Summary: We will not investigate Mrs X’s complaint about the Council serving a Building Act Notice to repair a drain, the actions of its contractor, and the amount Mrs X must pay for the work. It was reasonable for Mrs X to appeal the Notice if she wanted to challenge the proportion of the cost she should pay. There is no reason to investigate the final invoice and investigation is not likely to achieve the result Mrs X wants.

The complaint

1. Mrs X complains the Council and its contractor failed to deal properly with a sewer drain which was in a state of disrepair. Mrs X says the Council’s survey of the condition of the sewer was inadequate and its contractor did more work than necessary. Mrs X says the Council’s 2018 invoice was twice as high as expected. She says the Council’s decision not to serve a Building Act notice on all households resulted in a demand for her to pay half the cost which was £6,773.

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The Ombudsman’s role and powers

2. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
3. 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)
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/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

5. I have considered Mrs X’s information and comments. The information includes the correspondence with the Council and the Building Act Notice. I have discussed the complaint with Mrs X by telephone following her receipt of the draft decision statement.

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What I found

6. The Building Act 1984 (section 59) places a duty on a council to serve a notice on an owner or occupier of land where there is a defective drain which could be prejudicial to health or a nuisance. There is a 21 day right of appeal against the notice to the magistrates’ court (section 102). The court can decide whether the repair work is necessary, who does the work, and what proportion of a council’s recoverable expenses should be paid for by the appellant. The court can decide whether a notice should be served on some other person who would benefit from the work and who should also pay towards the costs.
7. On 1 December 2017, the Council issued a Building Act Notice to Mrs X and one other household. The notice says a private sewer for toilet waste is in disrepair and prejudicial to health or a nuisance. The notice allowed 56 days to repair the sewer or the Council would do the work and recover reasonable expenses. The notes explain the Council’s charges for administration and officer time. The notice explains the right of appeal to the magistrates’ court and the grounds.
8. On 26 January 2018, the Council wrote to Mr and Mrs X explaining that as the notice had not been complied with, it would do the work in default and recover the cost. On 7 June, the Council wrote saying it had appointed a contractor which would do the work later that month. The Council has explained how it selected a contractor. It says the first contractor to bid provided a quote for costs in excess of £11,000. The Council chose the contractor who provided the lowest quote.
9. On 4 July 2018, the contractor invoiced the Council for £13,316. On 11 September 2018, the Council billed Mr and Mrs X for their part of the bill which was £6,773.20. The Council has explained one reason for the work being more expensive than expected was the drain ran under ‘reinforced capping’ which was unusual in a domestic scenario.
10. Mr X first complained to the Council in 2017 wanting the cost of the work split between more households. On 22 May 2019 Mrs X asked the Council for its complaint’s procedure having contacted this office. We advised Mrs X to complete the Council’s complaint procedure. The Council replied to the complaint on 11 September 2019 (stage 1), 9 January, and finally on 26 March 2020. The Council told Mrs X a complaint could be made to the Ombudsman. Mrs X says she has delayed in contact us again due to serious family illness. She refers to the impact this problem has had on their wellbeing.

Analysis

11. I will not investigate Mrs X’s complaint for the following reasons:
12. The Council’s assessment of the case and the Building Act Notice is outside the Ombudsman’s jurisdiction for the following reasons:
1. Mrs X had a right of appeal against the Notice to court (see paragraph 3 and 6 above). This includes whether the work was necessary, what proportion of the final costs Mrs X should pay and whether notices should have been served on other neighbours. I consider it reasonable for Mrs X to have used the right of appeal because the court has the power to decide a dispute in those areas.
2. Mrs X complains late about events before May 2018 (see paragraph 4). This includes the Council’s 2017 survey, assessment of the case, and decisions regarding the Building Notice. I will not exercise discretion to investigate because Mrs X could have complained sooner and because she had a reasonable remedy at court as explained in the previous paragraph.
13. There is no reason for the Ombudsman to investigate the level of the invoice especially given the time that has passed. The Council has explained another contractor’s quote for the work was not that different from the final cost and why the costs rose. Investigation is not likely to achieve what Mrs X wants.
14. Mrs X tell me she has not paid the invoice. Should the Council take legal action to recover the debt Mrs X may defend herself at court and present it with her arguments. Mrs X tells me she has difficulty paying the debt and I have advised her to discuss her position with the Council.

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Final decision

15. The Ombudsman will not investigate Mrs X’s complaint about the Council serving a Building Act Notice to repair a drain, the actions of its contractor, and the amount Mrs X must pay for the work. It was reasonable for Mrs X to appeal the Notice if she wanted to challenge the proportion of the cost she should pay. There is no reason to investigate the final invoice.

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Investigator's decision on behalf of the Ombudsman