Summary: We will not investigate this complaint about rights of way because it is reasonable to expect Mr Y to approach the courts about the matter, who are better placed to consider the complaint issues.

The complaint

1. Mr Y complained the Council has failed to resolve a boundary and easement dispute with him for approximately four years.
2. Mr Y is seeking compensation for the emotional impact he says has been caused, for the Council’s failure to unblock a route of escape from his property and for nuisance and negligence.

Back to top

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. We have the power to start or end an investigation into a complaint about actions the law allows us to investigate. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))

Back to top

How I considered this complaint

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

Back to top

My assessment

7. The legislation from which the Ombudsman takes their power also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property, personal injury and nuisance. We cannot determine liability claims for negligence. These are private legal claims which may only be determined by insurers or the courts.
8. We are not able to decide liability or award damages. We also cannot decide land rights disputes. Consequently, any claim for damages or for the enforcement of a land right, which Mr Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts. It is therefore reasonable for Mr Y to pursue his claim through either his insurer or the courts. We will not investigate this complaint.
9. Further, Mr Y has already sought legal advice about the issues he has raised. As these issues are private legal matters, which we cannot decide and could reasonably be brought as part of legal proceedings, we will not investigate.

Back to top

Final decision

10. We will not investigate Mr Y’s complaint because it is reasonable to expect Mr Y to approach the courts about the matter, who are better placed to consider the complaint issues.

Back to top

Investigator's decision on behalf of the Ombudsman