Summary: Mr X complained about the Council’s threat to a protected tree which is on his land alongside a public highway. The Ombudsman should not exercise his discretion to investigate this complaint. This is it was received outside the normal 12-month period for receiving complaints and there is insufficient evidence of fault causing injustice to consider it now.

The complaint

1. The complainant, whom I shall call Mr X, complained about the Council sending him a warning letter that it would take action to remove his oak tree from the edge of the public highway if he did not remove it himself. He says the letter was inaccurate and unlawful and that he was caused distress at the possible loss of a protected tree.

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The Ombudsman’s role and powers

2. 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)
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 fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

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How I considered this complaint

4. I have considered all the information which Mr X submitted with his complaint. I have also considered the Council’s response. Mr X has commented on a draft copy of my decision.

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What I found

5. Mr X says his protected oak tree was threatened with removal by the Council when it identified roadside trees in his area which it said presented obstructions along a bus route. He says it sent him a threatening letter under s. 154 of the Highways Act 1980 which required him to take action within 7 days. Because of the tree’s proximity to the road he believed this meant the tree had to be removed. The Council later qualified the notice by accepting a lower limb of the tree could be removed to meet the requirement.
6. Mr X complained to the Council in May 2019. The Council responded in June and told him that if he wished to take the matter to the next stage of the complaints procedure he should request this. He did not make such a request but in August that year he made a Freedom of Information Act request to disclose further information.
7. The Ombudsman can normally only consider complaints about matters which the complainant became aware of within the past 12 months. In this case Mr X was aware of the issue in May 2019 and the Council replied in the following month which is outside 12 months before he complained to us. In this case I do not consider there is sufficient evidence of fault by the Council causing injustice to Mr X for us to use discretion to investigate it now.

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Final decision

8. The Ombudsman should not exercise his discretion to investigate this complaint. This is because it was received outside the normal 12-month period for receiving complaints and there is insufficient evidence of fault causing injustice to consider it now.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman