Summary: We will not investigate this complaint about damage caused to the complainant’s garden due to tree roots from a property belonging to the Council. This is because we cannot compel the Council to repair her garden or decide what the Council should pay towards the repairs. The court is best placed to determine liability and calculate claims for damages. It is therefore reasonable to expect the complainant to go to court to resolve her claim for damages.

The complaint

1. In summary, Miss X complains about the way the Council has responded to her claim for damages due to tree roots from a neighbouring garden damaging her garden.
2. She says the Council has abdicated its responsibility to its tenant. She would like the Council to admit liability, pay for her garden to be made safe, provide a barrier to prevent further damage and, cut the tree back.

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The Ombudsman’s role and powers

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. I also considered the Ombudsman’s Assessment Code.

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My assessment

5. We will not investigate as it is reasonable to expect Miss X to take her dispute with the Council to court as a claim for damages to protect her property. There is a free and simple procedure in the county court for dealing with small claims.
6. We have no powers to compel the Council to pay for the repairs or decide liability while the Court, as a higher authority than the Ombudsman, does.

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Final decision

7. We will not investigate Miss X’s complaint because it is reasonable to expect her to take her claim for damages to court.

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Investigator's decision on behalf of the Ombudsman