Summary: We will not investigate Mr B’s complaint that his property was damaged by a fallen Council tree which the Council had failed to maintain. This is because it is reasonable for Mr B to pursue his compensation claim by taking the Council to court.

The complaint

1. Mr B complains his house was damaged when a pavement tree fell down outside his home. Mr B says the Council was negligent because he had reported this tree to the Council several times before this incident and the Council should have been aware this was going to happen. Mr B complains the Council has wrongly denied responsibility and refused his claim for the excess payment he had to pay to his home insurer.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The Act 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 Mr B.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr B complains the damage to his property was the result of negligence by the Council. The Council has considered Mr B’s claim but does not accept it was negligent.
7. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages.
8. We cannot recommend actions or payments that ‘punish’ the organisation. Also, unlike the Ombudsman, the court can order a party to pay damages.
9. So, we would normally expect someone in Mr B’s position to pursue their compensation claim by taking the Council to court.
10. I find it is reasonable for Mr B to take the Council to court. The fee for making a claim is relatively modest and Mr B may ask for the fee to be reimbursed if his claim is successful.
11. So, we will not investigate this complaint.

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Final decision

12. We will not investigate Mr B’s complaint because it is reasonable for him to pursue his compensation claim by taking the Council to court.

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Investigator's decision on behalf of the Ombudsman