North Kesteven District Council (202118382)

REPORT

COMPLAINT 202118382

North Kesteven District Council

3 February 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about:
1. The landlord’s handling of the resident’s request for trees on council owned land to the side of the property to be pruned.
2. The landlord’s handling of the resident’s request for trees on privately owned land to the rear of the property to be pruned.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the complaint regarding the landlord’s handling of the resident’s request for trees on privately owned land to the rear of the property to be pruned is outside of the Ombudsman’s jurisdiction. Paragraph 42(k) states: “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion… fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”. The Ombudsman only has jurisdiction in relation to ‘housing activities’ in so far as they relate to the local housing authority’s provision or management of social housing.
In this case, the local authority is responsible for the protection and maintenance of trees within the district and this is a statutory function. The resident’s complaint involves the maintenance of trees at the rear of the property on privately owned land and these are covered by Tree Preservation Orders (TPOs) granted under the Town and Country Planning Act 1990 (as amended). As the trees are covered by TPOs, they would potentially fall within the remit of the Local Government and Social Care Ombudsman (LGSCO). Furthermore, as the trees are situated on private land, they do not fall within the definition of ‘housing activities’ and therefore are outside the remit of the Ombudsman. The resident may wish to contact the LGSCO if he wishes to complain about the council’s handling of the trees at the rear of the property.
The resident submitted an online feedback form on 28 May 2021 and the form was forwarded to the landlord for it to arrange for the council’s Trees team to contact the resident prior to an inspection of the trees. The landlord’s stage two complaint response confirmed that the landlord had requested the Trees team to make contact with the resident, but it had not done so. In the view of this Service, the council’s handling of the inspection of these trees, and the failure to make contact with the resident in relation to the inspection, were not part of the landlord’s housing responsibilities as they were the responsibility of the council’s Trees team which is located in the Environment and Public Protection department. Any complaint about these matters are therefore outside of the Ombudsman’s jurisdiction.
Similarly, the results of the council’s assessment of the trees at the rear of the property, which were set out in its letter dated 11 June 2021, are not part of the landlord’s housing activities and would therefore also fall outside the jurisdiction of the Ombudsman.

Background and summary of events

The property is a two bedroom bungalow and the resident is a secure tenant of the landlord, which is a local authority. The tenancy started on 18 August 2014.
There are two trees to the side of the property, which are situated on land owned by the council and managed as part of its landlord function. These trees are not covered by TPOs.
The resident submitted an online feedback form to the landlord on 28 May 2021, in which he stated that he was requesting to “have something done with regard to the trees surrounding [his] bungalow” (the resident has clarified to this Service that this included the trees at the side of the property). Much of the resident’s letter concerned the maintenance of the trees on private land at the rear of the property. However, the letter also stated that all of the trees (i.e. including those at the side of the property) were potentially affecting the subsidence problem that had been reported to the landlord.
On the same day, the landlord wrote to the resident to acknowledge receipt of the feedback form and to confirm that it would ask the council’s Trees team to “make contact to arrange a visit to come and inspect the trees in question and make an assessment of what can be done”.
On 2 June 2021, the Council’s Trees team carried out a scheduled inspection of the trees situated on Council land to the side of the property. The inspector reported that no works were necessary to the trees.
On 11 June 2021, the landlord wrote to the resident about various issues, including the trees near the resident’s property and stated that a member of the Trees team had inspected the trees and recommended works to some of the trees.
The resident wrote to the landlord on 25 June 2021 to formally complain about the landlord’s handling of his request for the trees “surrounding” the property to be inspected and pruned. The resident stated that the member of the Trees team had arrived “unannounced” and had not discussed the options with him after undertaking the inspection. The resident also said that the landlord’s letter dated 11 June 2021 was “ambiguous” as he said it did not clearly state which trees would be cut back.
The landlord acknowledged the resident’s complaint on 29 June 2021, and confirmed that the complaint would be dealt with at stage two of its complaint process.
On 15 July 2021, a chartered surveying company, instructed by the landlord, inspected the structure of the property. The surveyor’s report highlighted four trees, which it described as the “most significant” and two of these trees were to the side of the property on the land owned by the council. The following is a summary of some of the points in the report that related to trees:
1. There are trees located up to the boundary of the property that could “theoretically cause a disturbance underground”;
2. “The size and close proximity of the tree to the property and its below ground drainage will need to be monitored closely as this has the potential to cause more structurally significant damage if left to grow without careful tree management”. (It is not clear to this Service which tree the report was referring to).
3. The surveyor recommended discussing the trees with adjacent landowners about long-term maintenance of the trees and if they are not open to discussion, then an arboriculturist should be appointed to complete a survey of the trees and recommend how to reduce and maintain the tree canopies. (As the report refers to adjacent landowners, this reference appears to have been in connection with the trees on private land at the rear of the property).
4. The surveyor noted there was a large quantity of moss on the roof, but said this was common due to the trees and the course texture of the tiles. The surveyor said: “…our only concern would be that they cause blockages to gutters and down pipes, not that the roof tiles will be adversely affected by the presence of the moss”.
5. In terms of drainage, the report pointed out that “root systems” had been identified in the drainage and therefore recommended a CCTV drainage inspection should be completed, if one had not been done within the last year. The report went on to say that on receipt of the drainage survey, a more detailed review could be completed, and remedial solutions proposed if required.
On 20 July 2021, the landlord sent its stage two response, in which it:
1. Acknowledged that the Trees team should have contacted the resident prior to the visit, but did not do so. The landlord apologised for this and explained that the (Housing) Neighbourhoods team had requested the Trees team to contact the resident but it had not done so;
2. Acknowledged and apologised that its letter dated 11 June 2021 did not clearly identify the location of the trees;
3. Explained that the Trees team had recommended that work take place only on three trees at the rear of the property;
4. Requested that the resident review the recommended works and notify the landlord whether he wanted the works to proceed;
5. Offered a meeting between the resident, the landlord and an independent third party mediator in order to improve the relationship between the landlord and resident.
Following a subsequent request by the resident for clarification on whether his complaint had been upheld, the landlord confirmed that it had been upheld.

Post the landlord’s final complaint response

Between 21 July and 27 July 2021, the resident sent emails to the landlord requesting that its Tenant Panel consider his complaint. The landlord responded on 27 July 2021 and said that the Tenant Panel could not hear the resident’s complaint about cutting the trees, because it related “to a different department of the council”. The Panel could only hear the complaint about the landlord’s request for the Trees team to visit. However, there would be a delay in convening the Panel because there was a pending complaint that had to be resolved first. This Service has not seen any information to indicate whether the Tenant Panel considered the resident’s complaint and the resident did not raise this as part of his complaint to this Service.
On 29 January 2022, the resident wrote to the landlord to report that a large branch had fallen from one of the rear trees and had narrowly missed him. Therefore, on 22 February 2022, a member of the council’s Trees team met with the resident to discuss the trees affecting the property. The landlord has clarified to this Service that it inspected the trees at the rear and at the side of the property. Also, that no works were deemed to be required to the trees at the side of the property.
The resident informed this Service that he attended a mediation meeting with the landlord and an independent mediator in May 2022, and since then he has met regularly with one of the landlord’s senior managers to discuss any concerns.
The resident also advised this Service that work was carried out to three of the trees at the rear of his property in July or August 2022, but that no work was carried out on the trees to the side of the property. The resident advised this Service that some of the drains had periodically become blocked and he had been informed by the water authority that this was due to tree roots.
On 26 January 2023, the landlord wrote to this Service regarding the two trees to the side of the property and confirmed the following:
1. The trees are situated on council owned land and managed by the landlord as part of its housing activities;
2. The Trees team inspected the trees as part of a scheduled inspection in June 2021 and no works were recommended. They were reinspected in February 2022, following a report from the resident, and again, no works were recommended. The Trees team confirmed that the two trees had been considered and said: “they are in good condition and there are no issues that require remedial work. They are to the north of [the property] so do not shade the property or have any other significant impact.”
3. The Trees team inspects trees on council land that are managed as part of its landlord role every three years. The council’s Trees team recommends work that is either essential (high risk of causing a health and safety issue within the next three years) or desirable (medium/low risk of causing a health and safety issue within the next three years).
4. The two trees at the side of the property are next due to be inspected in 2024.

