Summary: The Ombudsman will not investigate this complaint about the Council’s failure to repair the footway and damage to the complainant’s garden and driveway. He is unlikely to find evidence of fault by the Council and the complainant can seek a remedy in a court

The complaint

1. The complainant, who I refer to here as Mrs B, has complained the Council has not repaired damage to the footway caused by a tree it owns. Mrs B also says the tree’s roots have damaged her driveway and lawn. She is particularly concerned about these issues because she is blind.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these.
3. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached that is likely to have affected the outcome. (Local Government Act 1974, section 34(3), as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. It 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 have considered what Mrs B said in her complaint and background information provided by the Council.

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What I found

7. The Council says it has carried out site inspections in response to Mrs B’s concerns. In summary, it found:-
• The condition of the footway did not warrant repair under the Council’s criteria.
• There was no evidence the tree owned by the Council had damaged Mrs B’s property.

Analysis

8. The Council has not ignored Mrs B’s concerns. It has carried out site visits and spoken with her.

Repairs to the footway

9. It is for the Council to decide whether it is appropriate to carry out repairs to the footway. I have seen nothing to suggest fault by the Council so it is not our role to criticise the decision not to carry out work.
10. Further, Section 56 of the Highways Act 1980 says a person may serve a notice on a highway authority requiring it to confirm that a road is a highway that it is liable to maintain. If the highway authority disputes this or does not respond within one month, the person may apply to a crown court. The court will then determine if the highway authority is liable for the maintenance, and if so, order the authority to put the road in proper repair within a reasonable period. If liability is not in contention, the person can apply to a magistrates’ court.
11. If Mrs B considers the Council is not keeping the road in repair, she has the right to take her complaint to court. It would be for the court to decide the extent of the repairs (if any) to be carried out and set a timescale for the work.
12. I consider it would be reasonable for Mrs B to serve a notice on the Council and take her complaint to court if necessary. This is because the court has powers to instruct the Council to carry out the work. We have no such powers.

Damage to garden and driveway

13. Mrs B says the Council is responsible for damage to her private property so her complaint is, in effect, that the Council has been negligent. Negligence is a legal matter which the courts have the power to deal with. We cannot decide whether a council has been negligent.
14. We would usually expect someone in Mrs B’s position to seek a remedy in the courts, directly or through her insurers. I consider the restriction I describe at paragraph 5 applies and so we should not investigate this complaint.

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Final decision

15. I have decided we will not investigate this complaint for the reasons set out in paragraphs 9 to 14 above.

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Investigator's decision on behalf of the Ombudsman