The Ombudsman's final decision
Summary: We will not investigate this complaint about tree roots allegedly causing damage to a pavement used by the complainant to access his home. This is because the pavement has recently received maintenance work and there is insufficient evidence of its condition causing a significant injustice to the complainant. Though there may have been a problem prior to the pavement being maintained, there is currently no worthwhile outcome we could achieve by investigating.
The complaint
The complainant (Mr Q) complains about a failure by the Council to maintain tree roots on a public pavement outside his family home. He says the tree roots are lifting the pavement and that the Council has declined to take action. Mr Q explains the Council has instead repeatedly told him the pavement is the responsibility of a separate highway authority. Mr Q complains the Council is not being accountable for a tree maintenance matter which it has responsibility for.
In summary, Mr Q says the issues with the tree roots and pavement creates an obstacle for his household accessing their property. He adds that his property is meant to benefit from disabled access for wheelchair use and so the obstacles create significant hardship. As a desired outcome, Mr Q wants the Council to maintain the tree roots which is repeatedly causing the pavement to lift.
The Ombudsman’s role and powers
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: any injustice is not significant enough to justify our involvement; or there is no worthwhile outcome achievable by our investigation.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)).
How I considered this complaint
I considered information provided by the complainant and the Council. I also considered the Ombudsman’s Assessment Code.
My assessment
The Council says the pavement complained about is part of a highway which falls under the responsibility of a separate highway authority. However, the tree roots underneath the pavement are the responsibility of the Council. Where public trees are assessed as requiring maintenance, the Council should act to resolve this. I do not consider it good administrative practice for the Council to only refer Mr Q to another authority which has no responsibility for the trees. If a problem is one which falls under the Council’s administrative functions and requires joint working with another authority, it should engage with that authority to address this. This did not happen in Mr Q’s case and his complaint to the Council went unresolved.
However, in response to this complaint being referred to the Ombudsman, the Council completed a site inspection of the pavement which took place in early April 2024. It reported that the surface was smooth and there were no trip hazards identified. The Council explained that the highway authority had replaced the top surface of the footpath three months earlier. It provided me photographs from the inspection which do not show any present problems requiring action to be taken.
I recognise from Mr Q’s complaint that this may have been an issue requiring some action before the recent maintenance work. I also take his point that raising this with the Council has been difficult. However, we cannot at this point in time recommend a worthwhile outcome to resolve a speculative problem concerning tree roots. The tree roots would need to be assessed which there is no cause for currently due to the pavement having recently been repaired and it being in good condition. On the evidence provided by the Council, there is nothing to suggest the pavement is causing serious loss, harm or distress by reason of obstructions caused by tree roots. There is also insufficient evidence at this stage the roots require maintenance.
Final decision
We will not investigate this complaint.
This is because there is insufficient evidence of Mr Q having been caused a significant injustice. Further, the recent maintenance of the pavement complained about means there is no worthwhile outcome we could achieve by investigating.
Investigator's decision on behalf of the Ombudsman