Summary: We will not investigate this complaint about the Council’s negligence when applying herbicide spray in a public area. There is insufficient evidence of any significant injustice which would warrant an investigation. Mr X could submit a claim against the Council if he believes the chemical used could affect his health.

The complaint

1. Mr X complained about being exposed to a herbicide chemical when he says overspray from a weed treatment made him feel unwell and have concerns for his long-term health.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. 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.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. The law 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)

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How I considered this complaint

4. I considered information provided by the complainant and the Council.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr x says he was exposed to overspray mist from a Council contractor spraying herbicide which drifted into the public space he was walking in. he says he began to feel unwell and worries about possible long-term effects. He complained to the Council about the operator’s disregard for public safety and his own health.
7. The Council say that the chemical used is certified as safe and non-hazardous to humans and the environment. It checked the route used and the techniques involved and suspended treatment while this was being investigated. It is satisfied that Mr X was not subjected to any health and safety risks.
8. 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. We will not normally investigate a complaint where the alleged loss or injustice is not a serious or significant matter.
9. In this case Mr X has not been able to substantiate his claim that he was affected by the spray and the Council refutes his claim. We cannot say that Mr X suffered any significant injustice without evidence of the effect of the spray. If he has such evidence he would be able to submit a claim against the Council’s public liability insurance.
10. The legislation from which the Ombudsman takes her powers also places some restrictions on what we may investigate. One of these concerns negligence claims about damage to property or personal injury. We cannot determine liability claims for negligence. These are legal claims which may only be determined by insurers or the courts.
11. It is normal procedure for persons suffering damages or personal injury caused by a council or its contractors to submit an insurance claim against the Council. This will then be treated as a claim, rather than a complaint. If no liability is accepted then the matter would be for the courts to determine.

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Final decision

12. We will not investigate this complaint about the Council’s negligence when applying herbicide spray in a public area. There is insufficient evidence of any significant injustice which would warrant an investigation. Mr X could submit a claim against the Council if he believes the chemical used could affect his health.

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Investigator's decision on behalf of the Ombudsman