The Ombudsman's final decision
Summary: We will not investigate this complaint about a Council owned tree which is causing damage to Mr X’s boundary wall. This is because Mr X has appeal rights to the courts which places the complaint outside our jurisdiction.
The complaint
The complainant, who I refer to as Mr X, complains about the Council’s handling of matters relating to one of its trees which is causing damage to his property. He says the Council has delayed in making a decision about whether the tree in question will be removed to allow for remedial work and he has been unable to obtain information about his case from the Council.
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 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) We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We may decide not to start an investigation if the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered information provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X made an insurance claim to the Council for damage caused to his boundary wall caused by one of its trees.
He complained to the Council about its failure to inform him whether it was prepared to remove the tree, as recommended by a report it had procured, so remedial works could start at his property.
As this matter involved an insurance claim, it has not been addressed through the Council’s complaints procedure. However, Mr X has sought information about what the Council is intending to do.
The restriction highlighted at paragraph 3 applies to the substantive matter of the damage caused to Mr X’s property. If he is unhappy with the outcome of his insurance claim once it has been concluded, he can take his case to the civil courts. As he has this alternative remedy available which we would reasonably expect him to use, the matter falls outside our jurisdiction and will not be investigated.
In responding to our enquiry about Mr X’s case, the Council has advised the tree is not being removed as the decision has been made to retain the tree and complete the remedial work. It has confirmed the claim is being settled for the damage sustained to Mr X’s wall.
Final decision
We will not investigate Mr X’s complaint because he has appeal rights to the courts which places the complaint outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman