Summary: We will not investigate Mrs C’s complaint about a highway tree which is damaging the pavement and parts of her property. This is because it is reasonable for Mrs C to pursue these matters at court.

The complaint

1. Mrs C complains roots from a highway tree outside her home are damaging her driveway and boundary wall, and lifting the pavement which is now a trip hazard. Mrs C complains the Council has just done temporary repairs to the pavement and has not considered long term solutions to the problem. Mrs C also says in response to her complaint the Council did not send her an insurance claim form and included incorrect contact information for the Ombudsman.

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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 Act 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

4. I considered information provided by Mrs C and have viewed the area on Google Streetview.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We do not normally investigate complaints about damage to property. This is because such complaints are ultimately about whether an organisation has been negligent. Our role it to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
7. Mrs C may put in a claim to the Council’s insurers for the claimed damage to her property, and if needed, pursue her claim at court. Because of the seriousness and likely complexity of the issue complained about, I find it is reasonable for Mrs C to do this.
8. The Council has assessed the condition of the pavement and has decided that there are no actionable defects which meet the Council’s criteria for repair. We generally take the view the courts are in the best position to decide whether a local highways authority has met its statutory duty to maintain the highway. This is because the level of maintenance, frequency of inspection and threshold for repair is not set out in law and is open to interpretation.
9. If a person considers that a highways authority has failed to maintain a highway it is responsible for, the person affected can apply to the magistrates court for an order to be made under section 56 of the Highways Act 1980. This order requires the highways authority to carry out the work needed to the highway.
10. Mrs C may use this process to try to get the Council to repair the pavement and I find it is reasonable for Mrs C to do this. The court is in the best position to decide whether the Council has met its legal duty to maintain this highway. Also, unlike the Ombudsman, the court can order the Council to do the required work.
11. Because we are not investigating the main issues complained about, an investigation solely into the Council’s handling of Mrs C’s complaint would not be a good use of our limited resources or achieve a meaningful outcome for Mrs C.

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Final decision

12. We will not investigate Mrs C’s complaint because it is reasonable for her to take the Council to court if needed.

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Investigator's decision on behalf of the Ombudsman