Summary: We will not investigate this complaint about issues arising from fence damage. This is because it is reasonable to expect Ms X to go to court. We also will not investigate Ms X’s concerns about the adequacy of the Council’s responses as it would not be proportionate when we are not considering the underlying issues.

The complaint

1. Ms X complains, on behalf of her relative Mrs Y, about damage to a private garden fence and associated safety concerns following construction works carried out by the Council’s contractor.
2. Ms X also raises concerns about the Council’s handling of the matter.
3. Ms X seeks a full repair to the fence and compensation.

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The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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

6. I considered information provided by the complainant which includes the Council’s responses.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. Ms X remains dissatisfied with the Council’s attempts to resolve the matter.
9. The Council did investigate Ms X’s concerns. It accepted that the fence collapse resulted from excavation works which undermined fence posts and acknowledged the resulting distress caused. It apologised for communication failures and initially offered £100 compensation. It arranged temporary works followed by a replacement fence and maintained that this remedy, alongside compensation, was appropriate.
10. We will not investigate. This is because it is reasonable to expect Ms X to take her continuing concerns to court. This is because, effectively, Ms X’s complaint is that the Council has been negligent. Deciding about whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
11. I cannot decide whether an organisation has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Ms X’s position to seek a remedy in the small claims court. The small claims procedure has been designed to be easy to use and if necessary Ms X can get advice from the citizens advice bureau.
12. With respect to Ms X’s complaint about the Council’s administrative failings when overseeing her claim, we also will not investigate. This is because it is not proportionate to do so if we are not looking at the underlying matters.

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Final decision

13. We will not investigate Ms X’s concerns about fence damage as it is reasonable to expect her to go to court. And we will not investigate the concerns about the Council’s handling of her claim as it would not be proportionate.

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Investigator's decision on behalf of the Ombudsman