Summary: We will not investigate this complaint about the Council’s alleged failure to maintain some trees. There is not enough evidence of fault to warrant an investigation. The complaint is also late and there no good reasons to exercise our discretion to investigate now, and any question of harm or damage from neighbouring trees is properly for a court of law to decide.

The complaint

1. Ms B says, for her mother, the Council has failed to maintain some trees near her mother’s property.
2. Ms B also says the Council has been rude and has made false promises.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating.

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

5. 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)
6. 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

7. I considered information provided by Ms B and the Council.
8. I considered the Ombudsman’s Assessment Code.

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My assessment

9. Ms B says the trees beyond the rear boundary of her mother’s home, which were planted after they moved in, have become a trip hazard and the branches are overhanging and are blocking natural light.
10. The role of the Ombudsman is to consider the Council’s administrative actions. It is not our role to say whether the trees are a hazard or not as this is a matter of professional judgement.
11. The Council and Ms B agree a Council representative has visited her mother’s home several times to inspect the trees.
12. Ms B says the Council has not inspected the trees from her mother’s property, but it would not need to see the trees from the property side of the fence to assess their condition.
13. The inspector who assessed the trees is also a competent professional officer. There is no evidence to suggest the Council has failed to consider the matter properly or reached a flawed conclusion.
14. It would also be difficult for the Ombudsman to determine whether the Council made false promises or that it has been rude. Ms B has no evidence to show this happened since all these conversations were either by telephone or in person.
15. Moreover, if the trees are as high Ms B is saying they are, then it is clear Ms B has been aware of the issue for more than a year. This means the complaint is late and there are no good reasons to exercise our discretion and investigate it now.
16. Finally, it is generally the case councils will not carry out work on their trees unless there is clear evidence they are dangerous, dead or dying. From Ms B’s photgraphs it appears the trees do not overhang the property boundary significantly, if at all, or present a risk to the property itself. Damage from encroaching roots or falling or swaying branches is properly a matter for the courts in any event. They can decide whether the Council should be liable for it; we cannot.

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Final decision

17. We will not investigate Ms B’s complaint because there is not enough evidence of fault to warrant an investigation. It is also late without good reasons to exercise discretion to investigate, and it would be reasonable for Ms B or her mother to pursue any claim for harm or damage from the trees through the courts.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman