Summary: Mrs X complains the Council has failed to maintain a tree outside of her property and has changed its mind on the actions it would take without explanation. The Ombudsman finds fault with the Council for its communication with Mrs X. The Council has agreed to apologise, provide an update, and properly consider the concerns Mrs X raised.

The complaint

1. Mrs X complains the Council has failed to maintain a tree outside her property. Mrs X says this is causing access and drainage issues.
2. Mrs X complains the Council first said it would remove the tree, and then decided it against this.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’ which we call ‘fault’. 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)
4. If we are satisfied with an organisation’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. Part of Mrs X’s complaint is that the Council has been negligent in not maintaining or removing the tree, and it is causing damage to her house and property boundary.
6. Deciding about whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
7. I cannot decide whether an organisation has been negligent and have no powers to enforce an award of damages. So, I would usually expect someone in Mrs X’s position to seek a remedy in the courts, directly or through her insurers. I believe Mrs X has already made a legal claim against the Council to do this, and therefore I do not propose investigating this this part complaint.

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How I considered this complaint

8. I considered Mrs X’s complaint to the Council and information she provided. I also considered information from the Council.
9. I invited Mrs X and the Council to comment on my draft decision and I considered any comments received.

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What I found

10. Mrs X bought her house March 2022. Shortly after moving in, Mrs X’s partner filed a legal claim with the Council for damage to the property by a tree close to the property boundary. The Council rejected the claim. In October 2023 Mrs X asked the Council to remove the tree as it was causing damage to the house and property boundary.
11. In November 2023, the Council told Mrs X

• the tree was healthy and posed no risks,
• the Council had proposed to remove the tree previously, but residents objected, and
• the Council was currently consulting again on removing the tree, and it hoped to remove the tree by March 2024.

12. The Council carried out the consultation, and the results were that most of the residents did not want the tree to be removed. Therefore, as the tree was healthy and posed no risks, and most residents rejected the removal, the Council decided against removal of the tree. It instead decided that significant pruning would be carried out.
13. Mrs X complained to the Council in February 2023. In her complaint she said that the tree was causing damage to her property and causing access issues on the highways. Mrs X wanted the Council to remove the tree and repair the damage caused.
14. The Council’s first complaint response said:

• The tree had been identified for pruning work, due to be completed by May 2024. The Council’s view was that this should improve Mrs X’s situation and that of other residents.
• The Council had asked its highways contractor to carry out an assessment.

15. Mrs X remained unhappy and asked the Council to consider her complaint at stage two.
16. The Council’s final complaint response said:

• The Council is responsible for the trees on the highway, but access was the responsibility of its contractor, and the Council had passed on the concerns to its contractor.
• It gave Mrs X instructions on how to make a legal claim for the alleged damage caused by the tree.
• The Council confirmed pruning was due to be completed by May 2024.

Analysis

Tree works

17. The Council’s first response suggested that its plan was to remove the tree, but this was subject to current consultation with residents.
18. The Council was right to carry out a consultation, and it was up to the Council to decide the outcome once it had carried out the consultation and considered all information available. I do not find fault with the Council for the decision to agree pruning works after the consultation.
19. However, the Council did not explain to Mrs X why it had changed the proposed actions from removing the tree to just pruning works. The Council did not explain to Mrs X how it had made this decision following the consultation. It also told Mrs X the pruning works would be completed by May 2024. While the Council has confirmed the works did take place in May 2024, I have seen no evidence the Council has provided Mrs X with a further update. This has led Mrs X to have confusion about what works would be taking place and raised expectations about the works being completed.
20. There is fault by the Council in failing to properly communicate with Mrs X about the tree and pending works. This has caused Mrs X uncertainty and raised expectations. However, I do accept the injustice to Mrs X is limited, as she would have been aware of the tree when she bought her property two years ago. As part of the buying process, Mrs X should have been aware of any potential issues and remedial work.

Highways

21. Part of Mrs X’s complaint is the Council has not considered the highways impact of the tree when refusing to remove it. She said that those with limited mobility or small children would not be able to pass by and would be forced to walk in the road.
22. In the complaint response, the Council said it had asked its contractor to carry out an assessment and directed Mrs X to its contractor for any further information. This was fault by the Council. The Council remains responsible for the highways, even if it has an agreement with a contractor to maintain them on its behalf. The Council should have better explained its responsibilities to Mrs X and either provided a complaint response on behalf of its contractor or passed her complaint to the contractor for a response.
23. In response to my enquiries, the Council said the area is subject to inspection once a year, and ad-hoc inspections can be carried out if needed. In response to my draft decision, the Council has confirmed that its Highways Manager and Traffic Manager has reviewed the issue.

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Agreed action

24. Within four weeks the Council has agreed to

• Write to Mrs X and apologise for the fault identified.
• Write to Mrs X to explain what works have taken place as previously suggested and provide a clear update on the matter.
• Consider Mrs X’s complaint about the highways issues and provide a response to her concerns.

25. The Council should provide us with evidence it has complied with the above actions.

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Final decision

26. I have completed my investigation. I find fault with the Council about its handling of communication with Mrs X.

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Investigator's decision on behalf of the Ombudsman