Summary: Mr X complained about the Council’s failure to deal with his claim about subsidence to his home and to remove nearby trees which he says are the source of the problem. The Ombudsman should not investigate this complaint. This is because it concerns damage to property and claims about legal liability can only be determined by insurers or the courts.

The complaint

1. The complainant, whom I shall call Mr X, complains about the Council’s delay in processing his claim about subsidence which he says is caused by nearby trees. He wants the Council to remove the trees as soon as possible to prevent further damage occurring.

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The Ombudsman’s role and powers

2. 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

3. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response and Mr X has commented on the draft decision.

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What I found

4. In 2018 Mr X found cracks appearing in the walls of his home. He says the cracks are also in the footway between his home and trees planted by the Council in the highway verge. He first reported the matter to the Council in May 2018 and an officer inspected the site in August. He submitted a claim to the Council in the autumn of 2018 but did not hear anything further.
5. After further attempts to obtain a reply Mr X complained to the Council in February 2019. He received a response and the Council apologised for the delay in dealing with his claim. It said this was due to a 600% increase in claims and said it would seek a response from the insurers urgently. Mr X was not satisfied as it did not give any indication about when the trees would be removed.
6. He made a further complaint. The Council told him it will not remove trees from the public highway until it has been verified that they are the cause of the cracking in his home.
7. There has been fault by the Council in its delay to forward Mr X’s insurance claim. We cannot say whether this has caused any injustice because the claim has not been determined and the Council has not accepted liability for the cracking. We would not expect a council to remove the trees until the case is decided as this would prejudice any liability issue. If the delay caused additional damage to his property Mr X would be able to include this in any remedy which he may be seeking.
8. The Ombudsman cannot decide liability in claims about damage to property caused by negligence. Only insurers or the courts can do this.

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Final decision

9. The Ombudsman should not investigate this complaint. This is because it concerns damage to property and claims about legal liability can only be determined by insurers or the courts.

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Investigator's decision on behalf of the Ombudsman