Summary: We will not investigate this complaint about the maintenance of land. This is because the courts are better placed than the Ombudsman to consider this complaint.

The complaint

1. Mr Y complains the Council has failed to maintain the grounds surrounding his block of flats leading to hedges and bushes becoming overgrown, causing potential damage to the perimeter wall of the building. He also complains about the Council’s failure to respond to his letters of complaint about the problem.
2. Mr Y says the problem has him caused inconvenience and frustration. He is also worried about potential damage being done to the building and the perimeter wall.

Back to top

The Ombudsman’s role and powers

3. 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 another body better placed to consider this complaint. Local Government Act 1974, section 24A(6))
4. 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)
5. It is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

Back to top

How I considered this complaint

6. I considered the information Mr Y provided and the Ombudsman’s Assessment Code.

Back to top

My assessment

7. Mr Y has complained since 2015 about the lack of maintenance of the land next to and surrounding the block of flats he lives in. Mr Y says the Council owns the land and leased the land to a company in 2014, who agreed to maintain the land as part of local development work. Mr Y says there is a restrictive covenant on the land which requires it is maintained.
8. Mr Y wrote to the Council in 2018. It said it would not respond further to his complaint as the Ombudsman had investigated it previously in 2015. Mr Y wrote to the Council again in June 2020. The Council did not respond to this directly as several of the residents wrote to it at the same time about the issue. It therefore gave a published response on its website. This response said it had received legal advice to say it was not in breach of the restrictive covenant.
9. Mr Y contacted the Council again in September 2020. It referred him to its earlier response. Mr Y complained further about potential damage to the base of a boundary wall in March 2021 caused by the overgrowth. Mr Y says the Council did not respond so he approached us in June 2021. The Council responded in July and said it had no further comments.
10. Mr Y says his solicitor has advised there is a breach of the restrictive covenant.

Analysis

11. We cannot determine whether there has been a breach of a restrictive covenant or the obligations under the lease. This is a matter for the courts.
12. Further, Mr Y can make a claim for any costs of repairs for damage done to his property through his home insurance. The insurer may then consider making a claim against the Council if it considers it responsible for the costs of any repairs needed. If the Council disputes responsibility, the claim can then be pursued through the courts. Consequently, the courts are better placed to consider this issue than us so we will not investigate.
13. As we are unable to investigate the substantive issue, we should not investigate how the Council responded to Mr Y’s complaint.

Back to top

Final decision

14. We will not investigate Mr Y’s complaint because the courts are better placed than the Ombudsman to consider this complaint.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman