Summary: The complainant says the Council is failing to meet its responsibilities for the upkeep of a wall which has collapsed onto her property. The Ombudsman cannot decide whether the Council is responsible for the wall or repairing the damage. This is a matter for the courts.

The complaint

1. Mrs X says the Council is refusing to repair damage to a boundary wall which has collapsed into her garden. She wants the Council to accept it is liable to maintain the wall and repair the damage.
2. She also complains the Council delayed in its responses to her enquiries and complaints, sometimes failing to reply.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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:

• we cannot achieve the outcome someone wants
• there is another body better placed to consider this complaint

(Local Government Act 1974, section 24A(6), as amended)

5. 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

6. I considered the information provided by Mrs X and discussed the complaint with her. I also considered information provided by the Council.
7. Mrs X commented on the draft version of this decision.

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What I found

8. There is a retaining boundary wall at the end of Mrs X’s garden, between her property and the highway.
9. The wall collapsed into Mrs X’s garden. She says her insurer and legal adviser have told her not to touch the wall as it is not on her deeds and therefore not her responsibility. The Council has offered to pay 50% towards the cost of repairing the wall.
10. In my conversation with Mrs X she confirmed that neither she nor the Council accept responsibility for the wall. However, she says she and others believe the Council is responsible for its collapse because it failed to maintain vegetation growing against it. She wants to Ombudsman to direct the Council to repair the wall and accept responsibility for future maintenance.
11. The Ombudsman cannot determine whether the Council should repair the wall, pay compensation and/or accept responsibility for future maintenance. Only the courts can do this. There is a low-cost procedure open to anyone to make a money claim through the courts. I consider it reasonable to expect Mrs X to follow this course of action.
12. Mrs X also complains about delays and failures by the Council to respond to her enquiries and complaints. The Council acknowledged its failure to respond to her enquiries promptly and that in some instances it had failed to respond at all. It has apologised for this and for the inconvenience it has caused. While we would expect the Council to respond in accordance with its complaints policy, I do not propose to investigate this issue further.
13. It is not a good use of public resources to investigate complaints about failures and delays to communicate promptly, if we are unable to deal with the substantive issue.

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Final decision

14. I will not investigate this complaint. We cannot decide whether the Council is responsible for the collapse of the wall and should pay to repair it. Nor can we decide whether it should maintain the wall in the future. These are matters for the courts.
15. The Council has apologised for the delays in responding to Mrs X and further investigation of this point alone would not be a good use of public resources.

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Investigator's decision on behalf of the Ombudsman