Summary: Mrs X complained the Council did not properly consider her concerns about a build-up of waste outside her neighbour’s property. She says this has caused avoidable stress and anxiety to the family and means she cannot use parts of her house or garden. We found fault by the Council. The Council has agreed to provide Mrs X with an apology and financial remedy, and to review the case to identify what further action may be taken.

The complaint

1. Mrs X complained the Council did not properly consider her concerns about a build-up of waste outside her neighbour’s property. Mrs X says the accumulated waste has attracted rats to her property and she can no longer use parts of her house or garden as a result. She says this has caused avoidable stress and anxiety to the family. Mrs X would like the Council to take appropriate action so the waste is removed and to prevent the issue from reoccurring.
2. Mrs X says the issue has been ongoing for four years.

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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 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)
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)

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What I have and have not investigated

6. I have investigated the complaint dating back to the end of January 2023. Whilst I acknowledge Mrs X says the issue dates back to 2020, I have seen no good reason to exercise discretion to investigate the complaint back to this date.

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How I considered this complaint

7. I discussed the complaint with Mrs X and considered the information she provided.
8. I made enquiries to the Council and considered the information it provided.
9. Mrs X and the Council have had the opportunity to comment on a draft of this decision. I have considered their comments before making a final decision.

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What I found

Anti-social behaviour

10. The law (section 2 of the Anti-social Behaviour, Crime and Policing Act 2014) defines anti-social behaviour (ASB) as:
• conduct that has caused, or is likely to cause, harassment, alarm or distress to any person;
• conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises; or
• conduct capable of causing housing related nuisance or annoyance to any person.
11. Councils have a general duty to tackle anti-social behaviour (ASB). ASB can take many different forms, and when someone reports a problem, councils should decide which of their powers is most suitable. For example, they may approach a complaint:
• as an environmental health issue, where the complaint is about noise or pollution;
• as part of their duties as a social landlord, where the alleged perpetrator is a council tenant (although we cannot investigate the council’s actions as a social landlord);
• and/or using their powers under the Anti-social Behaviour, Crime and Policing Act 2014.

Statutory nuisances

12. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential statutory nuisances. Activities a council might decide are a statutory nuisance include:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells and fumes from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises; and
• accumulation of deposits on premises.
13. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other property; and/or
• injure health or be likely to injure health.

Abatement notices

14. If a council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.

The anti-social behaviour case review

15. The Anti-social Behaviour, Crime and Policing Act 2014 introduced a way to review the handling of complaints of anti-social behaviour (ASB). This is the anti-social behaviour case review, which was previously known as the ‘Community Trigger’.
16. When a person asks for a review, relevant bodies (which may include the council, police and others) should decide whether it meets the local threshold. Relevant local bodies should agree their review threshold, but the ASB statutory guidance says this should be, at a maximum, that a complainant has made three reports of ASB within six months.
17. If the threshold is met, the relevant bodies should carry out the review. They should share information, consider what action has already been taken, decide whether more should be done, and then tell the complainant the outcome.
18. Asking for an ASB case review is not the same as making a formal complaint against a council for how it has handled reports of ASB.

Arms Length Management Organisations

19. Arms Length Management Organisations, (ALMOs), are local authority companies set up by councils to manage and improve all or part of its housing stock.

The Council’s statement of ASB policy and procedure

20. The Council’s ASB policy and procedure delivered in partnership with the ALMO responsible for managing the housing stock on behalf of the Council, sets out various types of potential nuisance or anti-social behaviour. This includes litter, graffiti or rubbish dumping in the local area.
21. The policy says, “The ASB Team must investigate any complaints of nuisance and/or anti-social behaviour that it receives and which involves a Council tenancy. It must also investigate any complaints which it receives about nuisance and/or anti-social behaviour on the housing estates regardless of who is involved. This means that anyone can complain including:
• Tenants, family member or someone on their behalf;
• A resident of a private property, either owner occupier, privately rented, tenants of Registered Social Landlords”.
22. The policy also says, “Complaints of anti-social behaviour such as rubbish dumping, abandoned cars or graffiti will be dealt with by arranging for the offending items to be removed. If a perpetrator is identified, action will be taken for breach of tenancy conditions or in conjunction with Environmental Health”.

