Summary: We will not investigate Mr X’s complaint about damage caused to his property by a council-owned tree. Only the courts can determine liability for the damage, so it is reasonable for Mr X to take the matter to court.

The complaint

1. Mr X complained a council-owned tree caused damage to his property, and the Council has refused to accept liability for the damage.
2. Mr X said this caused distress.
3. Mr X wants the Council to accept liability for the damage and pay damages.

Back to top

The Ombudsman’s role and powers

4. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
5. 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)

Back to top

How I considered this complaint

6. I considered information provided by Mr X.
7. I considered the Ombudsman’s Assessment Code.

Back to top

My assessment

8. We consider our powers on what we could achieve as part of our consideration of whether an alternative remedy exists and whether it is reasonable for a person to use it.
9. Negligence claims and interpreting the law around civil liability are generally best decided by a court where the Council does not accept insurance liability. Only a court can decide whether the problem should have been dealt with by the Council before it caused damage to a person’s property, or if it is liable to pay damages for a person’s loss.
10. We will not investigate this complaint. We cannot decide liability nor order the Council to pay Mr X damages, so it is reasonable for him to take the matter to court.

Back to top

Final decision

11. We will not investigate Mr X’s complaint because it is reasonable for him to take the matter to court.

Back to top

Investigator's decision on behalf of the Ombudsman