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Epsom & Ewell Borough Council (19 018 373)

Category : Environment and regulation > Other

Decision : Closed after initial enquiries

Decision date : 13 Mar 2020

The Ombudsman's final decision:

Summary: The complaint is about the Council’s actions related to a Council lorry causing damage. The Ombudsman should not investigate this complaint because Mr B can take the matter to court.

The complaint

  1. Mr B complains the Council did not help him and his wife after a Council lorry damaged their telephone, internet and burglar alarm connections. Mr B says as a result he and his wife suffered significant inconvenience and incurred expense.

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The Ombudsman’s role and powers

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
  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

  1. I considered the information Mr B provided and copy complaint correspondence from Mr B and the Council. I shared my draft decision with Mr B and considered his comments on it.

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What I found

  1. A Council lorry hit a telegraph pole near Mr B’s’ home, cutting off the telephone, internet and burglar alarm connections. The provider restored those connections 24 days later.
  2. Mr B argues that as the Council caused the accident, the Council, rather than he and his wife, should have taken responsibility for dealing with the provider to arrange the reconnection. He reports the 24 days without services affected his wife’s work as she works from home using the internet, made it difficult for others to contact them, compromised their home security (while the burglar alarm did not work). Mr B also states they had to spend £53.50 on extra mobile data because of the lack of internet connection.
  3. Mr B wanted compensation from the Council to include a calculation based on the council tax he paid to recognise the Council not helping to restore their services plus a payment for the inconvenience. The Council suggested he claim on its insurance. Responding to a draft of this decision, Mr B said he would also have accepted an apology and ‘token’ payment.
  4. Essentially, the issues here are whether the Council was negligent in the accident and, if so, whether any such negligence makes the Council liable for the inconvenience of arranging reconnection and the time without services. Responding to a draft of this decision, Mr B said the Council had confirmed the incident. He implied there was therefore no doubt about who was negligent. However, confirming that an incident happened is not necessarily the same as admitting negligence. Even if the Council did admit negligence, there would still be separate questions about what consequences the Council was liable for.
  5. The courts can decide questions of negligence, liability and compensation if they are not settled via insurers. So the restriction in paragraph 3 applies. Mr B states he never intended to go to court. However, that does not alter the legal restriction on the Ombudsman’s power here, which I must consider.
  6. The money claim procedure in the county court is relatively simple to navigate and not necessarily expensive. Negligence, damages and compensation are not necessarily straightforward matters legally. Here, the claimed impact on Mr and Mrs B (the inconvenience of being without services and of having to deal with the provider) mainly relates to the length of time taken to reconnect their services. That is in effect a claim of consequential loss, rather than direct loss, because the provider, not the Council, had the contract for services with Mr and Mrs B and was responsible for reconnection. Responsibility for consequential loss is not straightforward. It is more appropriate for the courts than the Ombudsman to decide such points. So I consider it would be reasonable for Mr B to use his right to go to court if he cannot resolve the matter with the Council or its insurers.
  7. My draft decision explained the Ombudsman does not award ‘compensation’ in the way the courts do, although we can ask a council to make a payment to recognise an injustice. Mr B’s response suggested it would be fair for the Ombudsman to recommend a payment here. I understand that argument. However, given the restriction on the Ombudsman’s power where there is a right to go to court, and given the nature of the issues involved, I am not persuaded the Ombudsman should pursue this complaint.
  8. Mr B’s response to my draft decision also expressed disappointment I did not express a view on whether the Council’s level of service was acceptable. We would only express such a view after deciding a complaint was in our jurisdiction and considering its merits. Here, the complaint is not in the Ombudsman’s jurisdiction so we do not comment on this point.

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Final decision

  1. The Ombudsman should not investigate this complaint. This is because of Mr and Mrs B’s right to go to court.

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Investigator's decision on behalf of the Ombudsman

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