Summary: Mr X complains the Council lied in relation to his claim on its insurance. He wants the Council to compensate him for financial loss following a claim on his own insurance for damage he says was caused by Council owned trees. The Ombudsman will not investigate this complaint as this matter relates to determination of liability and/or awards for compensation which are matters that can only be determined by the courts.

The complaint

1. The complainant, who I shall call Mr X, says the Council, acted fraudulently in failing to acknowledge the statement of concern that he made in an email dated July 2014. In this email Mr X advised the Council that tree roots may damage his property.
2. Mr X wants the Council to apologise and accept full responsibility for the damage caused and, any future damage to his property caused by tree roots either directly or by contributing to the problem.
3. He also wants the Ombudsman to determine an appropriate amount of compensation for the Council to pay in his financial losses because he had to claim on his own insurance.

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The Ombudsman’s role and powers

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 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 discussed his comments on the draft version of this decision with him.

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What I found

7. Mr X made a claim on the Council’s insurance. He says the Council did not take reasonable steps in preventing damage to his property. He says as result, roots from Council owned trees entered and damaged his drainpipe.
8. The insurer refused the claim. Mr X claimed on his own insurance, which was successful. He complained to the Council.
9. Mr X says the Council deliberately omitted to refer to an email sent to the Council in 2014. The Council’s response to his complaint states it understood the email of 2014 was about him having to replace 2 fence posts because of damage from tree roots. It says:

“It was considered at the time that it was highly unlikely that tree roots would cause this type of damage as roots will grow round structures (it’s an easier path for them).”.

10. I understand the Council’s tree officer carried out a survey at Mr X’s home in 2014. Mr X says the officer could not have failed to notice the drain cover signalling a drainage system below ground. He also says as the Council was the previous owner of his home, it should have been aware of the existing drainage system.

Assessment.

11. The Council has told Mr X that it was not put on notice of potential damage to his property. He says is has also suggested his waste pipe was damaged prior to the tree roots blocking the pipe.
12. The role of the Ombudsman is to consider complaints about administrative fault. I understand Mr X wants the Council to accept that he did advise it of the potential for damage to his property from tree roots in 2014. He says the Council is lying by denying he did so. However, he wants the Ombudsman to require the Council to pay compensate him for the loss of no claims bonus on his house insurance and other expenses. In effect this would mean the Ombudsman deciding the Council was responsible for the damage to his property.
13. The Ombudsman cannot establish liability in complaints involving damage to property. Claims for damage to property are a matter for the Council’s insurers and, ultimately, for the courts.
14. The Council’s insurers have rejected Mr X’s claim. If he believes:
• the Council was negligent in failing to confirm that Mr X warned them in 2014 of the possibility of damage to his property: and/or
• The Council failed to take action to prevent the damage

it is open to him to make a claim in court. I consider it would be reasonable for him to do so. This is because only the court can decide if the Council has been negligent and what damages, if any, the Council should pay Mr X.

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Final decision

15. I will not investigate this complaint. The Ombudsman cannot determine liability for damage to property. It is reasonable for him to ask the courts to decide whether the Council is responsible.

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Investigator's decision on behalf of the Ombudsman