Summary: We will not investigate Mr X’s complaint about the Council’s decision to refuse his mother’s claim for damages. This is because this is a complaint about negligence which is a legal matter for the courts to consider and decide. We cannot decide such a claim.

The complaint

1. The complainant, Mr X, complains on behalf of his mother, Mrs X. He complains about the Council’s decision to refuse her claim for damages due to her garden wall being damaged by a tree in front of her house.

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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. Mr X submitted a claim for damages to the Council, on behalf of his mother, Mrs X. He said Mrs X’s garden wall was being damaged by the roots of a tree on the footpath in front of her house.
8. The Council’s insurers considered Mrs X’s claim. It denied liability and set out its reasons for refusing the claim.
9. Mr X complained to the Council about the decision and then to this office that the Council had not responded to his complaint.
10. The Council then wrote to Mr X explaining that it would not consider the matter via its complaints procedure. This is because following the refusal of the claim it was ultimately a matter for the courts to decide.
11. We will not investigate Mr X’s complaint. This is because this is a complaint about negligence, which is a legal matter for the courts to consider and decide. We cannot decide a negligence claim. Only the courts can decide if the Council has been negligent and, if so, whether it should award any damages sought and at what level. It is reasonable to expect Mrs X to use her right to pursue her claim in the courts if she considers the Council to be liable for her losses and wants to pursue the claim further. Making a claim for money in the small claims court is a simple, accessible and low cost process with fees set on a sliding scale depending on the level of the claim. Those on a low income can apply for help with the fees.
12. We will not investigate Mr X’s complaint about the Council’s delay in responding to his 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 our limited public resources for us to do so.

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Final decision

13. We will not investigate Mr X’s complaint because it is about a negligence claim which is a legal matter for the courts to consider and decide.

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Investigator's decision on behalf of the Ombudsman