Summary: We will not investigate Miss X’s complaint on how the Council dealt with her concerns about damage being caused to her driveway by the roots of one of its trees. Miss X’s complaint alleges the Council is liable for damage to her property, which is a legal matter. The Ombudsman cannot make findings of legal liability for property damage; this is a matter only councils’ insurers or the courts can determine. It is reasonable for Miss X to make a claim against the Council’s insurers and put her claim before the courts if required.

The complaint

1. Miss X lives in a property with a driveway near a Council-owned tree. She complains the Council:
1. failed to properly deal with her concerns about damage to her driveway caused by the tree’s roots;
2. initially failed to reply to her correspondence about the tree.
2. Miss X says the tree’s roots are damaging her driveway. She says she has stress and worry that the roots will also damage other parts of her property, such as her drains. Miss X wants the Council to pay for a structural engineer to assess the damage to her property, remove the tree, and pay to replace her driveway.

Back to top

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)

Back to top

How I considered this complaint

5. I considered information from Miss X, and the Ombudsman’s Assessment Code.

Back to top

My assessment

6. The claim at the core of Miss X’s complaint is that the Council’s tree has damaged her driveway, and the Council is therefore liable for that damage. The Ombudsman’s role is to consider complaints of administrative fault. We cannot decide liability in claims about property damage. Liability for damage to property is a legal matter for councils’ insurers and ultimately for the courts to determine.
7. Miss X may wish to make a claim to the Council’s insurers to pursue the outcomes she seeks, if she has not already done so. The Council has provided Miss X with the contact details to use to make a claim. If its insurers reject Miss X’s claim, it would be reasonable for her to put it before the courts to rule on whether the Council is liable for damage to her property. It would be reasonable for her to do so because it would then only be the courts which could make the decision on legal liability she seeks. Also, the courts can make binding orders on the parties for compensation and financial redress, whereas the Ombudsman can only make recommendations for remedies. Furthermore, the fees for making a claim are relatively modest and Miss X may ask the court for reimbursement of those fees or costs if her claim succeeds.
8. Miss X has also complained about the Council’s initial failure to reply to her correspondence about the tree and other issues with officers’ responses. The Council accepts it failed several times to respond to Miss X’s attempts to register the issue. But where we are not investigating the core issue which gave rise to a claim or complaint, we will not investigate a council’s internal processes in isolation. It is not a good use of our limited resources to do so. That limitation applies here, so we will not investigate this part of Miss X’s complaint.

Back to top

Final decision

9. We will not investigate Miss X’s complaint because:
• the complaint is a claim the Council is liable for damage to her property caused by its tree, which is a legal matter the Ombudsman cannot decide; and
• it is reasonable for Miss X to make a claim for the alleged damage to the Council’s insurers and ultimately to the courts if required; and
• we will not investigate councils’ internal processes in isolation where we are not investigating the core issue which gave rise to the complaint.

Back to top

Investigator's decision on behalf of the Ombudsman