The Ombudsman's final decision
Summary: We will not investigate this complaint about a delay by the Council to maintain public trees in its area, or the adequacy of the works since carried out. With respect to inaction and delay, there is insufficient evidence of an injustice and further investigation is unlikely to lead to a different outcome. In relation to the complainant’s dissatisfaction with the works done since, the Council has yet to be given a reasonable opportunity to investigate and respond. We do not therefore have jurisdiction to consider these more recent matters.
The complaint
The complainant (Mr P) complains about the handling of an overgrown Council owned tree in his area of living. He says he has complained to the Council multiple times that the tree requires maintenance and has been ignored. Moreover, Mr P explains that when the Council eventually did undertake works on the tree, this did not resolved the problem. He also complains the Council has cut down another tree which was healthy.
In summary, Mr P explains the tree is still far too tall and overgrown and, given its close proximity to his property, it affects his asthma and allergies. Mr P also believes the tree would limit the effectiveness of him installing solar panels on his property. He also says the tree is pushing against a telephone cable from a street pole which has had to be loosened to his property. It is further explained that tree roots are damaging the pavement and road which is causing an obstruction.
As a desired outcome, Mr P wants the Council to take immediate action to cut the tree back to the border of his property and have its hight halved. He also wants the Council to eventually remove the tree fully and replace this due to the damage to the highway and pavement.
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 further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B)).
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).
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
Issues post Council tree works The law says I have no legal jurisdiction to investigate a complaint where the Council has not been given a reasonable opportunity to first consider and respond to the issues raised. I recognise Mr P has complained to the Council about the tree in close proximity to his property, but this complaint was limited to the Council not taking any action at all. The Council has responded to that complaint and has since taken action. Since then, Mr P is dissatisfied with the action taken by the Council which is a new issue. Instead of complain to the Council, he has brought the complaint straight to the Ombudsman. I can understand why Mr P has done this, but it means we have no response from the Council to the claims made.
From the available evidence, the Council may not be aware of the new issues and, in any event, there is no record of it being given a reasonable opportunity to investigate and resolve the new issues in the first instance. Therefore I cannot, at this stage, investigate the actions taken by the Council with respect to tree works. Once Mr P has exhausted the Council’s complaints process on this issue, he may bring a new complaint to us on this issue should he remain dissatisfied.
Issues prior to Council tree works As said, the only part of the complaint that I can see has exhausted the Council’s complaints’ policy and procedure is lack of action. The complaint history and Council responses do not appear to indicate a significant delay, but investigation of this issue unlikely warrants investigation. The Ombudsman is only required to accept a complaint where the complainant has been caused a significant and personal injustice because of fault by the Council. This means Mr P would need to show he has suffered serious loss, harm or distress due to inaction by the Council. Following the Council’s response to Mr P’s complaint, it visited the tree complained about and agreed to taken action which it has since done. The Council advised there were no immediate safety concerns with respect to the tree. In my view, there is insufficient evidence of Mr P suffering serious loss, harm or distress between the time he complained to Council and the Council carrying out works on the trees in the area.
In addition, given action has been taken, further investigation of the issue is unlikely to lead to a different outcome. This view should not be taken to mean that Mr P has not since suffered an injustice following the tree works carried out by the Council. However, until the Council has had a reasonable opportunity to investigate and respond, we cannot investigate and consider this matter.
Final decision
We will not investigate this complaint.
For the part we could investigate, there is insufficient evidence of an injustice and further investigation is unlikely to lead to a different outcome. For all other parts of the complaint, the Council has yet to be given a reasonable opportunity to investigate and respond. We do not therefore have jurisdiction to consider the other parts of the complaint.
Investigator's decision on behalf of the Ombudsman