The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to identify and maintain land owned by it as a court would be better placed to decide if Mr X is entitled to compensation. There is insufficient evidence of fault or injustice in relation to the other matters complained about.
The complaint
Mr X complains the Council failed to identify that its land was included within his boundary fence for 18 years. He says it unfairly tried to charge him to buy this rather than explaining his legal rights and took too long to deal with the sale. He says this has caused him financial losses in maintaining the land and those related to the delay in the sale of his house. He says it has affected his and his wife’s mental health and his wife has had to reduce her hours at work as a result. Further Mr X complains the Council delayed responding to his subject access request (SAR).
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. 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) The Ombudsman investigates 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. We do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvement, or there is another body better placed to consider this complaint.
(Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
Mr X became aware the builders of his house had incorrectly placed his fence and included Council land when he looked to sell his property recently. He then bought the land from the Council.
Mr X says the Council should have identified this previously. He notes its failure to do so meant he maintained the land for some years, believing it was his. He says the price the Council wanted him to pay for the land should have reflected this. He says the Council’s delays have caused him financial losses that he should be compensated for.
The courts can consider these matters, so the restriction in paragraph 2 applies. If Mr X wants to reclaim money for maintenance or compensation the court would be better placed to consider this. The claim that the Council’s actions affected Mr X’s and his wife’s mental health and resulted in loss of earnings is essentially a claim of personal injury causing loss. That is not necessarily straightforward legally. The courts are better placed than the Ombudsman to decide liability for personal injury and to assess any consequential loss. Similarly, any complaint about the accuracy of the Council’s legal fees would be better dealt with by the court. Consequently, we will not investigate these complaints.
I understand Mr X feels he could have successfully claimed for adverse possession of the land in question. He says the Council should have informed him of this. The Council is under no obligation to provide legal advice to Mr X. As such there is no evidence of fault in the Council actions here and we are unlikely to criticise it.
I appreciate the Council has accepted there was a delay in responding to the SAR. However, Mr X has acknowledged the Council was entitled to an extension but is concerned this was not agreed. In the circumstances, the injustice caused by the delay was not sufficient to warrant an investigation.
Final decision
We will not investigate Mr X’s complaint because it would be reasonable to expect Mr X to take legal action and there is insufficient evidence of fault in his other complaints.
Investigator's decision on behalf of the Ombudsman