Background

23. In 2023, at the time of this complaint, the Council’s housing stock was managed by an ALMO. The Council says, in 2024, the ALMO merged with the local authority.
24. Mr and Mrs X are homeowners. The neighbour, about whom the ASB complaints were made, is a tenant of the ALMO.

What happened

25. This chronology includes key events in this case and does not cover everything that happened.
26. In late January 2023, Mrs X complained to the Council’s Neighbourhood Enforcement Team about an accumulation of rubbish in her neighbour’s back garden. An officer visited the address and determined the large pile of bin bags that had accumulated in the garden constituted a statutory nuisance.
27. In March 2023, the Council issued an abatement notice to Mrs X’s neighbour which instructed them to clear the waste.
28. Mrs X emailed the ALMO in April 2023. She said her family had lived with the mess and rats from her neighbour for four years and said the Council had done nothing about it. Mrs X said the situation had negatively impacted her mental health.
29. An officer visited the address that same month to see if the waste had been removed.
30. The Council says Mrs X told it the waste was cleared in late April 2023. Mrs X disputes this.
31. Mrs X called the Council again in late April 2023. She told the Council she was very distressed about the mess in her neighbour’s garden and said she had seen rats in her daughter’s bedroom.
32. Mr X emailed the ALMO in May 2023 to complain about the rubbish, dog excrement and rats in his neighbour’s garden, and the smell that this produced.
33. Officers visited the address in late May 2023. Shortly after, the officer told Mr and Mrs X they could not complete the visit because there were aggressive dogs at the property. The ALMO told Mr and Mrs X they would revisit when they could be accompanied by a dog handler.
34. In June 2023, the Council received further complaints about the rubbish and rats at the property.
35. The Council says the garden was cleared in late June 2023. Mrs X disputes this.

Mr and Mrs X’s complaint

36. In July 2023, Mr X complained that the lack of action taken to remove the waste from their neighbour’s garden had led to a significant decline in Mr and Mrs X’s mental health. Mr X said this had placed a considerable strain on the family.
37. Mr X complained again in August 2023 that he had heard nothing since his last email. He said the situation had become unbearable and asked for something to be done.
38. The Council says it raised a job to clear the waste from the neighbour’s garden. However, it says it cannot confirm if this was completed because its record was not updated.
39. Mr X emailed the ALMO in September 2023. He said nothing had changed and the situation was having a significant impact on his family’s lives.
40. In September 2023, the Council provided its complaint response to Mr and Mrs X. It said properties managed by the ALMO were dealt with via tenancy agreements, and the Council’s Neighbourhood Enforcement Team did not ordinarily investigate or take enforcement action against ALMO tenants. The Council said it had issued an abatement notice earlier that year because the officer dealing with the case was unaware the property was managed by the ALMO. It said Mr X told the Council in April 2023 that the waste had been removed, and as a result, it had taken no further enforcement action. The Council said it had referred Mr X’s further complaint of an accumulation of waste to the ALMO for it to investigate.

What happened next

41. In December 2023, Mr and Mrs X called the Council’s Neighbourhood Enforcement Team to report ongoing concerns about rats and the accumulation of waste at their neighbour’s property.
42. The following day, the Council emailed Mr and Mrs X and said as the property was managed by the ALMO, it had passed the complaint to them. The Council told Mr and Mrs X it had closed its case.
43. Mrs X remained dissatisfied with the Council’s response and referred the complaint to us.

