Summary: We will not investigate this complaint about maintenance of a tree. This is because we are unlikely to find fault and it is reasonable for Miss X to seek remedy for any damage through the courts.

The complaint

1. Miss X complains that a tree outside her property is causing root damage to her driveway and public footpath. Miss X wants the Council to remove the tree and resurface the footpath next to her property.

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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 not enough evidence of fault to justify investigating. (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 Miss X and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Miss X says a tree outside her property has caused root damage to her driveway and public footpath.
8. Miss X complained to the Council; it has inspected the tree and decided the tree did not need to be removed. The Council says it will continue to inspect the tree in line with its maintenance policy. As the Council properly considered if the tree should be removed, it is unlikely I would find fault.
9. The Ombudsman does not investigate claims of negligence or liability regarding damage to private property by a Council, as these are typically matters for the courts to decide. Miss X can contact the Council’s insurers and if this does not resolve the matter she can make a claim in court.

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Final decision

10. We will not investigate Miss X’s complaint because we are unlikely to find fault and it is reasonable for her to seek remedy for any damage through the courts.

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Investigator's decision on behalf of the Ombudsman