Summary: We cannot investigate most of Miss X’s complaint about damage caused to her wall in 2021 by a Council owned tree because it is reasonable for her to take the matter to court. We cannot investigate matters prior to 2024 because the complaint is late. There is insufficient evidence of delay in 2024 to warrant an investigation. The Information Commissioner’s Office is better suited to consider Miss X’s complaint about data processing.

The complaint

1. Miss X complained the Council:
• failed to meet the full cost of repairs for damage caused to her wall by a Council owned tree in 2021;
• delayed in the decision-making process regarding her insurance claim;
• failed to respond to her Subject Access Request (SAR); and
• failed to respond to her complaints.
2. Miss X said the matter caused her frustration and time and trouble.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. 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)
6. 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)
7. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection and data processing, including Subject Access Requests. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

8. I considered information provided by the complainant.
9. I considered the Ombudsman’s Assessment Code.

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My assessment

Liability and damage caused in 2021

10. Deciding about whether an organisation has been negligent usually involves looking rigorously, and in a structured way, at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the Council.
11. Miss X submitted an insurance claim to the Council and is dissatisfied with the amount offered. Therefore, Miss X can now take the matter to the courts.
12. Because the Ombudsman cannot decide whether the Council has been negligent and has no powers to enforce an award of damages, we expect someone in Miss X’s position to bring the matter to court. I do not consider there is any exceptional reason why Miss X cannot do this, and so we cannot investigate this complaint.

Delay in decision-making process

13. We cannot investigate Miss X’s complaint about delays in the decision-making process regarding her insurance claim before 2024. Miss X was aware of the issue in 2021. Miss X did not bring her complaint to the Ombudsman until January 2025. Therefore, this complaint is late. I have seen no good reason Miss X could not have complained about this issue sooner. Therefore, we cannot investigate matters before January 2024.
14. For decision-making matters in 2024 there is insufficient evidence of delay in the process and therefore insufficient evidence of fault to warrant an investigation by the Ombudsman, and so we will not investigate this complaint.

Subject access request

15. We will not investigate Miss X’s complaint about the Council’s response to her SAR. This is because the Information Commissioner’s Office is better suited to consider the complaint. I have seen no good reason the Ombudsman should consider the complaint in lieu of the ICO, therefore, we will not investigate this complaint.

Complaints handling

16. It is not a good use of public resources to investigate complaints about complaint procedures if we are unable to deal with the substantive issue. Therefore, we will not investigate how the Council responded to Miss X’s complaint.

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Final decision

17. We cannot investigate most of Miss X’s complaint because it is reasonable for her to take the matter to court. Part of Miss X’s complaint is late, and there is insufficient evidence of fault for the remainder. The Information Commissioner’s Office is better suited to consider Miss X’s complaint about data processing.

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Investigator's decision on behalf of the Ombudsman