Summary
We will not investigate Mr X’s complaint about his and his insurer’s claim of liability against the Council for damage caused to his property by its trees, and about the Council not responding to the claim or his complaints. We cannot make findings on legal liability. Should the Council reject the claim, it would be reasonable for Mr X and his insurers to pursue at court the rulings on legal liability they seek. We do not investigate complaints about councils’ internal complaints processes or correspondence where we are not investigating the core issue giving rise to the complaint.
The complaint
Mr X lives in a property with two Council-owned trees nearby. He complains: the Council’s trees have caused subsidence and damage to his property; the Council has failed to acknowledge or respond to his repeated complaints about the trees, in breach of its own complaints policy, and to formal correspondence from his insurers’ lawyers regarding liability for the damage.
Mr X says the damage to his property by the trees has been worsened by the Council’s delays. He says its lack of response to him or the legal representatives for his insurers has caused significant stress, frustration and wasted time. Mr X wants the Council to remove the trees, respond to his complaints and apologise for breaching its complaints process.
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 from Mr X, and the Ombudsman’s Assessment Code.
My assessment
Mr X’s core claim against the Council is that it has been negligent in its management of the trees near his property. He considers this has resulted in its trees causing damage to his property. Mr X wants the Council to be held liable for that damage and to fund repairs to his property.
We cannot determine issues such as negligence or liability for property damage and will not investigate them. These are legal matters only an insurer or court can decide. Mr X’s insurers have sought to make a claim against the Council through their legal representatives on this matter, sending a ‘letter before action’, but Mr X says the Council has not replied. It is unfortunate the Council has not responded to the claim. But if the claim is rejected by the Council’s insurers, or the Council continues to give no response, it would be for Mr X and his insurers to consider pursuing the liability rulings they seek at court. It would be reasonable for them to pursue the claim to court, should this be required, as that is the body able to make the legal rulings they require.
I note Mr X’s complaint emphasises the Council’s lack of response to his complaints and correspondence from legal representatives. But the core issue which gave rise to Mr X’s complaints and claims against the Council is the damage he says has been caused to his property by its trees. That is the cause for Mr X and others contacting the Council and is the substantive issue for which Mr X seeks a resolution. We do not investigate complaints about councils’ internal complaints processes or correspondence where we are not investigating the core issue giving rise to a complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of Mr X’s complaint.
Final decision
We will not investigate Mr X’s complaint because: we cannot rule on his and his insurers’ claim that the Council is legally liable for damage caused to his property by its trees; and should the Council reject the claim, it would be reasonable for Mr X and his insurers to pursue at court the rulings on legal liability they seek; and we do not investigate complaints about councils’ internal complaints processes or correspondence where we are not investigating the core issue giving rise to the complaint.
Investigator's decision on behalf of the Ombudsman