Summary: Mr D says the Council failed to consult him about replacing a boundary wall. We have not found evidence of fault in how the Council dealt with the boundary wall issue. We have found evidence of delay in complaints handling. This did not result in an outstanding injustice to Mr D. We have upheld the complaint, because of the delays, and completed the investigation because there is no outstanding injustice.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council failed to consult him about plans to replace his boundary wall. He says the Council replaced the brick wall with a timber fence which is not in keeping with his property. He also states the Council mishandled his complaint.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

5. I have not looked at who owns the wall. That is a legal matter and Mr D would need to pursue this through the courts. I have solely considered whether the Council dealt with the replacement of the wall in line with procedures. I have also looked at how the Council handled Mr D’s formal complaints.
6. As above, we restrict the period that we investigate. In this case there were actions by the Council going back to 2019. I have included those as essential background to the complaint, but my investigation concentrates on what happened in 2023.

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How I considered this complaint

7. I have considered the information provided by Mr D. I asked the Council questions and examined its response.
8. I shared my draft decision with both parties and considered their responses.

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What I found

What happened

Background

9. In 2019 residents/ Council estate management checks identified severe repair issues with boundary walls next to a Council estate. One of the walls bordered Mr D’s garden. In August the Council commissioned a structural engineer’s report. The report said the walls needed to be replaced. To replace with another brick wall would require deep foundations and was prohibitively expensive. A timber fence was recommended because it was affordable and would better withstand ground movement and require minimal maintenance. The Council said it would seek to confirm ownership of the walls and then notify the residents in adjoining properties about the wall replacement. In 2020 the Council noted the wall was getting worse and concluded it was its responsibility to replace the walls. There are minimal supporting documents to evidence what took place, but the Council says it picked up the case again in 2022 after further concerns about the safety of the wall.

Events I have investigated

10. On 6 March 2023 the Council wrote to residents who bordered the wall, including Mr D. It said the boundary wall was now a dangerous structure and included photographs. Part of the wall had already collapsed and needed to be rectified urgently. It would carry out works from the end of March for a month. If residents had any queries, they should contact the Council.
11. On 18 April Mr D complained to the Council. He had only been told the Council was dealing with issues with the wall at the start of March. It had failed to consult him about the demolition of the wall or replacing it with a timber fence. The Council replied on 17 October. It had replaced the wall because it was unsafe. It used a timber replacement to accommodate movement in the ground and had notified residents about the works. That month Mr D pursued his complaint with the Council. It responded on 18 April 2024 and apologised for the delay. It said the wall was dangerous and the Council had an obligation to make it safe. A timber fence was the most economical replacement.

What should have happened

12. Where a Council has concerns about the safety of a structure, such as a boundary wall, it will check its ownership and have a structural engineer inspect it to ascertain what works are needed. The structural engineer will recommend the best and most cost effective options for the Council to consider. If the ownership of the structure is unclear, but most likely to belong to the Council, and the structure is considered in need of urgent repairs the Council will agree funding and notify the residents bordering the structure that it plans to carry out works.

Was there fault by the Council

13. I have not found evidence of fault in respect of how the wall was replaced. The Council commissioned a structural engineer’s report which recommended the wall be replaced. The report also said that a timber fence would be the most cost effective and easier to install and maintain. The Council wrote to residents, including Mr D, in March explaining why the walls were now unsafe and that works would start that month. Mr D most likely received the document because he refers to being notified about the works at the start of March in his formal complaint to the Council. In addition, I am satisfied the document was produced and distributed based on the copy provided to me by the Council. Mr D says the Council should have consulted him and replaced the wall with a similar structure. The evidence shows me the Council did carry out the correct process, albeit over a protracted period. It notified Mr D before starting any works to the wall, it did not have any additional duty to consult Mr D. In respect of the decision to use a timber fence, I appreciate Mr D disagrees with the Council. However, 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. In this case the Council had the right to conclude a timber fence was appropriate.
14. Turning to the complaint handling in this case there is evidence of fault. The Council took seven months to reply to the initial complaint and did not apologise for the delay or explain its cause. The second complaint was also delayed by at least four months resulting in Mr D coming to the Ombudsman. Those delays are not acceptable.

Did the fault cause an injustice

15. The complaint handling delays meant Mr D had to wait longer than reasonable for a response to his complaint. However, I see the Council did apologise for delay in the April 2024 response. In addition, as I have not found evidence of fault in the substantive part of the complaint, I do not see there was a significant outstanding injustice to Mr D caused by the poor complaint handling which requires a remedy.

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Final decision

16. I have upheld the complaint (because of the delay in complaint handling) and completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman