Summary: Mr X complains about damage to a block of garages he says was caused by trees on council land. Mr X is also unhappy about a lack of ongoing work to the trees, and recent work to the trees which caused further damage to the garages. The Ombudsman will not investigate Mr X’s complaint. Much of it is late and there is no good reason for the Ombudsman to exercise its discretion to investigate. It was also reasonable for Mr X to use the legal remedy available to him, and it is unlikely we could add anything to the Council's responses.

The complaint

1. Mr X complains trees on council land caused damage to a block of garages. Mr X owns a garage in the block. Mr X says that trees on council land caused subsidence to the garages. Mr X is unhappy he now has higher insurance premiums and says the Council has not carried out ongoing remedial work to the trees. When work was carried out in June 2019, it caused damage to the roof of the garage block.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), 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)

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How I considered this complaint

6. I considered Mr X’s complaint to the Ombudsman and the information he provided. I also gave Mr X the opportunity to comment on a draft statement before reaching a final decision on his complaint.

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What I found

What happened

7. Mr X owns a garage in a block shared with other residents. In 2011, the Residents Association (RA) of which Mr X is a member, submitted a claim to the Council’s insurers. The claim was for damage to the garage block from the roots of trees on council land. The Council refused the claim and in 2014/15 the garages were demolished and rebuilt.
8. Mr X contacted the Council in 2017 about a lack of continued maintenance to the trees. The Council decided the trees did not need work. Mr X continued to contact the Council about his concerns, and in February 2019, the Council asked its contractor to carry out some pruning to the trees. When the pruning took place, the Council’s contractor damaged the roof of the garage block. The Council arranged for it to be repaired. The Council made a payment of £250 to the RA as a gesture of goodwill. Mr X has asked the Council to pay £5231.45 for costs and expense for dealing with the matter since June 2011. The Council has refused Mr X’s request.

Assessment

9. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason Mr X could not have complained much earlier. The exception at paragraph 3 therefore applies to much of his complaint. In reaching this decision I have taken into account the points I make below.
10. The role of the Ombudsman is to look for administrative fault. We cannot establish liability in cases involving damage to property. Such matters are for the Council’s insurers, and ultimately, the courts. When the Council refused the RA’s claim for damages, it was open to them to make a claim in court. I consider it was reasonable for them to do so. The Court could have decided if the Council was responsible for the damage to the garages, and what remedial work, if any, it should fund. These are not decisions the Ombudsman could ever take.
11. Mr X’s complaint to the Council in 2017 about the lack of ongoing maintenance is also late. As above, I see no reason Mr X could not have complained to the Ombudsman much earlier.
12. Mr X’s complaint about damage to the roof of the garage block is not late. In deciding whether to investigate we need to consider various tests. These include what we could achieve for the person complaining. The Council has arranged for repairs to be carried out and has offered £250. On balance, it is unlikely an investigation by the Ombudsman would achieve anything more. Mr X wants the Council to pay £5231.45 and is unhappy with his increased insurance premiums. But these two points flow from events and issues we will not consider for the reasons set out above. An investigation by the Ombudsman into Mr X’s complaint is not therefore appropriate.

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Final decision

13. The Ombudsman will not investigate Mr X’s complaint. This is because the complaint is late, it was reasonable for Mr X to use the legal remedy available to him, and it is unlikely we could add anything to the Council’s response.

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Investigator's decision on behalf of the Ombudsman