Summary: The Ombudsman will not investigate Mrs X’s compliant about damage to her property from a tree and overgrown plants on council land. This is because the Ombudsman cannot establish liability in such matters, and it is reasonable for her to seek compensation through the courts.

The complaint

1. The complainant, whom I shall call Mrs X, complains overgrown plants and a tree on council land have damaged a fence which surrounds her home. Mrs X wants the Council to cut back the overgrown area and to repair the fence. Mrs X is also unhappy with how long it has taken the Council to deal with her complaint.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), 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 Mrs X’s complaint to the Ombudsman and the information she provided. I also gave Mrs X the opportunity to comment on a draft statement before issuing a final decision on her complaint.

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What I found

5. Mrs X says overgrown plants and a tree on council land damaged a fence to the rear of her property. Mrs X is worried the fence will collapse completely. Mrs X wants the Council to cut back the overgrown area and to repair the fence. The Council says it is not liable for the damage to the fence. But it has offered to cut back the overgrown area when Mrs X replaces the fence.
6. The role of the Ombudsman is to consider complaints about administrative fault. We cannot establish liability in complaints involving damage to property. Claims for damage to property are a matter for the Council’s insurers and, ultimately, for the courts.
7. If the Council’s insurers reject a formal claim from Mrs X, it is open to her to make a claim in court. I consider it would be reasonable for her to do so. This is because only the Court can decide if the Council has been negligent. The Court can decide what damages, if any, the Council should pay, and if it should take any remedial action. These are not decisions the Ombudsman can take.
8. Mrs X is also unhappy with how the Council has dealt with her complaint. But the Ombudsman will not investigate a council’s complaint handling if we are not going to investigate the issue which lead to the original complaint. This applies here.

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Final decision

9. The Ombudsman will not investigate Mrs X’s complaint. This is because the Ombudsman cannot establish liability in complaints involving damage to property, and it is reasonable for Mrs X to seek compensation through the courts.

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Investigator's decision on behalf of the Ombudsman