The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint the Council is responsible for damage to his fence and has failed to maintain adjacent land where there are overgrown trees, shrubs, and fly tipping. It is reasonable for Mr X to use his legal remedy at court if he wishes to claim damages for the fence. The complaint about the condition of the land is premature to this office. Mr X may complain to the Council and return to the Ombudsman if he disagrees with the outcome.
The complaint
Complaint 1: Mr X complains the Council has refused to pay for damage to his fence caused by a tree on adjacent land. Mr X says the Council was negligent and failed to maintain the trees. The Council has rejected Mr X’s insurance claim saying the tree failed in a storm, last February, and it is not responsible for the damage because there were no previous issues with the tree.
Complaint 2: Mr X complains the land is overgrown with trees/shrubs and requires maintenance. He says rubbish has been dumped on the land. He says he has complained numerous times to the Council, but it has not done anything.
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) The law says we cannot normally investigate a complaint unless we are satisfied a council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable for the council to deal with it (Local Government Act 1974, section 26(5).
How I considered this complaint
I have considered Mr X’s information and comments including the Council’s decision on Mr X’s claim. I have considered Mr X’s reply to my draft decision statement.
My assessment
Complaint 1: The law says the Ombudsman should not normally investigate a complaint where a person has a legal remedy at court (see paragraphs 3 and 4 above). Mr X can go to the claims court if he believes the Council was at fault and responsible for the damage to his fence.
I consider it reasonable for Mr X to use his legal remedy. The court has the power to decide the case and award damages. Mr X says this will add a financial burden, but the claims court is inexpensive and can be used without legal representation.
Complaint 2: The complaint about the lack of general maintenance of the land and fly tipping is premature to this office (see paragraph 5). The Council says it has not had a formal complaint. Mr X can complain direct to the Council and return to the Ombudsman if he disagrees with the outcome or does not receive a reply.
Final decision
The Ombudsman will not investigate Mr X’s complaint the Council is responsible for damage to his fence and has failed to maintain adjacent land where there are overgrown trees, shrubs, and fly tipping. It is reasonable for Mr X to use his legal remedy at court if he wishes to claim damages for the fence. The complaint about the condition of the land is premature to this office. Mr X may complain to the Council and return to the Ombudsman if he disagrees with the outcome.
Investigator's decision on behalf of the Ombudsman