The Ombudsman's final decision
Summary: We will not investigate Miss X’s complaint about the Council’s decision not to take further enforcement action against her neighbour’s front garden fence. The complaint is late and there are no good reasons for us to investigate it now. Even if the complaint had been in time, there is not enough evidence of fault in the Council’s enforcement process to justify us investigating.
The complaint
Miss X lives in a suburban area. Her neighbour erected a fence between the front driveways, replacing a low brick wall. Miss X complains the Council: failed to get her neighbour to sufficiently reduce the height of their fence; delayed in dealing with the fence; failed to visit her during the matter.
Miss X says the taller fence means, when she is moving her vehicle from her drive, she cannot see oncoming traffic or pedestrians until halfway onto the highway. She says she panics when she has to leave the house, is a ‘nervous wreck’, and is terrified an accident will happen. Miss X wants the Council to visit her property and reassess the situation, and get the neighbour to reduce the height of the fence.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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. (Local Government Act 1974, section 24A(6)) We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by Miss X and the Council, and the Ombudsman’s Assessment Code.
My assessment
Miss X reported her neighbour’s fence to the Council in June 2020. The Council opened an enforcement case and officers investigated and considered the evidence. They took the view the fence did not cause significant harm to highway safety, but considered its height was not in keeping with the street scene. They asked the neighbour to change the fence so it was in line with what they could have built under ‘permitted development’, a kind of development not needing planning permission. The neighbour cut away part of the fence panel nearest the highway. The Council reviewed the work and decided this brought the fence within what the neighbour could build under permitted development.
Miss X complained to the Council in October 2020. The Council closed the enforcement case in November 2020 and says it advised Miss X of this. It then responded to Miss X’s complaint at stage one in February 2021, confirming it had closed its enforcement case. The letter invited Miss X to escalate her complaint to stage two within 20 days if she remained dissatisfied.
Miss X did not seek a stage two response at that time. She asked the Council to deal with her complaint at stage two in March 2022, over a year later. Her request refers to contacts she had with other Council officers and her MP during that year. The Council decided to provide Miss X with a stage two and final response in April 2022, despite the request being over a year late. Dissatisfied with the final response, Miss X complained to us in May 2022.
Miss X’s complaint to us is late. The 12-month period for making an in-time complaint to us starts when a complainant first becomes aware of the matter complained of. The key issue in Miss X’s complaint is the outcome of the Council’s enforcement case for her neighbour’s fence. The Council says it told her the outcome of the case in November 2020. That would make her May 2022 complaint to us at least five months late. Even if the Council did not tell Miss X in November 2020 that it had stopped enforcement, the Council’s February 2021 stage one complaint response told her, meaning Miss X’s May 2022 complaint to us would still be late.
In line with our remit, I have considered whether there are good reasons for us to investigate this late complaint now. I do not find there are good reasons to do so. Miss X pursued the fence issue between November 2020 and March 2022, with highways officers and her MP, not through the Council’s complaint process. This demonstrates there would have been no barrier to her instead pursuing the rest of the Council’s complaint process, getting a final response, then bringing the complaint to us in time.
Even if the complaint had not been late, there is not enough evidence here of fault by the Council in its enforcement process to warrant us investigating. The Council responded to Miss X’s concerns in 2020. Officers saw the fence and decided action was needed because, as built, they considered it had a significant negative impact on the street scene. They then negotiated with the neighbour for several months. The outcome was the neighbour reduced the fence’s height to within permitted development limits.
I note Miss X considers there was delay in the Council dealing with the fence. Officers reached a outcome which resolved their concerns in about six months, by November 2020. That is not a long time for an enforcement case to take; cases can often last many more months, or sometimes years. There is not enough evidence of fault in the time the Council took to end its enforcement case to justify investigation now. The period after enforcement ended in November 2020 was not Council delay in its process, because the Council had resolved the enforcement case to its satisfaction. Most of the time elapsed between that date and Miss X’s Ombudsman complaint is due to her decision not to pursue the matter sooner through the Council’s complaint process.
I recognise Miss X disagrees with the Council’s decision not to enforce further and considers it should have done so for highway safety reasons, not because of the fence’s impact on the street scene. But we can only go behind a council’s decision where there has been fault in the decision-making process followed which, but for that fault, a different decision would have been made. Officers gathered the appropriate information to reach their decision during the enforcement process. There is not enough evidence of Council fault in that process to warrant an investigation now. I realise Miss X disagrees with the Council’s decisions. But it is not fault for a council to properly make a decision with which someone does not agree.
Miss X says the Council did not visit her property during their enforcement process. On receipt of a report about a possible enforcement issue, councils must gather the relevant evidence to inform their actions. It is for officers to decide how they should get that information. The fence and Miss X’s property are entirely visible from the street, so officers could see and assess the fence’s impacts without visiting her. It was not fault if the Council did not visit Miss X during the matter.
Final decision
We will not investigate Miss X’s complaint because: the complaint is late and there are no good reasons for us to investigate it now; and even if the complaint had been made in time, there is not enough evidence of fault in the Council’s enforcement process to warrant us investigating.
Investigator's decision on behalf of the Ombudsman