Assessment and findings

The council’s Tree Policy 2017-2022 covers trees on private land, council owned public amenity land, and council owned ‘housing’ land (i.e. land that is managed as part of its landlord function). In relation to trees that fall within this latter category, the policy states: “Each area will be assessed every three years, and a schedule of required works sent to the council’s Housing and Property Services team for approval. Works may include pruning, felling or replanting to maintain continuity of tree cover”.
More generally, the Tree Policy states in relation to its own trees:
1. “The council is not normally obliged to remove branches that are overhanging properties. Trees located close to and/or growing over walls and fences will be assessed on a case by case basis”.
2. “The council will not normally carry out works to reduce the effects of loss of natural light or excessive shade. In most circumstances these problems cannot be resolved without adversely affecting tree health…In most circumstances the council will not “top” trees to reduce the effects of excess shade or loss of natural light”.
3. “Roosting birds are a natural occurrence that cannot be actively controlled by trees pruning. Pruning or felling trees that are home to roosting birds will not normally be considered as a way of resolving this problem”.
Following the resident’s request for work to be done to the trees near his property, the landlord wrote to him on 28 May 2021 to say that arrangements would be made for a member of the council’s Trees team to contact him prior to assessing the trees. The landlord had therefore given a commitment that the Trees team would contact the resident prior to its assessment. However, the resident was not contacted.
The resident submitted a stage two complaint on 25 June 2021, in which he confirmed that a member of the Trees team had visited the area and completed an assessment of the trees without contacting him. The resident complained about the lack of contact and stated that he was not given the opportunity to discuss the options with the council. The resident also said that he was unclear, based on the landlord’s letter of 11 June 2021, which tree(s) would be the subject of the works recommended by the Trees team.
The landlord sent its stage two complaint response on 20 July 2021 and:
1. Apologised that its letter dated 11 June 2021 lacked clarity;
2. The landlord attached a map to show which trees had been recommended for remedial work and explained the work that was proposed;
3. Apologised that the Trees team had not made contact with the resident before or during the inspection (the letter clarified that the Neighbourhoods team had requested the Trees team to contact the resident, but that contact had not been made);
4. Offered a meeting with the resident to discuss a way forward in order to improve the relationship with him.
Based on its stage two response, the landlord acted reasonably by apologising for the lack of clarity in its earlier letter, providing clear information to show the trees that were designated for works, apologising for the lack of contact from the Trees team and offering to meet with the resident. It therefore acted promptly to acknowledge its shortcomings and to put them right.
In relation to the two trees on council owned land, the landlord has confirmed that the council’s Trees team carried out a scheduled inspection of the trees on 2 June 2021 and inspected them again on 22 February 2022 following a report from the resident. On both occasions, the person inspecting the trees said they were in good condition and did not require remedial work. The trees are next due for inspection in 2024. Having inspected the trees in June 2021, the timing of the next scheduled inspection in 2024 is in accordance with the landlord’s policy for inspecting trees on council land every three years and therefore the inspection arrangements are appropriate. In addition, the council responded appropriately to the resident’s concerns by arranging a further (unscheduled) inspection of the trees in February 2022.
It is reasonable for the landlord to rely on the recommendations of the council’s specialist Trees team in deciding whether to authorise work to the trees and in the case of both inspections of the trees to the side of the property, work was not deemed necessary. The landlord’s decision not to authorise work to the trees was therefore reasonable. However, given that the report produced by the independent surveyor highlighted that “root systems” had been found in the drainage and recommended a CCTV drainage inspection, a recommendation has been added for the landlord to consider commissioning a drainage survey, if one has not recently been carried out.
This service has also noted that the landlord has taken additional steps to improve its relationship with the resident by engaging an independent mediation company and arranging for the resident to meet with a senior manager to discuss any concerns he may have. The offer of mediation was made as part of the landlords stage two complaint response regarding trees and demonstrates the landlord’s desire to resolve its dispute(s) with the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s request for trees on council owned land to the side of the property to be pruned.

Reasons

The landlord has appropriate arrangements in place with the council’s specialist Trees team to inspect and maintain its trees. The landlord provided the resident with clear information to put right the lack of clarity in its earlier letter and apologised for the lack of contact with the resident prior to the tree inspection on 2 June 2021.

Recommendation

It is recommended that:
1. The landlord considers commissioning a CCTV drainage survey, if one has not recently been carried out, to check the possible impact of tree roots on the property’s drainage and takes appropriate remedial action based on the findings of the survey;
2. Within four weeks of this report, the landlord notifies this Service of its decision on whether to commission the drainage survey.