Summary: The Ombudsman will not investigate Mrs B’s complaint that a council officer entered the back garden of her property resulting in a breach of her rights and the law. This is because there is insufficient evidence of fault by the Council.

The complaint

1. The complainant, whom I shall call Mrs B, complained that a council officer entered the back garden of her property earlier this year resulting in a breach of her rights and the law. She told us strangers freely entering her property, when there is no one at home, make her feel unsafe and concerned.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I have considered the information Mrs B provided and the provisions of schedule 3 of the Environmental Protection Act 1990. I have given Mrs B an opportunity to comment on my draft decision.

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What I found

4. The Environmental Protection Act 1990 says a person the Council has authorised has powers of entry to any premises at any reasonable time to find out whether or not there is a statutory nuisance. If the premises are mainly used for residential purposes, the council officer must give 24 hours’ notice of intended entry to the occupier, except in an emergency.
5. Mrs B says when the complaint was made no-one at her home was doing anything wrong and they were not burning anything, although their neighbours were. She says when the Council’s officer attended, there was no fire or smoke within their property. She does not consider there was an emergency.
6. In its final response to Mrs B’s complaint the Council explained it had received a report of burning in her garden and there was a danger the fire would escalate. The Council said its investigating officer spoke to neighbours who confirmed the report and that it was at Mrs B’s property. The Council says its officer called at Mrs B’s property and left a calling card when there was no answer. The officer then went into the back garden without forcing access to check whether there was any danger. The Council says the officer found burnt embers which he photographed.
7. The Council’s view is it would have been negligent had it not investigated further when neighbours had confirmed the initial report and no-one was at home. The Council made the point fires can spread quickly during the summer months.
8. Only a court of law can rule on whether a council has acted legally. Our role is to consider complaints of injustice caused by administrative fault by a council. The question of whether there was an emergency needing entry without 24 hours’ notice, was for the professional judgement of the Council’s officer. Before reaching his judgement the officer took the steps we would expect him to take. He sought confirmation of the initial report and he called at Mrs B’s property to see if anyone was at home before he entered the garden. So there is insufficient evidence of fault by the Council in this case.

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Final decision

9. The Ombudsman will not investigate this complaint. This is because there is insufficient evidence of fault by the Council.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman