Summary: We will not investigate this complaint about the Council failing to act on the complainant’s concerns that tree roots are affecting the use of a pavement where he lives. The Council has now proposed action which is a satisfactory way to address the complaint, and it is also reasonable to expect the complainant to use the alternative court remedy which is available.

The complaint

1. Mr X complains the Council has failed to take action in response to his concerns that tree roots have displaced and narrowed the pavement near his property, forcing pedestrians into the carriageway.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. We can 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. So, we do not start an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation is unlikely to lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation, or
• we are satisfied with the actions the Council has taken or proposes to take.

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

4. 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)
5. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
6. Finally, the law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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How I considered this complaint

7. I considered information provided by Mr X and the Council, which included their complaint correspondence.
8. I also considered the Ombudsman’s Assessment Code.

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My assessment

9. In the Council’s complaint responses, it explains the trees on Mr X’s road are mature and have a high amenity value. It said it was therefore exploring alternative engineering solutions that may address the situation, before considering removal of the trees. It said the options will form part of a full appraisal, commencing in the 2026/27 financial year, and progression of the project will be phased over time.
10. The Council has therefore explained to Mr X how it intends to progress the matter, and an investigation by the Ombudsman is unlikely to achieve anything further at the present time. In the longer term, if Mr X is unhappy about the time taken to progress the options the Council is now considering, then he would need to raise a new complaint with the Council.
11. Furthermore, if Mr X feels the Council is failing to keep the pavement in a proper state of repair, he has the right to apply to a Magistrates’ court for an order requiring the Council to take whatever action is needed to bring the highway up to standard. Only the courts can decide whether the Council has maintained the highway properly. The law also gives the Council the right to defend in court against any claims. It is therefore reasonable for Mr X to go to court, so we would not investigate for this reason too.
12. As we are not investigating the substantive issue being complained about, it would not be a proportionate use of our resources to investigate the Council’s complaint handling in isolation.

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Final decision

13. We will not investigate this complaint because we are unlikely to achieve much more for Mr X in the short term, and it is reasonable to expect him to use the court remedy which is also available.

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Investigator's decision on behalf of the Ombudsman