The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s decision to follow the processes set out in the Party Wall Act 1996. There is not enough evidence of fault in the Council’s actions. It is reasonable for the complainant to raise concerns about access to information to the Information Commissioner’s Officer. And we cannot decide ownership of the wall.
The complaint
The complainant, I shall call Mrs C, complains the Council: is hostile when an issue is reported and uses bullying tactics to intimidate failed to respond to enquiries within the published timeframe is deliberately obstructive failed to follow its own advice implemented an unfair process for requiring evidence trespassed on her property
The Ombudsman’s role and powers
The Ombudsman investigates 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 may decide not to continue with an investigation if we decide: further investigation would not lead to a different outcome we cannot achieve the outcome someone wants there is another body better placed to consider this complaint (Local Government Act 1974, section 24A(6)) 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) The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
How I considered this complaint
I considered information provided by Mrs C and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Mrs C owns a property which she lets out. Following information from her tenant, she reported to the Council that the wall between her garden and the Council’s property had partially collapsed.
The Council says it made enquiries and has no record as to who owns the wall . It appointed a surveyor to deal with the matter and served a Party Wall Notice, under the Party Wall Act 1996. Mrs C signed an agreement to split the cost of repairs 50/50. However, she is concerned the Council has not provided evidence that the wall did not belong to a property formerly on the site owned by the Council.
The Council has provided a quote for the work and has invited Mrs C to do the same.
Mrs C complains the Council failed to tell her there was a problem with the wall which is not visible from her property. And failed to confirm the wall did not belong to a property previously on the Council site.
The Council is following the procedure set out in the Party Wall Act 1996. Mrs C disputes the Council’s request that she contributes 50% of the cost of the repair works.
The Ombudsman cannot decide ownership of the wall. This is a legal matter which is best resolved by the courts. I have seen no evidence of fault in the Council’s decision to follow the procedure required by the Party Wall Act 1996.
I consider it reasonable for Mrs C to complain about the Council’s failure to respond on time to her requests and enquiries to the Information Commissioner’s Office (ICO). This is because the ICO has specific powers which the Ombudsman does not have to require compliance with the Freedom of Information Act and the Environmental Information Regulations 2004.
We expect the Council to respond to complaints and general enquiries within its relevant time frames. However, 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.
Finally, Mrs C accuses the Council of trespassing on her property. This is a matter for the courts, not the Ombudsman.
Decision We will not investigate Mrs C’s complaint because: There is not enough evidence of fault in the Council’s actions It is reasonable for her to refer her concerns about access to information to the ICO; and Ownership of the boundary wall and complaints of trespass are matters for the courts.
Investigator's decision on behalf of the Ombudsman