The Ombudsman's final decision
Summary: We will not investigate this complaint about damage caused to Mrs X’s property by a plant in a neighbouring Council-owned garden. It is reasonable for Mrs X to pursue the matter in court.
The complaint
Mrs X complained the Council has not dealt effectively with bamboo from her neighbour’s garden, in a Council-owned property. This has caused damage to Mrs X’s patio and she is concerned the roots are causing damage to the foundations under her house. The issue has caused five years of stress and Mrs X has so far spent over £2,000 on a surveyor and solicitor to try and get the Council to take action.
The Ombudsman’s role and powers
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 have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Where someone complains of damage to or loss of his or her goods caused by an employee or contractor of the council, it would generally be reasonable to expect them to go to court. We may, however, exercise discretion to investigate where the complaint forms part of a wider complaint about the provision of a service by the council. This is not the case in this complaint.
We may alternatively exercise discretion where the costs of court action would be disproportionately high. Mrs X says she has been quoted £2,000 by builders for repair work to her patio. She may also be required to spend a further £350 to obtain another survey to help prove her case. These costs, along with the costs she has already paid for surveyors and solicitors, are within the range of damages that can be pursued via the small claims process in the county court. The fees for this process are on a sliding scale relative to the amount claimed. Fees can be waived for some people, for example those on a low income.
Mrs X has already discussed the matter with the Council’s insurers, who have signposted her to the option of taking legal action. It is open to Mrs X to consider taking legal action against her neighbour as well if, as the Council says, the neighbour is responsible for some of the damage. It is also open to Mrs X to raise the matter with her own home insurance company. There is not a good reason for us to consider the matter instead of the courts.
Final decision
We will not investigate Mrs X’s complaint because it is reasonable for her to raise the matter via the small claims process in the county court.
Investigator's decision on behalf of the Ombudsman