Summary: We will not investigate this complaint about damage caused to the complainant’s fence and plants by the Council. It is reasonable for him to seek a remedy by submitting an insurance claim and if not successful, taking the matter to court.

The complaint

1. The complainant, I shall call Mr X, complains the Council has failed to fully repair damage to his property which he says was caused by the Council’s contractors.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A (6), as amended)
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)

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says his fence and plants were damaged by the Council’s contractor when they carried out work to trees and vegetation on the boundary with his land.
7. He contacted the Council, which after some delay agreed to replace a fence panel and realign the gate.
8. Mr X is not satisfied with the extent or quality of the repair.
9. We will not normally investigate complaints about damage to property arising from negligence. Negligence claims, and interpreting the law are generally best decided by insurers and the courts. Only a court can decide whether a council is legally liable if its insurers have rejected a claim.
10. I note there were some delays in responding to Mr X’s concerns. However, I do not consider the delays alone to have caused sufficient injustice to warrant our involvement.

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Final decision

11. We will not investigate Mr X’s complaint because we cannot decide the extent to which the Council is liable for damage to Mr X’s property. Nor can we award compensation or require the Council to repair such damage. Mr X can claim on the Council’s insurance. If unsuccessful, it is reasonable for him to raise a claim for the cost of the repair to the fence and replacement plants in the small claims court.
12. The council has apologised for the delays in responding to Mr X due partly to staff sickness and periods of annual leave. It is not a good use of public resources to investigate complaints about complaint procedures, if we are not dealing with the substantive issue.

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Investigator's decision on behalf of the Ombudsman