Summary: Mr C complains about damage caused by a Council contractor. The Council is at fault for failing to refer the matter to its insurers and to update Mr C about his complaint. This has caused Mr C uncertainty and frustration. The Council has agreed to apologise to Mr C and pay him £150. It will also review procedures and advise staff about what steps they should take in future cases of this type.

The complaint

1. The complainant who I call Mr C, complains in his own right and on behalf of his late father who I call Mr G.
2. Mr C complains:-
1. a cleaning service commissioned by the Council caused damage to Mr G’s property;
2. the Council failed to follow up on actions it agreed to take as part of dealing with the complaint.
3. Because of these failings Mr C says Mr G had to pay for plumbing works, and there are still outstanding repairs to the kitchen ceiling and electrics. Mr C says he has had time and trouble in chasing the Council and dealing with the matter.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

6. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
7. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I spoke with Mr C and considered information he provided. I asked questions of the Council and considered its response which included records of conversations and emails.
9. Mr C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

What should have happened

10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves.
11. It is key that a person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity.

What happened

12. Mr G was living in his own home and supported by paid carers (“carers”). Mr G needed a deep clean of his property and as a result the Council commissioned a specialist cleaning agency (“agency”). In the process of the commissioning a carer took a photograph of a toilet. There is no dispute that the toilet was blocked. The Council says at the time the toilet was also leaking and this is evident from the photograph.
13. Following the deep clean in May 2020 Mr G reported a leak from the toilet. Mr C says this was caused by the agency when they completed the deep clean. Mr C says Mr G never used this toilet as it was upstairs.
14. The leak affected the corked ceiling in Mr G’s kitchen. Because of this Mr C told Mr G not to use the kitchen lights.
15. The case records show there were conversations between carers and Mr G about fixing the leak. Mr C says the cleaning agency created the leak when it unblocked the toilet and that the Council is responsible for the repairs.
16. In October 2020 Mr C complained to the Council. The Council responded two weeks later saying it would complete several tasks this included asking the agency to do an investigation into the leak. In the meantime it would liaise with Mr G to get quotes to complete the repairs.
17. The agency completed an investigation and concluded it did not cause the leak. The Council did not tell Mr C the follow up outcomes.

Was there fault causing injustice?

18. At the heart of this complaint is an issue about liability. The Ombudsman cannot determine whether the Council is liable for damage caused by the leak. The question of liability is a matter for the Council's insurer, and ultimately the courts, to decide.
19. Public liability insurance indemnifies councils against claims for compensation for personal injury and/or property damage. The Council has a public liability claims process and I can see no reason why it was not followed in this case. When Mr C asked the Council to make repairs, I consider it should have forwarded that as a claim to its insurer. I find that not to do so was fault.
20. This has caused delay and time and trouble to Mr C, as the matter could have been resolved in 2020.
21. However, I cannot say that the repairs would have been completed. There is no automatic right to compensation. Claims will only be settled where the Council could be held legally liable due to negligence. It is for the insurer to consider the evidence and reach a decision on liability. I cannot say what the insurer would decide.
22. If liability is not accepted and Mr C wishes to contest this, he may do so in court. Ultimately only the courts can determine whether the Council has been negligent.
23. A claimant can make a claim up to three years after the incident. I therefore consider the Council should forward the claim to its insurers now. This should be done by the Council, as Mr C's relationship is with the Council and not the insurer and it is for the Council to instruct the insurer following notification of a claim.
24. The Council is also at fault for failing to tell Mr C the outcome of its investigation. This caused him time, trouble and frustration that the Council was not dealing with his complaint.

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Agreed action

25. I consider there was fault by the Council which caused Mr G and Mr C injustice. I am unable to suggest a remedy for Mr G’s personal injustice as he has now passed away. I have recommended and the Council has agreed to:-
1. apologise to Mr C and pay him £150 to acknowledge the time and trouble he has been put to because of the faults identified;
2. forward Mr C’s claim for repairs to the property;
3. review how it processes claims of this type in the future;
4. remind staff about keeping complainants updated on the progress of their complaint.
26. The Council should complete actions (a) and (b) within one month of the final decision and (c) and (d) within two months of the final decision.

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Final decision

27. I have found fault causing injustice. I have now completed my investigation and closed the complaint based on the agreed actions above.

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Investigator's decision on behalf of the Ombudsman