Summary: We will not investigate this complaint about how the Council handled an enquiry about a boundary with an adopted highway. This is because Mr X could take the matter to court. It is unlikely we could add to the Council’s response in relation to the remaining issues complained about.

The complaint

1. Mr X says the Council has not handled his enquiry regarding a boundary with an adopted highway and associated maintenance responsibilities effectively. He says the Council withheld relevant information, ignored evidence provided, refused to explain its report and refused to attend a site visit in his presence. He says this has led to a stalemate preventing works in the disputed land and that as a result damage continues to occur to his property. He says the matter has caused significant personal stress and frustration.

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The Ombudsman’s role and powers

2. We investigate 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 continue an investigation if we decide:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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. 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.

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How I considered this complaint

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

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My assessment

7. Mr X said that trees next to the highway needed to be maintained to avoid damage to his land. The Council said the land in question belonged to Mr X not to the Council.
8. Mr X disagreed with the Council and provided further information. He also requested further information, in particular, he wanted a site visit to be held in his presence.
9. The Council provided Mr X with detailed information supporting its position on land ownership. This was reviewed in its Stage Two complaints process. I am satisfied the Council properly considered Mr X’s evidence.
10. The Council acknowledged that it would have been beneficial to undertake an early site visit with Mr X present. It has apologised for not doing this. It is unlikely an investigation by the Ombudsman would add to this response.
11. The Council and Mr X have both provided detailed explanations to support their positions on ownership of the land in question. The Ombudsman cannot decide which party is responsible for the land. If Mr X wishes to pursue the boundary dispute, he could take the matter to court. Property damage claims are also better dealt with by the courts. The law says we cannot normally investigate a complaint when someone could take the matter to court and I consider it would be reasonable for Mr X to do so.
12. Mr X also complained about the way in which the Council handled his complaint. 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.

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Final decision

13. We will not investigate Mr X’s complaint because Mr X could take the matter to court. It is unlikely we could add to the Council’s response in relation to the remaining issues complained about.

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Investigator's decision on behalf of the Ombudsman