Summary: The Ombudsman will not investigate Mr B’s complaint that the Council has failed to remove or maintain a large tree. This is because it is unlikely we would find fault in the way the Council has reached its decisions and it is not unreasonable to expect Mr B to seek a remedy by going to court.

The complaint

1. The complainant, whom I shall call Mr B, complained that the Council has failed to remove or maintain a large tree. He told us the tree has caused damage to his property and his car.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe

• it is unlikely we would find fault, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

5. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I have considered the information Mr B provided and given him an opportunity to comment on my draft decision.

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What I found

7. Mr B says the Council never clears fallen branches and leaves which damage the highway and cars. He told us the Council has dismissed the suggestions he has made to address the problems but has failed to provide a solution or to reach an agreement with him. Mr B says the work the Council carried out to the highway earlier this year has damaged his home's internal walls and has done little to address the safety issue he reported.
8. When it responded to Mr B’s complaint the Council said it has a risk-based approach. This is so it can focus its reducing resources on the areas of greatest need and on those issues which pose a danger to highway users. The Council said it assesses everything reported and prioritises according to the level of severity and the risk to public safety. The Council said it had replied to Mr B’s communications explaining it does not prune highway trees on a yearly basis and it does not carry out planned routine works to highways trees. It said the only work it carries out is essential health and safety works on a reactive basis. The Council explained it does not prune or remove trees to alleviate seasonal nuisances, such as leaf fall. The Council said it is Mr B’s borough council which is responsible for the cleaning of his street.
9. We would expect councils to have regard to the principles in the national guidance “Well Managed Highway Infrastructure – A Code of Practice”. This advocates a risk-based approach. There is no duty on the Council to carry out all the highway tree maintenance requests it receives. We would expect it to prioritise them. There is no evidence of fault in the Council’s approach to Mr B’s requests.
10. The Council says it carries out regular highway safety inspections of all the footways in Essex. It told Mr B it had inspected his road after it had carried out the works earlier this year. It did not find the section of footway in question to have notably deteriorated. So it has no current plans to carry out works.
11. The Council has inspected the footway in Mr B’s road in question. It was then for the Council’s officers to judge whether further work was necessary.
12. The Council has advised Mr B residents are entitled, under common law, to cut tree branches back to their own boundaries at their own expense, providing they do not cause the tree to become dangerous or unstable by doing such work.
13. It is not unreasonable to expect Mr B to go to court to seek a remedy for the damage he believes he has suffered as a result of the Council’s failure to carry out the work he has asked for. The question of whether the Council is liable for the damage Mr B has described is a legal matter. Mr B may be able to pursue the matter through her own insurers. If it remains unresolved, it is reasonable to expect him to pursue a remedy through the courts. That is because a court is the appropriate body to decide contested questions of law (such as alleged negligence and maintenance responsibilities), whether damages must be paid if the Council has been negligent and to enforce any award of damages.

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Final decision

14. The Ombudsman will not investigate this complaint. This is because it is unlikely we would find fault in the way the Council has reached its decisions and it is not unreasonable to expect Mr B to seek a remedy by going to court.

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Investigator's decision on behalf of the Ombudsman