The Ombudsman's final decision
Summary: We will not investigate this complaint that a Council owned tree damaged Ms X’s boundary wall. This is because Ms X has an alternative remedy available through the courts which would reasonably expect her to use so placing the complaint outside our jurisdiction.
The complaint
The complainant, who I refer to as Ms X, says the Council should pay for the costs she incurred in having to build deep foundations for her boundary wall which had been damaged by a nearby Council-owned tree.
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 Ms X, including the Council’s response to her complaint.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms X complained to the Council that one of its trees situated close to her property had damaged her boundary wall, necessitating remedial work to prevent danger to the public and which included additional costs to prevent recurrence.
The Council told Ms X that it did not consider the tree was responsible for damage to her wall. It said if she wanted to challenge its position she could do so via the courts and suggested she seek legal advice.
The restriction highlighted at paragraph 3 applies to Ms X’s complaint. As she has an alternative remedy against the Council available via the courts which we would reasonably expect her to use, the complaint falls outside our jurisdiction and will not be investigated.
Ms X has also complained about how she was treated by the Council during the duration of her contact with it about this issue. However, this is not a matter we will investigate in isolation when we are not investigating the substantive issue.
Final decision
We will not investigate Ms X’s complaint because she has an alternative remedy available through the courts which would reasonably expect her to use so placing the complaint outside our jurisdiction.
Investigator's decision on behalf of the Ombudsman