London Borough of Merton (24 019 511)
Category : Environment and regulation > Trees
Decision : Closed after initial enquiries
Decision date : 06 Feb 2025
The Ombudsman's final decision:
Summary: We will not investigate this complaint about the Council failing to maintain a street tree according to its published schedule. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. It is reasonable for the complainant to put claim on the Council’s insurance, and if the claim is refused, take the Council to court.
The complaint
- Mr X complains the Council failed to maintain a street tree according to its published schedule. He says the Council should pay for remedial work.
The Ombudsman’s role and powers
- The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
- 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)
How I considered this complaint
- I considered information provided by Mr X.
- I considered the Ombudsman’s Assessment Code.
My assessment
- Mr X confirms the Council has removed the tree and grubbed out the stump. However, he says although the cause of the damage has been removed, responsibility for it and the cost of the remedial works required still need to be resolved
- The Council refused to consider the complaint as it is of the opinion that the matter is related to issues already subject to ongoing insurance claims.
- We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
- Mr X may put in claim to the Council’s insurers for remedial work. If the Council’s insurers do not provide an outcome he is satisfied with, he may pursue his claim by making a claim in court.
- Only a court can decide if the Council has failed to follow its published tree maintenance schedule and has therefore been negligent and is liable for the damages to Mr X’s property.
Final decision
- We will not investigate Mr X’s complaint which is essentially a complaint of damage to property because of negligence by the Council. I find it is reasonable for Mr X to take the Council to court if needed. The fee for making a claim is relatively modest and he may ask for the fee to be reimbursed if his claim is successful.
Investigator's decision on behalf of the Ombudsman