Summary: Mr D complained a redevelopment of land by the Council led to issues with rat infestation in a block of flats owned and managed by his company. We did not find the Council at fault for how it redeveloped its land. But we did find it at fault for mistakes in its complaint handling that caused unacceptable frustration, time and trouble to Mr D. The Council has accepted these findings. At the end of this statement we set out action it has agreed to take to remedy this injustice and improve its service for others.

The complaint

1. I have called the complainant ‘Mr D’. He represents a limited company, ‘XYZ Ltd’, that owns and maintains a block of flats in the Council’s area. He complains that works undertaken by the Council to create a public garden on land near to the flats, led to a rat infestation in the block. He also complains the Council responded to his complaint poorly, with delay and sending misleading replies.
2. Mr D says as a result XYZ Ltd incurred unnecessary expense in carrying out pest control and repairs to damage caused by rats in the building. The company also had unnecessary time and trouble in chasing replies to the complaint.

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The Ombudsman’s role and powers

3. 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’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. Before issuing this decision statement I considered:

• Mr D’s written complaint to the Ombudsman and any supporting information provided;
• correspondence exchanged between Mr D and the Council about the complaint, pre-dating our investigation;
• information provided to me by the Council in response to written enquiries;
• any relevant law referred to in the text below;
• any relevant guidance published by the Ombudsman referred to in the text below.

6. I also gave Mr D and the Council an opportunity to comment on a draft version of this decision statement. I took account of any responses they made, before deciding to complete my investigation and issue this final decision statement.

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What I found

The key facts

Background to the complaint

7. XYZ Ltd owns and maintains a block of flats in the Council’s area.
8. The Council owns land opposite the flats. Before January 2022 this comprised a car park. The Council has now converted this land to a public garden. It gave planning permission for this in March 2022, although work began to convert the land around two months earlier. Work completed on the garden around June 2022.
9. The total area of land owned by the Council also comprises a wooded slope behind the car park / garden area leading down to a watercourse and a small area of the opposite bank.
10. Before the Council undertook work on the site, in 2021, an external consultant undertook an ecological survey of the site. This does not mention any rats on the land. But it noted the embankment heavily covered in waste and fly-tipped materials, including what it referred to a “lorry full of bin bags and household waste”.
11. The survey recommended clearing the waste and this formed part of the works to the land. The Council has shared part of a risk assessment for workers on site which identified a ‘severe’ risk of Weil’s disease, associated with rats. The Council says this is because workers were undertaking waste clearance close to a watercourse. It said it also recognised the waste was a likely source of food for rats.
12. In January 2022 the Council received a report of rats on its land. This came from an occupier of the flats. An internal email says the resident reported “‘100s of rats’ […] on the open land opposite [the flats]”.
13. The Council says this report went to its Pest Control service and a senior officer visited the site, who has now left its employment. The Council does not know what they found or what action they took as the officer kept no record. The Council says the service closed the case record around 10 days after it was made.
14. The Council says it also has two older reports to its pest control service from residents of the flats, reporting issues with rats. These date from 2016 and 2020. Mr D has said a tenant told him they also reported an issue with rats to the Council in 2021.
15. During the works to create the garden, the Council removed some foliage from the site. Mr D says in total it removed around 15 trees and undertook other cutting back and clearing of overgrown foliage. Landscaping plans show contractors were to 'grub out' or remove planting from around 170 square metres of the site (less than 5% of the total plot). The landscaping plan included new planting of around double this area. Most of this took place in the ‘garden area’ of the plot. But a landscape plan also identifies a few tree works taking place on the embankment slope or next to the watercourse.

