Summary: We will not investigate this complaint about damage to Mr X’s fence as we cannot achieve the outcome he seeks and his damage claim is ultimately a matter for the courts.

The complaint

1. Mr X complains gates the Council installed near his home to deter anti-social behaviour hinder access when bins are being collected. Mr X says his fence has been damaged due to this. Mr X wants the Council to remove the gates and to install a new fence at his property.

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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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide we cannot achieve the outcome someone wants (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. The Council has considered Mr X’s request to remove the gates but has rejected it as it does not consider there is sufficient evidence of damage caused to Mr X’s fence to warrant this. The Council has encouraged Mr X to submit a liability claim to it in respect of the damage to his fence to establish if further solutions need to be explored.
9. While I recognise Mr X remains unhappy, we cannot ask the Council to remove the gates when it has concluded there is not a need to do so, unless there is clear evidence it is at fault in making this decision. Mr X has not provided such evidence.
10. We cannot determine if the Council is legally liable for any damage caused to Mr X’s fence as only the courts can ultimately make such decisions. Mr X can make a liability claim against the Council, as it has advised him to do, and if that claim is rejected, Mr X can consider taking legal action.

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Final decision

11. We will not investigate Mr X’s complaint because we cannot achieve the outcomes he seeks.

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Investigator's decision on behalf of the Ombudsman