Summary: We will not investigate this complaint about a tree Mrs Y suspects may be damaging her property. There is insufficient evidence of injustice caused to the complainant. In any event, should damage be shown to have happened, the matter would be best dealt with as a claim for compensation via the courts.

The complaint

1. Mr X complains on behalf of his mother, Mrs Y, that the Council has not taken action to inspect a tree in line with its inspection schedule to determine whether it is causing damage to Mrs Y’s property. Mr X says he has gone to significant time and trouble and his mental health has been affected. He wants the Council to pay them a financial remedy and pay for a building survey.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:

• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6))

3. 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

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says in 2017 a building survey at his mother’s property identified a tree was a risk to the property. He has been in contact with the Council at several points since then, asking it to confirm what it has found at inspections. The Council says it recently carried out some pruning to create a clearance of 2 metres between the tree and Mrs Y’s property, in line with its tree policy.
7. Mrs Y and Mr X are concerned the tree will cause damage to Mrs Y’s property, or that it may already be doing so. The Council advised Mr X to obtain a survey to determine if this was the case.
8. We cannot say whether damage has been caused to Mrs Y’s property and we cannot consider hypothetical, future injustice. There is insufficient evidence of injustice to warrant investigation by the Ombudsman. Mr X explained he has also gone to time and trouble and his mental health has been affected. This, in the context of there being no evidence of damage (the substantive claimed injustice in this case), is not sufficient injustice in itself to warrant an investigation by the Ombudsman.
9. However, in any event, if damage were found to have happened, we would be unlikely to investigate. This is because the matter would be better considered as a claim via the Council’s insurers and then the small claims court, if necessary. It would be reasonable to expect Mrs Y and Mr X to use their right to approach the courts, as we cannot compel the Council to pay compensation for damage to property. Only a court can decide whether:
• the authority should have dealt with the problem before it caused the complainant (or their property) harm;
• the complainant should have taken steps to avoid the harm;
• the Council is liable to pay damages for any loss or injury.

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Final decision

10. We will not investigate Mrs Y’s complaint because there is insufficient evidence of injustice to warrant investigation.

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Investigator's decision on behalf of the Ombudsman