The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Council’s maintenance of trees near her property. There is not enough evidence of fault by the Council in its decision-making process to justify us investigating. The complaint is also late and there is no good reason for us to investigate it now. Any issue of damage to Miss X’s property by the trees would be a legal liability matter which we would not investigate, and it would be reasonable for her to pursue with insurers or through the courts.
The complaint
Miss X owns a property with two Council-owned trees nearby. She complains the Council has failed to maintain and cut back the trees.
Miss X says the trees hang over the house, drop branches and acorns into her garden and on to cars, and acorns hit her windows. She says tree debris constantly clogs her gutters. She wants the Council to cut the trees right back.
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6)) 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) 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) 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 from Miss X, the Council’s tree policy, and the Ombudsman’s Assessment Code.
My assessment
We may only go behind a council decision if there is evidence of fault in its decision-making process and, but for that fault, a different decision would have been made. So we consider the process the council has followed to reach its decision.
In response to Miss X’s concerns, the Council considered the problems she said were being caused by the tree. Officers took account of a recent inspection of the trees which showed they posed a low risk and concluded there was no current need for any maintenance work. The Council’s policy is to not do work to trees which pose low risk to safety or property. Nor does the policy require officers to reduce or remove trees due to falling natural debris.
There is not enough evidence of fault in the process the Council used here to make its decision not to do work to the trees to warrant us investigating. Officers gathered appropriate information and applied the policy to reach their professional judgement decision. I realise Miss X disagrees with the decision. But it is not fault for a council to properly make a decision with which someone disagrees.
We expect people to complain to us within 12 months of becoming aware of something a council has done, otherwise the complaint is late. We may investigate a late complaint, but only if there is good reason to do so. Miss X received the Council’s final complaint response in May 2021. The Council referred her to the wrong ombudsman, but that ombudsman referred her to this office in early June 2021. Miss X complained to us about 18 months later in November 2022, which means the complaint is late. Miss X knew from May 2021 that the Council had decided not to do work to the trees. She knew by June 2021 that to pursue her complaint she would need to bring the matter to us. I recognise Miss X says she has not pursued it sooner because she had a very busy year. But I do not consider that is a good reason for us to investigate this late complaint now, so we will not do so.
In her complaint to the Council, Miss X alleges the tree roots damaged a pipe under her property. She does not mention this in her complaint to us. In any event, it is not an issue we would investigate because it is an allegation of legal liability for property damage. We cannot make findings on questions of legal liability. Only insurers or the courts can make those findings. If Miss X did wish to pursue this issue, she should make a claim of liability to the Council’s insurers in the first instance. The Council’s May 2021 letter advises her of this, so she may already have made a claim. If she remains dissatisfied with the claim’s outcome, she may then pursue the liability decision required in court. It would not be unreasonable for Miss X to take this route as it would then be a decision only a court would have the powers to make. A court can also make a binding decision whereas we may only make a recommendation.
Final decision
We will not investigate Miss X’s complaint because: there is not enough evidence of fault in the Council’s decision-making process to warrant us investigating; and the complaint is late and there is no good reason for us to investigate it now; and any complaint of property damage by the trees would be a legal liability issue we would not investigate, and it would be reasonable for her to pursue this matter with insurers or in the courts.
Investigator's decision on behalf of the Ombudsman