Summary: We will not investigate Mr X’s complaint alleging Council delays in carrying out vegetation maintenance caused damage to his fence. This is because it is reasonable to expect Mr X to go to court.

The complaint

1. Mr X complains about the Council’s handling of his claim of damage to his fence due to the council’s delay in cutting back its vegetation. He says he had to replace the fence within 18 inches of his property boundary.
2. Mr X says he has suffered a loss of usable land and incurred financial costs.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 Mr X which includes the Council’s responses.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council upheld Mr X’s complaint. It apologised for its delay in carrying out the vegetation maintenance. It acknowledged that he said he had replaced his fence and that he said he had lost some garden space. It advised him to pursue his claim through its insurance process.
8. We will not investigate this complaint. This is because the claimed injustice is primarily a financial loss arising from alleged damage to his fence and alleged negligence by the council. It is reasonable to expect Mr X to take this matter to the court, either through the insurance process or directly. Determining liability for property damage, negligence, and the value of any loss is a matter that is better suited to the courts. The court can make findings of legal liability and award damages. The Ombudsman does not have powers to determine legal liability nor compel councils to award compensation. I note the Council has already signposted the complainant to its insurance claims process as the most suitable remedy.
9. With respect to the alleged loss of land, this is a court matter. The court can issue legally binding decisions regarding the precise location of the boundary and any associated remedies.
10. Finally, we would not consider any complaints about the complaints process if we are not looking at the underlying complaint. This is because it is not a proportionate use of public funds.

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Final decision

11. We will not investigate Mr X’s complaint because it is reasonable to expect Mr X to go to court.

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Investigator's decision on behalf of the Ombudsman