Summary: We will not investigate this complaint about damage caused to Mr X’s property due to a Cherry Tree on land belonging to the Council. This is because the courts are best placed to determine any Council negligence for damage. It is therefore reasonable to expect Mr X to take his negligence claim to court.

The complaint

1. Mr X complains that his wall and property have suffered damage due to an overgrown Cherry Tree on Council land.
2. Mr X also says he has been caused an emotional distress. He would like the Council to consider his complaint fairly, settle the insurance complaint, provide him with compensation for his time and trouble and complete all his requests made under the Freedom of Information Act

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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).
4. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

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

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My assessment

6. We will not investigate. Mr X is effectively complaining the Council has been negligent. Deciding about 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. 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.
7. I cannot decide whether an organisation has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mr X’s position to seek a remedy in the courts, directly or via his insurers. I do not consider there is any exceptional reason why Mr X cannot do this.
8. I also consider it reasonable for Mr X to take his FOI complaint to the Information Commissioner’s Office as the specialist information rights agency.
9. And finally, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue. It is also the case that Council complaint procedures can exclude matters that can be dealt with more appropriately in a court of law.
    

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Final decision

10. We will not investigate Mr X’s complaint because it is reasonable to expect him to take his negligence claim to court to protect his property.

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Investigator's decision on behalf of the Ombudsman