Summary: The Ombudsman will not investigate Mr X’s complaint about the Council’s decision not to do works to trees near Mr X’s property. There is not enough evidence of fault in the way the Council assessed the state of the trees and the maintenance work required. The Ombudsman cannot question the merits of a council’s properly made decision. He cannot choose which conflicting professional assessment of the same trees is the correct one. There is also insufficient evidence of significant personal injustice to Mr X to warrant an Ombudsman investigation. Damage caused to Mr X’s property is an insurance or civil matter which he can refer to the Council’s insurers, or to the courts.

The complaint

1. Mr X lives in a property with trees at the end of the back garden. He complains the Council has refused to do work to its trees, which he considers are a health and safety risk to him and other neighbours.
2. Mr X says the trees have caused damage to property. He says the state of the trees is causing him and his family increased anxiety about what might happen with the trees, such as them losing branches, snapping or collapsing. Mr X wants the Council to do work to remove risks posed by the trees.

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The Ombudsman’s role and powers

3. 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
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended)

4. 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)
5. 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)

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How I considered this complaint

6. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• viewed relevant online maps and pictures of the area;
• spoken to Mr X about the complaint;
• issued a draft decision, inviting Mr X to reply.

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What I found

7. Due to concerns and some fallen trees, the landowner behind the Council land did a survey on their trees in June 2019 and found they all needed work. The survey included some Council-owned trees, due to a mistake with the boundaries. Some of the lost trees snapped at the trunk, others had been uprooted. Mr X says the landowner’s report advised the type of tree causing him most concern is brittle and prone to snapping.
8. The Council says it will only remove trees where there is evidence of ‘significant signs of decay, disease’, or when their insurers tell them a tree is causing structural damage. The Council says its arboriculturist checked all its trees in the area in May 2019. They found no defects or problems to justify their removal and the trees met Council specifications. The trees are due to be re-inspected in June 2020, but in the meantime Mr X should report any changes to the trees’ condition.
9. I do not consider the Ombudsman should pursue this complaint. If the Ombudsman did investigate, he could not make a finding on which of the surveys is correct about the works required to the Council’s trees. This is because it is for the Council to make its decisions on the works it believes are required. The Ombudsman cannot go behind that professional judgement of officers unless there is clear evidence their decision was based on a flawed process. The evidence shows the Council followed the appropriate process and gathered relevant information, by sending the relevant officer to assess the trees, before reaching its views. I recognise Mr X disagrees with the Council’s decisions regarding the trees. But it is not fault for a council to make a decision with which someone disagrees.
10. I also consider there is not enough evidence of a significant personal injustice caused to Mr X by the matter. I recognise Mr X’s key claimed injustice is concern about damage the trees might do in the future. But the Ombudsman cannot determine whether the trees pose the risks Mr X fears, so cannot reach a view on whether his anxieties are justified.
11. Mr X says his fence and shed have been damaged by the trees. If Mr X considers there has been damage to his property which he blames on the Council, that would be an issue for him to report to the Council’s insurers. If the claim is rejected, Mr X may take the matter to court. I consider it would be reasonable for Mr X to pursue that route as the court provides the appropriate accessible process for Mr X to pursue a remedy.
12. In respect of Mr X’s concerns about future damage to his property, the Ombudsman cannot remedy something that has not happened.
13. Mr X mentions some trees have caused damage to his neighbour’s property. But the Ombudsman cannot consider the neighbour’s injustice, only Mr X’s. This is because he has not received a complaint directly from the neighbour, and Mr X is not bringing a complaint on the neighbour’s behalf.

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Final decision

14. The Ombudsman will not investigate this complaint. This is because:
• there is not enough evidence of fault by the Council to warrant an Ombudsman investigation;
• the Ombudsman cannot go behind a council’s properly made professional judgement decision, or choose between different professional assessments of the same trees;
• there is insufficient evidence of a significant personal injustice to Mr X caused by the matter to warrant an Ombudsman investigation;
• damage caused to Mr X’s property is an insurance or civil matter which he can refer to the Council’s insurers or to the courts.

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Investigator's decision on behalf of the Ombudsman