The Ombudsman's final decision
Summary: We will not investigate this complaint about damage caused by tree roots. The Council has decided to remove the tree and we cannot add to this.
The complaint
Mrs X complains about damage caused to her property by a Council tree which she has been told she will have to address every three years should the tree remain in situ. Mrs X wants the tree to be removed and for the Council to pay for repairs.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide further investigation would not lead to a different outcome (Local Government Act 1974, section 24A(6)) 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)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council has inspected the tree and decide to remove it. This, in part, is the outcome Mrs X sought.
Council officers are still considering what the best option may be in respect of repairs needed at the property. If Mrs X is unhappy once it gives its decision, the next step would be for Mrs X to make a claim against the Council’s insurers and then initiate court action if any claim is rejected.
We cannot determine claims for damages, only the courts can. There is a procedure open to anyone to make a money claim through the courts so Mrs X can make her own claim or her own home insurer’s may assist. For these reasons, it is reasonable to expect Mrs X to resort to court action and as such, this part of the complaint is not within our legal remit, as per paragraph three.
We will not investigate for these reasons.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable to expect her to resort to court action for compensation should the Council not provide a solution in terms of repairs that is acceptable to her.
Investigator's decision on behalf of the Ombudsman