Summary: There was fault by the Council, because it did not explain properly its decision about the position and maintenance of a boundary fence, and because it did not properly consider reports of anti-social behaviour the complainant made. To remedy the uncertainty and frustration this has caused, the Council has agreed to write to the complainant to clearly explain its decisions about these matters, and to offer a symbolic financial remedy.

The complaint

1. I will refer to the complainant as Mrs B.
2. Mrs B complains the Council, which owns the adjoining property to hers, installed a boundary fence in 2016 which encroaches her land, and has now determined she is responsible for maintaining the fence. The fence has caused a dispute with the Council’s tenants in the adjoining property, which Mrs B says has led to abuse and other anti-social behaviour (ASB) towards her by them, but she complains the Council has not taken any action over this. She also complains about delays by the Council in responding to her.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

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How I considered this complaint

4. I reviewed the Council’s correspondence with Mrs B and its internal records.
5. I also shared a draft copy of this decision with each party for their comments.

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What I found

6. Mrs B owns a semi-detached property. The adjoining property is owned by the Council, which it has let out to tenants. There is a wooden fence demarking the boundary between the gardens of the respective properties.
7. On 30 August 2022, Mrs B’s husband, Mr B, wrote to the Council, to report an argument he had had with the neighbour over the ownership of the fence, which was now in need of repair. Mr B said it was the neighbour’s responsibility to maintain the fence, as the Council had constructed it in 2016, but the neighbour had said the Council had told him it was Mr B’s responsibility. The conversation had become heated, and the neighbour had then threatened Mr B with violence. Mr B asked the Council to intervene and resolve the matter.
8. On 8 September, later Mr B called the Council and discussed the incident in more detail, explaining he had called the police, who had logged the matter as a crime incident.
9. The Council recorded Mr B’s report as an ASB incident. It reviewed its land ownership records to determine where the property boundary lay, but established the records did not explain this clearly. It is unclear from the Council’s records what, if anything, happened then.
10. On 4 April the Council visited the neighbouring property. It then wrote to Mrs B the following day. The Council said:

“[We] are satisfied that the location of the boundary fencing matches Local Planning maps, and that the boundary fencing is your responsibility as detailed with Land Registry.”

11. Mrs B subsequently made a formal complaint to the Council. She said the Land Registry records clearly stated the fence was the responsibility of the neighbouring property, and that it was the Council itself which constructed the disputed fence in 2016, which the previous owner of Mrs B’s home had confirmed. Mrs B also said the fence was “at least 18 inches” inside her boundary and needed to be relocated.
12. The Council responded to the complaint on 4 May. It acknowledged Mr B had reported problems in August 2022 but said that “alteration appointments appear to have been placed on hold”. It apologised for this. However, the Council reiterated that Land Registry records showed the fence was Mr and Mrs B’s responsibility, and said officers had acted appropriately.
13. Mrs B then submitted a stage 2 complaint. She questioned how she could be responsible for the fence, when it was the Council which had constructed it. She also complained nobody from the Council had contacted her to discuss “[their] issues” and that no visit had been made to them, despite her explicitly requesting this.
14. Mrs B also complained the Council had not responded to their complaint about the abuse they had received from the neighbour. She said the Council’s investigation had been one-sided.
15. On 24 May the Council visited Mrs B, to reassess the fence and boundary.
16. The Council then responded to Mrs B’s stage 2 complaint in an undated email. It said she had exhausted the Council’s complaints process and referred her to the Ombudsman if she wished to pursue it further. Then on 30 June it wrote again to Mrs B, reiterating the fence was Mr and Mrs B’s responsibility.

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Analysis

17. I will first explain it is not for the Ombudsman to settle disputes about land ownership, including where the boundary lies between two properties, or who is responsible for maintaining a fence or similar boundary marker. These are matters of civil law and so, ultimately, for the courts to adjudicate on.
18. However, Mrs B’s complaint is not simply about the position of the boundary between her property and the Council-owned neighbouring property.
19. The Council has carried out two visits to the site, and says it is satisfied the marked boundary accords with the Land Registry records. I understand Mrs B disagrees with this, but as I have said, it is not for us to settle this argument.
20. But the Council also says these records show that Mr and Mrs B are responsible for maintaining the fence.
21. Mrs B has repeatedly made the point that it was the Council itself which constructed the fence in 2016, which she says the previous owner of her home confirmed. She has also pointed out that a historical photo on Google Maps show the fence materials stored in the front garden of the neighbouring property, awaiting installation, implying it was the Council which constructed the fence in the rear garden.
22. I have found the photo Mrs B refers to, which is dated April 2016, and I agree it shows what appears to be a pile of fence posts stored on the neighbouring property. As this was, and remains, the Council’s land, I also agree this implies strongly it was the Council which constructed the fence; and so, on the balance of probabilities I accept this is what happened.
23. I note Mrs B is clear the fence is on their land. Given the Council’s stated position that it is Mr and Mrs B’s responsibility to maintain the fence, I infer it agrees with Mrs B on this. Taking these points together, the only logical conclusion is that the Council constructed the fence on land it did not own.
24. I have asked the Council – twice – to clearly explain its position on this matter, including whether it agrees the fence is on Mr and Mrs B’s land, and if so, why it built it there. However, the Council has entirely failed to answer this question. Including Mrs B’s own stage 1 and 2 complaints, this means the Council has now had four opportunities to clarify its position, but has not done so.
25. I do not consider the situation is clear enough to support a finding of fault on the basis the Council built the fence on land it did not own. This is because I am not satisfied I have yet all the information I would need to make such a finding.
26. But I still consider the Council is at fault here, because its position on the fence ownership and maintenance responsibilities is illogical, on the current evidence, and it has not explained its decision properly. This has created uncertainty and frustration for Mrs B, which is an injustice. I will consider what the Council should do to remedy this injustice in the next section.
27. Mrs B also complains the Council has failed to address her complaints about the neighbour’s ASB.
28. From its records, it is again difficult to understand what the Council has done with this. I note the Council registered an ASB complaint soon after Mr B contacted it in August 2022, which was appropriate. However, I cannot see the Council did anything at all to follow up this report until mid-2023.
29. I note, in particular, the following comment from an internal email the Council has provided to me, written by an ASB officer:

