Summary: We will not investigate Mr and Mrs X’s complaint, brought by Mr Y, about the Council refusing to agree their insurance claim for damage caused by its tree to their wall, and it not properly maintaining the tree. It is reasonable for Mr and Mrs X to pursue their legal liability claim at court.

The complaint

1. Mr and Mrs X live in a property which used to have a Council-owned tree nearby. The Council has since removed the tree. Mr Y is one of Mr and Mrs X’s local ward councillors and complains on their behalf that the Council:
1. has refused to pay out for damage to Mr and Mrs X’s wall by its tree;
2. failed to adequately maintain the tree prior to its removal.
2. Mr Y has concerns as a councillor that Mr and Mrs Xs’ and other residents’ insurance claims are not being taken seriously due to the procedure the Council is using. He wants the Council to review Mr and Mrs X’s insurance claim and meet half of the cost of the damage to their wall, and review its insurance claims processes.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. 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; or
• we cannot achieve the outcome someone wants; or
• it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information from Mr and Mrs X and Mr Y, and the Ombudsman’s Assessment Code.

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My assessment

7. We cannot determine whether a council is liable for damage to someone’s property. Only a council and its insurers or the courts can make those decisions. The Council has denied any legal liability for the damage to Mr and Mrs X’s wall. As Mr and Mrs X disagree with the outcome of their claim of damages against the Council, they would need to pursue the matter at court. The court could consider whether it was any action or inaction by the Council regarding the tree’s maintenance which led to damage to the wall. It is reasonable for them to take their claim to court because it is now only a court which can determine if the Council bears any liability for their property damage. We cannot determine the level of liability to which this or any other council should be held. It is also reasonable for Mr and Mrs X to pursue the matter at court because it can issue binding orders on the parties, whereas we can only make recommendations to councils.
8. We note Mr Y has sought to widen the complaint to be about the Council’s insurance claim assessment processes, by seeking a review of them. It is for councils to put in place processes to deal with insurance claims. Officers are entitled to make decisions on liability claims as they see fit in each case, within their processes. We cannot order a council to change their procedures. In any event, the core matter in this complaint is a legal liability disagreement between the Council and Mr and Mrs X which can only now be resolved by a court, as explained above. If the Council has erred in its decision on their claim because of a problem with its current insurance claim processes, then the court could consider the evidence for that allegation. Mr Y’s request for a review of the Council’s insurance processes is a broader ‘campaign’ issue raised primarily on behalf of himself and other councillors within those roles. As local representatives, it would be for Mr Y and other similarly concerned colleagues to use their positions to pursue this issue with the Council on behalf of all their area’s residents as they see fit.

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Final decision

9. We will not investigate Mr and Mrs X’s complaint because it is reasonable for them to pursue their legal liability claim against the Council at court.

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Investigator's decision on behalf of the Ombudsman