Summary: We will not investigate this complaint about the Council’s maintenance of a highway tree and the adjacent footway. It is not our role to decide the level of maintenance required. It is reasonable for Mr X to submit a claim to the Council’s insurers or seek a remedy in the courts for any damage or injury sustained by his claim of negligence.

The complaint

1. Mr X says the Council has failed to repair the footway adequately after he complained about roots from an adjacent tree causing damage to it and causing a hazard for pedestrians. He wants the Council to resurface the pavement where the root damage occurred and prune the tree when it has foliage which hangs over the site.

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The Ombudsman’s role and powers

2. 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)
3. 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

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X reported damage to the pavement caused by tree roots in the footway. He says his car was damaged by cyclists trying to avoid the damaged area. The Council inspected the site and removed roots up to the end of his driveway. The contractors patched the footway where the roots were removed.
7. Mr X complained to the Council that the pavement between the tree and the boundary of his home was still uneven and that his father tripped on the surface. The Council inspected the site and said that the surface does not warrant further work at present as it falls within its maintenance parameters. It says it will monitor the pavement for any deterioration.
8. Mr X says the tree has low foliage in the growing season which interferes with pedestrians. This was not included in his formal complaint but the Council monitors trees on a planned basis.
9. When considering complaints, we may not act like an appeal body and question the merits of the decision the Council has made or offer any opinion on whether or not we agree with the judgment of the Councils’ officers or members. This means we will not intervene in disagreements about the merits of decisions such as the threshold for intervention on highway repairs.
10. If Mr X has suffered damage to property or personal injury as a result of the Council’s negligence in maintaining the highway, he can submit a claim against it. If its insurers do not accept liability for the damages, it would be reasonable for him to seek a remedy in the courts. This is the proper body to consider claims about negligence.

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Final decision

11. We will not investigate this complaint about the Council’s maintenance of a highway tree and the adjacent footway. It is not our role to decide the level of maintenance required. It is reasonable for Mr X to submit a claim to the Council’s insurers or seek a remedy in the courts for any damage or injury sustained by his claim of negligence.

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Investigator's decision on behalf of the Ombudsman