Summary: The Ombudsman will not investigate whether damage to the complainant’s property was caused by the Council’s negligence. This is a matter for the courts to decide.

The complaint

1. The complainant, who I refer to here as Mrs C, has complained the Council will not meet the costs arising from damage to a fence at a house she owns. She says the damage was caused by a Council-owned tree that fell on to her 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 Mrs C said in her complaint.

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What I found

4. Mrs C said a tree owned by the Council fell onto her property causing damage to a fence. She asked the Council to pay for the damage and other costs she incurred. The Council has denied any liability for the damage.
5. Mr C’s complaint is, in effect, that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
6. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Mrs C’s position to seek a remedy in the courts, directly or through her insurers.

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Final decision

7. There is no exceptional reason Mrs C cannot seek a remedy in court and so we will not investigate this complaint.

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Investigator's decision on behalf of the Ombudsman