Summary: We will not investigate Mr B’s complaint that the Council has not accepted responsibility for tree roots which have spread under his property. This is because it is reasonable for Mr B to put in a claim on the Council’s insurance, and if needed, pursue the claim at court.

The complaint

1. The complainant, who I will refer to as Mr B, says he recently found out roots from a Council owned tree have spread under his property. Mr B is concerned the roots may cause subsidence. Mr B says the Council has told him to make a claim on his home insurance. Mr B says this is not acceptable because he would have to pay an excess and it is unlikely this problem is covered by his insurance. Mr B would like the Council to sort out the problem rather than pass on the responsibility and expense to him.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Act 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 have considered Mr B’s complaint form and the Council’s response to his complaint. I have also considered Mr B’s comments in response to a draft version of this statement.

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What I found

5. The role of the Ombudsman is to investigate complaints of administrative fault. We cannot decide liability in complaints about damage to property. This is for the Council’s insurers and ultimately for the courts. Only the court can decide if the Council has been negligent. The court can decide what damages, if any, the Council should pay. Also, unlike the Ombudsman, the court can order the Council to pay damages.
6. Mr B may put in a claim to the Council’s insurers. The Council has provided Mr B with the contact details to do this.
7. If the Council does not accept it has been negligent or if Mr B is not satisfied with any remedy offered by the Council, Mr B may pursue the claim by taking the Council to court. I find it is reasonable for Mr B to do this. The fees for making a money claim at court are relatively modest and the court is in the best position to decide the matter.

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Final decision

8. We will not investigate this complaint. This is because it is reasonable for Mr B to put in an insurance claim, and if needed take the Council to court.

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Investigator's decision on behalf of the Ombudsman