Summary: We will not investigate Mr X’s claim for damages to his fence, that he says, was caused by a Council tree. This is because it would be reasonable to expect Mr X to proceed with his claim to the courts, to determine the extent of the Council’s liability and any financial remedy. We also cannot achieve the outcomes he wants.

The complaint

1. Mr X complains the Council has only offered to partially settle his claim for damages to his fence/post caused by a tree it owns.
2. Mr X says the full costs of his claim should be reimbursed. He says he is suffering financial stress.

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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 Mr X 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 the Council’s actions or inactions in the maintenance and management of its tree have led to damage to his property.
7. Mr X lodged an insurance claim with the Council. However, the Council decided it was only responsible for 50% of the costs claimed by Mr X.
8. It would be reasonable to Mr X to take his claim to court, rather than an investigation by us. This is because for us to form a view on his complaint, we would need to be able to decide whether the Council is liable for all of Mr X’s claimed property damage. This is a legal liability question we cannot decide. We cannot make legal findings on issues of liability for damages to someone’s property. Only insurers or the courts can make those decisions.
9. It would be reasonable for him to pursue this route because it is the one he would need to use to get the extend of the finding of legal liability needed to seek the outcome he wants. 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.
10. It follows from the above that we cannot order or recommend the Council to repair Mr X’s fence 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.

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Final decision

11. We will not investigate Mr X’s complaint because:
• it would be reasonable for him to pursue his claim to the courts to pursue the extent of the financial remedy he seeks; and
• we cannot achieve the outcomes he seeks from his complaint.

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Investigator's decision on behalf of the Ombudsman