The Ombudsman's final decision
Summary: We will not investigate Mrs X’s complaint about the Council’s variation of an agreement for the lease of garden land. This is because we cannot determine the Council’s intentions at the time of the original agreement and if Mrs X believes it has breached the terms of the agreement it would be reasonable for her to take the matter to court.
The complaint
The complainant, Mrs X, complains the Council wrongly decided to vary her rental agreement for a section of garden land. Although the Council considers the original agreement contained an error which it has now put right, Mrs X disputes this and says it has given away part of her garden.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended) 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 Mrs X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs X’s complaint concerns two issues- the original agreement with the Council and its recent decision to vary the agreement which resulted in the loss of a section of her garden.
The Council says the original agreement contained an error regarding the extent of the land leased to Mrs X, which it says has only recently come to light. It has made arrangements to resolve the issue by varying the agreement to reduce the land leased to Mrs X as it believes was originally intended. Mrs X disagrees with the Council’s position and says the original agreement was intentional and correct.
The original agreement for Mrs X to rent the additional land from the Council dates back almost 20 years; given the amount of time that has passed it would not be possible for us to establish the Council’s intentions at the time. We cannot therefore come to any meaningful decision about whether the original agreement was correct.
That being the case, we cannot say the Council was wrong to seek to resolve what it sees as its error in the original agreement. Whether it is entitled to do so under the terms of its contract with Mrs X is a matter for the courts to consider, rather than the Ombudsman.
So if Mrs X believes the variation of the agreement without her consent amounts to a breach of contract it would be reasonable for her to take the matter to court.
Final decision
We will not investigate this complaint. This is because we cannot determine whether the original agreement between Mrs X and the Council was correct and if Mrs X believes the Council has wrongly varied the terms of the agreement it would be reasonable for her to take the matter to court.
Investigator's decision on behalf of the Ombudsman