Summary: We will not investigate this complaint about an overgrown garden in a council owned property damaging the complainant’s fence. This is because there is no worthwhile outcome and because it is reasonable to expect the complainant to go to court.

The complaint

1. Mr X complains about the Council’s response to his concerns about an overgrown garden with dumped rubbish in a council property damaging his fence. He would like to be compensated for the cost of replacing/repairing the fence.

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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. 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)
4. We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended)
5. 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:

• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council has responded to Mr X’s concerns by admitting some delays in dealing with his complaint matters. It has provided him with compensation to remedy this.
9. We have no remit to consider the Council’s actions as a provider of social housing so we cannot look at its actions taken under tenancy management.
10. However, we can look at its actions taken under anti-social behaviour legislation. The Council says it has opened an anti-social behaviour investigation into the issues Mr X raises and this is ongoing.
11. We will not investigate. This is because the issues within our remit, such as the anti-social behaviour enquiries, are ongoing and too early for us to investigate. And while the Council has admitted some delays it has provided a remedy in the form of financial compensation to acknowledge this. Therefore, there is no worthwhile outcome if we were to look at the anti-social behaviour aspect of the complaint.
12. Another reason for not investigating is due to Mr X’s outcome sought - in the form of compensation to repair/replace his fence – is best addressed via court. Mr X’s complaint is mainly that the Council has been negligent which has caused damage to his fence. Deciding 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. I cannot decide whether a council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr X’s position to seek a remedy in the courts, directly or through insurers. I consider it is reasonable to expect Mr X to make a claim on the Council’s insurance (as it has already advised him to do so) and, if necessary, go to court.

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Final decision

13. We will not investigate Mr X’s complaint because there is no worthwhile outcome and because it is reasonable to expect the complainant to go to court.

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Investigator's decision on behalf of the Ombudsman