Summary: We will not investigate this complaint that the Council will not repair Mrs X’s boundary fence as the repair responsibility can only be determined by the courts.

The complaint

1. Mrs X complains the Council has refused to repair a fence on her boundary which she says it is responsible for. Mrs X complains the Council initially told her it would do the repair and then wrongly closed down her complaint when it withdrew that offer. Mrs X wants the Council to repair the fence.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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 Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide we cannot achieve the outcome someone wants or we cannot add to what the Council has already said (Local Government Act 1974, section 24A(6))

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council has acknowledged it miscommunicated with Mrs X in initially accepting the repair and that it failed to properly deal with her complaint. The Council has offered Mrs X a financial payment in recognition of this.
8. I do not consider that we can add to what the Council has already said in this regard or that there are grounds for us to investigate.
9. The Council has advised Mrs X that the title documents for the sale of the land in question do not impose a covenant on it to maintain the fence. The Council’s position is therefore that it is not legally responsible for any repairs to the fence.
10. We cannot determine who has legal responsibility for the fence as ultimately this is something that could only be settled in the courts. It is open to Mrs X to seek a settlement in court, and we cannot achieve the outcome Mrs X seeks. For these reasons, we will not investigate.

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Final decision

11. We will not investigate Mrs X’s complaint because it is ultimately a matter for the courts and we cannot achieve the outcome she seeks.

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Investigator's decision on behalf of the Ombudsman