Summary: The complainants, Mr B and Mrs C, believe the Council has prevented them erecting a fence to assist Mrs C’s mobility. The complaint is made too late and there is no good reason to exercise discretion to investigate it now.

The complaint

1. The complainants, who I refer to here as Mr B and Mrs C, have complained the Council has prevented them erecting a fence which would act as a walking aid to assist Mrs C who has a serious medical condition. They say their neighbour claims to own the land where they wish to erect the fence and the Council has aggravated the situation by transferring part of the land in question to the neighbour.
2. Mr B and Mrs C say this is not a boundary dispute but the Council and a councillor have turned it into one. They say the Council should have established the boundary before transferring the land to the neighbour.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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’.
6. We provide a free service but must use public money carefully. We may decide not to start an investigation if, for example, we believe:

• it is unlikely we would find fault;
• 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)

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How I considered this complaint

7. I have considered what Mr B and Mrs C said in their complaint and their comments on a draft of this decision. I have also seen background information provided by the Council.

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What I found

Summary of events

8. Mrs C has a serious medical condition and was advised a fence would reduce the risk of an injury that would worsen her condition. In June 2016 Mr B and Mrs C employed a chartered land surveyor to mark out where the fence would go. They say this did not go over the boundary with their neighbour’s property.
9. In January 2018, Mr B and Mrs C began erecting the fence. They say the neighbour immediately began to obstruct them as he believed it was on his land. They say they then found part of the land was owned by the Council. In March 2018, the Council told them the land was unregistered and should have been transferred to the neighbour when he bought his home from the Council some years before.
10. Mr B and Mrs C employed solicitors who wrote to the Council in July 2018 about a ‘potential disability discrimination matter’ under the Equalities Act 2020. The solicitors described the dispute between Mr B and Mrs C and their neighbour. They stated the neighbour had applied to obtain title of the land in question and this had been referred to the Land Tribunal.
11. Mr B and Mrs C’s solicitors argued the Council owned the land and so owed a duty of care to Mrs C. They said it should either:
• state it had no objection to Mr B and Mrs C erecting the fence as proposed on their own land; or,
• if it believed it owned the land it should erect the fence for them to fulfil its duties under the 2010 Act.
12. The Council replied it had owned the land subject to the neighbour’s possession claim but it had been excluded in error when the neighbour bought his home. It considered it was now only the owner on paper and was voluntarily transferring it to the neighbour. However, it was not in a position to determine the exact position of the boundary. The Council considered it had no duties to Mrs C under the 2010 Act and the issue was a private matter between their clients and their neighbour.
13. It appears Mr B and Mrs C next raised the issue with the Council though their MP in June 2020. They complained to us in October 2020. In the meantime, they entered into a mediation agreement with their neighbours in front of a judge.

Analysis

14. It is clear Mr B and Mrs C knew the Council’s position in July 2018 and so should have complained to us by July 2019. I therefore consider the restriction I describe in paragraph 4 applies and have considered if there is good reason to investigate this complaint now.
15. While I have sympathy for their position, the central issue is whether Mr B and Mrs C own the land on which they wish to place the fence. Regardless of time, this is a private matter between them and their neighbour; it is not something we could resolve by investigation. This would have been the case had they complained in time.

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Final decision

16. I have decided we will not investigate this complaint for the reasons given in paragraphs 14 and 15.

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Investigator's decision on behalf of the Ombudsman