Summary: We will not investigate this complaint concerning a dispute about highway and private boundaries. There is not enough evidence of fault in the information given to the complainant’s neighbour, it is reasonable to expect the complainant to pursue a court remedy, and we will not look at the Council’s complaint process in isolation.

The complaint

1. Mrs X complains the Council gave written permission to a neighbour to remove a boundary fence she had erected, and says there were errors in the associated complaints process.

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The Ombudsman’s role and powers

2. We can 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 not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

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

3. In relation to the final bullet point above, 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. And 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 Mrs X and the Council, which included their complaint correspondence.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. The matter at the heart of this complaint is a dispute about where the boundaries lie between Mrs X’s land, her neighbour’s land, and highways land.
8. The Council says it has explained to both Mrs X and the neighbour where it thinks the relevant boundaries are positioned, and maintains it has not given any instruction or permission to the neighbour to remove the fence erected by Mrs X. In that regard, I have seen a March 2023 email from the Council to Mrs X. This confirms it had told the neighbour it could have no objection to them removing the fence (because it appeared to be on the boundary between highways land and the neighbour’s land), but had advised the neighbour to discuss this with Mrs X first. I have seen no other emails or letters which demonstrate the Council gave permission for the neighbour to remove the fence, so there is not enough evidence of fault to justify pursuing this part of the complaint.
9. Furthermore, the Ombudsman cannot adjudicate in boundary disputes as this is a matter for the courts. So, if Mrs X wants to challenge the Council’s view on the extent of its highways land, we would normally expect her to pursue a court remedy. She could use her survey evidence to support such a court claim.
10. As the Ombudsman has decided not to pursue the substantive issues being complained about, it would not be a good use of our resources to investigate the Council’s complaint process in isolation.

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Final decision

11. We will not investigate Mrs X’s complaint because there is not enough evidence of fault in the information given to her neighbour, it is reasonable to expect her to pursue a court remedy, and we will not look at the Council’s complaint process in isolation.

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Investigator's decision on behalf of the Ombudsman