The Ombudsman's final decision
Summary: We will not investigate Miss B’s complaint that a tree fell on her home due to the Council’s failure to maintain it. This is because it is reasonable for Miss B to pursue her compensation claim at court. There is not enough evidence of fault to justify investigating Miss B’s complaint that the Council has refused to cut back another tree which she considers could fall on her home.
The complaint
The complainant, who I will refer to as Miss B, complains that during a storm a roadside tree fell on her home causing considerable damage. Miss B complains the Council has refused to accept liability for the damage even though the Council identified some rot on the tree after the incident. Miss B also complains the Council has refused to cut back another tree which she considers may fall on her home. Miss B would like the Council to pay for the damage to her home and her insurance costs, and to cut back the tree she is concerned about.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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) 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 an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by Miss B.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss B’s complaint is that the tree fell on her house due to Council negligence. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings.
In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
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 Miss B’s position to seek a remedy in the courts, directly or through her home insurer. I do not consider there is any exceptional reason why Miss B cannot do this. So, we will not investigate this part of Miss B’s complaint.
Miss B also complains about the Council’s decision not to cut back a tree outside her neighbour’s home. Miss B is concerned this tree may also fall down in strong winds.
The Council says a qualified and experienced arboriculture officer has recently assessed the condition of this tree. The officer considered the tree was healthy so no works were needed.
Miss B complains the Council should have inspected the inside of the tree because the tree which fell on her property had an area of rot. The Council says it does not use sonic tomography or invasive tree testing methods, and many healthy trees were uprooted during recent storms.
The information does not suggest the Council’s assessment of the condition of the tree was affected by fault. The Council has explained that it was able to assess the condition of the tree from its appearance. We would not normally criticise a local authority for assessing the condition of a tree in this way. Also, the Council has explained that many healthy trees have fallen during recent storms. There is not enough evidence of fault to justify an investigation of the Council’s decision not to carry out work to the tree.
Final decision
We will not investigate Miss B’s complaint because it is reasonable for her to take the Council to court. Also, there is not enough evidence of fault to investigate the Council’s decision not to cut back the tree close to her home.
Investigator's decision on behalf of the Ombudsman