The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint about the Council’s actions relating to her claim for compensation for damage to her property. This is because the actions complained about cannot be separated from the substantive matter, which is for the courts to decide.
The complaint
The complainant, who I will refer to as Mrs B, says that roots from a pavement tree outside her home have damaged the front of her property. Mrs B complains the Council did not read or respond to reports she made about the damage. Mrs B also complains that the Council’s responses to her complaint: included incorrect statements; ignored or misrepresented facts; and, provided misleading information. In addition, Mrs B complains that the Council has provided conflicting reasons for refusing her compensation claim and has not kept records. Mrs B would like the Council to properly investigate her complaints and engage with her to see if the matter can be resolved without the need to go to court.
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) We can decide whether to start an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
I considered information provided by Mrs B.
I considered the Ombudsman’s Assessment Code.
My assessment
We would not investigate a complaint from Mrs B that the tree roots have damaged her property. This is because ultimately this is a complaint of Council negligence.
Only the courts can decide such matters and we would generally expect someone in Mrs B’s position to take the Council to court, via her home insurer if needed.
Mrs B says her complaint is not about damage to her property. But, I find the issues Mrs B complains about are clearly linked to the substantive matter regarding whether or not the Council is liable for the damage to her property.
Mrs B is complaining about the Council: not taking action in response to her reports of root damage; not keeping proper records; not providing clear, accurate and truthful statements about what happened; and, providing conflicting reasons for refusing her claim. These are matters the court would consider as part of a claim for damages.
We cannot investigate these matters in isolation without investigating the substantive matter, which is for the courts to decide. So, an investigation would not be a good use of our resources or provide a meaningful outcome.
Final decision
For the above reasons we will not investigate Mrs B’s complaint.
Investigator's decision on behalf of the Ombudsman