Summary: The Ombudsman will not investigate Mr C’s complaint about the Council’s maintenance of a highway tree which he says is causing damage to his car and weeds on land to the back of his property. Mr C says the Council has discriminated against him by failing to take his disability into consideration. There is not enough evidence of fault by the Council and a court has already considered many of the issues Mr C raises in his complaint.

The complaint

1. Mr C has a disability which affects the use of his hands. He complains the Council has not cut back a highway tree near his property. He says the tree sap and leaves are causing damage to his car. He says that he struggles to cover the car due to his disability and feels it is unreasonable for the Council to ask him to do this. He also says another tree near his property causes problems with his visibility when he exits his driveway and joins the main road. Mr C would like the Council to prune the trees. Mr C claims the Council has failed in its duties to consider his disability under the Equality Act 2010.
2. Mr C also says the Council has not cut back overgrown weeds on a hard verge to the rear of his property and complains about the number of cars parked there. He says that he has to walk into the road and feels the Council has failed in its duties to consider his disability under the Equality Act 2010.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate a complaint if someone has started court action about the matter. (Local Government Act 1974, section 26(6)(c), as amended)
5. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement.

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

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How I considered this complaint

6. I have considered what Mr C said in his complaint and the information he has sent in support of it. I have also spoken to Mr C by telephone and taken his comments into consideration. I have also considered correspondence about the complaint from the Council.
7. I have considered Mr C’s comments on a draft before making a final decision.

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What I found

8. Mr C complains the Council has not maintained a highway tree from which the sap and leaf fall are causing damage to his car. He has a disability which causes pain and affects the use of his hands. He complains the Council has not taken his disability into consideration when telling him to cover his car to prevent any tree sap or leaves falling onto it. Mr C would like the Council to cut back the tree.
9. Mr C has taken court action against the Council on the matter of the damage to his car from the tree so the Ombudsman has no discretion to investigate a complaint about the same matter.
10. The Council says the Court decided there was no evidence of damage to Mr C’s property, there was equally no evidence of negligence by the Council and no duty of care existed for the Council to protect or cover his car. This means the issues Mr C raises in his complaint are the same as those in the court action and we cannot investigate them.
11. Mr C says the Council has failed to cut back weeds growing on the hard verge behind his property. Mr C also complains about cars parked behind his property and says they obstruct the pavement. He feels the Council has not taken his complaint seriously. He feels due to the condition of the pavement he has to walk in the road and feels that it is unsafe to do so. Mr C would like the Council to cut back the weeds.
12. The Council says it takes action to control weeds, and a street view image online from 2019 as well as photographs provided by Mr C do not show significant weed growth on the highway. There is some between the highway land and Mr C’s property. It is therefore not clear if these weeds would be the Council’s responsibility and on balance there are no grounds for the Ombudsman to investigate.
13. The road to the back of Mr C’s home is a highway with no parking restrictions. Street view images show cars and vans parked on the hard verge, but it is not clear they are on a designated footway. There is not enough evidence of Council fault in this part of the complaint to warrant the Ombudsman investigating.
14. The courts have decided where the Ombudsman cannot investigate a matter, we cannot separately consider any action in connection with the matter. So the Ombudsman cannot separately investigate Mr C’s claim of disability discrimination.

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Final decision

15. The Ombudsman will not investigate this complaint. This is because a Court has already considered the matter of the tree and there is not enough evidence of Council fault in respect of weeds on the highway causing Mr C significant injustice to warrant investigating.

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Investigator's decision on behalf of the Ombudsman