The Ombudsman's final decision
Summary: We will not investigate Mrs C’s complaint that her property is being damaged by a Council-owned tree. This is because it is reasonable for Mrs C to put in a claim to the Council’s insurers, and if needed, pursue the claim at court.
The complaint
Mrs C complains the roots of a large Council-owned tree have spread under her home and are causing damage to her property. Mrs C says the Council has wrongly advised her to put in a claim via her own insurance. Mrs C would like the Council to stop the growth of this tree’s root system.
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 Mrs C.
I considered the Ombudsman’s Assessment Code.
My assessment
Our role is to consider complaints of administrative fault. We do not normally investigate complaints about damage to property. This is because in effect such complaints are that an organisation has been negligent. Negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
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.
In property damage law responsibility lies with the person claiming damage to prove their case. So, we would generally not criticise a council for advising a person to contact their own building insurer to investigate, and if needed, put in a claim to the council’s own insurers.
If Mrs C is not satisfied with the outcome, she may pursue her claim at court.
Because of the seriousness of the issue Mrs C complains about, I find it is reasonable and proportionate to expect her to pursue this matter at court if needed.
So, we will not investigate this complaint.
Final decision
We will not investigate Mrs C’s complaint because it is reasonable for her to take the Council to court.
Investigator's decision on behalf of the Ombudsman