Summary: Mr X complained that Council owned trees deposit large amounts of leaves in his garden and on his front drive. Mr X complained the Council failed to consider his disability when handling his complaint and reaching its decision. Mr X says the leaves become slippery and this makes it dangerous for him to leave his property because of his disability. The Ombudsman found fault with the Council for failing to consider reasonable adjustments for Mr X’s disability. The Council agreed to the Ombudsman’s recommendation to apologise to Mr X, review Mr X’s request for a reasonable adjustment under the Equality Act and develop a Council wide policy for considering reasonable adjustments.

The complaint

1. Mr X complained that Council owned trees deposit large amounts of leaves in his garden and on his front drive.
2. Mr X complained the Council failed to consider his disability when handling his complaint and reaching its decision.
3. Mr X says the leaves become slippery and this makes it dangerous for him to leave his property because of his disability.

Back to top

The Ombudsman’s role and powers

4. 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)
5. 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. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal or court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal or go to court. (Local Government Act 1974, section 26(6)(a), 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)

Back to top

How I considered this complaint

8. I have considered all the information Mr X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mr X provided comments on my draft decision and the Council agreed to my draft decision. I considered Mr X’s comments before making my final decision.

Back to top

What I found

The Council’s tree management guidelines

10. The Council’s policy on managing trees outlines that it must remove or reduce Council owned trees that pose a risk to people or property.
11. Where the Council considers a tree does not pose a risk to people or property it will not prioritise works on this tree.
12. The Council’s policy says it has no legal obligation to remove or prune trees to reduce leaf fall. The Council’s policy says that leaf fall is a natural event. It considers the clearance or removal of autumn leaves is part of normal property maintenance and the responsibility of the owner or tenant of the property.
13. The Council’s policy says it has no legal obligation to remove or prune trees to reduce non-hazardous overhanging branches. However, the Council’s policy says the Council will take appropriate action when a Council owned tree has overhanging branches which are touching a building.

Reasonable adjustments

14. The Equality Act 2010 says an individual or organisation that provides a service to the public, such as councils, must not treat someone worse just because of one or more “protected characteristics”. Protected characteristics include people with disabilities.
15. Pursuant to Section 29(6) of the Equality Act (the Act), a person must not, in the exercise of a public function, do anything that constitutes discrimination, harassment or victimisation. A duty to make reasonable adjustments applies to a person exercising a public function, i.e. to take such steps as it is reasonable to have to take to avoid a substantial disadvantage caused to a disabled person by a provision, criterion or practice or by the absence of an auxiliary aid or service.
16. When the duty arises, the public body is under a positive and proactive duty to look at removing or preventing obstacles to a disabled person accessing its services. If the adjustments are reasonable, it must make them.
17. If a person believes they have been discriminated against because of the actions of a service provider, they may make a claim for damages in county court. However, government guidance says “Defending or taking a claim in court can be lengthy, expensive and draining. It can also have a damaging impact on the reputation of an organisation. It is likely to be in everyone’s interest to try to put things right before a claim is made to a court.”

What happened

18. On 30 October 2020, Mr X complained to the Council about the Council owned trees bordering his property depositing leaves on his front drive and garden. Mr X said:
• He was severely disabled, was registered with the DWP and had a Council blue badge and disabled bus card.
• The leaves made it dangerous for him to leave his property when they became wet.
• He had limited income so could not afford the cost of clearing the leaves regularly and could not do this himself because of his disability.
• A neighbour of his had a hedge trimmed by the Council and queried if the Council would provide him with a similar service.
19. Mr X asked the Council to complete some form of remedial action to reduce or prevent the leaf deposit. Mr X asked if this was not a formal function of the Council if it could make some form of reasonable adjustment under the Equality Act 2010 because of his disability.
20. Mr X contacted the Council again on 21 December 2020 to chase for a response to his complaint.
21. The Council provided its Stage 1 complaint response on 21 January 2021. The Council told Mr X it did not prune trees to reduce leaf fall and it was not responsible for where trees deposited their leaves. The Council told Mr X it would prune any overhanging branches on to Mr X’s property from the trees. The Council said Mr X’s neighbour’s hedge was a “category hedge” meaning the Council had a contract to regularly maintain this hedge.
22. Mr X asked for a Stage 2 complaint response on 6 February 2021. Mr X said the photograph of the trees by the Council was from an angle and did not reflect the overhanging. Mr X asked the Council if it had considered the photographs he had provided showing the leaf fall. Mr X also told the Council the DWP had placed him in the two highest categories of disability benefits and considered the Council was discriminating against him. Mr X asked the Council again to consider a reasonable adjustment under the Equality Act.
23. The Council provided its Stage 2 complaint response on 22 February 2021. The Council told Mr X it would not be taking Mr X’s complaint further as Mr X had provided no further evidence. The Council directed Mr X to the Local Government and Social Care Ombudsman (The Ombudsman).
24. Mr X complained to the Ombudsman on 2 March 2021. The Ombudsman liaised with Mr X and the Council about his complaint.
25. On 7 June 2021, the Ombudsman asked the Council if it wished to have opportunity to consider the impact of the leaf fall on Mr X given his disabilities before it completed an investigation.
26. The Council advised the Ombudsman it wanted to take the opportunity to consider the potential impact on Mr X being greater on him, because of his disabilities, compared with other people.
27. The Council provided a further response to Mr X’s complaint on 22 July 2021. The Council said it had considered the photographs of the leaf fall in making its decision. The Council said it would be environmentally disproportionate to remove the trees because of natural leaf fall.
28. Mr X responded to the Council. Mr X said he provided information to the Council about his disability on 18 June 2021, 20 June 2021 and 4 July 2021. Mr X said the Council had failed to consider this or include consideration of his disability within the letter of 22 July 2021.
29. The Ombudsman restarted its investigation following the Council’s letter of 22 July 2021.

