by Council works.
This is because Ms X has an alternative legal remedy available to her. Only the courts can decide a Council was negligent, and so it is reasonable for Ms X to take the matter to court.
The complaint
Ms X complained the Council damaged her property during works it carried out, did not inspect the site beforehand and did not properly consider her claim about the matter.
Ms X said this caused distress, time and trouble.
Ms X wants the Council to apologise, review its processes and properly consider her claim.
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 Ms X.
I considered the Ombudsman’s Assessment Code.
My assessment
We consider our powers on what we could achieve as part of our consideration of whether an alternative remedy exists and whether it is reasonable for a person to use it.
Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.
We will not investigate Ms X’s complaint. We cannot determine liability for any loss or damage Ms X has experienced. It is therefore reasonable to expect Ms X to take the matter to court if the Council’s insurers deny liability.
Final decision
We will not investigate Ms X’s complaint because there is an alternative remedy available through the courts that it is reasonable for her to use.
Investigator's decision on behalf of the Ombudsman