The Ombudsman's final decision
Summary: Mr B complained that the Council had failed to take action in response to his concerns about danger caused by trees next to his property which posed a health and safety risk to himself and his family. We found no fault on the Council’s part.
The complaint
Mr B complains that the Council has failed to take action in response to his concerns about danger caused by trees next to his property. He also complains that falling branches have damaged his lawn, his children’s trampoline and the fence which is owned by the Council.
What I have investigated I have investigated Mr B’s complaint that the Council has failed to take action in response to his concerns about danger caused by trees next to his property.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended) The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended) 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 have considered all the information provided by Mr B, made enquiries of the Council and considered its comments and the documents it provided.
Mr B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Key facts In July 2021 Mr B contacted the Council reporting overhanging branches from a tree in the highway. He said heavy branches had fallen into his garden posing a health and safety risk to himself and his children.
The Council inspected the trees in August and raised a job for its contractors to complete crown reduction work. It considered the work to be general maintenance of its housing tree stock, so the tree contractors were able to programme the work themselves. The Council wrote to Mr B confirming this.
In November Mr B contacted the Council saying the work had not been completed. He said the tree was dropping large branches into his garden and sent a video of what he believed to be dangerous trees.
The Council responded saying the video had been viewed by tree maintenance officers who were satisfied it showed natural branch movement caused by strong winds. So, the work continued to be classed as general maintenance.
Mr B responded asking when the work would be completed. The Council explained that its contractors plan their own workload so it was unable to provide a date when the work would be completed.
Mr B made a formal complaint. The Council responded at stage 1 of its complaints procedure in January 2022. It repeated the information it had previously provided.
Mr B asked for his complaint to be escalated to stage 2 in March 2022. He asked for the priority of the works to be increased saying he and his family were afraid to use their garden because of falling branches. He also said the branches had damaged the fence. He asked the Council to fix the fence and compensate him for his time and trouble A tree officer visited the site on 30 March 2022 and checked the trees. She was satisfied that there appeared to be no changes since the work order was raised so there were no grounds to increase the priority level of the work.
The Corporate Director of Place responded to Mr B’s stage 2 complaint on 31 March explaining the outcome of the recent inspection. He also explained that work was taking longer than originally envisaged because programmed jobs had recently been put on hold because of having to prioritise the Council’s response to damage caused by storm Eunice.
The Council’s contractors completed work to the trees in July 2022. The Council says the trees will next be inspected as part of the housing tree inspection cycle during the summer of 2024.
Analysis It took the Council 12 months to complete work to the trees after Mr B first raised concerns. It has explained that the work was classed as general maintenance of its housing tree stock and there were no reasons to prioritise it.
Mr B disagrees with the Council’s view and says the work should have been prioritised for health and safety reasons.
It is a matter for officers’ professional judgement what work was required and what priority should be afforded to it. Officers visited the site in July 2021 and March 2022 and viewed Mr B’s video in November 2021. They remained of the view throughout that the works were general maintenance and did not require additional priority.
I appreciate there was a significant delay in completing the works. But, in the absence of administrative fault, there are no grounds to question the Council’s decision that the work was not urgent. It maintains thousands of trees and officers were entitled to prioritise more urgent matters including works resulting from damage caused by storm Eunice in February 2022.
Final decision
I do not uphold Mr B’s complaint.
I have completed my investigation on the basis that I am satisfied with the Council’s actions.
Parts of the complaint that I did not investigate We will not investigate Mr B’s complaint that Council owned trees caused damage to his lawn and his children’s trampoline because the courts are best placed to determine liability and calculate claims for damages. We would usually expect someone in Mr B’s position to seek a remedy in the courts, directly or through his home insurer. I do not consider there is any exceptional reason why Mr B cannot do this. It is therefore reasonable to expect him to go to court to resolve his claim.
We will not investigate Mr B’s complaint that the Council has failed to repair or replace the fence which it owns. Replacement of the fence is the responsibility of the Council’s housing service. The law says we cannot investigate complaints about actions taken by a council when it is acting as a landlord. This means I have no power to investigate this aspect of Mr B’s complaint. It is open to Mr B to raise this issue with the council’s housing service.
Investigator's decision on behalf of the Ombudsman