Summary: The Ombudsman will not investigate Mrs X’s complaint about damage to her property she says was due to a tree on council land. This is because the Ombudsman cannot establish liability in cases involving damage to property. It is reasonable for Mrs X to use the legal remedy available to her.

The complaint

1. The complainant, whom I shall call Mrs X, says a tree on council land close to her property has caused damage. Mrs X says the roots of the tree caused her fence to collapse, damaging her shed. Mrs X wants the Council to assess the damage, the tree removed, and compensation.

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The Ombudsman’s role and powers

2. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
3. 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

4. I considered Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before reaching a final decision on her complaint.

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What I found

5. Mrs X has complained to the Council about the damage to her property. An officer has visited her home, although the Council says it could not gain access. A council officer wrote to Mrs X and said “the Ash tree and some of the vegetation is close to your boundary and I shall make arrangements for these to be removed…I was unable to see any evidence that the tree roots were the causal factor why the fence panel / post had collapsed or deteriorated.”
6. Mrs X says the tree has now been removed, but the roots remain. The Council has said it will not consider Mrs X’s complaint any further under its complaints process. It has said any claim for damages needs to be pursued through its insurance section.
7. The role of the Ombudsman is to look for administrative fault. But the issue at the heart of Mrs X’s complaint is damage to her property – effectively due to the alleged negligence of the Council. The Ombudsman is unable to establish liability in such matters, which are for the Council’s insurers, and ultimately, the courts. If the Council’s insurers reject a formal claim from Mrs X, it is open to her to make a claim in court. The Court can then decide if the Council has been negligent, if it should pay damages, and if any further remedial work is needed. These are not decisions for the Ombudsman.

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Final decision

8. The Ombudsman will not investigate Mrs X’s complaint. This is because the Ombudsman cannot establish liability in cases involving damage to property. It is reasonable for Mrs X to use the legal remedy available to her.

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Investigator's decision on behalf of the Ombudsman