The Ombudsman's final decision
Summary: We will not investigate this complaint about highway maintenance because there is not enough evidence of fault and the courts and insurers are better placed to deal with the complaint.
The complaint
Mr Y complained the Council has refused to remove a tree which is causing damage to a wall on his property. He is also unhappy with how the council has dealt with the complaint.
Mr Y says his wall is damaged and it is likely to continue to be damaged until the tree is taken out.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide: there is not enough evidence of fault to justify investigating, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
How I considered this complaint
I considered information Mr Y and the Council provided and the Ombudsman’s Assessment Code.
My assessment
Mr Y says there has been damage done to his wall because the Council has failed to remove the tree.
The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
We are not able to decide liability or award damages. Consequently, any claim for damages, such as costs for repairs to the wall, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through either the Council’s insurer or the courts. We will not investigate this complaint.
We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. In this case, the Council has considered the matter and used its professional judgement about the health of the tree and in accordance with its policy has taken action to keep the tree, albeit to restrict the growth of the roots by cutting them back.. While Mr Y clearly disagrees with this decision, the Council has based this decision on its experience and professional expertise. It has also explained this to Mr Y and the rationale behind its decision.
Consequently, as there is insufficient evidence of fault in the Council’s decision-making process, there is not enough evidence of fault to justify investigating this complaint. We will not investigate.
Where we are not investigating the substantive issue, it is not a good use of public funds for us to investigate how the complaint was dealt with by the Council. We will not investigate this complaint.
Final decision
We will not investigate Mr Y’s complaint because there is not enough evidence of fault and the courts and insurers are better placed to deal with the complaint.
Investigator's decision on behalf of the Ombudsman