Summary: The Ombudsman will not investigate Mr C’s complaint that the Council has neglected its duties under the Environmental Protection Act 1990. This is because it was reasonable to expect Mr C to appeal against the Abatement Notice if he felt he had grounds to challenge it and a court of law is best placed to consider the matter if it remains unresolved.

The complaint

1. The complainant, Mr C, complained that the Council has neglected its duties under the Environmental Protection Act 1990. In particular, he told us he is complaining about the way the Council has handled the matter. Mr C told us the bathroom in his home has been unusable and his family had to use a chemical toilet for a period earlier this year.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. 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)
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’. 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 would find fault, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I have considered the information Mr C provided and his comments on my draft decision.

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What I found

7. In his complaint to us Mr C said the Council served notice on him under section 80 of the Environmental Protection Act 1990 requiring the immediate emptying of a septic tank. Mr C said the Council failed to investigate the cause of the problem and refused to accept a simple measure would resolve the issue. Mr C told us the Council allowed the environmental problem to continue without taking action to establish why it was happening. He said the Council failed to respond when it had been informed an illegal connection had caused the problem, it failed to record evidence or reply to emails, letters and calls.
8. Mr C has been aware of the problem for more than 12 months before he complained to us. We can, however, exercise discretion to investigate late complaints if there are good reasons for us to do so, as in this case. The problem Mr C has described has been ongoing and it remains unresolved. Mr C told us he did not contact us sooner because he was waiting for the Council to resolve the problem.
9. If a council finds a statutory nuisance, it must serve an Abatement Notice. This is what happened in this case. The Council’s notice said what Mr C and the other landowner involved must do to abate the notice. People who receive an Abatement Notice may wish to challenge it. The law provides a specific right of appeal against an Abatement Notice. For example, an appeal can be made if the appellant believes the Council refused unreasonably to accept compliance with alternative requirements or the Notice should have been served on someone else, not the appellant. If Mr C disagreed with the Council’s decision to serve the Abatement Notice on him, it was reasonable to expect him to use his right of appeal if he felt he had grounds to do so at that time.
10. Mr C has shared responsibility with another landowner for the drainage system serving their two properties. Mr C wants the Council to take enforcement action so that work is carried out by the other landowner. He told us the Council failed to consider the information he provided about the cause of the problem. But, it is the landowners’ responsibility, not the Council’s, to abate the statutory nuisance by doing what was specified in the Abatement Notice. It is for the landowners to agree on the way to stop the problem happening again. If the two landowners have not reached an agreement on how to resolve the problem, a court of law would be best placed to consider the matter and to reach a decision which is binding on those involved. The Ombudsman has no powers to order the Council or the other landowner to take the steps Mr C wants.
11. We will not investigate a complaint about the way the Council has handled the matter when we are not investigating the substantive issue at the heart of the complaint.

Final decision

12. The Ombudsman will not investigate this complaint. This is because it was reasonable to expect Mr C to appeal against the Abatement Notice if he felt he had grounds to challenge it and a court of law is best placed to consider the matter if it remains unresolved.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman