Summary: The Ombudsman will not investigate Mr A’s complaint that the Council has declined to accept liability for damage to his property. This is because it would be reasonable for him to pursue the matter in court.

The complaint

1. The complainant, who I will refer to as Mr A, complains that the Council has declined to accept liability for damage to his property.

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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 what Mr A has said in support of his complaint.

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What I found

4. Mr A says his fence has been damaged by the roots of trees owned by the Council. He has made a claim against the Council and complains that it has declined to make a financial contribution to the cost of remedial work. The Council has denied liability for the damage on the grounds that it could not reasonably have been foreseen.
5. The Ombudsman will not investigate Mr A’s complaint. His claim is, in effect, that the Council was negligent in failing to maintain the trees, and that this negligence caused the damage to his property. The Ombudsman cannot determine negligence. The court can, and such matters are best decided in court. It would therefore be reasonable for Mr A to pursue the matter in court.

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Final decision

6. The Ombudsman will not investigate this complaint. This is because it would be reasonable for Mr A to pursue the matter in court.

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Investigator's decision on behalf of the Ombudsman