Analysis

Tree pruning

30. Mr X complained that Council owned trees deposit large amounts of leaves in his garden and on his front drive.
31. The Council’s policy says it will not prioritise works on trees that do not pose a risk to people or property. The Council’s policy also outlines it has no obligation to remove or prune trees to prevent or reduce leaf fall.
32. Mr X’s complaint is specifically about the leaf fall caused by Council owned trees. In line with the Council’s policy, it does not have any obligation to reduce the leaf fall on Mr X’s property.
33. The Council has attended Mr X’s property to view the trees and has considered the photographs Mr X provided of the leaf fall. The Council decided it did not need to deviate from its policy because of the amount of leaf fall shown and position of the trees.
34. The Ombudsman is not an appeal body, so cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process.
35. The Ombudsman must decide if the Council has considered the relevant legislation and policies in making its decision about whether to reduce the leaf fall of the Council owner trees. Since the Council has considered the relevant policies and reached a suitable decision in line with these policies, I do not find fault.

Reasonable adjustments

36. Mr X complained the Council failed to consider his disability when handling his complaint and reaching its decision.
37. Mr X has a right to go to court if he believes the Council has discriminated against him by not making reasonable adjustments. However, I must consider if it is reasonable for Mr X to go to court.
38. Government guidance says taking court action about discrimination can be “lengthy, expensive and draining”. Given Mr X has already advised he has limited income for the cost of removing leaves from his property, I do not consider it reasonable to expect him to take action in court.
39. Only the courts can decide whether the Council has discriminated against Mr X. But we can decide if the Council has acted with fault in dealing with Mr X and his request for reasonable adjustments.
40. Key to understanding whether there has been fault is recognising:
• The Council’s proactive duty to make adjustments.
• The Council only has the duty to make ‘reasonable’ adjustments.
41. Mr X’s request for a reasonable adjustment from the Council was for it to consider his disability when making a judgement about reducing the leaf fall from the Council owned trees. Mr X did not ask the Council to take any specific action but rather to take any action it considered suitable to reflect the dangers the leaf fall presented him because of his disability.
42. It is not the role of the Ombudsman to decide whether Mr X’s request was either related to his disability, or reasonable. But we can look at how the Council explored with Mr X his need for reasonable adjustments.
43. Mr X asked the Council to consider his disability when making its decision on 30 October 2020 and 6 February 2021. The Ombudsman also invited the Council to consider Mr X’s disability on 7 June 2021.
44. The Council has not referenced Mr X’s disability in either of its Stage 1 or Stage 2 complaint responses to Mr X. The Council also failed to reference Mr X’s disability in its letter of 22 July 2021 following the informal request from the Ombudsman.
45. The Council has provided no contemporaneous case file or complaint notes showing consideration of Mr X’s disability in its submissions of evidence to the Ombudsman.
46. Again, it is not for the Ombudsman to decide whether Mr X’s request was reasonable. But I would have expected to see a record on file of the Council’s consideration of Mr X’s request with reference to the Equality Act.
47. The Council told the Ombudsman in its complaint response that it was “not aware of any specific issues” Mr X experienced due to his disability. The Council said it needed more information from Mr X to conduct a review.
48. However, Mr X has told the Council about his disability. The Council did not ask Mr X to provide more information about his disability or tell Mr X that it needed more information to conduct a review. This shows the Council has also failed to take a proactive approach to considering any reasonable adjustments for Mr X.
49. The Council has not considered Mr X’s disability or considered its duty under the Equality Act to make reasonable adjustments. This will have caused Mr X some frustration and inconvenience.

Back to top

Agreed action

50. Within one month of the Ombudsman’s final decision the Council should:
• Write to Mr X to apologise for failing to consider his request for a reasonable adjustment.
• Contact Mr X to discuss his disability with the view to obtaining any relevant information the Council considers it needs to complete a review of Mr X’s reasonable adjustment request.
• Following contact with Mr X, complete a review of Mr X’s reasonable adjustment request and provide its reasons to Mr X about whether it agrees or disagrees with his request for reasonable adjustments with reference to the Equality Act and his disability.
51. Within three months of my final decision the Council should:
• Develop a (Council wide) policy on how to check with service users whether they need any reasonable adjustments, because of a disability, and to keep a record of how it agreed or disagreed with a request and communicated this to the service user.

Back to top

Final decision

52. There was fault by the Council as the Council has agreed to my recommendations I have completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman