The Ombudsman's final decision
Summary: We will not investigate this complaint about trees the complainant alleges have damaged his property. This is because it is a matter that needs to be determined in court.
The complaint
The complainant, Mr X, says Council owned trees have damaged part of his property. He says the Council should pay for the repairs.
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 provided by Mr X. This includes the response from the Council’s insurers. I also considered our Assessment Code.
My assessment
Mr X alleges a lack of maintenance by the Council has led to trees damaging his property. Mr X says the repairs will cost about £600 which he says the Council should pay.
Mr X made a claim on the Council’s insurance. The insurers rejected the claim. The insurers said Mr X had a legal right to cut the trees back to the boundary and if he had done this it would have prevented the damage.
I will not start an investigation because this is a matter for the courts. It is reasonable to expect Mr X to make a court claim because only the courts have the required skills to assess liability for alleged damage and to determine the amount of any claim. The courts can decide whether Mr X is correct to allege negligence by the Council or whether the insurers are correct to say Mr X should have cut back the branches – this is not a determination we can make. Further, Mr X could use the small claims procedure which is relatively straight forward although he may still wish to get legal advice or speak to his own insurers.
Final decision
We will not investigate this complaint because it is for the courts to determine claims for alleged damage to property.
Investigator's decision on behalf of the Ombudsman