Summary: We will not investigate this complaint about damage to the complainant’s fence. It is reasonable for the complainant to ask the courts to decide whether the Council is liable for the damage.

The complaint

1. The complainant, I shall call Mrs X, is represented by her daughter, I shall call Mrs Y.
2. Mrs Y says the Council cut down shrubs and bushes on the other side of Mrs X’s boundary fence. She says this has left Mrs X’s property exposed. Also, the fence is damaged because the shrubs have been leaning on it for more than 30 years. Mrs Y wants the Council to pay for repairs to the fence.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The Act 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 the information provided by Mrs Y and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The Council has a statutory responsibility to maintain the highways in its area, including footpaths. The Council says a Councillor asked it to clear the footpath following complaints about overgrowth from residents.
8. The Council does not have to consult or tell residents it will be carrying out such work unless access to their properties will be affected.
9. We do not normally investigate complaints about damage to property. This is because in effect such complaints are that an organisation has been negligent.
10. Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way, at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
11. We cannot decide whether the Council has been negligent and damaged Mrs X’s fence. We cannot enforce an award of damages. So, I would usually expect someone in Mrs X’s position to seek a remedy in the courts, directly or through her home insurer.

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Final decision

12. We will not investigate Mrs Y’s complaint because we cannot decide if the Council is liable for damage to Mrs X’s fence. It is reasonable to expect her to ask the small claims court to consider her claim.

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Investigator's decision on behalf of the Ombudsman