London Borough of Merton (24 011 651)
Category : Environment and regulation > Trees
Decision : Closed after initial enquiries
Decision date : 13 Dec 2024
The Ombudsman's final decision:
Summary: We will not investigate this complaint about the Council’s actions concerning insurance claims for damage to properties caused by a tree. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable for the complainant to make a claim to the Council’s insurers in the first instance and then pursue his claim through the courts if necessary. Only the courts can determine liability.
The complaint
- Mr X complains for himself and his neighbours, Mrs Y and Mrs Z.
- He says the Council has failed to manage the growth of a tree outside their homes which has caused Mrs Y and Mrs Z’s home to subside and has also damaged a joint drain serving both homes.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
How I considered this complaint
- I considered information provided by Mr X and the Council.
- I considered the Ombudsman’s Assessment Code.
My assessment
- We cannot consider the concerns about the cause of subsidence to Mrs Y and Mrs Z’s home. They have already made an insurance claim and the matter is ongoing.
- Mr X confirms neither him nor Mrs Y and Mrs Z have made a claim against the Council for damage caused to the drain by the tree.
Final decision
- We will not investigate Mr X’s complaint because we cannot determine liability claims for damage to property. These are legal claims which may only be determined by insurers or the courts. It is normal procedure for people claiming damages caused by the Council, to submit an insurance claim against the Council. This will then be treated as a claim rather than a complaint and passed on to its insurers or legal team for a response on liability. A court can then make a judgement where the Council does not accept insurance liability.
Investigator's decision on behalf of the Ombudsman