Summary: We will not investigate Mr X’s complaint about the Council’s decision not to remove a tree near his property, and how it communicated with him and dealt with his complaint. There is not enough evidence of Council fault to warrant us investigating. We do not investigate councils’ communications and complaint handling where we are not investigating the core issue giving rise to the complaint.

The complaint

1. Mr X lives in a property near a Council-owned tree in the highway. He complains the Council:
1. has failed to follow its own policy when deciding not to remove the tree;
2. delayed in responding to his communications and complaint then provided unhelpful and sarcastic replies.
2. Mr X says in his complaint to the Council that he wants it to remove the tree, before others are put at risk. He wants the Council to explain its decision not to remove the tree. Mr X wants officers to be trained in answering requests within their timeframes and how to speak to the public.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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. 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
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

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

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My assessment

6. We are not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation has followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong, even if someone disagrees with it.
7. The core issue which caused Mr X to contact the Council was the impacts of the tree near his property. In response to Mr X’s concerns, the Council considered the information it had about the tree. Officers found the tree, and others in the same road, needed some maintenance work, which they placed on to their schedule of works. They referred Mr X to its Council’s policy on tree management. The Council did not agree to remove the tree. The officers recognised the tree’s natural processes and impacts such as dropping debris, or harbouring insects which dropped honeydew, may be considered as a nuisance. But its policy was to not fell trees solely because of these issues.
8. Mr X told the Council the tree’s roots had damaged the pavement. He considers the Council decision not to remove the tree meant it did not follow its policy on this. The Council says its policy is that where a tree causes ‘significant damage’ to a footway, it would be removed. An officer inspected the footway and found the damage was not significant so did not require the Council to remove the tree under this part of its policy.
9. There is not enough evidence of fault in the Council’s decision-making process around what works to do to and because of the tree to warrant us investigating. The Council gathered and considered relevant evidence about the condition of the tree and its impacts to reach the view that it would not remove it but would do some maintenance work. Those are decisions the Council was entitled to take. Officers applied the Council’s policies on tree management when making them. We recognise Mr X disagrees with the Council’s decision. But it is not fault for a council to properly make a decision with which someone disagrees.
10. In his complaint to the Council, Mr X says the core practical outcome he wants is for it to remove the tree. We cannot order councils to fell particular trees. That we cannot achieve this outcome is a further reason why we will not investigate.
11. Mr X complains about the Council’s delay in responding to his communications and complaint, and the tone and contents of its delayed replies. The Council delayed in replying to Mr X, for which it apologised. We do not investigate councils’ communications or complaint handling in isolation where we are not investigating the core issues giving rise to the complaint. It is not a good use of our resources to do so. That limitation applies here so we will not investigate this part of the complaint.
12. Mr X’s complaints refer to damage to property which he considers has been caused by the Council’s tree. This would be a claim of liability for damage. Only an insurer or the courts can decide such liability claims. We cannot determine legal liability disputes so will not investigate this aspect of the complaint. It would be for Mr X to pursue any damage claim he has against the Council relating to his property. From the documents Mr X provided, the Council gave him information on how he could make such a claim to its insurers. If Mr X is dissatisfied with the outcome of any Council insurance claim, it would then be for him to take the matter in court.

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Final decision

13. We will not investigate Mr X’s complaint because:
• there is not enough evidence of fault in the Council’s decision-making process to warrant us investigating; and
• we cannot achieve the main outcome Mr X has been seeking; and
• we do not investigate councils’ complaint handling and responses where we are not investigating the core issues giving rise to the complaint.

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Investigator's decision on behalf of the Ombudsman