Summary: Miss X complained the Council failed to properly maintain trees around her late father’s property and gave her incorrect information about who was responsible for them. We find the Council at fault for delays in responding to Miss X. We recommend the Council apologise to Miss X and make a payment to recognise the injustice caused.

The complaint

1. Miss X complains the Council failed to properly maintain trees it owns around her late father’s property. Miss X says the Council initially gave her incorrect information about who was responsible for these, then failed to adequately carry out the necessary work and there were delays in responding to her. Miss X says this situation has caused her stress and upset and damaged the property.

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The Ombudsman’s role and powers

2. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
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. 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)

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What I have and have not investigated

5. We cannot investigate complaints that have been brought to us more than 12 months after the events being complained about. We can only exercise discretion if there are good reasons to do so.
6. Miss X brought her complaint to the Ombudsman in April 2023, meaning anything that took place prior to April 2022 would be considered a late complaint. Miss X has raised concerns about how the Council fulfilled its duties going as far back as 2013, but I have seen no good reason to exercise discretion to investigate beyond April 2022.
7. For this reason, I have investigated the complaint as set out above from April 2022 onwards.

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How I considered this complaint

8. I spoke to Miss X about her complaint and considered information she provided. I also considered information received from the Council.
9. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and policy

10. Under the Highways Act 1980, if a tree is planted on Council land, then the Council is the owner and should maintain it.
11. The Council’s policy for trees it owns and manages explains it relies on a programme of regular inspection to manage its trees. These inspections take place on a cyclical basis, based on a risk-based assessment. The Council’s policy does not define a timescale for cyclical inspections, but it also carries out inspections when residents report a need.
12. The policy says the Council visually inspects trees to determine their general condition and health, and to identify hazards which require remedial works.

What happened

13. In July 2022, Miss X visited a property that had been owned by her late father. Miss X submitted an online form telling the Council trees were overhanging the property from Council land and damaging the roof.
14. Miss X says someone at the Council called her and said these trees were her responsibility. However, the Council’s contact notes say it advised Miss X to check the terms of the property’s lease to find out who was responsible for the trees and seek professional advice. Miss X then checked the Council’s online database which showed the trees were owned by the Council and it was responsible for any necessary works.
15. Miss X says she could not reach the Council by phone so submitted further online forms but received no answer.
16. Miss X complained to the Council in September 2022. She explained the Council’s trees were overhanging her late father’s property and causing damage.
17. The Council then agreed it had responsibility for the trees and carried out an inspection to see what work was needed.
18. The Council wrote to Miss X in October 2022. It apologised for the delay in responding and explained this was down to staff numbers. The Council confirmed it had visited the site and would start works to address the overhanging that month.
19. Miss X visited the property after the Council’s work was completed but felt the trees were still overhanging the property and there was now debris in the gutters.
20. Miss X complained to the Council again in November 2022. Miss X said:
• She was not happy with the work that had been completed as she felt the bare minimum had been done and the trees were still overhanging the property. Miss X provided photos to show this.
• The Council misled her in July 2022 about who was responsible for maintaining the trees and did not respond to her enquiries.
• The Council had neglected its duties as it had been too long since the trees were last maintained and asked for confirmation the Council’s insurance would pay for repairs.
21. Miss X chased the Council for a response in January 2023. It apologised for the delay in responding, which it said was down to a system error, and agreed to reply in the coming days.
22. The Council responded to Miss X in February 2023. The Council apologised for any wrong information Miss X had been given but said its system notes did not have a record of the conversation from July 2022. The Council said the work identified as necessary by its Trees and Woodland Officer was completed and, unless there was an urgent health and safety issue, it would not inspect these trees again until the next cycle of inspections. The Council said Miss X could contact her insurer or its own insurance team to discuss any damage to the building.
23. Miss X responded to explain she remained unhappy. Miss X said the trees were still overhanging the building and the gutters were full of debris.
24. Miss X brought her complaint to the Ombudsman in April 2023.
25. In response to our enquiries, the Council explained it does not define timescales for the cyclical inspections generally as this is determined based on risk assessments on a case-by-case basis. It explained it does not typically reinspect trees once work was completed and the trees in question were next scheduled for inspection in October 2025, unless it receives a report an ad hoc inspection is necessary in the meantime. The Council also said the debris Miss X has referred to is from regular leaf fall and seed dispersal and it is not obliged to maintain the property’s gutters.

Analysis

26. It is not the Ombudsman’s role to make decisions on what work, if any, the Council should carry out on its trees. Instead, we investigate the process the Council has followed when making its decisions and if it adhered to the relevant law and guidance to come to those decisions.
27. Miss X said the Council incorrectly told her she was responsible for maintaining the trees when she contacted it in July 2022. The Council’s contact notes do not reflect this and state it actually advised her to check who had responsibility and seek professional advice. There is not enough information for me to conclude, even on balance, that the Council gave Miss X incorrect information about who was responsible for maintaining the trees.
28. However, the Council ought to have been aware the trees were on its own land without asking Miss X to doublecheck this herself. This is fault and caused uncertainty for Miss X, which is injustice.
29. Miss X then promptly let the Council know she had checked, and it was responsible for maintaining the trees itself, but it took the Council more than two months to schedule the trees for works, and only after Miss X chased it multiple times. The delay here is fault and caused further uncertainty for Miss X, which is injustice.
30. Once the Council inspected the trees, it promptly carried out works. I do not find fault with the Council here.
31. However, Miss X contacted it within a week to explain she did not feel the work was adequate. Again, Miss X received no response from the Council for more than three months, despite chasing it. This delay is fault and led to further frustration and uncertainty for Miss X, which is injustice.
32. The Council has said it is not its usual process to check work once it has been completed and it will only carry out ad hoc inspections if it receives reports it is necessary in the meantime. I do not find the Council at fault for not inspecting the trees once its contractor completed their work.
33. The letter Miss X sent to the Council in November 2022 explained she felt it had done the bare minimum and should cut the trees back further. This appears to be a dispute about how much work should have been completed, rather than the quality of the work itself. I appreciate Miss X disagrees with the level of work the Council felt was necessary, but I cannot find the Council at fault simply because Miss X disagrees with it.
34. Miss X’s complaint about damage to the property is in effect that the Council has been negligent. Adjudication on questions of negligence usually involves making decisions on contested questions of fact and law which need the more rigorous and structured procedures of civil litigation for their proper determination. In addition, only a court can decide if a council has been negligent and what damages must be paid.
35. We cannot decide whether a council has been negligent and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Miss X’s position to seek a remedy in the courts, directly or through her insurers.

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Agreed action

36. To remedy the injustice identified the Council has agreed to carry out the following actions within one month:
• Provide Miss X with a written apology for the injustice identified above
• Pay Miss X £150 to recognise the distress and uncertainty caused by the delays in responding to her communication and giving its views
37. The Council should provide us with evidence it has complied with the above actions.

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Final decision

38. I find the Council at fault for delays in inspecting its trees and responding to Miss X’s requests. The Council accepted my recommendations and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman