Summary: The Ombudsman will not investigate Mr X and Ms Y’s complaint about damage to their property from vegetation on council owned land. This is because the complaint is late, and the Ombudsman cannot establish liability in complaints involving damage to property. It is reasonable for Mr X and Ms Y to use the legal remedy available to them.

The complaint

1. The complainants, whom I shall call Mr X and Ms Y, complain vegetation on council land has damaged their property. They want the Council to remove the vegetation and pay for the damage

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)
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)

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How I considered this complaint

6. I considered Mr X and Ms Y’s complaint to the Ombudsman and the information they provided. I also gave Mr X and Ms Y the opportunity to comment on a draft statement before issuing a final decision on their complaint.

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What I found

7. Mr X and Ms Y complain vegetation on council land has damaged their property. They want the Council to remove the vegetation and pay for the damage. The Council has so far refused.
8. Correspondence from Mr X and Ms Y show they were aware of the vegetation when they bought their property at the end of 2017. They first raised their concerns with the Council early in 2018. The Ombudsman normally expects people to complain to us within twelve months of them becoming aware of a problem. We look at each complaint individually, and on its merits, considering the circumstances of each case. But we do not exercise discretion to accept a late complaint unless there are good reasons to do so. I do not consider that to be the case here. I see no reason why Mr X and Ms Y could not have complained much earlier. The exception at paragraph 3 therefore applies to their complaint.
9. But even if the complaint was not late, we would not investigate. This is because the role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving negligence and damage to property. Such claims are for the Council’s insurers and, ultimately, for the courts.
10. If the Council’s insurers reject a formal claim from Mr X and Ms Y, it is open to then to make a claim in court. I consider it would be reasonable for them to do so. This is because only the Court can decide if the Council has been negligent. The Court can decide what damages, if any, the Council should pay, and any remedial work it should carry out. These are not decisions the Ombudsman can take.

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Final decision

11. The Ombudsman will not investigate Mr X and Ms Y’s complaint. This is because the complaint is late, and we cannot establish liability in cases involving damage to property. It is also reasonable for Mr X and Ms Y to use the legal remedy available to them.

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Investigator's decision on behalf of the Ombudsman