Summary: We will not investigate Mr X’s complaint, brought on his behalf by Mrs Y, about a Council tree’s roots causing damaging his property, its insurance claim and complaint processes. It would be reasonable for Mr X to follow the ongoing Council insurance claim, or to the courts as required, to pursue a legal liability finding. We cannot achieve the outcomes Mr X seeks from his complaint. We do not investigate councils’ complaint-handling where we are not investigating the core issues giving rise to the complaint.

The complaint

1. Mr X is Mrs Y’s father. Mrs Y complains on Mr X’s behalf that the Council has:
1. allowed its trees to cause root damage to Mr X’s property;
2. failed to complete Mr X’s insurance claim against it for the property damage;
3. failed to deal with complaints in a timely manner.
2. Mrs Y says Mr X is disabled and has been unable to use his garden because the damage makes it unsafe for him, which in turn has affected his health and wellbeing. She says the matter has caused her and Mr X a lot of stress and inconvenience. Mrs Y wants the Council to acknowledge its failures, and also compensate for the loss suffered over the last two years and for the stress and inconvenience. She wants the Council to resolve the insurance claim to allow remedial work to start on Mr X’s property.

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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. We provide a free service but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information from Mrs Y and the Ombudsman’s Assessment Code.

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My assessment

6. The core issue of Mr X’s complaint amounts to a claim that the Council’s actions or inactions in the maintenance and management of its tree have led to damage to his property. The Council removed the tree in autumn 2023.
7. Mr X lodged an insurance claim with the Council about the damage, which is ongoing. The insurance route is the appropriate one for Mr X’s claim of liability for damage to his property, rather than an investigation by us. This is because for us to form a view on this core complaint, we would need to be able to decide whether the Council is legally liable for Mr X’s claimed property damage. This is a liability question we cannot decide. We cannot make findings on issues of legal liability for damages to someone’s property. Only insurers or the courts can make those decisions.
8. We also cannot intervene in an ongoing insurance claim process. If the outcome of Mr X’s insurance claim does not resolve the matter to his satisfaction, or he decides to go to court before the claim is determined, it would then be for the courts to decide his liability claim. We recognise Mr X might be reluctant to make a legal claim at court. But it would be reasonable for him to pursue this route because it is the one he would need to use to get the finding of legal liability required to seek the repairs outcome he wants, should the insurance process not do so. It would also be reasonable for Mr X to take the matter to court because the courts can issue legally binding orders on the parties, whereas we can only make recommendations to councils.
9. It follows from the above that we cannot order or recommend the Council to repair Mr X’s garden or provide any other financial remedy in this matter, as that outcome would require us to first make a legal liability decision on the property damage issue, a decision we cannot make. That we cannot achieve the outcomes Mr X seeks is a further reason why we will not investigate.
10. The Council’s response to the insurance claim appears to have taken a long time. But Mr X may include the impacts he considers have been caused to him by the time it has taken within the insurance claim, or during any court claim he makes.
11. Mr X’s complaint also includes concerns about the way the Council dealt with complaints made by Mrs Y on his behalf regarding the tree and insurance matter. We do not investigate councils’ complaint-handling in isolation where we are not investigating the core issues giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.

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Final decision

12. We will not investigate Mr X’s complaint because:
• it would be reasonable for him to pursue the ongoing claim with the Council’s insurer, then to the courts as required, to get the legal liability finding he seeks; and
• we cannot achieve the outcomes he seeks from his complaint; and
• we do not investigate councils’ complaint-handling where we are not investigating the core issues giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman