The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s response to the complainant’s representations about trees causing damage to her property. This is because the complainant may pursue the matter in court and it would be reasonable for her to do so.
The complaint
The complainant, who I will refer to as Mrs B, complains that the Council has failed to properly maintain trees close to her home and as a result, her property has suffered damage.
The Ombudsman’s role and powers
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
Mrs B complains that the Council has failed to prune trees close to her home appropriately. She says that, as a result of this failure, squirrels have caused damage to her property. She wants the Council to contribute to her repair costs and commit to appropriate maintenance in future.
The Ombudsman will not investigate Mrs B's complaint. Essentially, the matter amounts to an allegation that the Council has been negligent in failing to maintain the trees and that this negligence caused Mrs B's financial loss. The Ombudsman could not determine whether negligence on the Council's part means it is liable. Liability can only be definitively determined in court.
It is open to Mrs B to make a claim to the Council. If the Council denies liability, Mrs B's recourse is to pursue the matter in court. Whether to use this recourse is a matter for her. But it would be reasonable for her to do so in order to establish liability. The Ombudsman will not intervene.
Final decision
We will not investigate Mrs B’s complaint because it would be reasonable for her to pursue the matter in court.
Investigator's decision on behalf of the Ombudsman