Summary: We will not investigate Mr B’s complaint that a Council owned tree has damaged his property. This is because it is reasonable for Mr B to pursue his compensation claim at court, which is in the best position to decide the matter.

The complaint

1. The complainant, who I will refer to as Mr B, complains that roots from a Council owned tree have damaged his property. Mr B says the Council delayed removing the tree which meant the damage became worse. Mr B says the Council delayed deciding his compensation claim and has wrongly not accepted liability for the damage to his home. Mr B also complains the Council breached data protection rules by sharing his letter of complaint with its third party insurer. Mr B would like the Council to take a range of actions including to repair the damage to his home.

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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)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. I considered information provided by Mr B.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr B’s complaint is mainly that the Council has been negligent. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
8. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
9. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his home insurer. I do not consider there is any exceptional reason why Mr B cannot do this. So, I will not investigate Mr B’s main complaint about the damage to his home.
10. Because we are not investigating the substantive matter, an investigation solely into the Council’s handling of Mr B’s compensation claim is not justified.
11. Mr B also complains about the Council sharing his letter of complaint with its third party insurer. Mr B may complain to the Information Commissioner about this. The Information Commissioner is in the best position to decide whether the Council has breached data protection laws. I find it is reasonable for Mr B to complain to the Information Commissioner about this matter.

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Final decision

12. We will not investigate Mr B’s complaint because it is reasonable for him to pursue his compensation claim at court.

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Investigator's decision on behalf of the Ombudsman