Summary: The Ombudsman will not investigate this complaint about an Abatement Notice the Council served on the complainant. This is because there is insufficient evidence of fault by the Council and insufficient evidence of injustice. In addition, the complainant had appeal rights he could have used.

The complaint

1. The complainant, whom I refer to as Mr X, complains the Council should not have issued an Abatement Notice because he did not have a mattress and toilet in his garden. He wants the council to cancel the Notice and apologise for not checking before issuing the Notice.

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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 an investigation if we believe:

• it is unlikely we would find fault, or
• the injustice is not significant enough to justify our involvement, or
• it would be reasonable for the person to ask for a council review or appeal.

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

3. The magistrates’ court considers appeals about Abatement Notices.

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How I considered this complaint

4. I read the complaint and the Council’s response. I considered the photograph the Council received as part of the report and comments Mr X made in reply to a draft of this decision.

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What I found

What happened

5. The Council received a report of overgrown vegetation and a toilet and mattress in Mr X’s garden. The report was accompanied by a photograph. The photograph shows two items which could be interpreted as a toilet and mattress. The Council sent Mr X an Abatement Notice in July which referred to “items” in his garden which the Council was satisfied constituted a nuisance. The Notice required Mr X to remove the waste, clear the overgrown vegetation and leave the area clean and tidy. The Notice explained the work was required to prevent pests. The Notice said Mr X had 21 days to appeal to the magistrates’ court if he disagreed.
6. Mr X did not appeal but he rang the Council to get more information. The Council explained it had received a report of a toilet and a mattress. Mr X told the Council there was no toilet or mattress. Mr X said he could show the Council the items to prove the Council was wrong. The Council inspected the garden and found it to be clear. The Council told Mr X it will not take any more action.
7. Mr X complains the Council harassed him and issued the Notice without checking. Mr X says the items in the garden were insulation board and a tank and they did not cause a nuisance or attract pests. He says the Council could have resolved the issue by knocking on his door. He also says he could not have taken the items to waste and recycling centre because it was closed due to lockdown.

Assessment

8. I will not start an investigation for the following reasons.
9. Mr X could have appealed to the magistrates if he did not think the Council should have issued the Abatement Notice. The magistrates’ court is the appropriate body to consider appeals about Abatement Notices.
10. I also will not start an investigation because there is insufficient evidence of fault by the Council. The Council received a report, supported by photographic evidence, of rubbish in Mr X’s garden. The Notice does not specify the items but asked Mr X to remove the items and vegetation. Mr X agrees there were items in the garden but denies they were a toilet and mattress.
11. The Council took action to remove a nuisance and prevent pests. The fact that the items were not as described during a phone call to Mr X does not represent fault that requires an investigation. In addition, while Mr X denies the items were a nuisance, that is his opinion which, if he felt strongly enough, he could have pursued in court. But, it is not fault for a Council to take action when it has evidence of bulky waste in a garden and such waste can attract pest and fly-tipping. There is nothing to suggest the photograph was doctored, as Mr X alleges and, as the waste and recycling centre re-opened in May, Mr X could have removed the items before the Council issued the Notice in July.
12. Finally, I will not start an investigation because there is insufficient evidence of injustice. Mr X does not deny having rubbish in his garden and, having cleared it, the Council has told him it will not take any further action. Mr X says the thought of going to court caused stress. However, he knew court action would not be needed because he removed the items. Mr X feels aggrieved, and thinks the Council should have visited before issuing the Notice, but there is no evidence of injustice that requires an investigation. It is also possible that even if the Council had visited it would still have issued a Notice because Mr X had insulation board and a tank in his garden.

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Final decision

13. I will not start an investigation because there is insufficient evidence of fault and injustice and because Mr X could have used his appeal rights.

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Investigator's decision on behalf of the Ombudsman