Decision : Upheld
Decision date : 14 Jan 2019
The Ombudsman's final decision:
Summary: Mrs A complains the Council has failed to take enforcement action against a neighbour who is causing a vermin infestation. She also says the Council failed to reply to her formal complaint. The Ombudsman has found evidence of fault in the Council’s complaint handling. He has upheld the complaint, because of that one fault, and completed the investigation because there is no outstanding injustice to Mrs A.
- The complainant (whom I refer to as Mrs A) says the Council has failed to take action against a neighbour who is causing vermin infestations into Mrs A’s home since 2017. Mrs A also says the Council failed to reply to her initial formal complaint in 2018.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- If we are satisfied with a council’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)
How I considered this complaint
- I have considered the information provided by Mrs A. I asked the Council questions and carefully examined its response which includes its case files detailing contact with the County Council’s Adult Social Care Team (ASC Team) and other Agencies. Those files are confidential and contain third party data about Mrs A’s neighbour which I cannot disclose.
- I have shared my draft decision with both parties.
What I found
- As set out above I have seen all the case files in this matter. Because most of the information relates to a third party I cannot share or disclose that in this statement. However, I am satisfied that I have fully assessed all the evidence available.
- On 9 August 2017 Mrs A contacted the Council reporting vermin coming into her property because of the actions of a neighbour. The Council allocated the case to an Environmental Health Officer (EH Officer) who visited the site on 14 and 15 August. He was unable to gain access to the neighbouring property. Mrs A had told the Council she had concerns about her neighbour’s mental health. On 4 September, the Council contacted the ASC Team at the County Council for information about the neighbour. The Council continued to correspond and discuss the case with the ASC Team during September through to December.
- Also during September to December, the Council exchanged emails with Mrs A about the problems she was experiencing and how it was trying to progress the case whilst taking account of the neighbour’s potential vulnerability.
- In February and March 2018, the Council pursued its contact with the ASC Team. It also had discussions with other Agencies about how to engage with the neighbour. In March Mrs A sent a formal complaint to the Council asking it to stop delaying taking action. The Council logged the complaint but failed to pass it to the Environmental Health Team to respond. The Council says this was due to a software error. Mrs A subsequently sent another complaint which was correctly forwarded. She met with a Senior Officer in May. I have no contemporaneous note of that meeting. The Council then sent a formal response to the complaint in June. It said the investigation was complex and involved different Agencies. It could not share details with Mrs A but it was satisfied the investigation had been progressed. The Council said it needed to assess whether there was a vermin problem in the neighbouring property but had so far been unable to gain access. It would continue to work with Agencies to access the property and would send Mrs A an update. I see the Council did send Mrs A emails in July, September and October.
- The Council had further contact the ASC Team which closed its safeguarding enquiry in October. The Council has since taken actions each month, been in contact with the neighbour and liaised with another Agency as part of its efforts to gain entry to the property and check on the neighbour’s welfare.
What should have happened
- Reports of unsanitary conditions causing vermin are dealt with by the Council’s Environmental Health Team. A case is assigned to an EH Officer to investigate. The EH Officer will contact the alleged perpetrator and try to gain access to the property to carry out an inspection. In cases where the alleged perpetrator is potentially a vulnerable person the Council will contact the County Council’s ASC Team to see if there safeguarding issues that would affect the investigation. Once the ASC Team provides a response the Council can determine whether it is appropriate to take enforcement action or to seek an informal resolution. The Council is not obliged to automatically start formal enforcement action if it considers it would cause harm to a person it considers vulnerable.
- There are no written procedures for how Officers deal with this specific type of case. However, the Council’s enforcement policy says it will consider what action is appropriate for each case and “offender”. It will seek informal action to resolve a problem where possible.
- When the Council receives a formal complaint, it should log receipt and pass it to the service area to respond.
Was there fault by the Council
- Mrs A feels the Council has delayed taking action to resolve the vermin infestation. I have carefully assessed all of the evidence, most of which I cannot share, and having done so I do not see any evidence of fault in how the Council has handled this case. There is no unreasonable delay by the Council. It sought to progress matters soon after receiving Mrs A’s initial report in August 2017. However, the Council must seek advice and assistance from other parties including the County Council and other Agencies. This has inevitably meant it is taking much longer to progress this case than it would for a similar one where the alleged perpetrator was not a vulnerable person. The Council does not have to take enforcement action where it considers doing so would pose a significant risk to the alleged perpetrator and it has the discretion to seek an informal resolution. In this case the Council has concluded, along with input from Agencies, that it should seek co-operation from the neighbour due to safeguarding concerns. That is a decision the Council is entitled to make albeit I appreciate Mrs A may not agree. The Ombudsman will not question the merits of such decision making where the Council has acted without fault. That said, I would expect the Council to keep updating Mrs A about its actions, where possible, and to progress the case as quickly as possible.
- Mrs A also say the Council failed to reply to her initial formal complaint in 2018. The Council accepts it was at fault on this point. It says the complaint was received and logged but due to a software issue was not forwarded to the service area for a response. It offers its apologies to Mrs A. I also understand the software error was resolved and has not happened again.
Did the fault cause an injustice
- I do not see the Council’s failure to reply to Mrs A’s initial complaint resulted in an outstanding injustice. The Council subsequently met Mrs A and wrote to her correctly setting out is position. It is offering its apologies to Mrs A for the error and I consider that a sufficient remedy.
- I have upheld the complaint and completed the investigation.
Investigator's decision on behalf of the Ombudsman