Summary: The Ombudsman will not investigate Mr B’s complaint about the Council’s handling of matters relating to his claim that subsidence on Council-owned land has resulted in damage to his fence. This is because the complaint falls outside our jurisdiction as he has a legal remedy against the Council he can use if he wishes to pursue the matter.

The complaint

1. The complainant, who I refer to as Mr B, complains the Council failed to properly investigate his claim that subsidence on Council-owned land is damaging his fence; that it failed to locate the subsidence when a utility company had located it and that his request for a visit from a Council engineer was refused.

Back to top

The Ombudsman’s role and powers

2. 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)
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
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

4. In considering the complaint I spoke to Mr B and reviewed the information he and the Council provided.

Back to top

What I found

5. In 2018 Mr B contacted the Council about damage to his fence which he believes is being caused by the subsidence of Council-owned land to the rear of his property. The Council referred him to Southern Water, which had carried out sewer repair works in the area some years previously, and to his insurance company. Southern Water denies liability.
6. Following further contact from Mr B, in March 2019 the Council referred the matter to its Structures Team. An officer from the Team visited the site and issued a report which stated there was no evidence the Council had carried out any work in the area which could have affected the fence; that there was no visible evidence of ground movement in the area to the rear of Mr B’s property and that any subsidence that had occurred would have occurred naturally. It concluded that the condition of the fence was likely down to its age and not the result of any action or inaction by the Council.
7. In July Mr B told the Council that the water company had carried out its own investigation and had confirmed it had found evidence of subsidence. Mr B asked for a Council engineer to visit so he could show the engineer where the subsidence was. He also made a formal complaint to the Council about these matters.
8. In responding to his complaint, the Council told Mr B that it had undertaken an inspection in March 2019 even though it had been under no obligation to do so. It said that the outcome of that investigation was that there was no evidence of subsidence caused by the Council, the water company or any other event and that damage to the fence was more likely caused by age than subsidence. It confirmed it and the water company denied responsibility for damage and had come to different conclusions about what had caused it. It referred Mr B again to his insurance company.

Assessment

9. The Council investigated Mr B’s claim that subsidence on Council-owned land is damaging his fence. The officer’s view from the inspection in March 2019 is that the damage is likely due to age rather than subsidence. The merits of this decision are not open to review by the Ombudsman and we cannot substitute our view for the professional view of an officer no matter how strongly Mr B may disagree with it.
10. Mr B has an alternative remedy against the Council available through the courts if he wishes to pursue the matter and as we would reasonably expect him to make use of it, his complaint falls outside our jurisdiction and will not be considered further. Mr B can also approach his insurance company.
11. While I note Mr B is unhappy that his request for a visit by an engineer was not granted, a suitably qualified officer had already visited in March 2019 and had come to a view, even though I understand it is not one that Mr B shares.

Back to top

Final decision

12. The Ombudsman will not investigate Mr B’s complaint because it falls outside our jurisdiction as Mr B has a legal remedy against the Council he can use if he wishes to pursue the matter.

Back to top

Investigator's decision on behalf of the Ombudsman