Summary: We will not investigate Mr X’s complaint about damage to his rear fence and rights of access. This is because only the courts can decide whether the Council is liable for repairing any damage and determine whether Mr X has a right of access at the rear of his property.

The complaint

1. Mr X complains the Council is responsible for damage to his rear fence. He also complains the Council has wrongly informed him he has no right of access to the path at the rear of his property, despite him providing evidence of this right.

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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)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. We will not investigate this complaint. Only the courts can decide whether the Council was negligent and should be considered liable for the costs of fixing any damage to Mr X’s fence. There is a simple procedure in the county court for dealing with small claims and it is reasonable for Mr X to use it.
7. We will also not investigate Mr X’s complaint about rights of access. Only the courts can determine disputes about land ownership and access. If Mr X disputes the Council’s position, it is reasonable for him to take this matter to court.

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Final decision

8. We will not investigate Mr X’s complaint because if he considers the Council liable for damage to his fence or disputes the Council’s position on his right of access, it is reasonable for him to take these matters to court.

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Investigator's decision on behalf of the Ombudsman