Summary: We will not investigate this complaint about how the Council has dealt with tree roots which the complainant says have damaged her driveway. This is because there is insufficient evidence of fault by the Council, and the courts are better placed to consider the issue of liability for damage to the complainant’s property.

The complaint

1. Ms X complains about how the Council has dealt with her concerns about roots from a tree outside her property which she says have damaged her driveway.

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The Ombudsman’s role and powers

2. 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)
3. 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)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. In response to Ms X’s complaint, a Council tree officer carried out an inspection of the tree. The Council’s conclusion was that work to the roots under the highway was not advisable and that it could not carry out work under Ms X’s driveway because that was private property.
7. We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision has been reached after following proper process.
8. I will not investigate Ms X’s complaint because there is insufficient evidence of fault with how the Council has dealt with the matter. A qualified officer considered Ms X’s concerns, gathered the relevant information, and applied their policy when making the decision not to do work to the trees. Ms X may disagree with the Council’s decision. But it is not fault for a council to properly make a decision someone disagrees with.
9. We will not consider if the Council are responsible for damage to Ms X’s property because this is a matter best dealt with by insurers and then the the courts. Only the courts can determine the issue of liability.

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Final decision

10. We will not investigate Ms X’s complaint because there is insufficient evidence of fault by the Council and the courts are better placed to consider this issue of liability for damage caused to her driveway.

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Investigator's decision on behalf of the Ombudsman