Summary: We will not investigate this complaint about the Council’s refusal to accept liability for damage to a property from tree roots and defective foundations constructed when it was Council-owned. Mr X is a private owner and this is a civil matter which can only be determined by the courts if no liability accepted under his insurance claim.

The complaint

1. Mr X complained about the Council’s refusal to accept liability for damage to his home following subsidence which he attributes to a nearby tree and defective foundations.

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The Ombudsman’s role and powers

2. 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 there is another body better placed to consider this complaint or there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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).

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How I considered this complaint

4. I considered information provided by the complainant and the Council’s response.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says his home is suffering from cracking due to subsidence. His home was originally owned by the Council and he says a nearby plane tree which he believes belongs to the Council has caused the damage. He also says the foundations of his home are deficient and this should have been identified when the Council sold the property.
7. Mr X’s own insurers refused to assist with the work he says needs carrying out and he made a complaint to the Council as long ago as 2021. The Council told him that it denies the tree is on council owned land or on its maintenance list. It also advised him that any defects in the property should have been identified when the buyer’s solicitors conducted searches at the time of purchase.
8. The Council has put Mr X’s claim in the hands of its insurers. If no liability is accepted then he will need to seek legal advice about taking a private action.
9. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts. It is normal procedure for persons suffering damages or personal injury caused by a council or its contractors to submit an insurance claim against the Council. This will then be treated as a claim, rather than a complaint and passed on to its insurers or legal team for a response on liability.
10. Negligence claims and interpreting the law around legal torts are generally best decided by a court. Only a court can decide whether the problem should have been dealt with by a council before it caused any harm or if the council is liable to pay “damages” for the loss or injury someone has suffered.

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Final decision

11. We will not investigate this complaint about the Council’s refusal to accept liability for damage to a property from tree roots and defective foundations constructed when it was Council-owned. Mr X is a private owner and this is a civil matter which can only be determined by the courts if no liability accepted under his insurance claim.

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Investigator's decision on behalf of the Ombudsman