Summary: We will not investigate this complaint about the Council’s failure to cut back vegetation on highway land which Mr X says is affecting his property. This is because there is not enough evidence of fault by the Council.

The complaint

1. Mr X complains the Council has failed to address his concerns about encroachment and damage to his property from planting on highway land. He says he cannot get to his fence to maintain it and the plants push against the panels and trap moisture which will cause long-term damage.

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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 effect 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 an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended)
3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. 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)

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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. We are not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly we cannot question whether the decision was right or wrong, even though a complainant may disagree with it.
8. In response to Mr X’s report the Council has assessed the issue and decided it does not meet its threshold for intervention. This is a decision it was entitled to reach but it has explained that if the situation worsens it will reassess and may decide to act. The Council’s decision is in-line with its policy and it is unlikely we would find fault in the way it was reached.
9. Mr X disagrees with the Council’s decision and believes it should not rely on its normal criteria in this case. But it is not for us to say the Council should have made a different decision in the circumstances, or that it should not have applied its normal policy to the issue.
10. Further, complaints of encroachment and damage to property are legal issues which are matters for the courts, rather than for us. If therefore Mr X wishes to pursue a claim against the Council in relation to these issues it would be reasonable for him to go to court.

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Final decision

11. We will not investigate this complaint. This is because there is not enough evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman