The Ombudsman's final decision
Summary: We will not investigate X’s complaint about the Council’s decision not to act when a fence was built on common land. This is because there is insufficient evidence of fault in the Council’s decision making and the matter has not caused X a significant personal injustice.
The complaint
X complained about the Council’s decision not to act when a fence was built on common land in December 2023.
X says the matter caused them frustration.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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 any fault has not caused injustice to the person who complained, or there is another body better placed to consider this complaint, or any injustice is not significant enough to justify our involvement.
(Local Government Act 1974, section 24A(6), as amended, section 34(B))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
X told the Council a fence was built on common land in its area. The Council wrote to the owner and asked them to remove the fence. The owner challenged the request, and the Council reevaluated the matter. It visited the location, took general measurements, and created a visual plan demonstrating the general location of the fence and the boundary of the common land.
The Council decided not to pursue the issue further. In explaining its decision, it said any encroachment on the common land was minimal, much less than it originally thought when it asked the owner to remove the fence. It told X it would therefore not pursue the issue and would instead use its limited resources to investigate more significant matters. It also told X they could take court action themselves.
Analysis The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at the processes an organisation followed to make its decision. If we consider it followed those processes correctly, we cannot question whether the decision was right or wrong.
The Council considered X’s concerns and decided it would not pursue the matter further. There is insufficient evidence of fault in the Council’s decision making to warrant an investigation by the Ombudsman. Therefore, we will not investigate this complaint.
Our role is to consider complaints where the person bringing the complaint has suffered significant personal injustice as a direct result of the actions or inactions of the organisation. This means we will normally only investigate a complaint where the complainant has suffered serious loss, harm, or distress as a direct result of faults or failures. While I appreciate X’s concerns about encroachment on the common land, I do not consider the issue complained about caused them a significant personal injustice to warrant an investigation by the Ombudsman. Therefore, we will not investigate this complaint.
The Council told X they could take the matter to court. Section 41 of the Commons Act 2006 enables any person to make an application to the county court to rectify encroachment on common land. Because the Council has considered the matter and decided not to pursue the issue further, it is open to X to take the matter to the courts if they consider the matter unresolved.
Final decision
We will not investigate X’s complaint because there is insufficient evidence of fault and the matters complained about have not caused X a significant personal injustice.
Investigator's decision on behalf of the Ombudsman