Summary: Mrs X complains the Council was at fault in the way it investigated a water leak at her property and served a Building Act Notice. The Ombudsman finds the Council was not at fault in the way it investigated the leak and served the Notice. He does find the Council was at fault in the way it responded to Mrs X’s formal complaints about the matter. The Council has already apologised to Mrs X and offered a payment in recognition for the distress caused. So, the Ombudsman has completed his investigation.

The complaint

1. The complainant whom I shall refer to as Mrs X complains about the way the Council dealt with an alleged water leak from her property. In particular Mrs X complains:
• The officer who initially dealt with the case failed to send her a letter of recommendations he had promised and unreasonably served a S.59 Building Act Notice instead.
• The officer unreasonably said the Council could use its powers to force entry and do works in default in her case and let himself into her property without permission, then denied he had done so.
• The Council took an unreasonably long time to investigate the leak.
• The Council unreasonably took more account of her neighbour’s concerns, did not take enough account of her views and failed to provide her with enough advice and information about how to resolve the issue.
• The Council delayed unduly in responding to her complaints about these matters.
• The Council unreasonably refused to refer her complaint to a Member Complaint Panel.
2. Mrs X says the Council’s actions caused her and Mr X much stress and worry when trying to resolve matters.

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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’. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
6. Although Mrs X has a right of appeal to the magistrate’s court about the Council’s decision to serve a notice and ask for extra time for compliance, I have decided to exercise discretion in this case to consider these matters. This is because of Mrs X’s concerns and the advice she received about the costs of doing so and the potential to expose them to unreasonable expenses.
7. 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)

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How I considered this complaint

8. I have read the papers submitted by Mrs X and spoken to her about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
9. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

10. Under the Building Act 1984 Kingston upon Hull Council (the Council) has powers for dealing with defective drainage.
11. Under section 59 of the Building Act 1984, ( S 59) if a council finds that provision for drainage from a building is not satisfactory, or a private sewer is insufficient, or prejudicial to health or a nuisance, it can serve a notice on the owner to replace or repair the system. If the owner fails to comply with the notice, the council can do the works in default and charge the owner.
12. The Act allows a right of appeal against the notice to a magistrate’s court. This includes if the recipient considers the time given to carry out the works is not ‘reasonably sufficient’.

Council’s Private Sector Housing Enforcement Policy

13. The policy states there are several actions officers may take and these will depend on the circumstances of the case:
• Take no action
• Take informal action
• Take formal action.
14. There are factors listed in the policy which may affect the choice of enforcement action. These include the Council’s statutory obligations, the seriousness of the offence or the degree of risk to health and safety and the consequences of non-compliance.

What happened

15. In June 2018 Mrs X’s neighbour, Mr Y contacted the Council concerned about water leaking from their conservatory wall on the boundary of the properties and forming a pool of grey water.
16. The Council carried out a joint investigation into the source of the leak through its Environmental Regulation and Private Housing services. The Council provided a detailed chronology of the actions it took. These are extensive and so I am only referring to key actions and events. The Council’s actions included dye testing water to observe the internal and external drainage at Mrs X’s property. The Environmental Regulation service tested the pooling water and said it did not cause a statutory nuisance.
17. A Private Housing officer continued to investigate. The Council’s documents show that, with Mrs X, it arranged for the local water company to test the drainage pipe work. Mrs X had private insurance with a maintenance company and arranged for the company to carry out further tests. Mr and Mrs X removed kitchen cupboards and bathroom units to check the drainage from appliances. None of the tests showed the source of the leak or found defective drainage.
18. The Council issued a S 59 Building Act notice to Mr and Mrs X in August 2018. The notice required Mr and Mrs X to ‘investigate to locate the origin of the grey water and carry out work necessary to ensure that the grey water is properly discharged into the drainage system’. The notice required compliance within 30 days and advised of a right of appeal to the magistrate’s court.
19. Mrs X says she was surprised to receive the notice as understood the Private Housing officer would send them a list of informal recommendations to carry out to establish the source of the leak. Mrs X said she was concerned about the timing of the notice as they were on holiday during the compliance period and had little time to deal with it. The Council agreed to extend the compliance date saying Mrs X was complying with the notice by arranging for the water company to visit.
20. In September 2018 as a final investigation the Council proposed using a camera to investigate if there was leak in the foundations of Mr and Mrs X’s conservatory.
21. Mr and Mrs X arranged a small camera investigation to allow access to the cavity wall of their conservatory. The Council said it showed water was not pooling in the subfloor of the conservatory but did not eliminate the possibility the water leak was emanating from their property. So, the Council wanted to investigate below the damp proof membrane to check the void between the concrete floor and the flooring of the conservatory. The Council advised Mr and Mrs X the purpose of the camera investigation “was to establish the origin of the leak and find a resolution to the situation”.
22. The Council negotiated with Mr and Mrs X to use a different camera. It says during the negotiations a short film clip was made ‘showing the water dripping from a hole in the block work of the conservatory in a downwards direction.’
23. The Council agreed to fund the camera investigation and in October 2018 wrote to Mr and Mrs X for their consent. Mrs X asked the Council to provide indemnity insurance for the investigation. In February 2019, the Council confirmed it could provide the insurance.
24. The Council asked Mrs X to arrange a date for the camera test and to run each appliance which discharged into the drainage. The Council wanted to establish from opening the foundations whether there was an increased flow of water from the blockwork due to appliances discharging into the drainage system. The Council said once it carried out the test it would send the findings to Mrs X and Mr Y to enable them to progress to a satisfactory solution.
25. Mrs X says the pool of water dried up of its own accord in March 2019 and so no further tests were carried out. The Council wrote to both Mrs X and Mr Y in May 2019 advising it had progressed the case as far as it could. The Council withdrew the S 59 notice in June 2019 and told Mrs X. It offered to return and carry out the camera test if the water came back. It agreed to carry out dye tests if needed to rule out any water pooling effect from Mr Y watering his garden.

Mrs X’s complaints to the Council

26. Mr and Mrs X made several complaints to the Council during the investigation into the water leak. A Councillor and MP also made representations on their behalf. The Council provided copies of its responses to the complaints which explain the actions it has taken to deal with the issues raised by the possible leak.
27. Mr and Mrs X submitted complaints at stage one and two of the Council’s complaints procedure. The complaints largely concerned the actions and behaviour of the Private Housing officer and the decision to serve a notice on them when they had been cooperating with the investigations. The Council responded to the stage one complaint in December 2018. It responded to the stage two complaint in May 2019. The letter apologised for the delay in responding and confirmed the Council did not intend to take more action on the notice. The Council apologised their personal experience of the service from the officer who dealt with the case was not what they would have expected.
28. Mr and Mrs X remained dissatisfied with the Council’s responses and in June 2019 asked to progress to stage three of the complaint procedure, a Member Complaints panel. The Council responded to the request in July 2019 and reviewed the concerns raised by Mr and Mrs X.

The conduct of the Private Housing officer

29. The Council responded to Mrs X’s complaints about the conduct of the Private Housing officer who first visited their home. Mrs X raised concerns the officer entered their home without invitation. The Council said the officer denied doing so and only entered the property with permission. Mrs X also alleged the officer agreed to send a letter of recommendations but did not do so and served the notice instead. The Council said the officer confirmed he would write to Mrs X but did not say it would be a letter of recommendation. The Council accepted Mr and Mrs X were not expecting service of the notice.
30. Mrs X also complained the officer said the Council would carry out works in default and could force entry to the property. The Council responded the officer denied the comment about forcing entry to the property. But did explain the Council had various powers to act in default and powers of entry if people did not comply with a legal notice.
31. The Council accepted communications could have been better between the officer and Mr and Mrs X. The Council apologised and allocated a Principal Environmental Health officer as a contact instead.
32. I was not present at the site visits so I cannot confirm for certain what the officer said or comment on any actions taken. The Council documents show it has thoroughly considered Mrs X’s concerns about the officer’s behaviour and actions. It apologised for any poor communication which I consider is suitable action for it to take. So, I do not consider there are grounds to pursue the matter further. This is because I could not add anything to the investigation carried out by the Council or achieve a different outcome for Mr and Mrs X.

Decision to serve a S 59 Notice

33. The Council explained it based the decision to serve the notice on the evidence of observations carried out in July 2018. This showed the flow of water from Mrs X’s conservatory wall to the pooling water at the boundary between the two properties. And identified the possible source of the leak came from Mrs X’s property.
34. The provisions of the Building Act 1984 place a duty on local authorities to act if it appears to them there is defective drainage. The Council explained the key reason when deciding on enforcement action was because it reached the point where it questioned whether there was satisfactory drainage at Mrs X’s property. The Council said the Private Housing officer discussed the case with their manager and agreed the notice was the best way forward.
35. The Council recognised Mrs X’s concerns she viewed its actions as ‘heavy handed’ as she was cooperating with the Council’s investigations. The Council apologised for the unintentional impact and would take some learning from this. But considered its decision to issue a notice in line with its policy and statutory obligations.
36. Mrs X disagrees with the Council’s decision to serve a S 59 Notice, but the decision is a matter of officers’ professional judgement. The Ombudsman cannot question the merits of the decision itself without evidence of fault in the way it was made. I do not consider there was fault in this case.
37. This is because the officers visited Mr and Mrs X’s property, carried out investigations and observations. Based on the evidence obtained, the Council’s enforcement policy and its statutory obligations officers decided to serve a notice. This is a decision the officers are entitled to make. There is no evidence of fault in the way the Council reached this decision.

Time taken to investigate the leak

38. The Council explained it received complaints about the pooling water in June 2018, investigated and served the notice in August 2018. The Council considered there were no delays before issuing the notice and the time for complying was within statutory timescales.
39. The Council says it normally expects neighbours to work together to investigate the source of the leak. But because of a breakdown in relations between Mrs X and Mr Y this was not possible. Mrs X alleged Mr Y was using the Council to harass them and he caused the pooling water by overwatering his garden.
40. The Council confirmed it withdrew the notice 10 months after it was issued. It says during this time it responded to Mr and Mrs X’s concerns, requests for clarification and help with the compliance process. The Council sympathised with Mrs X the elimination process took longer than expected. But explained detecting leaks can take some time as water can travel and find its way which was not usually in straight line.
41. There was also a period when negotiating with Mrs X about using a camera to investigate the leak from December 2018 to March 2019 and this added to the time.
42. I appreciate it has been a stressful time for Mrs X but as the Council has explained it can take time to establish the source of a leak. The documents show extensive actions taken by the Council to try and help Mrs X and it has inevitably taken some time to carry out the investigations. But I cannot say it is due to any fault by the Council from the documents I have seen.
43. The period to comply with the notice was extended by the Council several times when requested by Mrs X. I consider this was suitable action for the Council to take which recognised the considerable efforts Mrs X made to find out the source of the leak.

Failure to provide advice, information and take account of Mrs X’s views

44. The Council’s records show it was having to deal with Mrs X and Mr Y where the relationship had broken down between them. This caused an additional issue for the Council when trying to investigate matters.
45. The Council confirms it sent several emails to Mrs X with suggestions on how to carry out investigations into the source of the leak. These included washing machine dye and a possible camera test. The Council also sent video clips of the water taken by officers to Mrs X when carrying out joint site visits with the water company.
46. The Council says the private housing officers may provide advice to private housing owners on what course of action is required. But in cases where the cause is unknown officers will advise for the matter to be investigated usually by a competent person in the appropriate profession. In this case officers could not clearly identify the source of the pooling water coming from the property wall and so asked Mrs X to investigate by serving the notice.
47. The evidence provided by the Council shows the extensive actions and contacts with Mrs X to visit, test, and discuss finding the source of the leak. I do not consider the documents show the Council favouring one party over another. But rather responding to both Mrs X and Mr Y’s concerns. It also shows it considered Mrs X’s views and responded to the complaints she raised. Once the Council had concerns Mrs X’s drainage may be defective it was required to act and serve the notice. Once it served the notice the onus was on Mrs X to carry out the investigations.
48. The documents show the Council continued to be involved and provide advice and help. The Council finally offered to pay for a camera investigation to help Mrs X resolve the matter. So, I consider the documents show the Council provided advice, information and offered to carry out investigations for Mrs X.

Delay in complaints procedure

49. The Council accepted delays in responding to Mrs X’s complaints at stage one and two. The Council has ensured officers carried out more complaints handling training and closer monitoring of complaint cases. The Council has also created a new Customer Feedback Manager role to improve its responses to complaints and pass feedback to relevant services.
50. The Council has apologised and offered Mrs X £50 payment as compensation in recognition of the delays occurred in responding to her formal complaints and any distress caused.
51. It is unfortunate there were delays by the Council in responding to Mrs X’s complaints. I consider this fault by the Council and it will have added to Mrs X’s stress while trying to resolve the leak. However, the Council has apologised to Mrs X and offered her a compensation payment. I consider is suitable action for the Council to take to remedy any injustice caused to her by the delay in responding to the formal complaints. It has also ensured more complaints handling training for officers and an improved service through creating a new role. So, I do not consider there are grounds for me to pursue the matter further. This is because I consider unlikely, I can add to any previous investigation by the Council or achieve a different outcome for Mrs X.

Request for Stage three panel hearing

52. The Council responded to Mrs X’s request for a member hearing in July 2019. It explained Council policy only allowed a member panel to consider a complaint in certain circumstances. This was when it unfairly applied Council policy and was not corrected, or procedures operated were inadequate or inappropriate. The Council also advised a member panel could not overrule the professional judgement of a qualified specialist.
53. The Council said Mrs X’s request did not meet its policy for a member panel hearing. This was because the Council had recognised there had been operational shortfalls, put steps in place to address them and offered an individual remedy to Mrs X. The Council also said the matter did not involve a significant error or serious situation that needed bringing to a member panel. The Council explained the decision to issue the Building Act Notice was not something the panel could look at as it involved officers’ professional judgement.
54. The documents show the Council considered Mrs X’s request and its policy for a member panel hearing. I find no evidence of fault in the way the Council considered Mrs X’s request. This is because it considered and explained to Mrs X why her request did not meet its policy. I understand this was disappointing for Mrs X, but it is a decision the Council is entitled to make.

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Final decision

55. I am completing my investigation. The Council was not at fault in the way it investigated a leak at Mrs X’s property and served a Building Act notice on her. There was fault in the way the Council responded to Mrs X’s formal complaints, but its apology and compensation payment offer is a suitable remedy in this case.

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Investigator's decision on behalf of the Ombudsman