Southend-on-Sea City Council

The Ombudsman's final decision

Summary: We will not investigate Mrs Y’s complaint about a council-owned tree causing damage to her property. It is reasonable to expect Mrs Y to take the matter to court.

The complaint

Mrs Y complains a tree has encroached onto her property and caused damage, and the Council has not dealt with the matter.

Mrs Y says this has caused distress.

Mrs Y wants the Council to properly deal with the matter.

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)

How I considered this complaint

I considered information provided by Mrs Y.

I considered the Ombudsman’s Assessment Code.

My assessment

We consider our powers on what we could achieve as part of our consideration of whether an alternative remedy exists and whether it is reasonable for a person to use it.

We cannot determine liability for the damage to Mrs Y’s property. Only the courts can do this.

Additionally, we cannot instruct the Council to carry out the work Mrs Y wants it to. Only the courts can do this.

Therefore, we will not investigate this complaint. The courts are better placed to consider these matters and provide a suitable remedy.

Final decision

We will not investigate Mrs Y’s complaint because it is reasonable for her to take the matter to court.

Investigator's decision on behalf of the Ombudsman