Summary: We cannot investigate Mr X’s complaint that the Council failed to maintain a tree in its area which poses a risk to his property. This is because it is reasonable to expect Mr X to take the matter to the Council’s insurers and, ultimately, the courts.

The complaint

1. Mr X complained the Council failed to maintain a tree it owns near his property.
2. Mr X said the tree caused damage to his home and poses a risk of future damage.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. We cannot investigate Mr X’s complaint about damage caused by a Council owned tree. Mr X’s claimed injustice is that the tree has or will cause damage to his home. Consequently, the complaint is about liability and negligence.
9. The Ombudsman has no power to award damages due to negligence. If Mr X’s home is damaged by the tree, Mr X could submit a claim against the Council’s insurers. If the claim is rejected, Mr X has the right to take the matter to court. Because the Ombudsman has no power to award damages, it is reasonable to expect Mr X to take this course of action. Therefore, we cannot investigate this complaint.
10. In addition, the Council wrote to Mr X and told him it would carry out work on the tree in early 2025. If the work is completed, an investigation by the Ombudsman would not achieve a different outcome. If the works are not completed, Mr X can pursue any damage caused through the Council’s insurers as explained at point 9 of this decision. Therefore, we will not investigate this complaint.

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Final decision

11. We cannot investigate Mr X’s complaint because we decided it is reasonable for him to claim against the Council’s insurers and ultimately take the matter to court.

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Investigator's decision on behalf of the Ombudsman