Summary: Mr B complains about the Council’s failure to accept responsibility for a fence between his property and Council land. The Ombudsman will not investigate the complaint because Mr B has a legal remedy available to him to challenge the Council’s position through the courts.

The complaint

1. The complainant, who I refer to as Mr B, says the Council made a decision that he has responsibility for a fence between his property and Council land without evidence and based on speculation. As a result, he incurred costs in fixing the fence and has been put to time and trouble pursuing matters.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

5. In considering the complaint I reviewed the information provided by Mr B and the Council. I gave Mr B the opportunity to comment on my draft decision and considered what he said.

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What I found

6. When a fence panel between his property and a Council car park broke, Mr B contacted the Council to ask that it repair the fence.
7. The Council told Mr B it did not own the fence. Mr B submitted FOI and SAR requests asking for evidence to support its position. The Council responded by stating it did not have a specific document but provided him with a copy of the title deed entry for his property which included a covenant stating the purchaser is responsible for erecting and maintaining the fence. It also advised Mr B to seek his own legal advice to establish his legal position.
8. Dissatisfied with the Council’s response, Mr B made a formal complaint about the Council’s handling of this matter. It did not uphold his complaint and told him it was satisfied officers had provided advice in good faith on what they believed the situation to be. It confirmed it would not reimburse him for costs he had incurred in repairing the fence.
9. The Council restated its position a month after Mr B challenged its decision, apologising for its delay in responding to him.

Assessment

10. The restriction highlighted at paragraph 3 applies to Mr B’s complaint because if he wishes to challenge the Council’s position that it is not responsible for the fence, he can do this through the courts. As we would reasonably expect him to make use of this alternative remedy, the complaint falls outside our jurisdiction and will not be pursued.
11. The Council says the only evidence it has is the Land Registry entry and Mr B has provided no evidence of his own. If Mr B believes the Council has other evidence which it has not released to him then he can take this matter to the Information Commissioner.
12. Mr B has complained about the Council’s handling of his complaint. However, while I note the Council did not respond to the last of his contact within its 10-day guideline, it apologised for the delay. Mr B says the Council should have stuck to its guidelines. However, guidelines are just that, and not mandatory time limits, and there is insufficient fault or injustice caused by the delay to warrant an investigation by the Ombudsman.
13. Mr B says the Council has unreasonably relied on the view of an officer who no longer works at the Council and that it just picked out information from the Land Registry records which suited its position as the records refer to fences marked with a “T” and none of the boundaries on the map have a T. However, Mr B has not presented any evidence to contradict the Council’s position and it is open to him to seek advice and consider taking the matter to court if he wishes to confirm the legal position.

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Final decision

14. The Ombudsman will not investigate this complaint. This is because Mr B has a legal remedy available to him to challenge the Council’s position through the courts.

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Investigator's decision on behalf of the Ombudsman