Summary: We will not investigate Mr X’s complaint about damage to his relative’s property allegedly caused by a tree belonging to the Council. This is because it would be reasonable to expect Mr X to proceed with his claim to courts to determine the Council’s liability for the claimed loss. Also, we cannot achieve the outcome requested.

The complaint

1. Mr X complains about the way the Council dealt with his complaints about damage caused to his relative’s - Mr Y’s - property by a Council owned tree.
2. Mr X says he has been caused time and trouble in trying to get information from the Council. Mr X would like the Council to repair the damage to Mr Y’s property.

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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 in Mr X’s complaint amounts to his claim the Council’s actions/ inactions in the maintenance and management of its tree have led to damage to his relative’s property.
7. Mr X’s claim was turned down by the Council and he was advised to seek legal advice.
8. Mr X went back to the Council with a request for it to clear Mr Y’s garden of the remains of its tree and carry out remedial repairs. He also asked for a report concerning its tree.
9. The Council confirmed it had removed a ‘branch’ from Mr Y’s garden. It apologised for any inconvenience caused in the delay in removal. It said its previous two inspections had not seen any obvious matters needing attention until Mr Y pointed it out to the Tree Officer.
10. The Council answered Mr X’s continuing queries by advising it had no report on its tree. And it advised that the burden of proof rested with Mr X/Mr Y to prove any Council negligence had caused their claimed losses.
11. We will not investigate. It would be reasonable to Mr X to take his claim to court. This is because, for the Ombudsman to form a view on his complaint, we would need to be able to decide whether the Council is liable for the claimed property damage. We cannot make legal findings on issues of liability for damages to someone’s property. Only insurers or the courts can make those decisions.
12. Therefore, it is appropriate for Mr X to pursue this route because it is the one he would need to use to get the finding of legal liability to explore the repair outcome sought. Only the courts can issue legally binding orders on the parties, whereas we can only make recommendations to councils.
13. It follows from the above, we cannot order or recommend the Council carries out remedial repairs Mr Y’s property. That we cannot achieve the outcomes Mr X seeks is a further reason why we will not investigate.
14. Where we are not investigating the main issue in the complaint we would not separately look at the Council’s handling of the complaint itself. This is because it is not a good use of public money given Mr X’s alternative remedy on his core issue.

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Final decision

15. We will not investigate Mr X’s complaint because:
• it would be reasonable for him to pursue his claim to courts to determine the Council’s liability for the claimed losses; and
• we cannot achieve the outcome he seeks from his complaint.

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Investigator's decision on behalf of the Ombudsman