Summary: We found fault on Mr J’s complaint about the Council failing to respond properly to correspondence and his complaint. An email complaint and some later correspondence were not responded to by the Council. The agreed action remedies the injustice caused.

The complaint

1. Mr J complains the Council, since March 2022, failed to:
1. respond to his correspondence about it not acting on his reports about a neighbouring derelict property causing him a nuisance;
2. take effective action against the owner of the property to ensure it is maintained properly;
3. send him regular updates as agreed following our previous investigation; and
4. deal with his formal complaint according to its complaint procedure.
2. As a result, he was caused stress and anxiety as the property attracts vermin which affects his property, his quality of life, attracts fly tipping, and is a fire risk.

Back to top

What I have and have not investigated

3. I have not investigated any complaint Mr J may have about the Council’s actions taking place before March 2022. This is because this is when we reached a final decision on his previous complaint about the Council on this matter.

Back to top

The Ombudsman’s role and powers

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)
5. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)

Back to top

The law

6. The Public Health Act 1936: Under section 83, the Council can, when satisfied premises are in such a filthy or unwholesome condition as to be prejudicial to health, or are verminous, give the owner or occupier notice requiring them to take such steps as may be needed to remedy the condition. If they fail to comply, the Council can carry out the required works and recover the expenses reasonably incurred.
7. Local Government (Miscellaneous Provisions) Act 1982: Under section 29, the Council can, where it appears any building in its area is unoccupied, or the occupier is temporarily absent, and is not effectively secured against unauthorised entry or is likely to become a danger to public health, carry out works. The works are to prevent unauthorised entry or to prevent it from becoming a danger to public health. It may recover expenses reasonably incurred in doing these works.
8. Prevention of Damage by Pests Act 1949: It is the Council’s duty to take such steps as may be necessary to secure, as far as practicable, that its district is free from rats and mice. (section 2) It can serve a notice on an owner or occupier about steps to be taken for the destruction of rats or mice on the land or keeping land free from them. (section 4) It can, where there is a failure to take such action, take those steps itself and recover expenses reasonably incurred.
9. Environmental Protection Act 1990: Under section 80, where the Council is satisfied a statutory nuisance exists, or is likely to occur or recur within its area, it shall serve a notice requiring the abatement of the nuisance or prohibiting or restricting its occurrence or recurrence as well as requiring such works as may be necessary to achieve this. (section 80) A statutory nuisance includes any premises in such a state as to be prejudicial to health or a nuisance. (section 79)
10. The Town & Country Planning Act 1990: Under section 215, the Council has the power, in certain circumstances, to issue a Notice requiring land to be cleaned up when its condition adversely affects the amenity of the area. The use of this power is discretionary, so it is up to the Council to decide whether it is appropriate to serve a notice in a particular case.
11. The Law of Property Act 1925: Under this Act, the Council may apply to the courts for an order to recover debts by forcing through the sale of a property. This may happen when the property owner has not paid for works it carried out in default due to the owner’s failure to comply with enforcement notices. If the Court makes the order for sale, the Council can recover its costs from the proceeds of the sale. There is a legal requirement to give the property owner three months’ notice of the Council’s intention to apply for an order for a forced sale.
12. The Housing Act 2004: This gives the Council the power to apply for an Empty Dwelling Management Order (EDMO) when a property has been left unoccupied for a long time. It must apply to the Residential Property Tribunal for an interim EDMO. The Tribunal must be satisfied certain legal conditions are met. This includes satisfactory evidence the property:
• has been unoccupied for at least two years; and
• there is a reasonable prospect that it will be occupied.

If the Tribunal makes the Order, the Council takes over management of the property with a view to bringing it back into residential use and recovering its costs by renting it out.  

Back to top

How I considered this complaint

13. I considered all the information Mr J sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I also took account of his previous complaint to us (21 007 070) and photographs received. I sent a copy of my draft decision to Mr J and the Council and considered their responses. Some information had to remain confidential as it concerned third parties. This means I cannot disclose it or refer to it directly.

Back to top

What I found

14. Mr J lives next door to a dilapidated, boarded up property he previously complained to us about. He complained about the Council failing to have an effective plan to tackle various nuisances caused by its condition. He claimed he reported problems with the property for several years. During this time, the Council failed to let him know what if anything, it was doing.
15. Despite our finding on his previous complaint in March 2022, he complains the property still causes a nuisance. It attracts rats and the front and rear gardens remain full of waste, as does the inside of the house. Rats are entering his and other properties. He believes the owner died a few months after we decided his previous complaint.
16. The property affects his house because he had water running down from it which damaged plaster on his internal walls. He worries the property is a fire risk. Mr J is frustrated with the Council’s lack of action and its failure to communicate properly with him especially about whether it has a plan of action for dealing with it.
17. The following are key events:

2022:

• March: The Council got legal advice about a forced sale of the property and started to collect information to allow this to happen. There was contact with the owner through his solicitors, a copy of which I have seen.
• April: Mr J made a formal complaint to the Council about it ignoring three emails.
• May: Mr J asked to speak to someone in the private sector housing team and raised an issue with its email address. The Council replied.
• June: Mr J contacted the Council about the condition of the property. The Council replied the next day and responded promptly to an email he sent the day after. The Council reminded him to send all emails to a single officer. Further contact from him was also responded to by the Council.
• July: The Council issued a notice under section 83 of the Public Health Act 1936 which it affixed to the property as it was unoccupied. This was a ‘Notice to Remedy the Condition of Premises that are in a Filthy or Unwholesome Condition or are Verminous’. It gave the owner 28 days to: cleanse/disinfect the premises to destroy vermin; clean and disinfect the interior; remove vermin.

The same day, it discovered the owner had died. The Council refused Mr J’s request for details of the deceased’s next of kin. It gave him an update and responded to his contact. An officer spoke to the deceased’s owner’s brother.

• August: The Council again made contact with the owner’s brother. Information showed nobody had applied for probate. Probate is the legal right to deal with someone’s property, money, and possessions when they die. Some emails from Mr J were not responded to by the Council.
• September: The Council responded to a query from Mr J.
• October: The Council sought legal advice about a forced sale now the owner had died. The Coroner’s Office confirmed no death certificate was issued. This was important as probate would need a death certificate. The Council wrote to the owner’s next of kin about the property. I have seen a copy of this letter which refers not only to the condition of the property but also the need for it to remain free from pests. It served a notice under section 29 Local Government (Miscellaneous Provisions) Act 1982 when told the property was insecure. It instructed contractors to secure it. The Council replied to Mr J’s contact and updated him.

The Council told Mr J it had legal advice about options available to it. The family of the owner could refuse to have any responsibility for the estate in which case the Treasury Solicitor would assume responsibility. It explained it had contacted the known family about their intentions with the estate and once known, the Council could progress matters.

• November: The Council called the next of kin but there was no reply.
• December: The Council understood the inquest could be resolved shortly.

2023:

• March: The Council inspected external bait boxes at the neighbour’s property. These showed no evidence of rat and mice activity. Officers could not inspect the property beyond the front door lobby area as they could not gain safe access to the property.

18. The Council explained this was a complicated situation because: the owner had died; it believed he died intestate; there is a formal inquest by the Coroner; the house and contents are now the estate of the deceased; the next of kin have not applied to administer the estate; it took legal advice; one option under the Empty Dwelling Management Orders is unavailable at the moment; it cannot apply for probate.
19. It also served notices and did works to the property which it seeks to recover the costs of, but the increasing costs may mean the estate cannot cover all charges.
20. Following our previous investigation, it confirmed it kept Mr J up to date and used a single officer for his contact with the Council.
21. It is frustrated with the situation but believes if nobody applied for probate, the assets would be frozen. This means nobody has legal authority to access, sell, or transfer the property at the moment. Getting probate may take up to nine months from applying for it. Although the owner did not leave a Will, which means he died intestate, there are known relatives of the owner who can apply to administer the estate.
22. The Council is in contact with the owner’s family about the need to apply for probate.
23. While the Council believes the property is exempt from action within six months of a grant of probate (Empty Dwelling Management Orders) (Prescribed Exceptions and Requirements) (England) Order 2006), it is less clear about forcing a sale (section 103, Law of Property Act 1925). I note that no grant of probate has been made in respect of this property. The Council is currently seeking legal opinion about its position to try and resolve the situation.
24. The Council also pointed out the difficulties it has had with Mr J’s communication as it had asked him to use a named officer as a single point of contact. Despite this, Mr J emails different officers and teams. This presents difficulties for the Council in trying to respond and the danger of not responding to him.

My findings

Complaint a): respond to correspondence

25. Mr J complains about the Council failing to respond to his correspondence on a variety of issues.
26. Although the Council generally responded to Mr J’s emails, there was a failure to reply to some of his correspondence sent in April and August.
27. I consider these failures caused limited injustice to Mr J in terms of frustration for example, as the Council responded to his emails the following months anyway.

Complaint b): act against owner

28. Mr J complains about the Council failing to act against the owner of the property for rats and the state of the garden, for example. He also complains the property is a fire risk because of materials and belongings stored inside it.
29. The evidence shows since July, when the Council became aware of the owner’s death, the situation became much more complicated because:

• It believed the deceased died intestate as he left no Will. In this situation, an administrator is appointed to deal with the estate. The law lists those entitled to be administrator and those entitled to the estate. Where there is nobody in the list left, the Treasury Solicitor, on behalf of the Crown, may claim the estate as ‘bona vacantia’ (ownerless assets) and apply for the grant of probate needed to wind up the estate. This is not the case here. The Council explained this to Mr J.
• There may be a reluctance by relatives to apply to administer the estate. The Council is seeking further legal advice about options. Other options the Council could explore is whether it is possible for it to apply for the courts to administer the estate. This may be an option as it is a creditor of the estate as the estate owes it money for previous works it did. If this was a possibility, the courts could then issue directions about the administration of the estate. Alternatively, it could ask the court to require a potential personal representative to accept or refuse a grant of representation. If this failed to produce a personal representative, the Council may be able to consider applying for it. We merely note these could be explored by the Council with its legal advisors as a potential way of breaking the current deadlock.
• Currently, the problem is the estate has nobody with legal authority to deal with it. This means nobody has the legal right to agree works, repairs, or the sale of the property. This is the fundamental problem the Council faces and is now trying to resolve. It puts its action, or inaction, into context.

30. Mr J continues to complain about the presence of rats entering his property. The Council investigated his reports of vermin and in its response to our enquiries said it had ‘no evidence to support the existence of rats and mice inside the property’. It later clarified it had not advised it had found no evidence of rats and mice, but noted the property was heavily hoarded and was almost impossible to carry out a thorough inspection of the property. It also considered Mr J’s concerns about items in and around the property and acted to secure the property. It notes it cannot remove items from the property until probate is granted and the estate is administered.
31. The evidence shows the Council acted by serving notices on the property and carrying out some works itself, for which it incurred costs. For example, in July, it served a notice requiring the property to be cleaned and for any vermin to be dealt with. The owner died around the same time it was served. The notice still gave 28 days for the owner, or now the administrator, to act. When this expired in August, the Council contacted the owner’s family, but nobody had applied for probate.
32. About six weeks later, the Council sought legal advice about forcing a sale of the property now the owner had died. Officers also contacted the Coroner’s Office as there would be an inquest. A death certificate is needed for probate, and this had not yet been issued by the Coroner’s Office. It went on to serve another notice when told the property was not secured and carried out the works to secure it.
33. There were further attempts to contact the family and contact with the Coroner’s Office.
34. On balance, I am satisfied the Council attempted to get the owner to act before he died and since, has been grappling with his family which has not applied for probate. As a result, while the Council acted, it is concerned about the extent of what it can do legally in these circumstances. I found no fault on this complaint.

Complaint c): regular updates

35. I am satisfied the Council has, as far as it was able, given Mr J regular updates. Under our previous decision, the Council agreed to regularly update him by email every two months. The evidence shows the Council had some form of contact with him almost monthly from March 2022 partly because he sent a number of emails to it concerning the neighbouring property. I found no fault on this complaint.

Complaint d): complaint procedure

36. Mr J is unhappy with the way the Council dealt with his formal complaint. The following are key dates:

2022:

• April: Mr J complained to the Council about it ignoring three of his emails. I have not seen evidence of the Council responding to this complaint. Under the Council’s complaints procedure, it would acknowledge a complaint within three working days of receipt. It would investigate and reply to it within 20 working days of its receipt unless it needs more time because of complexity. There is nothing to show this happened. This is fault.
• June: The Council acknowledged an enquiry and said an officer would respond within five working days. Mr J emailed about the Council having no plan and ignoring his emails. He raised the issue of the lack of maintenance of the property.
• July: The Council replied to some of the points Mr J raised but failed to address his complaint about having no plan and ignoring his emails. The Council emailed him again responding to his previous points.
• September: The Council moved his complaint to stage 1 of its complaints procedure. It is not clear why it decided to do so, following contact between it and Mr J over the summer.
• October: The Council sent him what I assume was its stage 1 response. The letter did not say this was the stage 1 response and nor did it sign post him to the next stage. This is fault. I consider this caused him limited injustice. This is because by this time, while it may have caused him some frustration, he had already been in touch with us about the Council.

Back to top

Agreed action

37. I considered our guidance on remedies.
38. The Council agreed to carry out the following within four weeks of the final decision on this complaint:
1. Send Mr J a written apology for failing to respond properly to his complaint in April, correspondence in August, and for failing to explain whether the October letter was its stage 1 response or signposting him to stage 2 of its complaints procedure.
2. Remind officers of the need to respond and process complaints properly and to respond to correspondence.
3. Carry out an options appraisal about possible action it could take if the family refuses to take steps to administer the estate of the deceased neighbour after getting its own legal advice.
39. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

40. I found fault on Mr J’s complaint against the Council. The agreed action remedies the injustice caused.

Back to top

Investigator's decision on behalf of the Ombudsman