Summary: The Ombudsman will not investigate this complaint about the Council’s decision not to take full responsibility for repairing a fence. This is because the Ombudsman does not make decisions about land or property ownership. In addition, the Council has offered to contribute 50% to the cost of the repair.

The complaint

1. The complainant, whom I refer to as Mr X, complains that the Council will not take responsibility for repairing a fence.

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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 an investigation if we believe the Council has offered a proportionate response. (Local Government Act 1974, section 24A(6), 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. The courts decide disputes over land and property ownership.

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How I considered this complaint

5. I read the complaint and the Council’s responses. I considered case law regarding responsibility for fences. I invited Mr X to comment on a draft of this decision.

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What I found

6. Mr X says the Council put up a fence, about 15 years ago, to stop people going through Mr X’s garden to get to a park. Mr X says the Council has periodically maintained the fence.
7. In 2018 Mr X asked the Council to repair the fence. In response the Council agreed that it had repaired the fence in the past. It said it had no records as to who originally built the fence. It explained it had checked the deeds and covenants and the view of its legal team was that Mr X, not the Council, owns the fence. The Council offered to pay 50% of the cost of the repair. The Council is still willing to make this contribution.
8. Mr X disagrees with the Council’s response. He has referred to a document, dated 1997, from an advice agency, which says that if someone has repaired a fence for many years they may be held to be the owner. The extract goes on to say that “the amount of repairing would have to be such that only the owner would have undertaken it.”

Assessment

9. I will not start an investigation for the following reasons.
10. The Ombudsman cannot, and does not, resolve property disputes. The deeds should show who owns the fence or the land on which the fence is built. If this is not clear, or there is a dispute, then that is a matter for the courts. I cannot say who owns the fence.
11. There is case law which says that past repairs can indicate who should take responsibility for further repairs. The role of the Ombudsman is to assess if a council is properly following its policies and procedures. But, it is not his role to interpret case law and decide whether case law applies to a particular case. That is a matter for the courts. However, legal action is expensive so Mr X may wish to accept the Council’s offer of a 50% contribution to the cost.
12. The Council’s offer is fair and proportionate given the uncertainty and lack of evidence on both sides. In addition it will avoid legal costs for both Mr X and the Council.

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Final decision

13. I will not start an investigation because the Ombudsman cannot resolve property disputes and because the Council has made a fair offer to resolve the complaint.

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Investigator's decision on behalf of the Ombudsman