Summary: The Ombudsman will not investigate Mr X’s complaint that the Council has refused to help him fund a new fence on the boundary between his garden and Council land. The Ombudsman cannot determine ownership of and responsibility for the fence, which are matters for a court. The Council considered appropriate information when deciding not to part fund the fence. There is not enough evidence of fault by the Council in its consideration of the matter to warrant an Ombudsman investigation.

The complaint

1. Mr X complains the Council has declined to help him pay to replace the fence between his garden and adjacent Council land, a playing field.
2. Mr X and his wife are concerned about the security of their property if the current fence should fail, which is has causing them stress. Mr X says he will lose out financially due to the Council’s decision, because he may have to fully fund the fence himself.

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The Ombudsman’s role and powers

3. 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
• there is another body better placed to consider this complaint.

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

4. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

5. As part of my assessment I have:
• considered the complaint and the documents provided by Mr X;
• issued a draft decision, inviting Mr X to reply, and considered his response.

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What I found

6. The core issue in this complaint is ownership of the boundary fence and the duty to maintain it which goes with that ownership. The Ombudsman cannot decide ownership and responsibility for property. Those would be matters for a court to decide. If Mr X wants a decision that the Council part‑owns the fence, and so has a duty to help him install a new one, he would need to go to court.
7. The Council says it has no record of fitting a boundary like Mr X’s garden fence. Officers have checked the title deeds for the Council’s land and found no indication of an obligation to maintain the boundary with Mr X’s garden. For its purposes as owner of the playing field, the planting next to the boundary gives sufficient security for the Council.
8. On the evidence I have seen, the Council has considered the appropriate records to reach its view in response to Mr X’s approach about the fence. There is not enough evidence of fault by the Council in how it has reached its decision not to contribute to the fence to warrant an Ombudsman investigation.
9. Mr X’s property bordering Council-owned land does not mean the duty to maintain that boundary is automatically shared. I recognise Mr X would like the Council to help him pay for the fence. But the Council declined his request after an appropriate review of the relevant evidence. It is not fault for a council to properly make a decision with which someone disagrees.

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Final decision

10. The Ombudsman will not investigate this complaint. This is because:
• the Ombudsman cannot determine the questions of ownership of and responsibility for the boundary fence, which are issues best dealt with by a court;
• there is not enough evidence of fault in the way the Council considered Mr X’s request for help to pay for the fence, and how it made its decision to decline that help.

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Investigator's decision on behalf of the Ombudsman