Summary: The Ombudsman will not investigate Ms B’s complaint about damage to her fence caused by items in a poorly maintained and Council owned allotment. Whether the Council is liable for the cost of replacing Ms B’s fence is a matter better considered by the courts.

The complaint

1. The complainant, whom I shall call Ms B, says she had to replace her fence because it was damaged by railings, plants and objects pushing against it from the Council owned allotment her property borders. Ms B wants the Council to reimburse her for the cost of replacing the fence.

Back to top

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. 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)

Back to top

How I considered this complaint

5. I considered the information Ms B provided and the Ombudsman’s role and powers. I sent a draft decision to Ms B and considered the comments she made in reply before I made my final decision.

Back to top

What I found

6. Ms B’s property borders allotments. She complained to the Council that old iron railings with items propped up against them had started to lean and caused damage to the fence at the end of her garden. Ms B asked the Council to pay the cost of replacing her fence.
7. The Council has removed the iron railings and replaced them with a chain link fence. It also asked the allotment tenant to remove items. The Council has declined Ms B’s request to pay for her replacement fence.
8. Whether the Council is liable for the damage to Ms B’s fence and should pay for its replacement are not matters the Ombudsman can decide. It is reasonable to expect Ms B to use her right of remedy in the courts because only the courts can decide if the Council should pay the damages to Ms B seeks. While Ms B says she has provided evidence the Council has failed to maintain its legal boundary and she should not have to incur the cost and time of going to court, the Ombudsman cannot decide these matters. Ms B may be able to obtain legal advice and financial support through her home insurance, or she could obtain advice from a local Citizens Advice or law centre on how to make a claim in court.
9. Ms B has complained about delays by the Council in responding to her complaints. The Council has apologised for this and offered to make a goodwill payment of £50. The Ombudsman has a general discretion to start an investigation into a complaint and will not investigate complaints handling as a single issue. This is because it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.
10. Ms B complains the allotment tenant has also installed a shed outside the parameters of his plot and he has been rude, abusive and used foul language to her. The Council has considered Ms B’s complaint about the position of the shed and said it is satisfied with it. While Ms B disagrees with this assessment, there are no reasons for the Ombudsman to criticise the way officers have made their decision as they have viewed the shed in its position.
11. Ms B has reported the allotment tenant’s anti-social behaviour to the police, which told her it would not deal with events that occur on the allotments as there are allotment rules. Ms B complains the Council has also not taken any action against the allotment tenant.
12. I note the allotment tenancy agreement says ‘Tenants shall not discriminate, harass, bully or victimise any other Tenant, Authorised Visitor, Officer of, or on behalf of the Council or owner/occupier of adjoining land or property on the ground of race, colour, ethnic or national origin, social origin, language, religion, political or other opinion, belief, gender, marital status, age, sexual orientation sexuality, medical condition, disability or disadvantage by any condition.’ The issues Ms B raises therefore do not appear to be covered by the tenancy agreement.

Back to top

Final decision

13. The Ombudsman will not investigate this complaint. This is because whether the Council is liable for the cost of replacing Ms B’s fence is a matter better considered by the courts.

Investigator’s final decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman