Summary: Mr X complains the Council will not remove non-offensive graffiti on the highway. We do not find fault with the Council’s actions.

The complaint

1. Mr X complains the Council will not remove non-offensive graffiti on the highway. He says the contractors the Council uses are too expensive which is why the Council does not fund the work to remove the graffiti. He says the Council’s decision creates a feeling of lawlessness and is unsightly.

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The Ombudsman’s role and powers

2. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. I spoke with Mr X and considered the information he provided.
6. I made enquiries with the Council and considered the information it provided.
7. I sent a draft decision to Mr X and the Council and considered their comments.

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What I found

Code of practice: litter and refuse

8. The code of practice contains advisory standards for dealing with graffiti. It sets out the grades for different types of graffiti:
• Grade A – the local environment is completely free of graffiti.
• Grade B – some graffiti is present, but it is minor in extent, and many people passing through the local environment would not notice it.
• Grade C – graffiti is present to the extent that it would be clearly visible to people passing through the local environment, and visible at a distance from at least one end of the 50m transect. (transect are used to describe the survey site, whether it is on a highway or other kinds of sites).
• Grade D – graffiti is extensive over a large part of a 50m transect and is likely to be clearly visible and obtrusive to people passing through the local environment, and visible from any point on the transect.
9. It notes that acceptable standards for graffiti are Grade B and above. But, wherever possible, local authorities should always remove graffiti from public property so that there is no trace.
10. The code of practice states local authorities should aim to prioritise the remove of offensive or racist graffiti.

Council policy

11. The Council has a policy to manage defects on the highway, this includes graffiti.
12. The policy sets out a system of rating the defect, between 1-20. The Council will remove a defect rated 20 within 24 hours of it being reported, this includes offensive graffiti.
13. Defect ratings between 1-4 are categorised as category 2 (low) defects. For these defects, the Council’s response will be to ‘assess and decide’. The policy notes non offensive graffiti is given a defect rating of 4.
14. The policy also sets out that defects which are classed as an emergency or hazardous are prioritised as category 1. All other defects are category 2 defects, which are then assessed as either high, medium, or low.

What happened

15. In August 2002, Mr X reported non-offensive graffiti on the highway to the Council. As the graffiti was non-offensive, the Council logged Mr X’s report but did not remove the graffiti.
16. In response to our enquiries, the Council explained its policy on managing defects on the highway set out how it would approach non-offensive graffiti. The Council said it had a limited budget for dealing with defects on the highway.
17. The Council explained it targeted its budget for category 2 defects to repairing defects to reduce future category 1 faults. This meant the Council prioritised defects that have the possibility in the future of causing injury to individuals or damage to property. The Council explained this was why it was unlikely to deal with category 2 low defects as the risk of injury to individuals, or damage to property, is negligible. The Council said to deal with these defects would be at the expense of other defects assessed to be a higher risk to highway users. The Council said non-offensive graffiti fell into this category.
18. The Council said all reports of graffiti were recorded in its highway management system. The system captured all reports made by members of the public. The Council said graffiti removal may be picked up as part of a larger scheme or other routine work. The Council said its contractor would use the information in the highway management system to identify this. The Council said this allowed it to take advantage of cost savings where it would otherwise not be cost effective to remove non-offensive graffiti in isolation.
19. Mr X said the Council’s contractors were overpriced. He said this was why the Council could not afford to fund the removal of non-offensive graffiti. The Council said it had appointed its contractor after a competitive tendering process using the ‘Most Economically Advantageous Tender’ principles.

Analysis

20. The code of practice notes that local authorities should, wherever possible, remove graffiti from public property so that there is no trace. This suggests there is a degree of flexibility for local authorities when deciding when to remove graffiti.
21. Further, the code of practice is advisory. This means the Council can decide not to follow the standards if it has good reasons for doing so.
22. The Council also has a policy which sets out how it will categorise and deal with defects on the highway. I am satisfied the Council’s policy is broadly in line with the code of practice. Therefore, I cannot find fault with the policy itself as the Council is entitled to decide its own policy on the matter.
23. The Council has explained why it cannot remove all non-offensive graffiti. The Council has set out it has a limited budget to deal with defects on the highway and has provided a clear explanation as to how it allocates funding. The Council’s approach is in line with its policy.
24. Further, the evidence shows the Council will consider removing the non-offensive graffiti as part of a larger scheme of works, or during routine works. This shows the Council is appropriately assessing and making decisions on category 2 (low) defects. This is in line with its policy. I also consider this to be in line with the code of practice as this demonstrates the Council is willing to remove non-offensive graffiti wherever possible.
25. As the Council has made its decision without fault, I cannot find fault with the decision itself.
26. I note Mr X feels the Council’s contractor is too expensive. He says this was why the Council does not have the budget to remove non-offensive graffiti.
27. The Council appointed its contractor following a competitive tender process. There is no evidence to suggest the Council had not appointed the contractor appropriately. In any case, it would not be proportionate to investigate this matter further as I would not be able to recommend the Council change its contractor. Further, I do not consider this would likely have caused Mr X any significant injustice.

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Final decision

28. I find no fault with the Council’s actions. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman