The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s actions relating to an insurance claim. This is because there would be no worthwhile outcome by us investigating. This is because we cannot achieve what the complainant wants and only a court can decide if the Council is liable to pay for damages to a house. It would be reasonable to expect Miss X to use her court remedy in this instance.
The complaint
Miss X is unhappy, because the Council did not take action much sooner, relating to her concerns about large trees near her home. She says her home has now been damaged by the trees, and she cannot get the Council to respond to a claim from her insurance company.
The Ombudsman’s role and powers
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) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or continue an investigation if we decide (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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.
How I considered this complaint
I considered information provided by the complainant and I considered the Ombudsman’s Assessment Code.
Final decision
We will not investigate Miss X’s complaint because we cannot direct the Council to accept liability for damages where it denies an insurance claim, only the courts can do this. It would be reasonable to expect Miss X to pursue court action, through her insurers if necessary.
Investigator's decision on behalf of the Ombudsman