Summary: We will not investigate Mr B’s complaint that his parents’ property was damaged due to the Council’s failure to maintain vegetation on neighbouring land. This is because it is reasonable for Mr B to pursue his compensation claim by taking the Council to court.

The complaint

1. The complainant, who I will refer to as Mr B, complains that his elderly parents’ garden fence was damaged due to the Council’s failure to maintain vegetation on neighbouring land. Mr B says this resulted in his parents feeling unsafe because their property was not secure. Mr B says he had to clear the area on the Council side of the boundary before replacing the fence at a cost of £1700. Mr B complains the Council wrongly did not accept liability for the damage or offer any compensation for the costs he paid. Mr B also says the Council did not investigate the matter properly and took too long to respond to his claim.

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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 Act 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

4. I considered information provided by Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. The Council has considered Mr B’s claim for compensation but did not accept the Council is liable for the damage to his parents’ fence. Mr B may pursue his claim by taking the Council to court.
7. The role of the Ombudsman is to consider complaints of administrative fault. We cannot decide liability in complaints about damage to property. This is for the Council’s insurers and ultimately for the courts. Only the court can decide if the Council has been negligent.
8. The court can decide what damages, if any, the Council should pay. Also, unlike the Ombudsman, the court can order a party to pay damages.
9. I find it is reasonable for Mr B to take the Council to court. The fees for making a claim are relatively modest and Mr B may ask for the fee to be reimbursed if his claim is successful.
10. Because we will not investigate the substantive matter, an investigation solely into the Council’s handling of Mr B’s compensation claim is not justified.

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Final decision

11. We will not investigate Mr B’s complaint because it is reasonable for him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman