Summary: Mr X complained about the Council’s failure to accept liability for damage to his home caused by tree roots from a former Council-owned property. The Ombudsman should not investigate this complaint. This is because it concerns a claim about damage to property due to alleged negligence by the Council. The Ombudsman cannot decide legal liability for damage or injury; this 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 refusal to accept liability for damage to his property by tree roots. He says the drainage system of his home has been damaged and the Council should compensate him for costs which he incurred in repairing it.

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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 and Mr X has commented on the draft decision.

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What I found

4. Mr X lives next door to a property which used to belong to the Council’s housing authority. He says he complained about fast-growing trees on the boundary of the tenant’s garden which were allowed to grow too large. Eventually the Council felled the trees but at the same time the property was sold.
5. Mr X complained about the damage to the boundary wall caused by the tree roots and sewage backing up in his home as a result of damage to the drains. He asked the Council to explain if it removed the roots and stumps when the trees were felled. He says the Council should take action and also compensate him for the costs which he incurred regarding his drains.
6. The Council says the property was sold and that it cannot take any action as it is not liable for the property boundary. It advised him to contact his neighbour who is now responsible for the boundary.
7. The legislation from which the Ombudsman takes his powers also places some restrictions on what he may investigate. One of these concerns negligence claims about damage to property or personal injury. The Ombudsman cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
8. If Mr X had complained when the Council still owned the property we could still not have investigated because we have no jurisdiction to investigate complaints about the management of housing by social housing landlords.

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Final decision

9. The Ombudsman should not investigate this complaint. This is because it concerns a claim about damage to property due to alleged negligence by the Council. The Ombudsman cannot decide legal liability for damage or injury; this can only be determined by insurers or the courts.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman