The Ombudsman's final decision:
Summary: There is no fault by the Council. It has considered requests to further cut back vegetation and install CCTV but decided against it. Mrs X’s insurance claim for damage caused by a fire on public open land is being considered by the Council and she can take the matter to the courts to pursue this if needed.
- The complainant, who I shall call Mrs X, complains the Council’s maintenance of the land behind her garden is not enough to remove the fire risk to her property. Mrs X wants the Council to pay for half the cost of fire damage to her property, as she has been caused financial loss by previous fire damage.
- Mrs X also complains the Council has ignored her request for signs or CCTV on the area of land.
What I have investigated
- I have investigated Mrs X’s complains about the maintenance of the land and CCTV. The final section of this statement contains my reason for not investigating the rest of the complaint.
The Ombudsman’s role and powers
- 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)
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I read the papers put in by Mrs X and discussed the complaint with her.
- I considered the Council’s comments about the complaint and any supporting documents it provided.
- Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
- Mrs X lives in a rented housing association house. It backs onto public open space maintained by the Council.
- Mrs X says there have been two fires on the land in 2018 and 2020 and she wants the Council to reduce the risk in the future.
- Mrs X says the Council did not respond to an email from the Police in August 2018, asking the Council to confirm it owned the land. The Council has said the Council Officer no longer works at the Council so it cannot say what happened. After three years, there is no way for me to decide what happened as there are no written records and the Officer involved no longer works there.
- There was another fire in August 2020. In this fire, there was damage to Mrs X’s garden outbuilding and contents. Mrs X made a successful claim in the courts against the housing association for compensation for damage for half the amount of garden outbuildings and contents. Mrs X has started an insurance claim against the Council for the other part of the claim.
- Mrs X says she worries about the fires happening again. She wants the Council to help with minimising the risk by maintaining the land and perhaps signs or CCTV. She says the site is overgrown and the Council has dismissed her suggestions. Mrs X says the Council cut back the vegetation after the fire in 2020 but it was not enough.
- The Council says that ‘the grass is cut monthly throughout spring and summer. Apart from that there is no scheduled maintenance. Any vegetation on the edge of such land is generally allowed to grow unless it created unsightly areas or affected other properties’. The Council carries out quarterly inspections, based around grass cutting and hazards to the users of the public open space.
- The Council has said that ‘the fire that caused damage to Mrs X’s property was caused by unknown third parties and the Council has no practical means of preventing unlawful acts taking place on its unfenced open space land. It denies the fire that caused damage was caused or contributed to by negligence on the part of Council’.
- In response to Mrs X’s request for CCTV cameras, the Council says it does not regard such an option as suitable as a surveillance system. The Council says ‘the land concerned has not been the subject of more than one complained of incident over a limited time frame, or the same complained of incident received from more than one complainant or represents a trend or pattern forming set of incidents or otherwise has been identified as a hotspot/ intelligence suggest fires are being set in an area routinely. If this were the case it would have been the subject of a request to Essex Police Tactical Advisers for a specific environmental audit. This audit could identify the need for a CCTV system and whether it could be installed. This would need street furniture with an electricity supply to power the CCTV camera’. The Council has said it would be unethical to put signs up saying there was CCTV and install no cameras.
- I have looked at all the information and I do understand Mrs X worries about future fires. My role is not to make a judgement on how the Council should maintain the area but to decide whether the Council has responded to Mrs X’s concerns without fault.
- It is clear that the Council has considered Mrs X’s requests. So I can find no evidence of fault in its decision making process although I am aware the Council has not reached the decision Mrs X wants. The Council is entitled to reach a view that differs from that Mrs X wants, this is not fault.
- I have completed my investigation. This complaint is not upheld as I have found no evidence of fault.
Parts of the complaint that I did not investigate
- I have not investigated Mrs X’s insurance claim against the Council. 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). If the insurance company rejects Mrs X’s claim she can pursue the matter in the courts. As Mrs X has already done this for costs against the Housing Association I do not intend to exercise discretion to investigate the claim.
Investigator's decision on behalf of the Ombudsman