The Ombudsman's final decision
Summary: We will not investigate Mrs B’s complaint that Council owned trees are causing damage to her property. This is because it is reasonable for Mrs B to take the Council to court, which is in the best position to decide the matter.
The complaint
The complainant, who I will refer to as Mrs B, complains that Council owned trees have caused subsidence to her property. Mrs B complains the Council has refused to accept it is liable for the damage to her home and wrongly says the subsidence has been caused by defective foundations. Mrs B says the Council has not been to her property to assess the damage and has ignored the findings of a report commissioned by her home insurer. Mrs B would like the Council to cut down the trees which are causing the subsidence.
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 B.
I considered the Ombudsman’s Assessment Code.
My assessment
We do not normally investigate complaints about damage to property. This is because such complaints are that an organisation has been negligent.
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.
I cannot decide whether the damage to Mrs B’s property is the result of Council negligence and have no powers to enforce an award of damages.
So, I would usually expect someone in Mrs B’s position to seek a remedy in the courts, directly or through her home insurer. I do not consider there is any exceptional reason why Mrs B cannot do this. So, we will not investigate this complaint.
Final decision
We will not investigate Mrs B’s complaint because it is reasonable for her to pursue this matter at court.
Investigator's decision on behalf of the Ombudsman