Summary: Ms A complained the Council failed to properly maintain a tree around her property and gave her incorrect information about who was responsible for it. We found the Council at fault for delays in responding to Ms A and delay in taking action when Ms A raised her concerns. The Council agreed to apologise to Ms A and make a payment to recognise the avoidable distress it caused her.

The complaint

1. Ms A is complaining that the Council has failed to properly maintain a tree it owns around her property. Ms A says the Council initially gave her incorrect information about who was responsible, then failed to adequately carry out the necessary work and there were delays in responding to her request and complaint. Ms A says this situation has caused her stress and upset and damage to her front garden.
2. Ms A would like the Council to trim the tree in front of her property without further delay and send an officer out to assess the damage the tree roots caused in her front garden.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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)
6. 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

7. Ms A complained about events that happened in 2023, which is longer than a year ago before she came to us. We have decided to investigate her complaint because:
• We are satisfied that she continued to chase the Council for action; and
• She was completing the local complaints process before coming to us.

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How I considered this complaint

8. I spoke to Ms X about her complaint and considered information she provided. I also considered information received from the Council.
9. Ms X and the Council have had an opportunity to comment on my draft decision. I considered their comments 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 at least every three and a half years. The Council prunes the trees as necessary on instruction from its Arboricultural Officer.
12. The policy says the Council visually inspects trees to determine their general condition and health, and to identify hazards which require remedial works.
13. The Council’s policy also says that if a tree is causing damage to a private property, the person should contact their building insurer for their opinion before reporting the damage to the Council.

What happened

14. Since April 2023 Ms A has been complaining to the Council about the tree in front of her property. She said the Council should cut it back as it has become too tall. She also told the Council that the roots of the tree had grown and were damaging her front garden.
15. In early November she complained to the Council. She said that the tree outside of her house had grown too large, it was blocking light access to her property and the tree’s roots were damaging her front garden.
16. The Council emailed her back at the end of the month and told her that another Council was responsible for the tree she complained about. The Council advised her that she could make a new complaint to the correct Council.
17. On the same day Ms X told the Council that she had been attempting to contact the Council since April and it only responded in November. She asked the Council to consider her complaint further, as the response it gave her related to an incorrect address.
18. The Council did not respond to Ms X’s complaint, and she chased it for an answer in late December 2023.
19. The Council issued its final response to Ms X’s complaint in April 2024 and apologised for incorrectly telling her that another Council was responsible for the tree she complained about. It also apologised for the delay in dealing with her request. The Council told Ms X that it had asked the service to urgently trim the tree outside of her house.
20. Within a few days the Council asked its tree officer to inspect the tree Ms A complained about and instruct works.
21. In July 2024 Ms X complained to us and said that the Council had still not trimmed the tree back despite agreeing to do it.

Analysis

Complaint handling

22. Ms A told us that she first contacted the Council about the tree in April 2023.
23. The Council’s records show that it first started to consider Ms A’s reports in November 2023 when she made a complaint. We cannot say the Council was at fault for this as we have not seen evidence, other than Ms A’s verbal confirmation, showing when she began reporting her concerns to the Council.
24. Ms A said the Council incorrectly told her another Council was responsible for maintaining the tree when she contacted it in April 2023. The Council told us that Ms A reported the problem with the tree from an address that was outside its area, and did not mention the address she was referring to. We have not seen a copy of the original contact Ms A made with the Council so we cannot, even on balance, say if it was at fault.
25. However, Ms A clarified this in her complaint she made to the Council in November 2023 and we would have expected the Council to act on that information then. Because of this we consider the Council was at fault when it continued to respond to Ms A’s concerns and refer to the incorrect address, despite Ms A explaining where the tree was located. This caused Ms A avoidable frustration.
26. The Council took until April 2024 to issue its final response, this is five months after Ms A had asked it to consider her complaint further and this is fault because it is longer than the Council’s complaints policy says. This led to Ms A chasing the Council for a response and updates on multiple occasions and caused her avoidable frustration and uncertainty.

Tree condition

27. In April 2024 the Council inspected the tree. This is five months after Ms A made her complaint to the Council about it. This is fault. This is because we would expect the Council to take action sooner after Ms A submitted her complaint. The records show the Council instructed the inspection only after her complaint reached second stage of the complaint’s procedure. We consider this caused Ms A avoidable frustration and uncertainty.
28. It is not clear from the Council’s records what works, if any, it considered necessary following the inspection. However, it seems it had not told Ms A the outcome of the inspection either. We consider this is fault, and it caused Ms A avoidable uncertainty about what action, if any, the Council would take.
29. Ms A complained about damage to the property. The Council’s policy says Ms A should contact her insurers first, and then bring the claim to the Council. This option is still available to Ms A.
30. In any case, adjudication on questions of damages 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 responsible and what damages must be paid.
31. We cannot decide whether a council has been responsible and have no powers to enforce an award of damages. For this reason, we would usually expect someone in Ms A’s position to seek a remedy in the courts, directly or through her insurers. We consider it reasonable for Ms A to do so in this case. We will therefore not investigate the issue of property damage further.

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Agreed action

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

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Final decision

34. We found the Council at fault for delays in inspecting its trees and responding to Ms A’s requests. This caused Ms A avoidable distress and uncertainty. The Council agreed to apologise and pay her £150 to remedy this injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman