Herefordshire Council (17 001 105)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 08 May 2019

The Ombudsman's final decision:

Summary: Mrs B complains that the Council failed to properly test samples taken from her private water supply so the results were inaccurate causing her to waste time and money in trying to improve the water quality unnecessarily. The Ombudsman finds the Council was at fault because the laboratory acting on its behalf failed to test the samples within the recommended timescale but this did not cause Mrs B an injustice because the delay did not affect the results.

The complaint

  1. Mrs B complains about the way the Council dealt with the analysis of the private water supply to a holiday home she owns. She says the samples were not properly tested so the results were inaccurate causing her to waste time and money in trying to improve the water quality unnecessarily.

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The Ombudsman’s role and powers

  1. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. 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)
  3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 2(7), as amended)

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How I considered this complaint

  1. I have considered all the information provided by Mrs B, made enquiries of the Council and considered its comments and the documents it provided. I have also made enquiries of the Drinking Water Inspectorate (DWI), the laboratory which tested the samples and Public Health England (PHE) and considered their comments.
  2. I sent a copy of my draft decision to Mrs B and the Council and considered their comments.

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What I found

  1. The Water Industry Act 1991 (“the Act”) requires local authorities to take steps to keep themselves informed about the wholesomeness and sufficiency of water supplies provided to premises in their area, including private water supplies. The Act states that it is the council’s duty to comply with any regulations which set out the circumstances in which it must exercise its powers in relation to private water supplies and the way in which those powers are exercised.
  2. The Private Water Supplies (England) Regulations 2016 (“the Regulations”) came into force in June 2016. They require councils to carry out a risk assessment of every private water supply (except a supply to a single dwelling where the water is not used as part of a commercial or public activity, unless requested to do so by the owner or occupier of the dwelling) every five years or more frequently if the risk assessment shows this to be necessary.
  3. The Regulations state that when a council monitors a private water supply it “must ensure that each sample is-
      1. taken by a competent person using suitable equipment,
      2. representative of the water at the sampling point at the time of sampling,
      3. not contaminated in the course of being taken,
      4. kept at such a temperature and in such condition as will secure that there is no material change in what is to be measured, and
      5. analysed without delay by a competent person using suitable equipment”.
  4. The Regulations state that a local authority may enter into an arrangement for any person to take and analyse samples on its behalf. However, it must not enter into such an arrangement unless “it is satisfied that the task will be carried out promptly by a person competent to perform it”.

Key facts

  1. Mrs B has a private water supply. She set up a holiday let in a property served by the water supply and notified the Council’s environmental health department in August 2016.
  2. One of the Council’s technical officers, Officer X, arranged to visit on 16 August 2016 to carry out a risk assessment and collect a water sample to analyse for bacteriological and chemical content. Before the visit she sent Mrs B a list of the Council’s current charges.
  3. At her visit, Officer X recommended remedial works to the filters and gave Mrs B a list of water treatment specialists to provide further information/assistance with this. She sent a water sample to the laboratory for testing.
  4. Officer X telephoned Mrs B on 18 August 2016 to tell her the supply did not meet the legal requirements.
  5. On 22 September 2016 Officer X visited the site again to carry out a retest and inspect the remedial works carried out by Mrs B. A few days later she notified Mrs B that the supply was still not compliant.
  6. On 28 September 2016 Officer X sent Mrs B the risk assessment report dated 16 August 2016. Mrs B was advised to implement the recommendations in the ‘outstanding actions’ section of the report and confirm when these were completed.
  7. On 29 September 2016 Officer X visited to carry out a retest. The supply was still not compliant. Officer X advised Mrs B to carry out works to the borehole head and chlorinated pipework. She also advised her to continue boiling water before drinking it, as a precaution.
  8. On 5 October 2016 Mrs B informed Officer X the pipework was to be treated with disinfectant. Re-sampling could not take place until this had been done.
  9. Meanwhile Mrs B had to provide guests in the holiday let with bottled water and advise them to boil the water.
  10. Officer X visited again on 25 October 2016 to collect a retest sample and inspect the remedial works. The supply still did not meet the requirements.
  11. Officer X visited again on 8 and 14 November 2016 to collect further re-test samples.
  12. On 14 November 2016 Officer X sent an email to Mrs B confirming the water supply was compliant.
  13. Mrs B complained about the service provided by the Council. She said the advice given by Officer X made things worse and that the officer was out of her depth. She also complained about irregularities in the sampling results and about the Council’s charges.
  14. The Council responded on 20 December 2016 stating it was satisfied Officer X had given Mrs B the best professional advice and the samples had been tested by a United Kingdom Accreditation Service (UKAS) accredited laboratory. The Council said Officer X had made several additional visits for which it had not charged. In addition, it offered to waive the initial sampling charge of £58.38 and charge only for the risk assessment.
  15. Mrs B wrote to Officer X in January 2017 querying whether the taking of the samples was compromised or whether there was a problem with the testing procedure as there appeared to be no logical explanation for the huge anomalies in the results. She said she had spent a large amount of money on chemicals, testing strips and other equipment and many hours carrying out remedial works which she believed were unnecessary. She considered the Council’s recommendations made the test results worse and that the water supply would have been compliant if none of the remedial works had been carried out.
  16. Mrs B wrote to Officer X’s manager on 7 February 2017 requesting an explanation of the points raised in her letter to Officer X. She said “until we have these answers, we will continue to have no trust in the service that was provided and the advice given. Further, we have no confidence in the UKAS laboratory either as it seems abundantly clear that something went wrong”.
  17. Mrs B remained dissatisfied with the Council’s response and so complained to the Ombudsman.

Analysis

Officer X’s competency

  1. Mrs B says Officer X was not qualified to carry out the risk assessment.
  2. The Regulations state that competency to carry out this task is at the discretion of the Council.
  3. The Council has confirmed it is satisfied Officer X is competent to carry out this task and has provided details of her qualifications and experience. Having considered this information, I find no grounds to question the Council’s opinion.

Sampling

  1. Mrs B is concerned that her water supply kept failing despite carrying out the remedial works recommended by Officer X. She queries whether the samples taken by Officer X were correctly stored and tested.
  2. The Council has explained that sampling represents the condition of the supply on that particular date. This can easily be affected by environmental factors so results can vary.
  3. If a water sample fails, the Regulations require the Council to investigate the causes of the failure. It did this by re-inspection and further sampling.
  4. The samples taken by Officer X were tested by a UKAS accredited laboratory. All the samples taken between August and October 2016 failed because of the presence of coliforms. The results are given as cfu/ml (colony-forming units per millilitre). CFU is a unit used to measure the number of viable bacteria or fungal cells in a sample.

Microbiological Parameters

Date

E. Coli

Coliforms

16/08/2016

0 cfu/100 ml

1 cfu/100 ml

22/09/2016

1 cfu/100 ml

201 cfu/100 ml

29/09/2016

0 cfu/100 ml

3 cfu/100 ml

25/10/2016

0 cfu/100 ml

41 cfu/100 ml

08/11/2016

0 cfu/100 ml

0 cfu/100 ml

  1. The Regulations set out sampling and analysis criteria and the method of analysis. The Council uses the guidance “Private Water Supplies Sampling Manual” which is approved by the UK Drinking Water Regulators. The guidance sets out standard procedures for the collection, storage and transportation of samples at private water supplies. It states, “after the samples have been taken the bottles must be stored and transported correctly… bacteriological bottles should be stored upright in a cool box containing appropriate ice packs to retain a temperature during transportation and storage of between 2 and 8°C”. It also says, “the sample should be returned as soon as possible to the laboratory to ensure analysis is undertaken within the timescales required by the laboratory”.
  2. The guidance goes on to say “If there is to be any significant delay between sampling and analysis, samples should be stored so as to ensure there is no material change which could significantly affect the sample results. For example, bacteriological samples should be kept in the dark between 2 and 8°C and analysed within 24 hours”.
  3. The Council has provided documents which show it correctly stored the samples in accordance with this guidance.
  4. The Drinking Water Inspectorate (DWI) acts as technical adviser to local authorities in pursuance of their duties under the Water Industry Act 1991 in respect of private water supplies. It has provided a sampling manual on its website setting out standard procedures which local authorities and their contracted representatives should follow for the purposes of monitoring private water supplies. The manual states “the samples must be transferred to the laboratory as soon as practicable on the day of collection, for analysis to commence promptly on arrival, whilst taking into account parameter stability times-ideally within 24 hours. In exceptional circumstances, if there is a delay, store the samples at 2-8°C in the dark for analysis within 8 hours the next day”. However, the DWI has confirmed the manual is only a guide and not accredited methodology. The DWI has recently published a revised sampling manual which increases the maximum acceptable time between sampling and analysis to 32 hours. However, neither of these manuals was in place at the time Mrs B’s samples were tested.
  5. The samples were analysed between 26.47 hours and 30.56 hours from collection. At the time, the laboratory’s stability time for microbiological samples was one day. So analysis had to be undertaken within one calendar day of the sample being taken, not 24 hours. The samples were all tested within the stability time required by the laboratory at the time. However the laboratory has recently changed its stability time to 24 hours.
  6. The DWI told Mrs B “24 hours is the industry standard best practice, so to answer your question, 30 hours is not good practice. The DWI would expect analysis to be carried out to industry best practice. This is detailed in what is known as The Standing Committee of Analysts’ (SCA) “Blue Book”. This states…‘The analysis should commence within 24 hours of the sample being taken’”.
  7. In response to my enquiries, the DWI confirmed analysis 30 hours from the point of collection of the sample does not meet best practice set out in the “Blue Book” on which the DWI’s sampling manual is based. But it pointed out that the Blue Book states analysis should (not must) commence within 24 hours of the sample being taken and said “Therefore it is arguably the laboratory that must determine whether or not the test results stand”.
  8. The ‘Blue Book’ provides guidance on recommended methods of sampling and analysis of water.
