Summary: Mr B says the Council failed to take appropriate action to deal with a weed on Council land affecting his property and delayed dealing with his complaint. There is no fault in how the Council dealt with the weed. However, the Council did not tell Mr B about some of the action it was taking and delayed responding to a complaint. An apology, payment to Mr B and reminder to officers is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained the Council:
• failed to take appropriate action to deal with a weed on Council land encroaching onto his property; and
• delayed dealing with his complaint.
2. Mr B says due to the Council’s lack of action he has had to spend money on weedkiller each week which is causing him inconvenience and distress.

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The Ombudsman’s role and powers

3. 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’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a Council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. As part of the investigation, I have:
• considered the complaint and Mr B's comments;
• made enquiries of the Council and considered the comments and documents the Council provided.
6. Mr B and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

7. The Council’s specification for the provision of weed control services concerns the application of herbicide to eradicate all grass and weed growth in the housing land, cemeteries and highways in its area. It says the Council’s contractor will carry out the application five times in one calendar year in March, May, June, August and October.
8. The Royal Horticultural Society’s website says horsetail weed is persistent and several applications, possibly over a number of years, may be necessary to completely eradicate the problem.
9. The Council’s complaints procedure has two stages. At the first stage the procedure says the Council will respond the complaint within 10 working days. If the resident is not satisfied with the answer at stage one they can request a review within 28 days. The Council will acknowledge receipt of the request within five days and will confirm the date by which it will provide a formal reply. The procedure says the reply should be within 30 working days and if the Council cannot meet that target it will send a progress report.

What happened

10. I understand Mr B has had issues with horsetail weed affecting his garden for a few years. Mr B says the weed originates from the pavement. The period I am investigating is from June 2021 onwards.
11. Mr B put in a complaint about lack of action on the weed affecting his property in June 2021. A Council officer visited on 11 June 2021 and carried out a treatment. The Council told Mr B about the action it had taken and said it would monitor the situation going forward.
12. Mr B contacted the Council again in June 2021 as he was dissatisfied with the action the Council had taken. Mr B said he wanted the Council to move his complaint to stage two. The Council acknowledged receipt of Mr B’s correspondence and said it would respond by 12 July. However, the matter was passed back to the ground maintenance team. The ground maintenance team visited again on 15 July and treated the area for weeds. In the meantime Mr B had chased the Council and then contacted the Ombudsman as he had not received a response.
13. Following correspondence from the Ombudsman the Council wrote to Mr B to tell him it would respond to his stage two complaint by 3 September. Mr B expressed dissatisfaction with the timescale and the Council told him it would deal with his complaint as quickly as it could. When Mr B had not received a response by 7 September he chased the Council again.
14. In October 2021 the Council carried out a further treatment on the pavement and on Mr B’s front garden. The Council responded to the stage two complaint on 26 October and apologised for the delay.
15. The Council carried out a further treatment in January 2022. The Council intends to continue to treat the area outside Mr B’s property to prevent a further spread although it can no longer carry out the treatment on Mr B’s garden due to the increased cost of materials.

Analysis

16. Mr B says the Council failed to take appropriate action to deal with a weed on Council land which is encroaching onto his property. The evidence I have seen satisfies me the Council has carried out treatment to both the pavement outside Mr B’s property and on Mr B’s property itself on four occasions since June 2021. I therefore could not say the Council failed to take action. The photograph the Council has provided does not suggest the treatment the Council has carried out has failed to remove the horsetail weed from Mr B’s property.
17. I recognise though Mr B is concerned the weed keeps coming back each year. The information on the Royal Horticultural Society’s website shows though that horsetail weed is a hardy weed and likely to return each year. As a result, multiple treatments over several years will be required to eradicate it. I therefore consider it is likely the nature of the weed, rather than the lack of Council action, which is responsible for the problems Mr B has experienced. As I am satisfied the Council has taken appropriate action and will continue to take action to treat any further weeds on the pavement outside Mr B’s property I have no grounds to criticise it.
18. In reaching that view I understand Mr B’s concern as he says he has to pay for weedkiller each year to treat the weed on his property. However, the Council does not have any duty to deal with weeds on a private property. That is the case even if the weed originates on Council land. In those circumstances I consider the action the Council has taken helpful as it has treated both the weed on the pavement and on Mr B’s property up to this point. I recognise that will not continue as the Council can no longer afford to do that. That is not something I could criticise the Council for though given it has agreed to continue to treat the weed on the pavement and has no duty to carry out weed treatments on private properties.
19. It is clear though there has been considerable delay dealing with Mr B’s complaint. The Council should have provided Mr B with a response at stage two by 12 July and failed to do so. The Council then failed to meet the revised deadline of 3 September following a complaint to the Ombudsman. Failure to respond to Mr B’s complaint within the timescales set out in the Council’s complaints procedure is fault. Given Mr B continued to chase the Council I am particularly concerned the Council did not identify the need to provide a response or even to advise him of the further visits officers had undertaken to treat the weed. That is also fault. That has clearly caused Mr B have to go to time and trouble to pursue his complaint and has led to him feeling frustrated about the perceived lack of action by the Council. Taking into account the fact the Council has taken action to address the weed and the issue is more with the way in which it has communicated with Mr B I consider an appropriate remedy would be for the Council to again apologise to Mr B and pay him £100. I also recommended the Council remind officers dealing with complaints of the need to comply with the timescale set in the Council’s complaints procedure and to keep complainants up to date when delays occur. The Council has agreed to my recommendations.

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Agreed action

20. Within one month of my decision the Council should:
• apologise to Mr B;
• pay Mr B £100; and
• send a memo to officers dealing with complaints to remind them of the need to comply with the timescale set in the Council’s complaints procedure and provide updates to those who have complained when delays are experienced.

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Final decision

21. I have completed my investigation and found fault by the Council in part of the complaint which caused Mr B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman