Summary: Mr and Mrs X complained about the Council’s response to their reports about the condition of a neighbouring property. They said the neighbouring property did not have adequate guttering which caused issues of penetrating damp to their property and a collection of waste led to the presence of pests. We have found fault by the Council but consider the agreed action of an apology, symbolic payment and reminder to staff about record keeping provides a suitable remedy.

The complaint

1. The complainants, Mr and Mrs X complain about the Council’s response to their reports about the condition of their neighbour’s property. In particular, Mr and Mrs X say the Council has delayed in acting after serving legal notices and has not properly considered all the powers available to it to address the issue.
2. Mr and Mrs X say their neighbour’s property does not have adequate guttering which has caused issues of penetrating damp to their property and a collection of waste has led to the presence of pests.

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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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. 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)
7. 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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What I have and have not investigated

8. I have investigated events relating to Mr and Mrs X’s reports about the condition of their neighbour’s property from January 2023 to July 2024. I have not investigated earlier events including the serving of a Community Protection Notice in 2021 as Mr and Mrs X could have complained to the Ombudsman about them earlier. This is a late complaint (please see paragraph 6 above) and there is not enough reason to accept those parts of its for investigation now.

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How I considered this complaint

9. I read the papers provided by Mr and Mrs X’s representative and discussed the complaint with them. I have also considered information from the Council. I have explained my draft decision to Mr and Mrs X and the Council and considered the comments received before reaching my final decision.

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What I found

10. The following is a summary of key events. It does not include everything that happened.
11. Mr and Mrs X own a property that is tenanted. There is a history of issues with the condition of a neighbouring property.
12. The Council served a notice towards the end of January 2023 under section 59 of the Building Act 1984 allowing 21 days for remedial work to be undertaken in relation to guttering at the property of Mr and Mrs X’s neighbour.
13. The Council served a notice under section 143 of the Highways Act 1980 in mid-February 2023 to remove a trailer to the rear of the property that was on the public highway.
14. Mr X contacted the Council at the start of November to say although there was now scaffolding at his neighbour’s property no work had been done to resolve the issues from the faulty guttering. Mr X also reported waste in the garden and rats.
15. The Council visited the property in early November. The Council advised the owner that they needed to remove waste from the adopted highway as his was an offence. The Council also discussed the guttering and was informed this was to be completed in the coming weeks. The visit also found items in the street which appeared to come from Mr and Mrs X’s property and evidence of a birdfeeder and overflowing bins at that property.
16. The Council served a further notice under section 59 of the Building Act 1984 on Mr and Mrs X’s neighbour towards the end of November to repair the guttering. The Council also visited the site at the end of November and noted waste was still on the land to the rear.
17. The Council served a further notice under section 143 of the Highways Act on the owner in mid-December and a letter about a trailer on the rear road.
18. The Council visited the site in early January 2024 and noted the guttering work was completed. The Council confirmed the section 59 Building Act Notice had been complied with in complaint correspondence with Mr and Mrs X in mid-January.
19. Mr X reported waste in his neighbour’s garden causing rats in mid-July. The Council visited the site and spoken to Mr X and his tenant. The Council arranged a pest control visit to Mr X’s neighbour for the end of July. The Council noted a clear rat run from the neighbour’s garden. This matter was ongoing at the time of the Council’s response to the Ombudsman. The Council was to serve legal notices for increased treatment of rats and removal of vegetation and then pursue the informal stages of the Community Protection Notice process. The Council was also to arrange for the removal of two full green bins at Mr and Mrs X’s property as a goodwill gesture to remove the water source for any vermin.
20. In responding to the Ombudsman, the Council has acknowledged there were unacceptable delays in the enforcement of the section 59 Building Act notice which had been served towards the end of January 2023. The Council has explained the delays were in part due to the absence of the investigating officer and a backlog of work on their return. The Council has accepted the case should have been reallocated to follow up the notice in the absence of the investigating officer.
21. The Council has explained it was appropriate to serve the notice again given the time that had elapsed since the service of the original notice to avoid problems in the legal process should the notice not be complied with. The Council has confirmed it would have considered taking legal proceedings but this would have been in discussion with its legal team about whether such action would be in the public interest.
22. The Council also accepted there was poor record keeping in relation to the November 2023 pest report and what investigations were undertaken and that further steps should have been taken to communicate directly with the tenants of Mr and Mrs X’s property about the issue. The Council has confirmed this has now taken place.
23. The Council was not able to provide any contemporaneous record of consideration of its available powers to address some of the issues raised by Mr and Mrs X using section 215 of the Town and Country Planning Act 1990. However, the Council has reviewed the information and notes that the garden, although untidy, is to the rear of the property and away from the general street view and not detrimental to the visual amenity of the area. The Council does not consider the use of section 215 to be appropriate in the circumstances. This is a decision the Council is entitled to reach although I would remind the Council the Ombudsman would expect to see a proper record of its consideration of available powers when addressing issues.
24. The Council was also not able to provide a record of a referral to its animal welfare team despite this being highlighted in its complaint correspondence with Mr and Mrs X.

My consideration

25. Our role is not to ask whether an organisation could have done things better, 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.
26. Based on the information provided, there was delay between the serving of the section 59 Building Act 1984 notice towards the end of January 2023 and the follow up action to re-serve a new notice towards the end of November 2023 and ensure its compliance in January 2024. This is fault. It is also not clear why further action was not takin in response to the November 2023 pest report at the time. I have noted the subsequent visit in July 2024 found clear evidence of rats. There are also instances of poor record keeping which taken together I consider to constitute fault.
27. I am satisfied Mr and Mrs X will have been caused frustration and a degree of uncertainty about whether the matters reported could have been resolved sooner but for the fault identified above.

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Agreed action

28. The Council will take the following action within one month of my final decision to provide a suitable remedy to Mr and Mrs X:
1. write to Mr and Mrs X to apologise for the delay in pursuing the section 59 Building Act 1984 notice served in January 2023 and the poor record keeping and communication identified above and the avoidable frustration and uncertainty this caused;
2. make a symbolic payment of £200 to Mr and Mrs X to acknowledge their avoidable frustration and uncertainty; and
3. issue a reminder to relevant staff about the need to ensure a proper record of actions and decisions is maintained.
29. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
30. The Council should provide us with evidence it has complied with the above actions.

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Final decision

31. I have completed my investigation as I have found fault but consider the agreed action above provides a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman