The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s failure to comply with its duties under the Equality Act. We cannot achieve the outcome the complainant is seeking.
The complaint
Ms X complains the Council: failed to comply with its duty under the Equality Act 2010 breached the Code of Practice for Powers of Entry; and failed to consider the fact she had started legal proceedings against her neighbour under the Protection of Harassment Act 1997.
Ms X has confirmed she is seeking £6,000 compensation from the Council.
The Ombudsman’s role and powers
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 we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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)
How I considered this complaint
I considered information provided by Ms X and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council received a complaint from Ms X’s neighbour that water was leaking into her flat from the flat above which is Ms X’s home.
The Council says its’ officers visited the property below Ms X’s home and witnessed damp staining on the ceiling and in the kitchen which was enough evidence to suspect water may be coming in from the property above – Ms X’s home.
It wrote to Ms X stating there was a suspected water leak from her property and asked her to contact an officer to arrange a time and date for an inspection. A third party wrote to the Council on Ms X’s behalf advising she was ill with COVID- 19. They also advised Ms X had a disability for which she required reasonable adjustments to be made and that she would contact the Council when she was recovered.
The Council says it did not receive further correspondence from Ms X. Therefore, six weeks later it issued a Notice of Entry with one week notice. It also confirmed that, if she refused entry, a second Notice of Entry would be issued. If Ms X continued to refuse to allow an officer to inspect her home for a water leak, the Council confirmed it would apply to the Magistrate’s Court for a warrant to enter her home.
Ms X refused to allow the officers to enter her home. The Council asked her several times to contact them with a time and date for a visit to avoid the need for a warrant. Ms X did not respond. The Council applied to the court and obtained a warrant.
In response to Ms X’s complaint the Council advised it had offered her the opportunity to contact them to arrange a convenient date and time for an inspection; but she did not respond and refused entry to her home. Therefore, it eventually obtained a warrant from the Court.
Ms X says the Council failed to ask her what reasonable adjustments she required before proceeding to issue notices of entry and eventually seeking a warrant from the Court. She says the reasonable adjustment she wanted was for the Council to ask her neighbour to prove they had investigated other potential causes for the water ingress. However, the Council advised it had inspected the neighbour’s home and was satisfied the staining on the ceiling directly underneath Mrs X’s home was enough evidence to ask Ms X for permission to inspect her home for a water leak.
The reasonable adjustment duty is set out in the Equality Act 2010 and applies to anybody which carries out a public function. It aims to make sure that a disabled person can use a service as close as it is reasonably possible to get to the standard usually offered to non-disabled people.
It is clear the Council asked Ms X to contact them several times to discuss a date and time for an inspection and she did not respond. Having inspected the neighbour’s home, it was satisfied there was enough evidence to suspect a possible water leak from Ms X’s home. It also waited approximately six weeks before issuing the first notice of entry. Ultimately, the Court decided it was appropriate for the Council to inspect Ms X’s property for a leak.
In response to my enquiries, Ms X has confirmed she is seeking £6,000 in compensation from the Council for the alleged failure to consider her request for reasonable adjustment.
The Ombudsman cannot determine whether the Council has breached the Equality Act 2010 and does not award punitive damages. If Ms X believes the Council has breached the law and caused her stress for which she is entitled to a significant amount of compensation, it is for her to ask the Court to determine whether the Council is liable for damages. I understand Ms X considers taking legal action is too expensive and therefore not a realistic option for her. However, we cannot achieve the outcome she is seeking.
Final decision
We will not investigate Ms X’s complaint because: we cannot determine whether the Council breached the Equality Act; and we cannot determine whether the Council is liable for £6,000 damages, this is a matter for the courts.
Investigator's decision on behalf of the Ombudsman