The Ombudsman's final decision
Summary: We will not investigate this complaint about damage caused to the complainant’s fence. This is because it is reasonable to expect the complainant to go to court to determine any liability owed by the Council.
The complaint
In summary, Mr X complains that neighbouring tenants of the Council caused damage to the fence boundary to his property by removing a supporting soil bed.
Mr X says he previously paid £800 to repair the fence but the fence needs repair/replacement again. Mr X would like the Council to remedy the damage.
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)
How I considered this complaint
I considered information provided by the complainant and our Assessment Code.
My assessment
I will not exercise discretion to investigate because the matter of liability for damages is usually between the Council’s insurers and the courts.
Mr X’s request to the Council was rejected. Therefore, I consider it is reasonable for him now to take the matter to court to protect his private property and decide the boundary fence dispute. The court can decide liability and if Mr X is entitled to the remedy claimed.
There is a simple procedure in the county court for dealing with small claims. Usually, solicitors are not required so the only costs will be the court fees.
Final decision
I will not exercise discretion to investigate. This is because it is reasonable to expect Mr X to go to court to decide the Council’s liability.
Investigator's decision on behalf of the Ombudsman