Summary: The Ombudsman will not investigate Mr X’s complaint about damage to his property from a tree and the conduct of council officers. This is because we cannot establish liability in complaints involving damage to property. Also, it is unlikely we could add anything to the Council’s response or achieve the outcome Mr X wants.

The complaint

1. The complainant, whom I shall call Mr X, complains about damage to his property from a council owned tree. Mr X is also unhappy with the conduct of two council officers in connection with his claim for damages. Mr X wants the two officers dealt with under the Council’s disciplinary procedure, his claim for damages paying in full, compensation for time spent pursuing his complaint, and an apology.

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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:

• 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. (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 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

5. Mr X has made a claim for damages from the Council due to a council owned tree. Mr X says the roots of the tree have damaged his property. He is also unhappy with the conduct of two council officers he has dealt with because of the claim for damages.
6. In its response to Mr X’s complaint the Council said:
• It will not consider the issue of damage to his property through the complaints process. Such matters are dealt with by its insurance section and Mr X accepted a settlement in November 2019.
• The two officers had been spoken to and their recollection of events was different to Mr X’s. The Council would not therefore be pursuing the matter through the disciplinary process.
7. The Ombudsman’s role is to look for administrative fault. But the issue at the heart of Mr X’s complaint is damage to his property from a council owned tree. The Ombudsman cannot establish liability in complaints involving damage to property. Such matters are for insurers and the courts. If Mr X was unhappy with the Council’s offer, then he could have pursued the matter in court. I see no reason he could not have used this option. If Mr X now wants to challenge the Council’s settlement, then he should take his own legal advice.
8. Mr X is also unhappy with the conduct of two council officers. The Council has spoken to the officers and there is a clear difference of opinion about what happened and was said. If we were to investigate, it is unlikely we could add anything to the Council’s response. We also have no powers to instruct a council to discipline their staff – such decisions are for the Council as an employer. We cannot therefore achieve the outcome Mr X wants, and so an investigation is not appropriate.
9. Mr X is also unhappy with the way the Council has dealt with his complaint. But we will not investigate a council’s complaint handling if we are not going to look at the original issue which led to the complaint. This applies here.

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Final decision

10. The Ombudsman will not investigate Mr X’s complaint. This is because we cannot establish liability in complaints involving damage to property, and it is unlikely we could add anything to the Council’s response or achieve the outcome Mr X wants.

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Investigator's decision on behalf of the Ombudsman