Summary: We will not investigate this complaint about the way the Council dealt with an issue regarding a septic tank. This is because the complaint has been made late.

The complaint

1. The complainant, who I shall call Mr X, complained that the Council did not properly investigate an issue about the build-up of effluent in the field where the septic tank which serves his property is located. He said the Council wrongly concluded that defects in his property’s drainage were contributing to the problem and unreasonably served him with a Building Act 1984 notice as a result. Mr X complained in particular that the Council did not provide evidence of tests it carried out, misconstrued the findings of two specialist reports, failed to answer his questions about its investigation, and gave the field owner (‘Mr Y’) misleading information which has been used against him. Mr X wanted the Council to take responsibility for these failings and answer his remaining questions.

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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. In particular the Act says we normally 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)
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 an investigation if, for example, we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, 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)

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How I considered this complaint

4. I considered the information Mr X sent with his complaint and the comments and documents he provided in response to a draft of this decision. I also took account of information from the Council about its investigation of the drainage issue and its responses to Mr X’s complaint, and the specialist drainage reports which were commissioned in this case.

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What I found

5. In 2017 the Council received a referral from the Environment Agency about an issue regarding the build-up of effluent in a field where a septic tank belonging to Mr X and his neighbour (‘Mr Z’) was sited.
6. In response Council officers visited the site. The Council said it carried out a dye test which showed the effluent had originated from the septic tank. But Mr X said the Council has never shown him proof of the dye test.
7. Under Section 59 of the Building Act 1984, if a council finds that provision for drainage from a building is not satisfactory or a cesspool is defective, it can serve a notice on the owner to renew, repair or cleanse the system. If the owner fails to comply within the timescale in the notice, the council can carry out the works in default and recover costs from the owner, or pursue a prosecution.
8. In January 2018 the Council served a Section 59 Building Act 1984 notice on Mr X and Mr Z requiring them to investigate and remedy the drainage problem.
9. A few months later Mr X hired a specialist firm recommended by the Council, to carry out a camera survey of part of the drainage system. But Mr X and the Council disagreed about the firm’s findings. As a result the Council said it would commission an independent survey from another specialist company at its own expense.
10. The company produced a report in October 2018 which identified a problem due to surface water from Mr Z’s property entering the drainage system. The company said this was likely to cause the septic tank to overflow after heavy rain. Mr Z then rectified this issue. However the build-up of effluent in the field continued.
11. In May 2019 Mr X and the Council agreed that it should carry out a further dye test on domestic waste water coming from his property. The Council said this was to provide final confirmation about whether there was a fault in the tank or the drainage system from Mr X’s property.
12. The Council found that the dye appeared in the field two days later. It also carried out a chemical test on the water in the field which the Council said indicated the water contained washing and detergent material. On this basis the Council concluded there was a defect in the drainage system and it was Mr X’s and Mr Z’s responsibility to resolve the issue.
13. But Mr X did not accept the Council’s findings. He said the test results were compromised by Mr Y jetting part of the system. Mr X also blamed Mr Y for dumping waste containing effluent in the field.
14. In June 2019 the Council reviewed the matter with its legal service. However the Council decided it was not appropriate to do works in default and not in the public interest to pursue a prosecution against Mr X and Mr Z, and it closed the case.
15. Last year Mr X made a complaint to the Council about the way it had handled the drainage issue, and he questioned different aspects of its investigation. In its responses the Council defended its actions and provided further explanations in reply to Mr X’s queries. But Mr X complained the Council delayed in responding, refused to speak to him, and did not answer his questions properly.

Analysis

16. However I have concluded that we should not investigate Mr X’s complaint.
17. In particular this is due to the restriction on us investigating complaints made more than 12 months after the complainant became aware of their issue with the Council, which I refer to in paragraph 2.
18. I consider that this restriction applies in Mr X’s case because the Council’s investigation into the drainage issue began in late 2017 and ended in June 2019. However Mr X did not complain to us about this matter until January 2021. I consider Mr X could have come to us much earlier if he had concerns about the Council’s investigation.
19. I am also not convinced that there is any good reason for us to exercise discretion and investigate Mr X’s complaint now despite it being late. In particular it seems to me very unlikely we could achieve a meaningful outcome for Mr X even if we were to investigate.
20. First, we cannot question the merits of councils’ decisions unless there is fault in the way those decisions were reached. Mr X believes the Council has drawn incorrect conclusions from its own testing and from the specialist drainage reports. But from the information provided I do not see we would be in a position to question the professional judgement of Council officers issues in this case on the basis there was fault in their analysis of the drainage issues. Therefore it appears very unlikely we would be able to challenge the results of the Council’s investigation.
21. Mr X also disputes some various parts of the Council’s account of events and conversations between the parties. But I very much doubt we could verify now exactly what happened and what was said up to three and a half years ago.
22. In addition, even if we found there was some fault by the Council in serving a Building Act notice on Mr X, it seems to me that any injustice he may have suffered as a result has been largely mitigated by the fact that the Council ultimately decided to close his case and not seek a prosecution.

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Final Decision

23. We will not investigate Mr X’s complaint about the way the Council handled an issue relating to his septic tank. This is because his complaint has been made late and there are no good reasons for us to pursue the matter now.

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Investigator's decision on behalf of the Ombudsman