“Our involvement in this one started on the 12th July upon receipt of the ombudsman enquiry. We have had no prior involvement before that and therefore we can only feed back on the information we have available since we have been involved. I am conscious that this information dates after the enquiry…”

30. From what I am able to interpret from the Council’s records, the initial ASB report was logged by its housing service, because the alleged perpetrator was a council tenant. But the Council’s dedicated ASB team was not informed of the allegation until July 2023, and it appears this was prompted by our own involvement in the matter. At this point an ASB officer contacted Mr B to discuss his allegation.
31. I can appreciate why Mr B’s initial report was logged by the Council’s housing service, given it involved a council tenant; but I consider it fault the Council’s ASB team was not informed at the time that an allegation of ASB had been received.
32. Putting this point to one side, when a council receives a report of ASB, its first action should be to determine whether the allegation warrants further investigation. It should then contact the complainant to explain its decision, and what, if anything, it intends to do next.
33. But there is nothing in the Council’s records, or in its correspondence with Mr and Mrs B, to show it made any such decision. Its complaint responses make no acknowledgement of this element of the complaint at all.
34. I should stress at this point it is not for me to make my own decision whether the incidents reported by Mr and Mrs B amount to actionable ASB. The Council has various powers it can use to sanction perpetrators, but it is a matter of professional judgement for council officers to decide whether a situation warrants the use of such powers.
35. I am also conscious that Mr and Mrs B do not appear to have reported any more significant incidents, after that of August 2022. The Council’s records show that, when an ASB officer contacted Mr B in July 2023, he complained the neighbours had recently thrown some plant cuttings into their garden, but apart from that there was nothing else to report after the initial incident.
36. On balance, therefore, I cannot say there is any fault here simply because the Council appears to have taken no substantive action in response to the alleged ASB. However, I remain concerned there is simply nothing in the evidence I have seen which shows how the Council considered the Mr and Mrs B’s report of ASB. Whether this is a matter of poor record-keeping, or because it did not actually make any such consideration, I cannot say; but either way, this is again fault, which adds to the uncertainty about what should have happened here.

Conclusions

37. The Council was at fault, because it has not explained properly its decision that Mr and Mrs B are responsible for maintaining the fence, particularly given the evidence shows it was the Council itself which constructed it.
38. The Council is also at fault because its housing service did not share Mr B’s initial report of ASB with its ASB team, because its records give no indication what, if any decision it has made about the allegations, and because it has failed to address this element in its response to Mrs B’s complaints.
39. This has created a significant uncertainty for Mrs B about what might have happened, had the Council not been at fault, and in turn this has caused her frustration.
40. To remedy this, I consider the Council should write to Mrs B to explain:

• why it built the fence on Mr and Mrs B’s land, if it agrees this is the case;
• if it does not agree the fence is on their land, why it believes it is their responsibility to maintain it; and
• how it intends to resolve the disagreement this has caused.

41. The Council should also write to Mrs B to explain clearly how it has considered the allegations of ASB, and what, if anything, it intends to do about them.
42. I also consider the Council should write a formal letter of apology to Mrs B for the uncertainty and frustration its faults have caused her. I will leave it to the Council to decide whether this should be a separate letter.
43. I also consider it is appropriate for the Council to offer Mrs B a symbolic financial remedy, to reflect the uncertainty and frustration it has caused. In accordance with the Ombudsman’s Guidance on Remedies, I consider a figure of £150 to be appropriate.
44. I make recommendations to this effect.

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Agreed action

45. Within one month of the date of my final decision, the Council has agreed to:

• write to Mrs B to clearly explain:

• why it built the fence on Mr and Mrs B’s land, if it agrees this is the case;
• if it does not agree the fence is on their land, why it believes it is their responsibility to maintain it; and
• how it intends to resolve the disagreement this has caused.

• write to Mrs B to clearly explain how it has considered the allegations of ASB, and what, if anything, it intends to do about them; and
• offer Mrs B a financial remedy of £150, to reflect the uncertainty and frustration its faults have caused.

46. The Council should provide us with evidence it has complied with the above actions.

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Final decision

47. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman