The Ombudsman's final decision
Summary: We will not investigate Mr B’s complaint that his property is being damaged by a Council owned tree. This is because it is reasonable for Mr B to take the Council to court if needed.
The complaint
Mr B says his property is being damaged by subsidence caused by the roots of a Council owned tree. Mr B says the Council already has evidence that the tree is causing the subsidence, but the Council wrongly says it needs another year of monitoring before it can make a decision. Mr B would like the Council to remove the tree to prevent further damage and subsidence.
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 Mr B.
I considered the Ombudsman’s Assessment Code.
My assessment
The role of the Ombudsman is to investigate complaints of administrative fault. We do not normally investigate complaints about property damage. This is because such complaints are ultimately about whether an organisation has been negligent. We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
This matter is already being dealt with by Mr B’s building insurer, which is in contact with the Council. This is the appropriate route for this issue to be investigated. Also, because of the seriousness of the matter, I find it is reasonable and proportionate for Mr B to take the Council to court, directly or via his building insurer, if he is not satisfied with the Council’s actions.
Only a court can decide if an organisation has been negligent and so should pay damages.
So, we will not investigate this complaint.
Final decision
We will not investigate Mr B’s complaint because it is reasonable for him to pursue this matter at court if needed.
Investigator's decision on behalf of the Ombudsman