Summary: We will not investigate this complaint about damage to property. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable for the complainant to pursue the matter in court if he believes the Care Provider is liable for the damage.

The complaint

1. The complainant, whom I shall refer to as Mr X, complained a member of staff working for the Care Provider damaged a wall. Mr X wants the Care Provider to pay for the damage. It has refused to accept liability. It said the person who caused the damage was not working for the Care Provider and so it is not liable.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
4. 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)

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How I considered this complaint

5. I considered information provided by the complainant and the Ombudsman’s Assessment Code.

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My assessment

6. We will not start an investigation into Mr X’s complaint.
7. The role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving damage to property. Claims for damage to property are a matter for insurers and, ultimately, for the courts.
8. If the Care Provider rejects a formal claim for damages, then Mr X can take the matter to court. I consider it would be reasonable for him to do so. This is because the Court could then decide if the Care Provider has been negligent and is liable for the damage. The Court could decide what damages, if any, the Care Provider should pay. The Ombudsman has no powers to make such decisions. It is therefore reasonable for Mr X to pursue the matter in court as it can give him the outcome he wants. The Ombudsman cannot.

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Final decision

9. We will not investigate Mr X’s complaint because it is reasonable for him to pursue the matter in court.

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Investigator's decision on behalf of the Ombudsman