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

The complaint

1. The complainant, Mrs X, complains the Council has refused her claim for damages after her fence was damaged following a storm.

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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. Mrs X submitted a claim for damages to the Council after her fence was damaged due to heavy rainfall in a storm.
8. The Council’s insurers have considered Mrs X’s claim. It denies liability.
9. We will not investigate Mrs 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 or make a ruling on whether Mrs X’s losses were caused by the Council’s negligence. Only the courts can make such a ruling and, if so, decide whether any damages Mrs X seeks should be awarded and at what level.
10. 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 the damage. Making a claim in the small claims court 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 apply for help with the fees.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman