The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council denying liability for tree and wall maintenance in a closed churchyard. This is because it does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable to expect Mr X to go to court to decide liability.
The complaint
In summary, Mr X complains, on behalf of a Parochial Church Council (PCC), about the Council deciding it is not responsible for tree/wall maintenance in a closed churchyard.
Mr X would like the Council to accept its legal responsibilities and reimburse the Church the costs of felling a dangerous tree.
The Ombudsman’s role and powers
We provide a free service but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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 provided by the complainant. I considered the Ombudsman’s Assessment Code.
My assessment
Mr X says the Church served the Council with the required notice in 2002 transferring liability for tree and wall maintenance to the Council. The Council accepts the Notice was served but says a later agreement specifically excluded liability for tree maintenance.
We will not investigate as we would nnormally expect Mr X and the PCC to pursue this via the courts. This is because only a court can legally determine if the Council is liable for maintenance of the trees/wall in the churchyard. Further, unlike the Ombudsman, the courts have the power to award damages against the Council. So, we will not investigate as it is reasonable to expect Mr X to take his claim to court.
Final decision
I will not investigate. This is because it is reasonable to expect Mr X to go to court to decide the Council’s liability for tree/wall maintenance in the churchyard.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman