The Ombudsman's final decision
Summary: We will not investigate Mr C’s complaint about the Council painting over graffiti on a property his company owns without following procedures or getting consent. This is because it is reasonable for Mr C to put in a claim to the Council’s insurers for his company’s costs and if needed, pursue his claim at court.
The complaint
Mr C complains the Council was negligent when it painted over graffiti on a house his property group owns without following procedures or contacting his company first. Mr C says the paint is not breathable and can cause damp. Mr C says his company was put to the cost and inconvenience of arranging a team to remove the paint. Mr C would like the Council to formally apologise and pay his company’s costs getting this matter resolved.
The Ombudsman’s role and powers
The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
The Act 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)
How I considered this complaint
I considered information provided by Mr C.
I considered the Ombudsman’s Assessment Code.
My assessment
We do not normally investigate complaints about damage to property. This is because such complaints are that an organisation has been negligent.
The role of the Ombudsman is to consider complaints of administrative fault. We take the view negligence claims are best decided by an organisation’s insurers, and if needed, the courts.
As advised by the Council, Mr C may put in a claim to the Council’s insurers. If the Council’s insurers do not provide an outcome Mr C is satisfied with, he may pursue his claim by taking the Council to court.
Deciding whether an organisation has been negligent usually involves looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been negligent and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
I cannot decide whether the Council has been negligent and have no powers to enforce an award of damages.
So, I would usually expect someone in Mr C’s position to seek a remedy in the courts. I find it is reasonable to expect Mr C’s company to pursue this matter at court if needed.
So, we will not investigate this complaint.
Final decision
We will not investigate Mr C’s complaint because it is reasonable for Mr C to take the Council to court.
Investigator's decision on behalf of the Ombudsman