The Ombudsman's final decision
Summary: We will not investigate Miss B’s complaint that her property has been damaged due to the Council’s failure to maintain a tree. This is because it is reasonable for Miss B to pursue her compensation claim at court.
The complaint
Miss B complains her house was badly damaged by a Council owned tree which fell during strong winds. Miss B says the damage was the result of the Council failing to inspect and maintain this tree for several years. Miss B complains the Council has wrongly refused her compensation claim and has been dishonest about its maintenance of this tree. Miss B would like the Council to repair the damage or pay for this to be done. Miss B would also like the Council to remove this tree to prevent further damage in future.
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)
How I considered this complaint
I considered information provided by Miss B.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss B complains her home has been damaged because of the Council’s failure to maintain a tree it is responsible for. So, in effect, Miss B complains the damage is the result of negligence by the Council.
We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
Miss B has received the Council’s decision in response to her claim. Miss B may now pursue her claim by taking the Council to court.
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 and we cannot order a party to pay damages.
Because of the seriousness of the issue complained about, I find it is reasonable and proportionate for Miss B to take the Council to court. Also, Miss B has already instructed legal representation.
So, we will not investigate this complaint.
Final decision
We will not investigate Miss B’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman