Summary: We will not investigate Mr X’s complaint about the Council’s decision to ask him to remove a fence encroaching on a public highway. This is because there is not enough evidence of fault to justify an investigation.

The complaint

1. Mr X complains about the Council’s decision to ask him to remove a fence encroaching on a public highway. He says the Council’s communication has been excessive and caused him a lot of stress.

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The Ombudsman’s role and powers

2. We investigate 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 continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I considered information provided by Mr X and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr X says the Council for the past four months has contacted him constantly to have the fence removed.
7. The Council says the service strips where the fence is located, are an essential part of the road network and belong to the Highways Authority. It reports that Mr X agreed verbally to have the fence removed and it provided him more time to do so due to health issues that Mr X’s wife was experiencing.
8. I will not investigate Mr X’s complaint because there is insufficient evidence of fault. Under the Highways Act (1980) (section 41), the Council has a duty to maintain a public highway, so the Council is entitled to ask Mr X to remove the fence in carrying out this duty. The Council is also entitled to escalate its communication with Mr X and may take enforcement action if Mr X fails to act.
9. While I note that Mr X remains unhappy with the decision taken by the Council, the Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong. Regardless of whether someone disagrees with the decision the organisation made.

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Final decision

10. We will not investigate Mr X’s complaint because there is insufficient evidence of fault.

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Investigator's decision on behalf of the Ombudsman