Summary: We will not investigate the Council’s response to Miss X’s concerns about damage to her property. This is because it is reasonable to expect Miss X to take her claim for damages to court.

The complaint

1. Miss X complains she has suffered damage to her property arising from Council negligence. She holds the Council liable for the damage caused by livestock.
2. Miss X reports she cannot use her garden safely and she has incurred significant financial costs to repair the damage.
3. She seeks insurance details for the Council and payment for the cost of repairs.

Back to top

The Ombudsman’s role and powers

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)

Back to top

How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Miss X alleges negligence by the Council resulting in damage to her property by livestock (belonging to the Council’s land tenant). Miss X says the Council’s land was sublet in breach of tenancy conditions and the Council has failed to enforce the tenancy agreement. Miss X contends the Council owes her a duty of care to prevent foreseeable damage and is legally liable for breach of that duty.
8. The Council’s position is that this is a private dispute between Miss X and its tenant. And that Miss X should pursue the tenant directly.
9. Miss X’s complaint is mainly that the organisation has been negligent. Deciding about whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence that only a court can make a binding legal determination of liability and damages. We cannot recommend actions or payments that ‘punish’ the organisation.
10. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Miss X’s position to seek a remedy in the courts, directly or through her insurers. So, I consider it is reasonable to expect Miss X to seek a remedy via court and we will not investigate.
11. Further, access to insurance details and enforcing liability is part of pursuing civil litigation. It is not part of the Council’s administrative actions which is the Ombudsman’s role to consider.
12. I have considered if there are any stand-alone issues to investigate that are not connected to the claim for damages. I do not consider we could separate out and look at Miss X’s allegations that the Council failed to act on her concerns properly. That is because this is consequential to the underlying legal dispute of liability. So, we will not look at any associated issues.

Back to top

Final decision

13. We will not investigate Miss X’s complaint because it is reasonable to expect her to go to court.

Back to top

Investigator's decision on behalf of the Ombudsman