The Ombudsman's final decision
Summary: We will not investigate this complaint about maintenance works because the courts are better placed to consider the complaint.
The complaint
Mrs Y complained the Council planted along a fence bordering her property but have failed to maintain the plants. She says this has caused damage to the bordering fence along her property, causing her inconvenience.
The Ombudsman’s role and powers
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))
How I considered this complaint
I considered information Mrs Y provided and the Ombudsman’s Assessment Code.
My assessment
In this case it is unclear who holds responsibility for the replacement of the fence, with the council saying it is not responsible, and Mrs Y saying that it is. Where there is a dispute over a land boundary, this would be a legal matter, which the Ombudsman cannot determine.
Further, 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. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
Mrs Y says the foliage has grown to the extent that it has damaged the boundary fence which now needs to be replaced at both cost and an inconvenience to her. However, we are not able to decide liability or award damages.
Consequently, any claim for damages, such as costs for repairs, which Mrs Y considers the Council to be responsible for, are matters more appropriately dealt with by the courts, potentially through a claim on the Council’s insurance. We will not investigate this complaint.
Final decision
We will not investigate Mrs Y’s complaint because the courts are better placed to consider the complaint.
Investigator's decision on behalf of the Ombudsman