Summary: The Ombudsman will not investigate Mr X’s complaint about damage to his property which he says is due to a council owned tree. Mr X’s complaint is late, and the Ombudsman cannot establish liability in cases involving damage to property. It is reasonable for Mr X to use the legal remedy available to him.

The complaint

1. The complainant, whom I shall call Mr X, complains about damage to his property which he says is due to a council owned tree. Mr X wants the Council to pay for the damage.

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The Ombudsman’s role and powers

2. 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)
3. 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)
4. 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

5. 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

6. Mr X says he first contacted the Council in May 2018 about damage to his property which he claims is due to a council owned tree. The Council has so far denied liability for the damage.
7. 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 why Mr X could not have complained much earlier, and so the exception at paragraph 2 applies to his complaint.
8. Even if Mr X’s complaint was not late, it is not one we would investigate. This is because the role of the Ombudsman is to look for administrative fault. But the issue at the heart of Mr X’s complaint is damage to his 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 continue to reject Mr X’s claim for damages, it is open to him to make a claim in court. I consider it would be reasonable for Mr X to do this. The Court can then decide if the Council should pay damages and if any further remedial work is needed. These are not decisions the Ombudsman can take.

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Final decision

9. The Ombudsman will not investigate Mr X’s complaint. This is because the complaint is late, and the Ombudsman cannot establish liability in cases involving damage to property. It is reasonable for Mr X to use the legal remedy available to him.

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Investigator's decision on behalf of the Ombudsman