Summary: Ms X complains about the length of time the Council has taken to remove a tree from the street outside her property that has caused damage to her boundary wall. The Council took too long to act on Ms X’s concerns and deal with her complaints. The Council has agreed to make a payment to Ms X, rebuild the wall and remove the garden waste bin without further delay. The Council will also review its procedures.

The complaint

1. The complainant, whom I have called Ms X, complains about the length of time the Council has taken to remove a tree from the street outside her property. The tree has caused damage to Ms X’s property and she says the Council has ignored her repeated requests since August 2014 to maintain and then remove the tree. Ms X has been put to time and trouble in raising the same issue with the Council for several years. She has also been unable to fully enjoy her property’s only outdoor space while the tree has been allowed to overgrow and encroach into her garden.

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What I have investigated

2. The information provided by Ms X shows the maintenance of the tree outside her home has long been a cause for concern to her. As these concerns continued until the Council removed the remaining tree stump in May 2019, I can consider what happened in the 12 months before Ms X brought this complaint to the Ombudsman. But earlier events are ‘late complaints’ (see paragraph 3). However, I have used my discretion to investigate back to August 2014 as this is the point from which Ms X started to raise concerns about the tree with the Council in writing.
3. Ms X says she has been raising concerns about the Council owned tree growing on the footpath directly outside her property since 2012. Ms X has agreed that my investigation should start from August 2014 because there is limited information about the contact she made to the Council about the tree before this date.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I have spoken to Ms X and considered the information she provided in support of her complaint.
9. I have considered the information the Council has provided in response to my enquiries, which includes evidence obtained from its contractor.
10. Ms X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The Council’s policy

11. The Council has a Tree Strategy (the Strategy) that aims to protect and enhance trees in its area. The Strategy lists the action the Council will take as ‘routine management’ of Council owned trees and includes:

• Planned maintenance on a four-year cycle which includes tree pruning and tree felling; and,
• Reactive maintenance and response to health and safety issues.

12. The Strategy aims to manage tree stock but does not include providing management services for bird fouling, pruning due to overhanging property or leaf, fruit, flowers and general debris fall.
13. The Council will only undertake tree felling when it is essential or advisable.
14. The Strategy also states the Council should acknowledge any complaints about trees and the Council’s maintenance within five working days and respond in full in 15 working days.

