The Ombudsman's final decision
Summary: We will not investigate Mr X’s complaint about the Council not considering his concerns about twig and leaf litter and damage to the pavement and his front wall caused by two Council-owned trees. There is not enough evidence of fault in the Council’s decision-making process to warrant investigation. Even if there were fault, there is insufficient significant personal injustice caused to Mr X to justify an investigation. It would be reasonable for Mr X to claim on the Council’s insurance for property damage he believes has been caused by its trees, and to take the claim to court if required. We also cannot achieve the outcome Mr X seeks from his complaint.
The complaint
Mr X lives in a property with two Council-owned trees on highway land to the front. He complains the Council has not considered his concerns about twig and leaf litter dropped by the trees, or damage caused by the trees to the pavement and his front garden wall. Mr X says he has to clear many leaves and twigs from the pavement and road drain in between Council cleaning visits. He wants the Council to remove the trees.
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: there is not enough evidence of fault to justify investigating; or any injustice is not significant enough to justify our involvement; or we cannot achieve the outcome someone wants.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 Mr X, relevant online maps and images, and the Ombudsman’s Assessment Code.
My assessment
We are not an appeal body. We may only criticise a council’s decision where there is evidence of fault in its decision-making process and but for that fault officers would have made a different decision. So we consider the processes councils have followed to make their decisions. We cannot replace a council’s decision with our own or someone else’s opinion if the decision was reached after following proper process.
In response to Mr X’s report about the trees, the Council reviewed its inspection information. Officers noted Mr X’s concerns about the trees shedding leaves and twigs but considered this did not give them reason to remove the trees under the Council’s policy and approach to tree maintenance. Officers explained the Council’s policy is not to remove trees solely because of them shedding leaves and twigs. The officers not agreeing with Mr X’s views and not removing the trees does not mean they failed to take those views into account. They considered them, gathered relevant information about the trees, and applied the Council’s approach when deciding not to remove them. There is not enough evidence of fault in the Council’s decision‑making process here to justify us going behind its decisions and investigating. We recognise Mr X disagrees with the Council’s decision and wants the trees removed. But it is not fault for a council to properly make a decision with which someone disagrees.
Even if there was Council fault in its decision to retain the trees, we will not investigate. Mr X says the Council’s trees have damaged its pavement. The pavement remains usable by Mr X and other residents. The trees’ effect on the evenness of the pavement may annoy Mr X. But that is insufficient significant injustice to him to justify an investigation. If Mr X considers the pavement is further damaged in future, he may wish to report this to the Council. It would then be for officers to determine what actions, if any, they should take.
A further injustice Mr X says is caused by the trees’ presence is having to remove leaves and twigs from the highway between the Council’s scheduled cleaning visits. But it has been Mr X’s decision to do this. If he considers the tree litter is significant and is, for example, blocking a drain, he may report this to the Council to request an additional visit from its cleansing department. There is insufficient injustice from this issue caused to Mr X by the Council to warrant an investigation.
Part of Mr X’s complaint is that the Council’s trees have damaged his front garden wall. This amounts to a claim of damage to his property caused by the Council. The Council gave Mr X information on how make a claim on its insurance during the complaint process. Such a claim is the appropriate route for Mr X to pursue his allegation of liability for damage to his wall, rather than an investigation by us. This is because for us to reach a view on this issue, we would need to be able to decide if the Council is liable for the claimed property damage. We cannot make findings on issues of legal liability for damage to property; only insurers or the courts can make those decisions.
If the outcome of an insurance claim against the Council does not resolve the matter to Mr X’s satisfaction, it would then be for the courts to decide it. It would be reasonable for him to pursue this route because it is the one he would then need to use to get the finding of legal liability required on this issue. It would also be reasonable for Mr X to take the matter to court because the courts can issue legally binding orders on the parties, whereas we can only make recommendations to councils.
The outcome Mr X wants from his complaint is for us to order the Council to remove the trees. We cannot issue such an order to a council. That we cannot achieve the outcome Mr X seeks is a further reason for us to not investigate.
Final decision
We will not investigate Mr X’s complaint because: there is not enough evidence of fault in the Council’s decision-making process when deciding what works to do to its trees to warrant us investigating; and even if there were fault, there is insufficient significant personal injustice caused by the matters complained of to justify an investigation; it is reasonable for him to make an insurance claim against the Council for any damage to his wall he considers has been caused by its tree, and take the claim to court if required; and we cannot achieve the outcome he wants.
Investigator's decision on behalf of the Ombudsman