Summary: The Ombudsman will not investigate Mrs C’s complaint the Council has not maintained trees to the rear of her property. This is because the complaint is late and there is not enough evidence of fault by the Council so there is no good reason to investigate it now.

The complaint

1. Mrs C complains the Council has failed to maintain trees to the rear of her property. She says there has been delay by the Council in carrying out its maintenance plan to manage the trees and accuses the Council of making promises which it has not kept. Mrs C says the failure to maintain the trees has caused a lack of light into her house which is causing it to become cold and damp. Mrs C also complains about excessive leaf fall into her garden and says branches could fall off the trees and cause damage to her property. Mrs C says the situation is causing her stress.

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. 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)
4. 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)
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
6. 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 we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

7. I have considered what Mrs C said in her complaint and the information she has sent in support of it. I have also considered correspondence about the complaint from the Council.
8. I have considered Mrs C’s comments on a draft before making a final decision.

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What I found

9. Mrs C complains the Council has failed to maintain trees to the rear of her property. Mrs C says the Council’s delay and failure to manage the trees has caused her house to become cold and damp. This is due to lack of light and she says she has to turn her lights and heating on in the daytime. Mrs C says she feels the situation has become personal and says it is causing her undue stress. Mrs C would like the trees removed or thinned out.
10. Mrs C says she has been in consultation with the Council about managing the trees. She complains the Council has not acted upon promises and assurances made to her. Mrs C also says a ten year maintenance plan to manage the trees is six years overdue and has taken too long to carry out. Mrs C says while some tree management to the left and right of the bank of trees has taken place, the Council has not properly maintained the trees immediately behind her property.
11. Mrs C says the trees are unsuitable for the area. She has provided plans of the estate and says the trees were not part of this. Mrs C has also paid for two arborists to assess the suitability and management of the trees and has provided a report from one of these for the Council to consider.
12. Mrs C complains about the neutrality of council staff considering her complaint. She has complained to the Council over several years and says Council staff who were involved in the earlier consultation and maintenance process have also considered her complaint. There is, however, no requirement for a council’s response to a complaint to be independent of those involved in the original matter.
13. Mrs C has been aware of the issues she raises for many years, so her complaint to the Ombudsman is late. I have considered whether there is good reason for the Ombudsman to investigate it now. The Council followed a clear process when it came to a decision about maintaining the trees. It has considered Mrs C’s complaint and the arborist report provided by her, but it has reached a different decision. The Council says it has apologised to Mrs C for the time taken to prepare and develop the plan, and it is now managing the trees to the rear of
    Mrs C’s property and set up the maintenance plan in 2019.
14. Mrs C disagrees with the Council’s decision and would like the Council to remove or reduce the trees behind her property. But without evidence of procedural fault or a failure to consider something relevant, it is not open to the Ombudsman to question the merits of the Council’s decision or actions simply because Mrs C disagrees with them. And now the Council has a maintenance plan in place based on a two year cycle from 2019, we could not likely achieve more by investigating and it is too early for the Ombudsman to consider whether the Council is keeping to the plan. So I am satisfied there is no good reason for the Ombudsman to investigate so long after Mrs C became aware of the matter.
15. Mrs C is concerned falling branches and leaves from the trees could damage her property. If Mrs C feels the Council is responsible for this it would be reasonable for her to pursue a claim in the County Court.

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Final decision

16. The Ombudsman should not investigate this complaint. This is because there is not enough evidence of fault by the Council and the complaint is late without good reason to investigate it now.

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Investigator's decision on behalf of the Ombudsman