Summary: The Ombudsman will not investigate this complaint that the Council will not accept liability for damage to the complainant’s property in 2015. This is both because the complaint is made too late and the complainant could seek a remedy in court.

The complaint

1. The complainant, who I refer to here as Mr C, has complained the Council will not repair damage to his property and has denied liability.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. The law also 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 have considered what Mr C said in his complaint and background information provided by the Council. Mr C commented on a draft before IO made this decision.

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What I found

6. Mr C believes the Council is responsible for damage to his property that happened in 2015. The Council has always denied responsibility for the damage. Its insurers formally denied liability in January 2017 and advised Mr C to seek legal advice if he wished to contest the matter.
7. Mr C complained to us in October 2020 and said he was unaware he could do so until recently.

Analysis

8. There are two reasons I do not consider we should investigate this complaint.

Time

9. Mr C was clearly aware of the Council’s position more than 3 years before he complained to us. While has says he was unaware he could do this, we have existed for around 45 years. We do not usually consider being unaware of us is a reason for exercising discretion to look at a late complaint. Mr C has provided no other explanation for his delay in complaining to us.

Court remedy

10. Mr C’s complaint is in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
11. We cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mr C’s position to seek a remedy in the courts, directly or through his insurers.

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Final decision

12. I have decided we will not investigate this complaint. This is both because the complaint is late and Mr C could seek a remedy in court. Even if the complaint had been made in time, we would still have expected him to seek a remedy in court.

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Investigator's decision on behalf of the Ombudsman