Summary: We will not investigate Mr C’s complaint that his driveway has been damaged by tree roots from Council-owned trees. This is because it is reasonable for Mr C to put in a compensation claim to the Council, and if needed, take the Council to court.

The complaint

1. Mr C complains his driveway has been badly damaged by tree roots. Mr C says the damage is the result of the Council failing to inspect and maintain these trees for several years. Mr C says the Council has agreed to remove these trees but has refused to repair his driveway. Mr C would like the Council to repair his driveway or pay compensation so he can arrange for this to be done.

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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 Act 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)

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How I considered this complaint

4. I considered information provided by Mr C.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr C complains his driveway has been damaged because of the Council’s failure to maintain trees it is responsible for. So, in effect, Mr C complains the damage is the result of negligence by the Council.
7. We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
8. Mr C may put in a compensation claim to the Council’s insurers for his costs repairing or replacing his driveway. If the Council’s insurers do not provide an outcome Mr C is satisfied with, he may pursue his claim by taking the Council to court.
9. Deciding 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.
10. 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 and we cannot order a party to pay damages.
11. I find it is reasonable for Mr C to take the Council to court if needed.
12. The fee for making a claim is relatively modest and Mr C may ask for the fee to be reimbursed if his claim is successful.
13. So, we will not investigate this complaint.

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Final decision

14. We will not investigate Mr C’s complaint because it is reasonable for him to take the Council to court.

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Investigator's decision on behalf of the Ombudsman