The Ombudsman's final decision
Summary: Mr X complains the Council has not engaged with him about damage to his property, caused by tree roots. We have found the Council at fault for not communicating effectively with Mr X about this matter. This fault caused Mr X an injustice. We have made recommendations to remedy this injustice.
The complaint
Mr X complains the Council has not engaged with him about damage to his property, caused by tree roots. Mr X says the Council accepted liability and initially agreed to install a root barrier, but then offered to pay for the work to be completed privately instead. Mr X says he has provided information the Council has asked for, but it has not responded and has ignored his correspondence. He says this matter has caused frustration and distress.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended) The law says we cannot normally investigate a complaint unless we are satisfied the Council 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 give the Council 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 Mr X and discussed the complaint with him.
I considered the Council’s responses to my enquiries.
Both Mr X and the Council had an opportunity to comment on a draft version of this decision. I considered any comments received before making a final decision.
Relevant guidance Principles of Good Administrative Practice The Ombudsman published the Principles of Good Administrative Practice (the Ombudsman’s Guidance) in 2018. This sets out the Ombudsman’s benchmark for the standards expected when investigating local authorities’ actions.
The Ombudsman’s Guidance stresses the importance of being open and accountable, explaining the reasons for decision making, and keeping proper, suitable records.
Background
Below is a summary of the key events leading to this complaint. It is not an itemised chronology of everything that happened.
In early 2021, Mr X and the Council exchanged correspondence about settling an insurance claim for damage to Mr X’s driveway. The damage was caused by tree roots from a Council-maintained tree. Mr X said he was willing to settle the matter at an agreed-upon figure, providing the Council installed a root barrier at the outer edge of his property. This was to prevent further damage from other tree roots. Mr X said the Council had offered to do this during an inspection of his property.
In early 2021, the Council and Mr X agreed a settlement and the Council’s insurance team asked Officer A, from its arboricultural team, to contact Mr X and arrange the work.
Officer A wrote to Mr X and said there had been a misunderstanding. The Council had proposed to provide the correct length of barrier for Mr X’s own contractors to install, at the same time they were repairing the driveway. Officer A said the work would be relatively straightforward and any added costs should have been factored into the agreed settlement.
Mr X said there was never an agreement he would have to arrange for contractors to install the barrier. He said Officer A had proposed the Council do this during his previous inspection. The Council apologised, asking Mr X to get a quote for repairing the driveway and installing a root barrier.
Mr X wrote to the Council in May 2021. He said getting a quote was difficult, because contractors had suggested the work would not be straightforward. Mr X provided the Council with a quote to consider. He said he was unhappy with the current circumstances and would take the matter further if the Council did not act quickly.
The Council did not respond to Mr X’s email. Mr X referred his complaint to the Ombudsman in March 2022.
The Ombudsman wrote to the Council to clarify whether it had considered the matter as a complaint. The Council told us it would reply shortly, but did not provide an update to our enquiry, or to a further request. We therefore decided to investigate the matter.
Analysis Damage from tree During this investigation, Mr X told me the tree in question had been cut down. This happened in April 2022. Mr X said he presumed the Council had taken this action, but he was not certain of this.
I asked the Council to clarify whether it had cut down the tree and whether this would address Mr X’s concerns about further damage from tree roots. The Council confirmed it had cut down the tree and this would address Mr X’s concerns. It said the delay in taking action had been caused by a change in its arboricultural contractor and the need to address high-priority ash dieback.
The Council has now taken action to remove the tree. The Ombudsman could not achieve anything further on this point.
Council’s responses and communication The Council did not respond to Mr X’s correspondence. The Council also did not provide a substantive response to our early enquiries about this matter. I have found fault with the Council for this lack of response.
I consider these faults caused Mr X an injustice. Not responding to Mr X caused unnecessary frustration and inconvenience. Mr X had engaged with the Council up until that point and it is possible Mr X would not have needed to refer the matter to the Ombudsman, if the Council had been more forthcoming. The Council’s lack of substantive response to us caused Mr X an injustice for the same reason. We may not have needed to investigate this matter, had the Council issued a timely reply.
The Council says it told Mr X in telephone conversations it intended to cut down the tree. I note the Council’s explanation. While the Council says it told Mr X about this, the records I have viewed from the time make no mention of this. Mr X has told me he was unaware the tree was to be removed until he returned home to find it had happened. He says he presumed it was the Council, but he had not been told in advance, or afterwards.
In line with the Ombudsman’s Guidance, I would expect the Council to be able to evidence it had communicated with Mr X about this matter. This is especially the case given there was some dispute about the best way forward. I have therefore found fault with the Council for its lack of communication.
I consider this caused Mr X an injustice. The Council cannot evidence it told Mr X it intended to take any action, or why it had not responded to his proposals. The uncertainty this caused Mr X is in itself an injustice.
Agreed action
Within four weeks of the final decision being issued, the Council has agreed to: provide a written apology for the faults identified in this statement; and pay Mr X £150 in recognition of the time and trouble involved in pursuing this matter.
Final decision
I have completed my investigation with a finding of fault causing injustice. I have made recommendations to remedy that injustice.
Investigator's decision on behalf of the Ombudsman