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

The complaint

1. The complainant, whom I shall call Miss X, says trees on council land have damaged her driveway and their roots make access difficult.

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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 Miss X’s complaint to the Ombudsman and the information she provided. I also gave Miss 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. The role of the Ombudsman is to look for administrative fault. But the issue at the heart of Miss X’s complaint is damage to her property. 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 for damages from Miss X, it is open to her to make a claim in court. The Court can then decide if the Council should pay damages and if any further remedial work is needed. These are not decisions for the Ombudsman.
6. Miss X is also unhappy with how the Council has dealt with her complaint. But we will not investigate a council’s complaint handling if we are not going to look at the substantive issue that led to the original complaint. This applies here.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman