Summary: We will not investigate this complaint about damage to property caused by a Council owned tree. It is reasonable to expect Ms X to make a claim on the Council’s insurance. If this fails, she can take court action for the compensation she seeks.

The complaint

1. Ms X complains the Council stopped maintaining a tree in a park next to her home. She says this has caused tree roots to damage her property and the Council has delayed removing the tree.

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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 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 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 another body better placed to consider this complaint (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 provided by Ms X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. We cannot determine damage claims, that is, whether the Council is legally responsible for the damage to Ms X’s property and if it should pay for the damage and compensate her. Such matters can only be decided by insurers or the courts.
8. If her insurance claim fails, there is a relatively simple, low-cost procedure open to anyone to make a money claim in court, so Ms X could do this directly or via her own home insurers.
9. As we cannot achieve the outcome Ms X seeks, and as there is a procedure open to her which is reasonable for her to take, we will not investigate this complaint.

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Final decision

10. We will not investigate Ms X’s complaint because it is reasonable to expect her to make a claim on the Council’s insurance or make a claim in court.

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Investigator's decision on behalf of the Ombudsman