Summary: We will not investigate this complaint about the Council failing to contact the complainant before it demolished a boundary wall she owns. The court is better placed to consider the substantive matter, and the Council has already taken satisfactory action to address the misinformation subsequently given to the complainant and for delay in the complaint process.

The complaint

1. Mrs X says the Council failed to contact her to give her the opportunity to repair a boundary wall of a property she owns: it demolished the wall instead, and she says it removed a previously undamaged part of the wall too.
2. Mrs X questions the need for the demolition, as she had already obtained a quote of £350 for the wall to be repaired, and says she had to pay over £2500 instead for the clearing and rebuilding of the demolished walls.
3. Mrs X also says the Council subsequently gave conflicting information about what had happened and when, and failed to escalate the complaint to Stage 2 when requested.

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The Ombudsman’s role and powers

4. We can 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. So, we do not start an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• we are satisfied with the action the Council has already undertaken in response to the complaint, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6) & (7), as amended, section 34(B))

5. With regard to the last bullet point above, we may decide not to start an investigation if we think the issues could reasonably be mentioned as part of legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended, section 34(B))
6. And it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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How I considered this complaint

7. I considered:
• information provided by Mrs X.
• information provided by the Council: including photographs and notes taken on the day of the demolition, a copy of the letter subsequently sent to Mrs X at the property address, and copies of the complaint correspondence.
• the Ombudsman’s Assessment Code.

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My assessment

8. Section 77 of the Building Act 1984 (the Act) gives the Council powers to deal with dangerous structures on private land. In order to use these powers, the Council must first apply to the magistrates’ court for an Order allowing it to take action.
9. Under Section 78 of the Act, where it appears to the Council that any part of a building or structure is in such a state to be dangerous and that immediate action should be taken to remove the danger, it can carry out the necessary work and recover reasonably incurred costs from the owner. Before exercising their powers under this section, the Council shall, if it is reasonably practicable to do so, give notice of their intention to the owner and occupier of the building, or of the premises on which the structure is situated.
10. The Council received a complaint about a dangerous wall at the rear of a property owned by Mrs X. An inspection was carried out the same day. The condition of the wall was deemed to constitute an imminent risk to the public, so the Council instructed contractors to immediately remove the dangerous elements. The inspection notes say there was no answer at the property, and the Council has provided a copy of a letter which the notes say was subsequently sent to the registered own/landlord, Mrs X. I understand a financial charge for the cost of the works has been entered on the land charges register against the property.
11. While Mrs X is clearly aggrieved by the Council’s actions, the courts are better placed to consider whether they were correct. Section 78(5) of the Act allows the court, as part of any proceedings by the Council to recover its expenses, to inquire whether the Council might reasonably have proceeded instead under section 77 of the Act, and, if the court determines that the local authority might reasonably have proceeded instead under that subsection, the Council shall not recover the expenses or any part of them. The Ombudsman is not able to decide liability or award compensation/damages in the way the courts can. So, if Mrs X wishes to challenge the Council’s actions, it is open to her to argue her case in court during any proceedings the Council takes against her.
12. And even if this court remedy was not applicable here, it is important to note that the Ombudsman is not an appeal body. Our role is not to ask whether an organisation could have done things better/differently, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
13. I consider there is insufficient evidence of fault by the Council, with regard to the demolition and who it attempted to contact, so the Ombudsman will not start an investigation. In reaching this view, I am mindful that the Council was entitled to reach its own professional judgement on the extent of the danger posed by the boundary wall, how soon the works needed to be carried out, whether it was reasonably practicable to contact the owner, and how much of the boundary needed to be demolished.
14. As we have decided not to investigate the substantive, underlying matters, it would not be a good use of our resources to look at the Council’s subsequent complaint handing and communication in isolation. Nonetheless, I note the Council has acknowledged it gave Mrs X incorrect information when she initially called the customer call centre, and it has apologised for failing to escalate her complaint to Stage 2 when requested; it has made service improvements as a result. That was a satisfactory a satisfactory way to address these parts of the complaint so we will not investigate them either.

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Final decision

15. We will not investigate Mrs X’s complaint because:
• the courts are better placed to determine whether the Council was correct to carry out emergency works without first allowing her an opportunity to repair the wall,
• and in any case, it is unlikely we would conclude the Council acted with fault,
• the Council has taken satisfactory action to address errors in the subsequent communications and complaints process.

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Investigator's decision on behalf of the Ombudsman