Analysis

44. Mrs X complained the Council did not properly consider her concerns about a build-up of waste outside her neighbour’s property.
45. In its response to my enquiries, the Council said its Neighbourhood Enforcement Team responds to complaints of accumulations located on private land and/or privately owned or occupied properties. It says where an accumulation is in a social landlord property, the complaint is referred to the relevant managing agent, including the ALMO, to remedy the problem via tenancy management agreements. The Council says Housing Officers refer to the tenancy agreement and untidy gardens procedure, not the Anti-social Behaviour, Crime and Policing Act 2014.
46. I acknowledge the Council’s comments. However, this approach ignores the Council’s wider ASB powers, including consideration of the Council's duty under Section 79 of the EPA. This states that it is a local authority’s duty to take such steps as are reasonably practicable to investigate a complaint of a statutory nuisance, where the complaint is made to the local authority by a person living in its area. The Act clarifies that a statutory nuisance may be “any accumulation or deposit which is prejudicial to health or a nuisance”.
47. By simply referring the matter to the ALMO for it to consider the issue in terms of the tenancy agreement, the Council has not fulfilled its duty under the EPA. This is because a referral to another body for it take action is not the same as the Council taking reasonably practicable steps to investigate the complaint of a nuisance itself.
48. I acknowledge the Council’s comments that Housing Officers would refer to the tenancy agreement and untidy gardens procedure rather than the Anti-social Behaviour, Crime and Policing Act 2014. However, the Council says the ALMO’s untidy gardens procedure states, “… if the garden has significant amounts of dog excrement, or substantial volumes of rotting waste or vermin, please refer to the Environmental Health Officer (EHO). If deemed to be appropriate by the EHO, further action will be taken under the Environmental Protection Act 1990. This could include an abatement notice asking the tenant to clear the garden etc within 4 weeks. Failure to do so may result in the garden being cleared and the tenant recharged the cost of the work”.
49. The ALMO’s policy therefore is to notify the Council’s EHO if there is a substantial amount of rotting waste or vermin. This is what is reported by Mr and Mrs X. I have seen no evidence the ALMO referred the matter to the EHO. The evidence instead indicates Mr and Mrs X reported the matter directly to the Council, but rather than referring the matter to the EHO, the Council referred the matter to the ALMO.
50. The Council has therefore not demonstrated how it considered its wider ASB powers, including its duty under the Environmental Protection Act 1990. This is fault.
51. The Council says in some cases, there may be a need, where waste is accumulating on land and is managed by a social landlord, to serve a notice on the managing agent to remedy the statutory nuisance. The Council says however, this does not apply to Council owned properties as the Council cannot serve a notice on itself.
52. I acknowledge the Council’s comments but consider this is not in line with the ALMO’s untidy garden procedure, which states that further action under the EPA, including the issuance of an abatement notice could be appropriate.
53. I also acknowledge the Council’s comments that there may be a need in some cases to serve a notice on the managing agent, and that it cannot serve a notice on itself. I agree that in some cases, there may be a need to serve a notice on the managing agent, but this does not apply to all cases. In some cases, there may be a need to serve a notice on an individual responsible for the nuisance. The Council has not demonstrated how it considered this; instead, its response indicates the Council employed a blanket policy of referring complaints relating to ALMO properties to the ALMO, without considering its own duties.

The ASB case review process

54. The Council’s website says if a complainant has reported repeated incidents of ASB and feels there has been no response, or considers they have received an inadequate response, they can ask for an independent review of their case.
55. I have seen no evidence the Council signposted Mr and Mrs X to the ASB case review process. It is not our role to determine whether their case would have met the threshold for review; the relevant bodies involved with the ASB case review process decide this. However, as Mr and Mrs X made several ASB complaints and told the Council of their dissatisfaction with the outcome, the Council should have told them about the ASB case review process. This would have informed them of their ability to request a review of the Council’s handling of their ASB complaints. The Council’s failure to inform Mr and Mrs X of this process is fault.
56. Having identified fault, I must consider if this caused a significant injustice to Mrs X. She says the lack of action taken to address the complaints of waste accumulation, rats and dog excrement in her neighbour’s garden has caused significant, avoidable distress to the family. Mrs X says she is unable to use parts of her garden because of the smell from the waste and is unable to use parts of the house because rats have gained access. She says this led to her daughter moving out of the family home.

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Agreed action

57. To address the injustice identified, the Council has agreed to take the following action within one month of the final decision:
1. Provide an apology to Mrs X for the fault identified. 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;
2. Make a symbolic payment of £400 to Mrs X in recognition of the distress and anxiety caused;
3. Review Mrs X’s case to identify whether there is any further action the Council should take under its general anti-social behaviour powers to address her concerns;
4. Inform Mrs X of her ability to request an anti-social behaviour case review;
5. Remind staff to consider reports of alleged anti-social behaviour in line with the Council’s wider anti-social behaviour powers, including the Environmental Protection Act 1990 and Anti-social Behaviour, Crime and Policing Act 2014, not just as part of a review of tenancy agreements, and
6. Remind staff to signpost complainants to the anti-social behaviour case review process.
58. The Council should provide us with evidence it has complied with the above actions.

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Final decision

59. I have found fault by the Council causing an injustice to Mrs X. The Council has agreed to take the above action to resolve the complaint and I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman