The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council's decision not to cut back or remove trees growing on the highway outside the complainant’s home. There is insufficient evidence of fault in the Council’s actions. Also, we consider it reasonable to expect the complainant to claim against the Council’s insurance if he believes the trees have damaged his property. It his claim is refused Mr X can pursue his claim in the courts.
The complaint
Mr X complains the Council refuses to cut back or remove trees in the pavement outside his home. He says the roots have damaged the pavement, damaged his neighbours wall and may damage his property in future.
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 further investigation would not lead to a different outcome.
(Local Government Act 1974, section 24A(6), as amended, section 34(B)) Also, 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 provided by Mr X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X complains the Council refuses to cut back or manage trees growing on the pavement on either side of his home. He says the trees have damaged the pavement which is a trip hazard and damaged his neighbour’s garden wall. He also says his neighbour has to cut the roots in his garden to prevent them from damaging their homes.
The Council says it inspected the trees in 2023 and low branches were removed. It is satisfied the trees are healthy and do not pose a safety risk and do are not damaging neighbouring properties.
The Council also says the trees are scheduled to be inspected every three years. The next inspection is scheduled for 2024 and any pruning or other work needed will be carried out.
I understand Mr X is not satisfied with the response. However, the Ombudsman will not investigate this part of his complaint. This is because there is no evidence of fault on the Council’s part. Its published schedule shows the trees are inspected every three years and any required work carried out. There is nothing to indicate that the inspection/maintenance schedule itself is flawed and its application is a matter for the professional judgement of officers. It has also carried out an extra inspection of the trees. Without evidence of fault, the Ombudsman cannot criticise the Council’s decisions, or substitute an alternative view.
If Mr X believes the trees are damaging his or his neighbour’s properties, it is reasonable to expect them to make a claim on the Council’s insurance. If the insurers deny liability for the damage, it would then be a matter for the courts to consider. It is reasonable for Mr X to pursue this part of his complaint through court if required, as that is the body which can provide a legal ruling. The court can also make binding orders for redress, unlike the Ombudsman who may only make recommendations.
Mr X also complains the pavement outside his home is damaged, because of the trees. The Council confirms officer inspected the pavement at the end of 2023. It says repairs were scheduled to take place in early 2024, after Mr X made his complaint to us. As the Council has confirmed it will repair the pavement, we do not consider an investigation of this point will lead to a different outcome.
Final decision
We will not investigate ’s complaint because there is not enough evidence of fault in the Council’s actions because: the Council has inspected the trees, removed low branches, and is satisfied they are not a risk to personal safety or property; and the trees will be inspected according to the Council’s published inspection schedule Also, it is reasonable for Mr X or his neighbour to make a claim on the Council’s insurance for any property damaged caused by the tree. if this fails it is reasonable to expect them to pursue their claim in the courts.
Investigator's decision on behalf of the Ombudsman