Summary: We will not exercise discretion to investigate this complaint about damage caused to the complainant’s drains by a tree on council land. This is because it is reasonable to expect the complainant to go to court to determine any liability owed by the Council.

The complaint

1. Miss X complains about damage to her drains from a tree on Council land. She says she has made a claim on the Council’s insurance but there has been no progress apart from a visit by a surveyor.
2. She would like the Council to repair the damage.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.

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My assessment

6. I will not exercise discretion to investigate because the matter of liability for damages is usually between the Council’s insurers and the courts.
7. Miss X has already made an insurance claim. It is reasonable for her now to take the matter to court to protect her private property. The court can decide liability and if Mrs X is entitled to damages.
8. There is a simple procedure in the county court for dealing with small claims. Usually, solicitors are not required so the only costs will be the court fees.

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Final decision

9. I will not exercise discretion to investigate. This is because it is reasonable to expect Miss X to go to court to decide the Council’s liability.

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Investigator's decision on behalf of the Ombudsman