Summary: We will not investigate Ms X’s complaint about the Council’s handling of her claim for damage caused by tree roots inside her property. This is because the courts are better placed to assess liability for property damage.

The complaint

1. Ms X complains the Council did not:

• properly assess the damage caused to the landscaping by tree roots inside her property;
• provide sufficient compensation to cover the cost of proposed remedial work;
• communicate and handle the matter in a timely manner, and;
• take follow up action it said it would.

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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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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)
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

7. I considered information provided by Ms X and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Ms X says it took almost two years before she was advised to put in a claim with the Council’s insurers. I will not investigate this aspect of her complaint because it is late and there are no good reasons why Ms X could not have come to us sooner if she was unhappy with the Council’s actions at the time.
10. It is reasonable to expect Ms X to pursue her damage claim through the courts. The courts are better placed to decide on matters related to liability.
11. It would not be a good use of public money to investigate the Council’s communication and handling of the matter when I will not investigate the substantive matter of this complaint.
12. Ms X says the Council has not taken follow up action on what it intends to do with the tree. This part of her complaint is premature and it is reasonable to allow the Council an opportunity to investigate and reply first.

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Final decision

13. We will not investigate Ms X’s complaint because it is reasonable for her to pursue the matter through the courts.

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Investigator's decision on behalf of the Ombudsman