The complaint made by XYZ Ltd and the Council’s replies

16. XYZ Ltd contacted the Council in early September 2022. This was after the occupiers of two flats in the block reported problems with rats (neither of these was the occupier who contacted the Council in January). XYZ Ltd had spent £530 on pest control treatments and repairs to damage caused by rats. It complained the work to the land opposite had led to these problems.
17. The Council acknowledged the complaint but took no action to investigate or respond until late October 2022. The Council says this was due to human error. It sent the complaint to the wrong officer to answer.
18. When Mr D chased a reply to the complaint, internal emails show the Council took some action. Internal emails show discussion about whether its Public Protection service (who generally deal with pest control issues) or Neighbourhood service (who deal with issues around Council owned land) would respond. These emails show the Council knew of the January 2022 report.
19. The Council did not reply to Mr D’s complaint until March 2023. This only followed Mr D contacting us, because of his frustration at not receiving a reply. The Council says this was because of 'oversight' by the Public Protection service which collated information to answer the complaint.
20. The Council’s reply said that before work started on the garden it had an ecological survey done but undertook no specific survey to look for rats. It said it had no record of any reports of issues with rats from its contractors or engineers on site. It said it was likely however, rats lived in the vicinity given the watercourse.
21. Mr D escalated the complaint to stage two of the Council’s complaint procedure the following month. He drew attention to the January 2022 report of rats from one of the occupiers of the flats. He asked the Council to share the ecological survey. He said residents of the flats reported rats fleeing the site and crossing the road. He said he knew of only one earlier report of any issue with rats at the block, pre-2022.
22. The Council gave its second reply to Mr D’s complaint at the end of May 2023. It said the Council could not give him a copy of ecological survey because it contained information about protected species. It said the Council had “no records” of any reports of rats originating from the block of flats. It reiterated that its contractors did not alert the Council to any concerns.
23. In response, Mr D again drew attention to the January 2022 report. The Council said it had no record of this. But it said a senior officer from the pest control service had visited the area to check for infestation and there was no record that officer took any further action.
24. Mr D resubmitted the complaint to us and asked us to consider:

• whether the Council had complied with health and safety guidance to protect its own workers, requiring it to have a land clearance strategy that would include potential hazards from rats;
• that work on the land opposite had resulted in infestation of the flats causing distress to tenants;
• that replies to the complaints were misleading; he had proven the Council knew of a report of rats on its land in January 2022;
• that he considered the Council had undertook an extensive clearance of vegetation causing rats to seek new nesting sites.

25. In a summary of its comments in reply to our enquiries the Council set out its position that:

• it had no evidence of a rat infestation before, during or after it created the public garden;
• that it recognised residents in the flats had suffered a rat infestation but that appeared coincidental;
• that in clearing waste from its land it would have reduced potential food sources for any rats in the area.

26. In response to the draft version of this decision statement Mr D asked me to consider information on the Council website about rats. This explains how rats adapt to urban environments and often found near rubbish and water. It says that where rats are seen in the day this can indicate a larger population, as they are more commonly seen at night.
27. In its response to the draft decision statement the Council asked me to note efforts made during 2023 to improve its complaint handling. It has rolled out training to managers who deal with complaints. It also has a complaint ‘dashboard’ enabling it to monitor the progress of complaints across different service areas. It has a system in place to identify where replies are late, where it alerts service directors. It also produces a report for its Corporate Leadership Team when complaint replies are late, explaining the reasons why and any proposals to reduce delay. The Council has said work also continues to review its complaint handling procedures.

My findings

28. There is no specific law which requires councils to keep their land free of rats or carry out regular inspections to check for their presence. However, Section 3 of the Prevention of Damage by Pests Act 1949 places a duty on landowners to tell their local council if “rats or mice are living on or resorting to the land in substantial numbers.” The Council also has powers under Section 4 of the Act that can require landowners to eradicate a nuisance from rats.
29. I consider these sections provide a benchmark for how the Council should deal with the presence of rats on its own land. So, if it comes to its attention there are ‘substantial numbers’ on its land then we would find fault if the Council did not act to try and eradicate that nuisance.
30. I find there is evidence that points both ways when considering if there were substantial numbers of rats on the Council’s land, around the time it began redeveloping the car park. In support of this view, I note:

• evidence that points to a historical presence of rats in the vicinity with reports made to the Council in 2016 and 2020;
• evidence that points to part of the site providing conditions for rats to feed and nest as well as it being close to water and overgrown. The ecological survey describes large amounts of waste on parts of the site pre-redevelopment.
• the risk assessment for contractors which anticipated a high risk of Weil’s disease associated with rats in the area; and
• most compellingly, the report made to the Council in January 2022. While the person reporting may have exaggerated the numbers seen, the report refers to “100’s of rats”, which suggests they saw them in significant numbers. I also note here the general information on the Council’s website which would suggest sightings of rats in the day indicative of a wider population.

31. But in support of the opposite view, I note:

• the sporadic nature of the reports pre-2022;
• the report in January 2022 was a single report from a single occupier;
• that the Council did not have any medium or long-term presence at the site to treat any infestation after the report in January 2022; it soon closed its case record after the single report;
• that its contractors or site engineers did not make the Council aware of any issues when on site. The risk assessment document may, as the Council suggests, simply have been a suitable precaution given the location and type of work undertaken. It anticipated some presence of rats but not necessarily in substantial numbers.

