Summary: We will not investigate Mr X’s complaint about the Council’s decision not to cut back a tree near his property over several decades and how it has dealt with his 2022 request. The events relating to the same tree before 2022 are late and there is no good reason to investigate them now. There is not enough evidence of fault in the Council’s decision-making process, nor sufficient significant personal injustice to warrant caused by the matters complained of, to justify us investigating.

The complaint

1. Mr X lives in a property near a Council-owned tree. He complains the Council has:
1. refused to reduce the size of the tree as he has requested over many years;
2. not taken seriously his concerns about the tree and his feelings and current needs;
3. has discriminated against him and other neighbours because they did not remove the tree themselves, which other residents did with other trees.
2. Mr X is concerned the tree will drop branches or fall in windy weather. He feels he could not cope at his age were the tree to fall on his property. Mr X feels discriminated against for following the law-abiding route of not removing the tree himself earlier. He wants the Council to agree to reduce the tree to half of its present size and maintain it at that reduced height every year.

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The Ombudsman’s role and powers

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. We investigate 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 continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating; or
• any fault has not caused injustice to the person who complained; or
• any injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

5. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered information from Mr X, online maps and images of the area, and the Ombudsman’s Assessment Code.

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My assessment

7. Mr X says his concerns about the tree and his attempts to get various works done to it goes back decades. We expect people to complain to us within 12 months of them becoming aware of the issue complained of. Otherwise, the complaint would be late. This means all events prior to August 2022 here are late. Mr X’s pursuit of the matter with the Council at various times indicates there would not have been an impediment to him complaining to the Council and then to us much sooner. So there are no good reasons to investigate those events now. Mr X’s complaint does include evidence of his most recent complaint to the Council in 2022 and its response. That is the only Council administrative action and decision which is not late and that we have considered here.
8. We may only go behind a council’s decision if where there has been fault in the decision-making process and but for that fault a different decision would have been made. So we consider the processes councils followed.
9. In response to Mr X’s concerns, the Council discussed them with officers involved, reviewed correspondence and their latest assessments of the tree. Officers determined that reduction of the tree to half its size as requested would adversely affect its long-term health. They considered that doing that work would run contrary to Council policy aims to maximise the health and life of its trees, and maintain and enhance the number of trees in public spaces. It says it will continue to inspect the tree at least every three years on its rota, but would respond to any reports of a problem received in the intervening period as required.
10. There is not enough evidence of fault by the Council in the process it has followed to make its decision to warrant us investigating. The Council has not disregarded Mr X’s concerns, albeit it has not agreed to do the works he wants. Officers have taken account of his comments, including concerns about the possible impacts of the tree on him personally and his property, and not found grounds for them to diverge from their policy. We recognise Mr X strongly disagrees with the Council’s decision not to agree with him and not to do works to the tree. But it is not fault for a council to properly make a decision with which someone disagrees.
11. Mr X claims the Council has discriminated against him because unlike other neighbours he did not remove the tree near his house many years ago. Mr X may regret not taking the same action as his neighbours. But it is not discriminatory for the Council to consider the current situation, and not take account of a different scenario which has not happened. There is not enough evidence the Council has made its decision here on any discriminatory grounds to warrant investigation.
12. Even if there were fault by the Council here, we would not investigate. Mr X’s claimed injustice from the current size of the tree is that he is worried about it dropping its branches or falling onto his property in the wind. He says this is more likely given the changes in the weather, and given his age he feels he could not cope were the tree to fall and damage his home. Mr X does not mention any damages which have happened to him or his property caused by the tree. We cannot consider injustices which have not happened. Mr X’s worry about what he believes might happen to him or his property because of the tree is not sufficient personal injustice to give grounds to warrant us investigating.
13. Mr X refers to a Magistrates Court decision he considers is relevant case law on his claimed injustice of his concerns about what might happen to the tree. The case was heard in the Magistrates’ Court, which as a lower court in the judicial system does not have powers to create case law setting legal precedent for other matters. If Mr X wants a legal decision on his situation, he would have to put it before a court to consider it on its own specific facts. The Ombudsman does not make rulings of law so cannot make such a determination.
14. If Mr X did incur personal or property damage due to the tree in future, it is likely we would not investigate. This is because they would be claims of liability for damage against the Council as the tree’s owner. They would be legal liability claims only its insurers or the courts could determine. The Ombudsman does not rule on legal liability issues.

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Final decision

15. We will not investigate Mr X’s complaint because:
• the historic events relating to the same tree are late and there is no good reason to investigate them now; and
• there is not enough evidence of fault in the Council’s decision-making process to warrant an investigation; and
• even if there were fault, the matters complained of do not cause him such a significant personal injustice to justify us investigating.

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Investigator's decision on behalf of the Ombudsman