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Sandwell Metropolitan Borough Council (20 002 142)

Category : Environment and regulation > Trees

Decision : Upheld

Decision date : 07 May 2021

The Ombudsman's final decision:

Summary: Mrs Y complains the Council has delayed in dealing with her complaint about a dangerous tree. Mrs Y says the tree overhangs her garden shed and could cause damage to the roof and valuable objects inside. The Ombudsman finds fault in how the Council has dealt with Mrs Y’s report of a dangerous tree.

The complaint

  1. The complainant, who I refer to as Mrs Y, complains the Council delayed in responding to her complaint about a dangerous tree overhanging her garden. Mrs Y says it took several months for the Council to visit the site and when it did so it did not have the keys for access. She says the Council was going to get the keys but delayed again and did not update her for several more months. Mrs Y says the Council then told her it could not access the site because of the pandemic and would get round to it when it could. However, she received no further update from the Council.

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The Ombudsman’s role and powers

  1. 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)
  2. 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

  1. I considered the information Mrs Y provided and spoke to her about the complaint, then made enquiries of the Council. I sent a copy of my draft decision to Mrs Y and the Council for their comments before making a final decision.

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What I found

Law and Policies

  1. The Local Government (Miscellaneous Provisions) Act 1976 gives councils the power to deal with trees that present an imminent danger to persons or property, when the trees are located on private land. Councils may serve a notice on the owner of any land on which the tree is located to remove the tree or carry out works to make it safe.
  2. The Council’s Urban Tree Policy says that, where someone has notified the Council that a tree is liable to cause damage to a property or structure, a detailed site plan and survey must be submitted. It does not say who needs to complete the site plan or survey.
  3. In its response to my enquiries the Council said that it would normally inspect a dangerous tree within 24 hours.

Background

  1. Mrs Y raised an enquiry with the Council in September 2019. She said a tree in the alleyway at the back of her property was overgrown and damaging the roof of her garden shed. Mrs Y said me the tree sways a lot and its branches touch the roof of the shed.
  2. The Council did not respond to Mrs Y’s enquiry. Its chronology shows it closed the case on 4 November 2019 citing ‘Insufficient information on request’. There is no indication it asked Mrs Y for more information or told her it had closed the case.
  3. Mrs Y chased the Council in January 2020. Towards the end of the month an officer visited the site but could not access the alleyway because he did not have the keys. Mrs Y says she told the Council from the outset that it would need the keys.
  4. The officer contacted the housing team, who initially provided a key that was not correct. In early February 2020 the housing team placed a request for the repairs team to change the lock but did not follow up to check this happened.
  5. From the end of March 2020, the Council’s offices closed due to the coronavirus pandemic.
  6. In May 2020 Mrs Y complained to the Council that it had not taken any action. The Council responded that due to the pandemic all its urban forestry activities were suspended, and it would attempt to resolve the matter when services returned to normal. Mrs Y said she was not satisfied with the outcome as the delays had started well before the pandemic. The Council responded that it could not carry out any work until it had the new key, and it was not clear when this would happen due to a build up of work caused by the pandemic. Mrs Y remained unhappy with the response.
  7. In July 2020, an officer from the housing team visited the office and confirmed that a new key had not been provided. The officer did not chase this up with the maintenance team as the team had only been dealing with emergency matters during the pandemic and would likely complete the request in due course. However, the request had not been logged with the maintenance team and no further action was taken.
  8. The following day the Council responded to Mrs Y again to say it could not access the site due to the pandemic. Mrs Y then brought her complaint to the Ombudsman.
  9. It is not clear from the information provided what further action the Council took from this point on or when it visited the site. However, at some point it identified the tree was located in a neighbouring garden, rather than the alleyway, so on private land. The Council wrote to the neighbouring address, advising the owner to remove the branch overhanging Mrs Y’s building. The letter says the tree has outgrown its location and will damage neighbouring property if it is not reduced or removed.

Findings

  1. I find fault in the following areas:
    • Delay in dealing with Mrs Y’s enquiry about a dangerous tree
    • Failure to update Mrs Y
    • Lack of recording
    • Lack of a clear policy

Delay and Communication

  1. There was a delay of four months between Mrs Y submitting the enquiry and the Council responding to her and visiting the site. During this time the Council did not update Mrs Y and closed the case without telling her. This is fault.
  2. It is not clear in what timeframe the Council will normally respond to reports of a dangerous tree. The Council says it will normally inspect a dangerous tree within 24 hours, but that does not apply here as it never considered the tree dangerous. However, Mrs Y’s referral said it posed a danger to her property and it is not clear how the Council could have established it did not cause an imminent danger without inspecting the tree. I note the Council’s later letter to the owner says the tree will cause damage if work is not completed. This suggests it should have inspected within 24 hours. Even if not, a delay of four months is fault.
  3. There was a further delay of four months between the visit in January 2020 and Mrs Y’s complaint in May 2020. I understand the Council needed to obtain keys for access, but it had at least six weeks before the pandemic caused an office closure to do so. It did not follow up to ensure this happened and did not provide Mrs Y with any update when the office closure meant it was no longer possible. Again, this is fault.
  4. I accept the pandemic and closure of the office may have prevented the Council from taking further action between March and at least July 2020. However, after an officer visited the office in early July 2020, they again did not chase up for the keys. It was not until at least the end of 2020 or start of 2021 that the Council took any further action and, again, I can see no evidence it provided further updates to Mrs Y from July 2020 onwards.
  5. This means it was up to 16 months between Mrs Y reporting the issue and the Council inspecting the tree, when the Council’s response suggests it should have been 24 hours. There is also no evidence it updated Mrs Y when it wrote to the owner.
  6. The Council has not given Mrs Y any indication of how it will proceed if the owner does not carry out the requested works. It has a power to serve a notice on the owner. This is a power rather than a duty so it would be for the Council to decide whether to take any such action. My concern is that the Council has not given Mrs Y any clear outline of its procedures or how it will go about dealing with her case.

Recording

  1. I asked the Council to provide any notes or reports from its inspection of the tree. The Council has only provided the letter it sent to the owner. There is no record of what its inspection found, the nature of the risk it believes the tree presents, and therefore on what basis it wrote to the owner. It means that, again, it is not clear how the Council intends to go forward, the procedure it will follow and whether it will consider any enforcement action if the owner does not complete the works.
  2. It is always important to keep clear and accurate records of actions or decisions. The lack of any records in this case is fault.

Policy

  1. The Council’s policy addresses situations in which a person reports a dangerous tree. However, it only says a plan and survey must be submitted. It does not say who must submit this, for instance the person making the complaint, the owner of the land or the inspecting council officer. There is nothing about the procedure the Council will follow in responding to a report. There is no information about how the Council will decide if a tree is dangerous, what action it might take or in what timeframe.
  2. The lack of information in the policy has made it difficult to assess whether the Council followed the correct procedure or acted in line with its normal practice. It means there is no information available for the person making the report, and potentially council officers, about how the Council expects to deal with a report. This absence of a clear policy is fault.

Consideration of Remedy

  1. I recommend the Council apologise to Mrs Y for the delays and lack of communication.
  2. The length of the delays involved, and the absence of clear updates will have caused Mrs Y distress, in the form uncertainty, over an extended period. I therefore recommend the Council pay Mrs Y £100 to recognise the distress caused.
  3. It does not seem Mrs Y is currently aware of what action the Council is taking or how it will deal with the case going forward. I therefore recommend the Council write to Mrs Y with an update and a clear explanation of any actions it has taken and/or or may take going forward, and the timeframes in which it will do so.
  4. I recommend the Council updated its policy so it clearly explains how it will manage reports of this nature. I also recommend the Council update its procedures to ensure that clear records are kept showing the actions it has taken and the rational behind any decisions made.

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Agreed action

  1. The Council has agreed to, within a month of this decision:
    • Apologise to Mrs Y for the delays and lack of communication
    • Pay Mrs Y £100 to recognise the distress caused
    • Update Mrs Y about any actions it has taken, how it will manage the case going forward and the timeframes involved
  2. It has also agreed to, within three months of this decision:
    • Update its Urban Tree Policy to include a clear outline of how it will manage reports of dangerous trees, the procedure and timeframes involved
    • Update its procedures to ensure it keeps records of any actions and decisions, including inspections

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Final decision

  1. The Council is at fault in how it has dealt with Mrs Y’s report of a dangerous tree.

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Investigator's decision on behalf of the Ombudsman

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