Summary: We will not investigate this complaint about damage to a grave because the complainant may pursue the matter in court, and it would be reasonable for her to do so.

The complaint

1. The complainant, who I will refer to as Mrs B, complains that the Council failed to properly maintain trees at a cemetery, and that this failure caused damage to the grave of a family member.

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The Ombudsman’s role and powers

2. 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

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. Mrs B says a fallen tree branch has damaged the grave of a family member. She contends that the Council’s failure to properly maintain the trees at the cemetery led to the damage and that the Council should reimburse her for the cost incurred.
6. The Ombudsman will not investigate Mrs B’s complaint. Essentially, the complaint amounts to an allegation that the Council has been negligent, and that this negligence has caused Mrs B financial loss and distress. The Ombudsman cannot determine whether negligence on the Council’s part means it is liable for the damage. This is a matter for the Council’s insurers and, ultimately, for the courts.
7. Mrs B’s recourse is to make a claim against the Council and, if the Council denies liability, it would be reasonable for her to pursue the matter in court. The Ombudsman will not intervene.

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Final decision

8. We will not investigate Mrs B’s complaint because it would be reasonable for her to pursue the matter in court.

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Investigator's decision on behalf of the Ombudsman