Summary: We will not investigate Mr X’s complaint the Council delayed in accepting liability for damage to his property. That is because the complaint is late. In addition, liability and damages is a legal issue only the courts can decide.

The complaint

1. Mr X said it took the Council five years to remove tree roots that were causing damage to his property. He said the Council failed to act after he first reported it. He said he had to instruct his own surveyor. He said the Council has not removed the tree, therefore is concerned about a recurrence of the problem. Mr X wants the Council to financially compensate him for not resolving the issue sooner.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
6. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

7. I considered information provided by the complainant and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Mr X’s complaint about how the Council responded to his reports of damage in 2018 are late. We expect a complainant to come to us within twelve months of being aware of a matter. It was reasonable for Mr X to complain sooner if the Council had not responded to his concerns.
10. However, even if the complaint was not late, we would not investigate. That is because claims for damages are legal matters. We could not have resolved the dispute between Mr X and the Council even if he had complained to us sooner. These are legal matters only insurers and the courts can decide. The Council has settled Mr X’s claim; however, he could have pursued this sooner.
11. We will also no investigate Mr X’s complaint the Council has not removed the tree. The Council has set out its reasons for this and applied its policy. There is not enough evidence of fault to justify our involvement.

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Final decision

12. We will not investigate Mr X’s complaint because the complaint is late and the substantive matter is best dealt with by the courts.

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Investigator's decision on behalf of the Ombudsman