The Ombudsman's final decision
Summary: We cannot investigate this complaint alleging the Council has failed to stop its tenant’s dog from entering Miss X’s garden through a broken fence. The law prevents us from investigating the Council’s actions as a registered social housing provider.
The complaint
Miss X says a Council tenant’s dog enters her garden, through the tenant’s broken fence, and is scaring her pets and leaving dog waste.
Miss X reports that she is no longer able to use her garden and her health has suffered adversely. She wants the Council to take action to ensure the fence is repaired.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
We cannot investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider. (Local Government Act 1974, paragraph 5A schedule 5, as amended) The courts have said we can decide not to investigate a complaint about any action by a council concerning a matter which the law says we cannot investigate. (R (on the application of M) v Commissioner for Local Administration [2006] EHWCC 2847 (Admin))
How I considered this complaint
I considered information provided by the complainant and information from the Council about its ownership of the property in question.
I considered the Ombudsman’s Assessment Code.
My assessment
Miss X says that as a disabled person the Council owes a duty of care to her. She says the Council has ignored her complaints and says the impact on her mental and physical health has been devastating.
The Council’s complaint response partially upholds her complaint and says its tenant should take steps to control their dog. But it says its tenant cannot repair their fence due to an overgrown hedge in between Miss X’s property and the Council property next door. The Council says the overgrown hedge is Miss X’s responsibility to cut back before their tenant can repair the fence. It says it has been in contact with Miss X’s landlord advising it of the situation in case it can assist.
We cannot investigate. The Council is a registered provider of social housing. The broken fence belongs to a social housing property the Council owns.
The restriction in paragraph 4 prevents us considering anything ‘in connection with’ the Council’s management of social housing. Therefore, we cannot investigate the Council’s actions regarding the fence.
Miss X says she is not complaining about the Council as her landlord. I note Miss X is not a tenant of the Council. The key point here is not Miss X’s tenancy status but the Council’s function as a landlord to her neighbour.
Miss X consider she is owed wider duties by the Council under Environmental Health/anti-social behaviour and the Equality Act. However, there is no involvement by the Council’s environmental health or anti-social behaviour departments as the Council’s function being exercised here is via its housing management/ tenancy enforcement role. And any Equality Act considerations are not engaged as the underlying housing management role lies outside our jurisdiction (and is covered by another statutory Ombudsman as the Council has already advised Miss X). As paragraph 5 says, the courts have said we can decide not to investigate a complaint about any action which the law says we cannot investigate.
Final decision
We cannot investigate Miss X’s complaint. The law prevents us investigating the Council’s actions regarding the fence.
Investigator's decision on behalf of the Ombudsman