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 complains a council-owned tree caused damage to his property, and the Council refused to accept liability for the damage. Mr X also complains about the Council’s application of its tree policy and its handling of his resulting complaint.
2. Mr X says this caused distress, time and trouble.
3. Mr X wants the Council to refer the matter to its insurer, carry out works on its tree and compensate him for his experience.

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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)
6. We will not usually investigate complaint handling if we are not investigating the rest of the complaint. This is because there is not usually enough injustice to justify us doing so. We collect information about particularly poor complaint handling practice and report this back to organisations. (Local Government Act 1974, section 24A(6), section 34B(8))

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How I considered this complaint

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

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My assessment

9. 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.
10. 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.
11. We will not investigate this complaint. We cannot decide liability, cannot direct the Council to carry out the works Mr X wants and cannot award compensation, so it is reasonable for him to take the matter to court.
12. It is not a good use of public resources to investigate complaints about complaint procedures if we decide not to deal with the substantive issue.

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Final decision

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

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Investigator's decision on behalf of the Ombudsman