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York City Council (202105890)

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REPORT

COMPLAINT 202105890

York City Council

10 February 2022


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

  1. The complaint is about the landlord’s initial decision to refuse to remove a tree from the rear garden of the property.

Background and summary of events

Background

  1. The resident has a secure tenancy agreement with the landlord that started in 2016. The landlord is a city council.
  2. The tenancy agreement says that the resident must keep the garden neat and tidy. This includes managing the lawn, removing weeds, pruning hedges, shrubs and trees. It also says that the resident is responsible for any trees that are within the boundary of the property but the resident (or someone on their behalf) cannot cut down trees and hedges within the boundaries of their home without first getting written council permission. If you think that a tree may be dangerous the resident must report this to the landlord. Where it decides that any trees or shrubs are a nuisance or dangerous, it will prune, replace or remove.

Summary of events

  1. On 30 April 2019 the landlord wrote to the resident in respect of the willow tree in his rear garden. It said the responsibility for the tree rested with the tenant, and he had accepted the offer of the property in 2016 on that understanding. However, it added it was trying to find out if the council’s officer who took care of trees had inspected the willow tree and whether he had deemed it for removal (if it was seriously diseased or potentially dangerous) or whether he had approved works to reduce the size of the tree on safety grounds.
  2. The landlord subsequently visited the resident on an unknown. The note of that visit made the following main points:
    1. The tree was the resident’s responsibility and it had no funding to remove the tree. The landlord added that, if the resident wanted it removed, subject to approval from the council and the necessary funding being available, the resident could pay back that cost in instalments.
    2. The residents accepted that work had been carried out historically to manage the tree but that the landlord’s policy had changed about seven years ago, and as such, tenants were now wholly responsible – either to do the work themselves or seek assistance via the council for contractors to do the work on a recharge basis.
    3. The landlord regretted that work had not been carried out when it should have been in 2016 (when the property was void), but there was “realistically nothing it could do about it unless some funding was made available”. In the event that funding was available on a discretionary basis, the landlord was prepared to prioritise the tree for funding in whole or in part because of the omission of any works being carried out whilst void in 2016.
  3. On 13 April 2021 the landlord wrote to the resident at the final stage of its formal complaints procedure. The main points were:
    1. The tenancy agreement confirmed that the resident was responsible for any trees that were within the boundary of the property. The tree in the resident’s garden had not been deemed to be dangerous and therefore it had no responsibility to attend to it.
    2. The resident had raised no concerns about the tree when he signed up for the property adding that, once he had signed the tenancy agreement, the tree became his responsibility.
    3. The landlord also confirmed that the neighbours had been informed that they could prune parts of the tree that were overhanging their property; the neighbours could also prune the roots but should not damage the tree in doing so.
    4. The landlord did not uphold the complaint. It said it would write to his neighbours and advise them again that they could not his garden to cut back the tree. It also said it would give the resident advice about the upkeep of the tree.
  4. The landlord signposted the resident to the Ombudsman.
  5. When the resident approached the Ombudsman, he said that his family were being harassed by neighbours because of the size of the tree and he believed it was causing problems with drainage and it also prevented them from using the back garden.
  6. On 7 January 2022 the landlord told the Ombudsman that it had agreed to remove the tree. The resident subsequently told the Ombudsman that the tree had been removed. In February 2022 the landlord confirmed that it had paid for the removal of the tree and would not seek reimbursement of this cost from the resident.

Assessment and findings

  1. The landlord took appropriate action by visiting the garden to inspect the tree. It acknowledged that it should have taken the opportunity to prune the tree when the property was void. However, the tenancy agreement makes it clear that the tree is the responsibility of the resident. Therefore, the landlord’s decision that it was not responsible for the tree was appropriate.
  2. However, in view of the lack of pruning when the property was void, the landlord sad it would prioritise the tree for funding in whole or in part. The landlord followed through on this in early 2022 by paying for the removal of the tree. While the landlord was not obliged to do so, this was a resolution-focused step which has brought this matter to a close.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its initial decision to refuse to remove a tree from the rear garden of the property.

Reasons

  1. The tenancy agreement made it clear that the tree was the responsibility of the resident. However, the landlord subsequently paid for the removal of it.