Summary: We found fault by the Council on Mr J’s complaint about it failing to take effective action on his reports of a neighbour’s overflowing drain and garden waste. It failed to consider his report about the drain and possible statutory nuisance. It did not consider steps to overcome the tenant’s language problem. Nor did it consider using other powers and it delayed acting to identify the landlord. There was no fault on his complaint about communication. The agreed action remedies the injustice caused.

The complaint

1. Mr J complains about the Council failing to:
1. take effective action on his reports of his neighbour’s overflowing drains and front and rear gardens full of waste; and
2. keep him updated about what, if any, action it was taking.
2. As a result, this caused him a continuing nuisance as he put up with odours and flies for almost a year, especially during the summer months, which was stressful and also meant he could not use his own garden or open windows for ventilation.

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What I have and have not investigated

3. Usually, we would only investigate Mr J’s complaint from January 2022. This is because he sent his complaint to us in January 2023. The law says we cannot investigate a late complaint unless there are good reasons. A late complaint is when someone takes more than 12 months to complain to us.
4. I exercised discretion to investigate the Council’s actions from September 2021. This is because the records show Mr J asked for his reports to be escalated to a complaint in September 2021 but there is no evidence this was acted on.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. 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)

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The law: enforcement

8. 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.
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. 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. Anti-Social Behaviour, Crime and Policing Act 2014: Under section 160, the Community Protection Notice (the Notice) is intended to deal with unreasonable, ongoing problems or nuisances which negatively affect the community’s quality of life by targeting the person responsible. They can be issued by a council or the police, for example. They are issued where there are reasonable grounds to believe a person’s conduct is having a detrimental effect on the quality of life of those in the locality, is unreasonable, and the behaviour is of a persistent or continuing nature. A Notice can only be issued after a written warning has been sent which warns a Notice will be issued unless their conduct ceases to have the detrimental effect.
12. A Notice requires the person to stop, or do specified things, and/or take reasonable steps to achieve a specified result. If the person fails to comply, a council may have the work carried out to ensure the failure is remedied.

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How I considered this complaint

13. I considered all the information provided by Mr J, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I have seen information about a third party which needs to remain confidential. This means I cannot disclose or directly refer to it. I sent a copy of my draft decision to Mr J and the Council. I considered their responses.

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What I found

14. Mr J has lived in his home for several years. Problems started when new neighbours moved in a couple of years ago. Over time, waste began to be left in the property’s front yard and then also the rear garden. Waste included mattresses, furniture, boxes, and bulky items. When the tenants would not sort the problem out, he reported them to the Council. By this time, he claims there were foul odours and flies coming from the property.
15. He is unhappy with the time taken for the Council to allocate an officer to the case. When he was allocated one, he complains he was passed from one officer to another. Mr J complains about the failure of the Council to resolve the ongoing problem which has affected his quality of life for more than 12 months. He is also unhappy about having to chase the Council for updates.
16. When he complained, the Council confirmed waste still needed removing from the neighbouring garden. It explained officers kept him updated but this was a challenging investigation which focused mainly on gathering details of individuals which it needs to take effective enforcement action to resolve the situation. It could say no more due to the need to protect third party information.
17. These are key dates:

2021:

• August: Mr J sent the Council reports about the condition of the neighbour’s garden.
• September: Mr J chased the Council about the condition of the gardens. Officers were asked to visit the site and found waste still in place. The records say the case was escalated to the community protection team.
• October: Officers visited and saw waste. They gave the tenant two weeks to clear it. They were aware of language difficulties at this point with the tenant. When officers called again, the waste was still in place, but the tenant was not home. During a further visit, officers explained all waste needed removing within a week and were told the landlord would be contacted. When they returned a week later, the waste had increased.
• November: The Council wrote to the tenant about the waste, but I have not seen a copy of it. I am unaware whether the letter was translated for the tenant given her language problems. A further visit confirmed the waste was still on site. Officers gave the tenant another week to clear it and gave advice about using the bin.
• December: The Council sent the tenant a letter about the state of the garden areas. I have not seen a copy of this letter. Again, I do not know whether this was translated for her.

2022:

• February: A Community Protection Warning was sent to the tenant for non-compliance with its initial letter. I have seen a copy of this warning. The letter was not translated. The Council would review the warning in mid-March.
• April: A Community Protection Notice (the Notice) was sent to the tenant. I have not seen a copy of this Notice. Again, I am unaware whether the Council translated this for her.
• May: The Council wrote to Mr J with an update.
• June: The Council told Mr J an officer visited and found a language barrier with the tenant. There was slightly less waste. The tenant was told if the area was not cleaned up, the Council would contact the owner and get it cleared by a private firm.
• July: Mr J chased the Council and was told the officer dealing with it was now in a different department. Mr J complained about smells, flies, and the waste posing a health risk. Another officer explained they had visited the property, given warnings and information about enforcement action. Officers would visit again in a few days. A review of the case noted the length of time this situation had gone on for and the main problem appeared to be language issues. The officer would try and locate the landlord. During a further visit, officers were told the landlord had agreed to clear the waste and was visiting the property the following day.
• August: Mr J told the Council about smells from the rear garden, and overflowing drains which were causing flies, particularly in hot weather. The Council carried out more visits to the property in August. During the first and second visits, there was nobody to help translate. During the last visit there was a translator and an officer saw some improvement with the area. Waste had been put in bags and they could get an extra bin to help. The problem was removing the waste from the property. The tenant was trying to get the landlord’s details for the Council. Some attempts to remove the waste were noted. Background checks were done to identify the landlord, but these were unsuccessful. This meant it could not clean up the waste and invoice the landlord. I have not seen evidence of these checks.

Towards the end of the month, after a further visit, the Council told Mr J there was no further improvement, they had problems with communication, and had no landlord details. It decided it would now move to enforcement action. Officers also identified further ‘wellbeing and safeguarding concerns’ but could not say what these involved. I have seen confidential information about these concerns. Officers were now in possession of the landlord’s mobile number and spoke to him about the situation.

• September: The Council was still trying to identify the landlord and was getting advice from its own Family Intervention Team, details of which it could not provide. An officer noted the waste remained the same during a visit. The officer could not contact the landlord. Officers asked the tenant for an update but failed to receive a response.
• October: It told Mr J it could not enforce the works due to ‘several issues’. It would issue a Community Protection Warning on the landlord to enforce clearance of the area at the end of October, which it did. I have seen a copy of this letter. It would then issue a Notice. By now, the Council had the landlord’s address.
• November: Officers noted no change to the garden areas.
• December: The Council told him it had issued the Notice to the landlord. This gave the landlord until 11 January 2023 to sort the waste. I have seen a copy of this Notice. Visits showed the garden in the same condition, if not slightly worse. The tenant was not home.

2023

• January: An officer saw the front garden was cleared but the rear garden remained the same. Advice from the Council’s legal team was sought who said to get quotes for the works to clear the remaining waste.
• February: The Council instructed a contractor to carry out the works. It explained it does not routinely carry out such work on privately owned property.

18. In response to my enquiries, the Council explained the tenant has a responsibility to maintain the garden areas and was given the chance to clear them. Once available avenues were exhausted, it fell to the landlord to clear it. The Council tried to locate the landlord by speaking to the tenant, her children, Information Management, Welfare and Benefits, Council Tax records, the Family Intervention Team, the Neighbourhood Centre, and HM Land Registry checks. It was by chance it got the details through the licensing department.
19. It confirmed there was little mention of drainage problems in Mr J’s initial complaint, and this was not investigated.
20. The Council also confirmed it did not consider stepping in and carrying out removal works itself because this was a privately owned property, and the landlord and tenant were responsible for its maintenance.

My findings

21. I found fault on this complaint. In reaching this view, I took account of the difficulties the Council faced with this case which included language barriers, issues concerning the tenant which need to remain private, and locating the landlord. I also took account of the Council’s response to my draft decision which noted it communicated with the tenant, and family members were translating. It also said the tenant refused to engage which caused problems reaching a resolution. The family members were the tenant’s children.
22. I also took account of the following:
1. Mr J raised concerns about flies, odours, and risk to health in his reports to the Council. I saw no evidence of it investigating and considering these reports and whether there was any evidence of a statutory nuisance. Nor was he advised about taking his own legal action at court for statutory nuisance, for example. This is fault. I am satisfied this caused Mr J an injustice. This is because he has the uncertainty of not knowing whether the Council could have issued proceedings for statutory nuisance. There was also a lost opportunity to consider it.
2. Mr J raised concerns about drainage problems with the neighbouring property which also caused flies and odours. I have seen no evidence this was investigated and considered in terms of statutory nuisance and risk to health. This is fault. I am again satisfied this caused Mr J an injustice. This is because he has the uncertainty of not knowing whether the Council could have issued proceedings for statutory nuisance. There was also a lost opportunity to consider it.
3. While the Council rightly points out the problems it faced with language difficulties with the tenant, there is no evidence it considered whether it needed to have the letters and notices it sent her translated. It was aware of the tenant’s language problems in October 2021. Between October and December, it wrote two letters to her. The community protection warning letter and the notice sent in February and April 2022 were also not translated. This is fault. It could not be certain the letters and documents it sent her were understood.
4. Although the Council visited the tenant and was aware of the problems with language, there is no evidence of it considering ways to overcome this problem. For example, one simple inexpensive solution was to consider using services available on mobile phones which allow spoken words to be translated directly into another language. Nor did they explore other possible solutions. This failure is also fault.
5. I am satisfied the failure to address the language problem caused Mr J an injustice. There is the uncertainty of not knowing whether having translated communication with the tenant might have led to a different, earlier resolution. There was certainly the lost opportunity to ensure the tenant understood what she was being told, particularly the warning letter and Notice.
6. There is no evidence of the Council considering alternative options to resolve this situation. The Council had powers to do the works itself despite this being a privately rented property. It did not have to wait until it issued the Notice. It could have done so using other powers. There is no evidence the Council considered alternatives available to it. For example, it could have considered its powers to issue a section 215 notice. This failure is fault. Again, the injustice to Mr J is the uncertainty of not knowing whether it would have made any difference and the lost opportunity of using this procedure.
7. The Council only started to consider identifying and locating the landlord itself in July 2022 when information was not forthcoming from the tenant. This was almost a year after Mr J first made reports. Considering the language difficulties, and the obvious concern the tenant might have about upsetting the landlord by passing information to officers, the Council could have made its own efforts in parallel to pursuing the tenant just in case the tenant failed to move the waste. I consider this failure amounts to fault. The injustice to Mr J is the uncertainty and lost opportunity of whether the eventual removal of the waste could have been achieved earlier.
8. While I cannot say how much sooner the removal of the waste might have happened but for the fault identified, I am satisfied taking 17 months to ensure the removal of waste in front and rear yards was too long in all the circumstances. During this period, Mr J’s amenities were affected.
23. On balance, I found no fault on Mr J’s complaint about the Council failing to keep him updated. The records show that roughly half the time it sent him an update, this was in response to an email from him chasing about progress. The remaining time, the Council proactively contacted him. I do not consider the evidence justifies a finding of fault on this complaint.

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Agreed action

24. I considered our guidance on remedies.
25. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Mr J a written apology for failing to: investigate and consider his reports about flies, odours, and the risk to health; consider and address his concern about statutory nuisance and drains; consider translating correspondence with the tenant; consider alternatives to ensure officers could communicate with the tenant during visits; look at, and consider, alternative options available to it to resolve the situation including other powers it had; consider identifying and locating the landlord earlier than it did; reach a resolution of this problem sooner than it did.
2. Remind officers of the need to consider statutory nuisance when receiving similar reports from the public in future and to advise those making reports of their right to go to court should the Council decide not to act.
3. Review what technological solutions might be available for officers who are faced with language problems with alleged perpetrators.
4. Consider advising officers about when they might need to take earlier steps to identify and locate landlords in similar situations in the future.
5. Remind officers to consider and assess its range of powers for dealing with waste removal itself in similar situations in the future.
6. Pay £150 to Mr J for the injustice caused.
26. The Council should provide us with evidence it has complied with the above actions.

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Final decision

27. We make the following findings, on Mr J’s complaint against the Council:

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Investigator's decision on behalf of the Ombudsman