Summary: We will not investigate Ms X’s complaint about maintenance of a Council-owned tree near her home. There is insufficient evidence of fault to warrant an investigation. If Ms X considers the Council liable for damage to her property, this is better considered by the Council’s insurers or the courts.

The complaint

1. Ms X complains the Council has refused to appropriately maintain a tree near her home. She says falling debris from the tree is damaging her property, causing inconvenience and financial loss. She wants the Council to remove or properly maintain the tree and compensate her for damage to her garden.

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The Ombudsman’s role and powers

2. 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
• there is another body better placed to consider this complaint.

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

3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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)

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. In its complaint response, the Council said it had carried out a site inspection to assess the tree. It said the tree appeared healthy and was not causing a safety issue, so it would not carry out further maintenance works. It advised Ms X that she was entitled to cut back any overhanging branches to the boundary of her property.
8. We will not investigate this as there is insufficient evidence of fault. The Council’s position appears in line with its published policy. It has appropriately advised Ms X of her right to cut back the tree to her boundary, if she wishes to do so. There is insufficient evidence of fault to warrant an investigation.
9. We will also not investigate Ms X’s complaint about alleged damage to her property. We cannot decide whether a Council is liable for any damage and whether it should pay Ms X compensation. This is better considered by the Council’s insurers and if necessary, the courts. If Ms X considers the tree has caused damage to her property and that the Council is liable, it is open to her to submit a claim to the Council’s insurers. If she is dissatisfied with the outcome, it is reasonable for her to take the matter to court.

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Final decision

10. We will not investigate Ms X’s complaint because there is insufficient evidence of fault and if she considers the Council liable for damage to her property it is open to her to submit a claim to the Council’s insurers and if necessary, go to court.

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Investigator's decision on behalf of the Ombudsman