Summary: We will not investigate Ms X’s complaint about the Council not removing its tree near her property, and how it dealt with her reports and complaint. This is because Ms X’s core complaint is a dispute between her and the Council about legal liability for damage to her property. It would be reasonable for Ms X to take her claim to court. Further, we do not investigate councils’ correspondence and complaint handling where we are not investigating the main issue in the complaint.

The complaint

1. Ms X complains about the Council’s failure to respond to her repeated communications about its tree that is damaging her property.
2. Ms X says she sent in expert evidence confirming the Council tree is causing subsidence to her property, so it needs to be removed. Ms X also says she has been caused significant stress and financial loss as she wishes to sell the property.

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The Ombudsman’s role and powers

3. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), 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 from Ms X, and also our previous consideration of Ms X’s complaint: 23012057.

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My assessment

6. Ms X says her house has been damaged by a Council tree. She has commissioned expert evidence which she considers supports her claim. The Council does not accept its tree is responsible and has dismissed her claims which was first made in 2018.
7. As we previously advised Ms X when considering her previous complaint, we consider this to be a dispute over who is liable for the claimed property damage. We cannot decide liability in property damage claims. Only insurers and the courts can do this. Ms X’s allegations of damage would be a claim she could raise in court given the Council’s insurers have dismissed her claim. It would be reasonable for her to pursue this route to get the liability finding and outcome she seeks as the Council’s insurers do not agree her claim. The courts have the relevant expertise and standing to make liability decisions, and those decisions are legally binding on all parties, unlike ours which may only make recommendations to councils.
8. Ms X also complains about the Council not responding to her concerns. We do not investigate councils’ contacts and complaint handling in isolation where we are not also investigating the main issue as it is not a good use of our resources. This practice applies here so we will not investigate the side issue either.

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Final decision

9. We will not investigate Mrs X’s complaint as:
• it would be reasonable for her to make a liability claim for any damage she considers has been caused by the trees to court and
• we do not investigate councils’ correspondence and complaint handling where we are not investigating the main issue in the complaint.

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Investigator's decision on behalf of the Ombudsman