32. Taking account of everything I have listed, I consider there would be some rats found in the area. I also think it likely the waste clearance and clearance of some vegetation may have caused some to flee or look for new nesting sites. But I consider the evidence insufficient for me to decide on the balance of probabilities there were substantial numbers of rats on the Council’s land pre-redevelopment. So, I cannot find it at fault for not doing more to clear its land of a rat nuisance either around January 2022 or in the months immediately preceding or following.
33. Even if I were to reach a different finding on this point, I do not consider I could establish a link to the problems Mr D later reported in Autumn 2022. At least eight months went by between one occupier of the flats reporting rats to the Council and another contacting XYZ Ltd to report they had entered the block of flats. I consider that too much time passed to link the two events. Especially, given that historically the evidence shows the building has sporadically had problems with rats in the past also.
34. However, I have still upheld the complaint because of other failings in the Council’s administration. First, its failure to keep records of what it did in response to the January 2022 report. This is poor practice as any finding I make on the condition of the land at that time has an unnecessary degree of uncertainty attached to it. There would be less uncertainty had the Council kept notes of its site visit and action taken in response. Although, given that I can still reach a finding here, I cannot say that fault has caused injustice to Mr D.
35. Second, there were failings in the Council’s complaint handling. It took it seven months to reply. It only did so after Mr D contacted us about his complaint and we contacted the Council accordingly. It is worrying the Council repeatedly lost sight of the complaint. Human errors happen and complaints will sometimes go to the wrong person or service for a reply. But the Council should have effective monitoring in place to spot such mistakes. Shortly before, or even shortly after, a reply to Mr D’s complaint became overdue the Council should have identified this and got its investigation back on track.
36. Once the complaint went to the correct service for a reply, that service also needed reminding of its duty to respond. And while Mr D waited for a reply to his complaint, the Council should have kept in touch with him. He should have known of the delay, its cause and what it was doing to put it right.
37. The replies to Mr D’s complaint were also less than candid. The Council does not dispute that when it began clearing land as part of its redevelopment it received a report of rats. Yet it gave Mr D the impression it had received no such report. Even after he learnt of the report and bought it to the Council’s attention, its replies were still unclear on this point.
38. These faults in complaint handling caused XYZ Ltd injustice in the form of unnecessary frustration and time and trouble.
39. At draft decision stage, I made recommendations to the Council for how it could remedy this injustice, which it accepted. I based these on the Ombudsman’s published guidance for remedying complaints. The symbolic payment detailed below cannot refund XYZ Ltd for its contractor’s costs as I do not link the fault to the company incurring those costs. But the company can use the money to offset against those costs if it decides to.

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Agreed action

40. Within 20 working days of this decision the Council will provide a remedy for XYZ Ltd’s injustice by providing the following:
1. an apology to Mr D (acting for the company), recognising the fault found in this investigation and its resulting consequence, taking account of section 3.2 of our published guidance on remedies Guidance on remedies - Local Government and Social Care Ombudsman; and
2. a payment to XYZ Ltd of £300 in recognition of the injustice caused by its poor complaint handling.
41. In addition, within three months of a decision of this complaint the Council will, as part of its ongoing review of complaint handling procedures, consider what steps it currently has in place for:
1. identifying which service has responsibility for answering a complaint, especially in cases such as this one where more than one service area may have had some involvement in the events complained about; and
2. keeping in touch with those who complain when replies to their complaints fall overdue so they know what is happening with their complaint and when they will receive a reply.
42. The Council will consider any changes necessary to make its procedures here robust. It will write to us and tell us of any action it has taken further to this review. It will also provide us with evidence to show it has complied with the action agreed at paragraph 40 above within the timescale stated.
43. I asked for the action at 41 above having noted, and welcomed, the Council’s efforts to improve its complaint service since 2023. I consider the Council now has in place satisfactory procedures to identify late replies and a means of drawing this to the attention of its senior officers. It is therefore less likely there can be a repeat of the failings identified in this investigation. However, I consider the review above necessary to make this less likely still. Carrying out the review will require the Council to direct its attention to two remaining areas where it made mistakes on this occasion.

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Final decision

44. For reasons set out above I upheld this complaint finding fault by the Council causing injustice to Mr D’s company. The Council has accepted this finding and agreed action that I consider will remedy that injustice. Consequently, I have completed my investigation satisfied with its response.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman