Summary: The Ombudsman will not investigate Mr A’s complaint that the way the Council has dealt with repairs to a wall has been a waste of money. The central events happened more than a year ago so are outside the Ombudsman’s jurisdiction and there are no good reasons why a complaint could not have been brought sooner. In addition, the Ombudsman cannot investigate complaints where the alleged injustice affects all or most of the residents of the area.

The complaint

1. The complainant, whom I shall call Mr A, complains about the way the Council has dealt with repairs to a wall.

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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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely further investigation will lead to a different outcome.

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

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We cannot investigate something that affects all or most of the people in a council’s area. (Local Government Act 1974, section 26(7), as amended)

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How I considered this complaint

5. I have considered information provided by Mr A and by the Council.
6. Mr A has had an opportunity to comment on my draft decision and has supplied additional information which I have taken into account.

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What I found

7. In Summer 2017, Mr A noticed that a retaining wall owned by the Council had suffered some damage from tree roots. The problem was reported to the Council but no action was taken initially. Concerned about the safety of children and believing the wall to be dangerous, Mr A decided to undertake some repairs at his own cost and then, some time later, he brought the matter to the attention of his local councillor. He offered to complete the repairs if the Council would provide the materials. He estimated the cost at £50. Instead the Council commissioned its approved contractors to do the work at a cost of approximately £1500.
8. The Council agreed that the limited repair undertaken by the sub-contractors was not particularly well executed and some remedial works had to be undertaken. Mr A and local residents complained that this was a waste of taxpayers’ money. The Council has explained that, as a public body, it cannot ask somebody informally to effect a repair even though this would, it acknowledges, be the cheapest option: it has to follow rules of procurement and take account of its health and safety responsibilities.
9. Mr A also complains that the contractors used poison to deal with the tree root and that this has caused an additional danger to children. The Council says that it has safely used approved weedkiller.
10. Mr A does not accept the Council’s explanations and has continued to complain. The Council considers that his complaints have become vexatious.

Assessment

11. Any delay in repairing the wall after the problems were reported to the Council is out of time for the Ombudsman. Mr A has known about the Council’s decision to refuse his offer and to employ contractors to carry out the repair for about two years. This part of his complaint is therefore also outside the Ombudsman’s jurisdiction as it is late (see paragraph 3).
12. I have considered whether to make an exception to the normal rule about late complaints, particularly as Mr A says that it took some time for the Council to respond to FOI requests. However, I have decided this would not be appropriate as there is no sign that Mr A has been caused a significant personal injustice. The Council had no duty to take up Mr A’s offer to finish the repairs even though it would have been a cheaper option. It has explained why it could not. As a public body it operates to different rules and regulations than a private householder.
13. The fact that the repairs cost more than if Mr A had carried them out has not caused him a significant personal injustice. I recognise his sense of outrage about what has happened and I appreciate that residents in the immediate vicinity might feel more keenly about what has happened than the wider population. However, if there is a quantifiable injustice, it is one which is shared with every council tax payer in the area because it relates to an alleged waste of public money. Mr A and his neighbours are no more affected by this than anyone else even though they live closer to the wall than most. This means that this complaint is outside the Ombudsman’s jurisdiction (see paragraph 4).
14. Mr A is concerned that the Council has used poison to deal with the tree roots and that there is a continuing danger. I appreciate that Mr A is anxious about this but I have seen no evidence to suggest that this is the case.
15. I recognise that Mr A feels that the Council has acted unreasonably in saying that his complaint is vexatious. However, this complaint has been going on a long time - the wall was repaired two years ago - and the Council has a right not to respond to complaints about the same matter multiple times. The officer time taken in responding to such complaints can impact on its abilities to carry out its normal functions. As Mr A and his neighbours are aware of the Council’s position, a decision not to respond further has not caused him enough injustice to warrant an investigation by the Ombudsman.

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Final decision

16. I have decided that the Ombudsman cannot investigate this complaint. This is because the central events about which he complains happened too long ago for the Ombudsman to investigate. The Ombudsman cannot investigate the complaint that the Council has wasted taxpayers’ money as this affects all or most of the residents of the area and Mr A has no significant separate injustice.

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Investigator's decision on behalf of the Ombudsman