Summary: We will not investigate Miss X’s complaint about the Council’s decision to refuse her claim for damages after her car was damaged and written off. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide.

The complaint

1. Miss X complains about the Council’s decision to refuse her claim for damages after her car was written off in a road traffic incident. A high sided lorry hit overhanging tree branches which broke off. One of the branches landed on the roof of Miss X’s car causing extensive damage which led to the car being written off by her insurers. She also complains about the Council’s handling of her complaint about its decision to refuse her claim.

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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 do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
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 the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X complains about the Council’s decision to refuse her claim for damages following the incident set out in paragraph one, above.
8. The Council denied liability and refused Miss X’s claim. It explained this was because the trees in question are not on the highway maintained at public expense and therefore the Council is not responsible.
9. We will not investigate Miss X’s complaint. This is because it is about negligence which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim. This involves looking rigorously, and in a structured way at evidence, as only the courts can, to make its findings. We also have no powers to recommend or enforce any award of damages. We cannot recommend actions or payments that ‘punish’ the Council.
10. We would expect someone in Miss X’s position to seek a remedy in the courts, either directly or via her insurers if she wishes to pursue the matter further. It is not a matter we can decide. Making a claim in the courts is a simple, low cost and accessible process with fees set on a sliding scale depending on the level of the monetary claim. Those on a low income can also apply for help with the fees.
11. Miss X also complains about the Council’s handling of her complaint. We do not consider complaint handling issues in isolation where we are not also considering the substantive matter. This is because it is not a good use of limited public resources for us to do so.

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Final decision

12. We will not investigate Miss X’s complaint because it is about negligence which is a legal matter for the courts to consider and decide. If Miss X wishes to pursue her claim further it is reasonable to expect her to use her right to make her claim in the courts.

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Investigator's decision on behalf of the Ombudsman