What happened

15. This chronology includes key events in this case and does not cover everything that happened.
16. In August 2014, the Council inspected the tree outside Ms X’s home in response to her concerns. The Council scheduled for its contractor to undertake pruning work on the tree that winter.
17. In November 2014, the Council sent Ms X a form so she could claim for the damage she said had been caused to her garden boundary wall by the tree roots.
18. The Council’s contractor failed to complete the pruning work on the tree as planned that winter. Ms X continued to contact the Council during the beginning of 2015 to complain about the delay in pruning work and the impact the tree continued to have on her enjoyment of the only outdoor space attached to her property.
19. The Council wrote to Ms X to explain its previous contractor had not completed the works planned before its contract ended and the new contractor was delayed in working through the tasks scheduled including, pruning of the tree outside Ms X’s home. The Council confirmed work to reduce the crown of the tree would start the week commencing 17 August 2015.
20. Ms X contacted the Council on 28 August 2015 to ask why the tree pruning had not been completed on the tree as promised. The Council told Ms X it had rescheduled the work for 10 September.
21. On 10 and 11 September 2015, the Council’s contractor was unable to complete the work to prune the tree outside Ms X’s home because a parked vehicle was obstructing access. The Council invited Ms X to provide two estimates for the damage she believed had been caused to her boundary wall by the tree roots.
22. The Council’s contractor eventually completed pruning work on the tree on 23 September 2015. Ms X contacted the Council as she remained dissatisfied. She said the pruning work the contractor had undertaken did not in her view sufficiently reduce the crown of the tree.
23. On 24 September 2015, Ms X sent the Council an estimate for pruning the hedge bordering her front garden. She said the Council had issued a warning that the hedge was starting to obstruct the public footpath, but Ms X had been unable to safely access the hedge to cut it because of the obstruction caused by the tree. The Council told Ms X it would only cover the cost of hedge pruning if it considered this was an appropriate outcome to Ms X’s complaint about the Council’s service.
24. In January 2016, Ms X contacted the Council to request a response to the complaint she said she had sent to it two months previously. The Council told Ms X it had no record of receiving a complaint from her in November 2015. Ms X expressed her frustration and told the Council all she wanted was for the Council to cover the costs of pruning her hedge. Ms X said she now felt she was entitled to further compensation from the Council for the inconvenience and frustration caused by its delays in dealing with her concerns about the tree. The Council explained it needed to conclude its complaint procedure to determine if it should pay for the hedge pruning.
25. In February 2016, Ms X continued to have contact with the Council about the tree and requested it was removed as it continued to have an impact on her and her property. The Council reiterated its explanation that hedge pruning costs could only be made through its complaint procedure and it had yet to receive the two estimates it had requested for the repairs to Ms X’s boundary wall.
26. Ms X contacted the Council on at least four further occasions during February and March 2016 to request a response to her complaint made on 5 February 2016. On 15 March, the Council wrote to Ms X to apologise for the delay in responding to her complaint, explaining this was due to staff absence. The Council told Ms X it would provide its complaint response soon.
27. The following day, the Council contacted Ms X and offered to carry out the hedge pruning to save her the cost of hiring a contractor for this work. Ms X accepted the Council’s offer and the work was completed shortly afterwards.
28. In October 2016, Ms X contacted the Council again as she had still not received its response to the complaint she made in February 2016. Ms X eventually wrote to the Council’s Chief Executive on 26 November 2017 to complain about the lack of response to her complaints.
29. The Council contacted Ms X on 19 December 2017 to explain it had reassessed the tree and decided it needed to be felled for highway maintenance.
30. Ms X says she contacted the Council on five occasions between February and October 2018. Ms X wrote to the Council’s Chief Executive again on 22 October 2018 to complain that the tree had still not been removed. She requested compensation for the damage caused to her boundary wall by the tree roots. Ms X also asked for reimbursement of her annual garden waste subscription fee as she had to use this to clear the leaves that had fallen from the tree into her front garden.
31. The Council responded to Ms X on 12 November 2018. It explained the delay had been caused by the Council’s contractor and the tree had been removed on 31 October 2018. The Council told Ms X the contractor’s delay was not the fault of the Council’s Arboriculture Team. The Council apologised for earlier delays in tree pruning and hedge pruning. It said it was unable to progress an insurance claim for damage to Ms X’s wall until she provided two estimates for the repair work. The Council told Ms X it was not liable for covering the costs of her garden waste subscription as it did not pay for any work on properties caused by leaf fall or sap drop in accordance with its Tree Strategy. The Council offered to undertake the repairs on Ms X’s boundary wall as a way of remedying the delays Ms X had experienced in the Council’s action.
32. Ms X escalated her complaint on 8 December 2018 to stage two of the Council’s complaint procedure because she remained dissatisfied. Ms X’s stage two complaint raised the following concerns about the Council’s stage one complaint response:
1. it was incorrect for the Council to say Ms X could have raised concerns about the tree in 2012. Ms X said she started to write to the Council about the problem in 2014 because her concerns were ignored when she had called during 2012 and 2013;
2. Ms X said staff she had spoken to in early 2014 had been rude and dismissive of her concerns;
3. The delays in the Council’s action to prune the tree and deal with Ms X’s concerns was unacceptable and should not be excused or blamed on contractors;
4. Ms X said it was unacceptable that her messages to the Arboriculture Team between February and October 2018 were ignored;
5. Ms X accepted the Council’s offer to repair her boundary wall provided the Council agreed to move the tree stump and kill the roots as the tree was still growing;
6. Ms X felt the Council should consider reimbursing the costs she incurred obtaining a surveyor’s report for the large crack in her living room wall and not for the boundary wall outside;
7. Ms X wanted the Council to reimburse the costs she incurred for garden waste subscription as the bulk of the waste was the result of sticky leaf fall from the Council owned tree;
8. Ms X asked the Council for £500 in compensation for the time, trouble and inconvenience she had experienced because of the Council’s delays.
33. The Council responded to Ms X’s stage two complaint on 11 March 2019. It apologised for the delay in responding. It also addressed the outstanding points of Ms X’s complaint listed above. It explained the tree stump should have been removed by now and it would arrange for contractors to repair Ms X’s boundary wall. The Council said it was unable to refund garden waste subscription fees for the reasons explained in the stage one complaint response. The Council considered its apologies and offers to prune the hedge and repair the wall were suitable remedies to Ms X’s complaints.
34. Ms X says the tree stump was removed some time in May 2019. She approached the Ombudsman because she remained dissatisfied with the Council’s response to her complaints.
35. In January 2020, the Council contacted Ms X to arrange repairs to the boundary garden wall to her property. The Council confirmed in an email to Ms X on 14 February 2020 that the wall would need to be rebuilt rather than repaired.

Analysis

36. There have been significant periods of drift and inactivity in the Council’s actions since Ms X started raising concerns in writing about the tree outside her home. The delays have caused Ms X considerable frustration and inconvenience as she has had to repeatedly contact the Council to prompt action. This is fault and caused Ms X avoidable injustice.
37. The Council has told Ms X it was not responsible for the delays caused by its contractors. While the Council may not have directly caused some of the delays Ms X experienced, it retained responsibility for overseeing any work undertaken by contractors on its behalf. The Council should not be seeking to absolve itself of any responsibility for works that should have been completed by its contractors. To do so was fault as the Council should have done more to ensure the contractor completed scheduled work on time or at least kept Ms X informed if there was a good reason for the delay.
38. The Council also considerably delayed responding to Ms X’s complaints leading her to contact it repeatedly for responses. This delay is fault that caused further frustration and inconvenience.
39. The Council says its offer to prune Ms X’s hedge and repair her boundary wall sufficiently remedies the injustice caused to her. I do not consider this goes far enough to remedy the prolonged injustice Ms X has experienced since 2014. The action detailed below seeks to address this.

Agreed action

40. Within one month of the final decision, the Council has agreed to:

• pay Ms X £375 which is equal to five years’ garden waste subscription fees from 2014 to 2019 for avoidable delay, time and trouble;
• remove the garden waste bin and its contents from Ms X’s property; and,
• arrange for contractors to rebuild Ms X’s boundary wall with a completion date no later than four months from the date of my final decision.

41. Within three months of my final decision, the Council has agreed to:

• review procedures to ensure it has better oversight of tree works undertaken by contractors on the Council’s behalf to avoid unacceptable delay and drift in scheduled activity; and,
• review procedures to ensure residents receive regular updates on the progress of works on Council owned trees with reported issues.

42. The Council should report back to the Ombudsman in four months from the date of my final decision on the actions it has taken.

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Final decision

43. I have completed my investigation and uphold Ms X’s complaint. Ms X has been caused an injustice by the actions of the Council and it has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman