Summary: The Ombudsman will not investigate Mr X’s complaint about a collapsed boundary wall and his request the Council pay for its replacement. This is because it is reasonable for Mr X to use the legal remedy available to him.

The complaint

1. Mr X complains a boundary wall at his property was inadequate. The property was previously owned by the Council, who transferred it to the previous owners. Mr X says that retained soil on the public highway and roots from trees on council land all contributed to the wall collapsing. Mr X is represented by a solicitor and wants the Council to pay for the wall to be replaced. The Council has so far refused.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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)

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How I considered this complaint

4. I considered information from Mr X and his representative. I gave Mr X and his representative the opportunity to comment on a draft statement before reaching a final decision on the complaint.

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What I found

5. The role of the Ombudsman is to look for administrative fault. But Mr X’s complaint is about damage to private property due to the Council’s alleged negligence. The Ombudsman cannot establish liability in cases involving damage to property. Such matters are for insurers, and ultimately, the courts.
6. If the Council refuses a formal claim for damages from Mr X, then I see no reason he should not pursue the matter in court. The Court can decide if the Council has been negligent and what damages, if any, the Council should pay. It can decide if the Council should fund remedial work to the wall. These are not decisions the Ombudsman can take and so an investigation is not appropriate.

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Final decision

7. The Ombudsman will not investigate Mr X’s complaint. This is because it is reasonable for Mr X to use the legal remedy available to him.

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Investigator's decision on behalf of the Ombudsman