Summary: We will not investigate this complaint about a retaining wall dispute. This is because it is reasonable to expect Ms Y to go to court about the matter, which is better placed to consider the complaint.

The complaint

1. Ms Y complained about the Council’s response to her enquiries after a retaining wall next to her property collapsed.
2. Ms Y says she has had to spend her own money to temporarily repair the wall despite it being a danger to the public and the highway. She also says the Council’s denial of any responsibility has been unhelpful and concerning.

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The Ombudsman’s role and powers

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 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 there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. 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

6. I considered information Ms Y provided and the Ombudsman’s Assessment Code.

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My assessment

7. In Ms Y’s complaint there is a dispute over who is responsible for the maintenance and repair of a retaining wall. The Council has denied responsibility, but Ms Y says the wall is not registered to her property and is not on the legal information she has for her home. She therefore disagrees, believing the Council is responsible for the wall, and she is not. The payment for the rebuilding of the wall, depends on who is responsible for the wall. The responsibility for further costs to repair damage to Ms Y’s property, specifically her shed, also depends on who is responsible for the wall’s maintenance, which is a potential negligence claim.
8. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. This complaint cannot be decided without the ownership of the wall being known. The Ombudsman does not have the power to decide this, only the courts have that power.
9. As the courts have the power to decide who is responsible for the maintenance of the retaining wall, the courts are better placed than the Ombudsman to consider the complaint.
10. There might be some cost to court action. However, that does not mean it is unreasonable to take court action. There is often financial assistance to those of a low income from HM Courts and Tribunal Service and Ms Y may be able to reclaim any costs from the Council if she successfully proves to the court, she is not responsible for the wall, and the court determines that the Council is. Also, reasonable adjustments can be made for access to the service if necessary. It is therefore reasonable for Ms Y to be expected to use her right to go to court about this matter. We will not investigate this complaint.
11. As we cannot investigate the substantive matter of the complaint, it is not a good use of public resources to investigate how the Council dealt with or responded to Ms Y’s complaint. We will not investigate.

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Final decision

12. We will not investigate Ms Y’s complaint because it is reasonable to expect Ms Y to go to court about the matter, which is better placed to consider the complaint.

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Investigator's decision on behalf of the Ombudsman