Summary: We will not investigate this complaint that the Council has not replaced a fence it removed. This is because ultimately Ms X has the right to take the Council to court for the cost of a replacement fence.

The complaint

1. Ms X complains the Council removed her fence and disposed of it when it completed a repair to a boundary wall. Ms X complains the Council has not reinstated the fence and that this has left her property insecure.

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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)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. A decision on whether the Council is responsible for re-instating the fence can only ultimately be made by a court. There is a relatively simple, low-cost procedure open to anyone to make a damage claim in court. Ms X could take such action directly or via her insurers or may be able to obtain the services of a solicitor on a ‘no win, no fee’ basis. It is reasonable to expect Ms X to resort to court action for the remedy she seeks, and we will not therefore investigate.
7. Prior to taking such action, Ms X should make a claim to the Council’s insurers. Ms X’s complaint does not indicate this step has been taken.

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Final decision

8. We will not investigate Ms X’s complaint as it is reasonable to expect her to take court action for the remedy she seeks.

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Investigator's decision on behalf of the Ombudsman