Summary: We will not investigate Mrs B’s complaint that her property has been damaged by a Council-owned tree. This is because it is reasonable for Mrs B to take the Council to court.

The complaint

1. Mrs B complains that parts of her property have been damaged by a Council-owned pavement tree and this was made worse by works done by the Council. Mrs B says the Council has wrongly not accepted liability for the damage and has not investigated the matter properly. Mrs B also says the Council took too long to respond to her claim and replied in a dismissive manner. Mrs B would like the Council to take a range of actions including paying for urgent works to make her wall safe.

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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. The Act 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 Mrs B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We do not normally investigate complaints about damage to property. This is because ultimately such complaints are that an organisation has been negligent.
7. Our role is to consider complaints of administrative fault. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts. Only the courts can decide if an organisation has been negligent and if so, order a party to pay damages. We cannot recommend payments that ‘punish’ an organisation.
8. I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts, directly or through her insurers.
9. I do not consider there is any exceptional reason why Mrs B cannot do this.
10. So, we will not investigate Mrs B’s complaint about the damage to her property.
11. Also, because we are not investigating the substantive matter complained about, an investigation solely into the Council’s handling of Mrs B’s claim would not be a good use of our limited resources or achieve a meaningful outcome for Mrs B.

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Final decision

12. We will not investigate Mrs B’s complaint because it is reasonable for her to take the Council to court.

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Investigator's decision on behalf of the Ombudsman