  9. The laboratory which tested the samples has now been taken over by another laboratory. It says stability time is consistent across the whole of the drinking water sector and is drawn from “The Microbiology of Drinking Water” which is one of the ‘Blue Books’ published by the SCA. It specifies the stability time of drinking water microbiology samples as 24 hours. Where analysis has not commenced within 24 hours from the point of sampling this would mean the sample should be regarded as out of stability at the point of analysis. It says its predecessor’s policy at the time was to measure sample stability in terms of 1 day rather than 24 hours. So it was possible for a sample to have been taken at 10 am and not analysed until 4 pm the following day and be considered within stability according to the laboratory’s system when measured in days (1 day) but out of stability when measured in hours (30 hours). The laboratory now carries out sampling using stability times which are measured in hours. This means the fault should not be repeated in future.
  10. The laboratory says UKAS provides guidance on testing samples that do not meet an analytical specification including those exceeding their stability time. It is not inappropriate for such samples to be tested and the results are fully accredited. But the test report should contain a comment to the effect that the sample has been analysed outside its stability time and this may have had some effect on the results. As the laboratory previously measured stability in terms of 1 day, none of the samples would have been classified by them as out of stability so no stability comments have been included with the report.
  11. The laboratory says it is impossible to quantify the effect on the results of analysis outside of stability but this could mean the results may not be representative of the sample at the point it was taken.
  12. Mrs B says the Council failed to ensure the samples were analysed without delay which meant every sample taken from her property over an 11 week period was unstable and could not be relied on.
  13. Mrs B points out that, although the DWI guidance refers to “exceptional circumstances” in terms of samples being tested outside the 24-hour stability time, there is no mention of “exceptional circumstances” in the Regulations which simply state that the sample should be analysed “without delay”. In any event, there were no exceptional circumstances in relation to her water samples. The laboratory was routinely ignoring the requirement to analyse the samples within 24 hours.
  14. The Council says there was no alternative UKAS accredited laboratory available that could provide a daily courier service and analyse water samples for chemical and microbiological content. Only one other laboratory service was available but this had limited flexibility regarding courier arrangements. So it had no choice but to use the laboratory it did.
  15. The Council says it does not regulate the activities of laboratories which are regulated by the DWI and UKAS. However this does not alter the fact that the laboratory was acting on behalf of the Council.
  16. The Council raised the issue of the laboratory’s water sampling/analysis times with UKAS in February 2018. UKAS was working with the laboratory to implement changes so that the stability time would be 24 hours. This came into effect in May 2018.
  17. In conclusion, the samples taken from Mrs B’s private water supply were analysed within the laboratory’s stability time of one day. But they were not analysed within 24 hours as set out in the ‘Blue Book’. The Council’s procedures as set out in its Private Water Supplies Sampling Manual state, “the samples should be returned as soon as possible to the laboratory to ensure analysis is undertaken within the timescales required by the laboratory”. However it goes on to say “bacteriological samples should be kept in the dark between 2 and 8°C and analysed within 24 hours”. The laboratory did not comply with this.
  18. I find the laboratory was at fault in failing to analyse the samples within 24 hours. As it was acting on the Council’s behalf, the Council is responsible for the laboratory’s actions. I therefore find the Council was at fault. The Regulations require the Council to ensure the laboratory analysed the samples without delay. It failed to do so.
  19. Having found there was fault in the time taken to analyse the samples, I have to consider whether, on the balance of probabilities, this affected the outcome of the sampling and so whether Mrs B would have been required to take further action.
  20. The Council says, “if anything, the coliforms would have decreased in number as indicated in studies undertaken by the Water Research Council (WRC). In their paper “The Effects on Storage for Analysis Results for the Total and Faecal Coliform Parameters” the WRC state:

‘On the basis of the results obtained in this study, extending the allowable period of storage of samples before analysis from 6-12 hours should not affect overall results provided the samples are refrigerated. However, extensions of the allowable period of storage to 24 hours would result in lower overall results’.”

  1. The Council says the number of coliforms is irrelevant because they are either present or not present. A sample containing just one coliform fails the relevant standards.
  2. In a letter to Mrs B, the laboratory states “We therefore are not able to make any meaningful comment on the possible effect of exceeding stability times upon the reported results other than to state that exceeding stability time could mean that reported results may not be representative of the sample at the point the sample was taken”.
  3. In an email to Mrs B, the Department for Rural Affairs (DEFRA) stated “The microbiological characteristics of a sample can change significantly when stored, even for relatively short periods of time.… The effect of storage time between sampling and commencement of analysis is influenced by many factors including the ambient water chemistry of the sample, the number and type of organisms present and their physiological state after exposure to disinfectants. Clearly, the longer the delay between sampling and commencement of analysis, the more likely that microbiological changes will occur within the sample”.
  4. The Blue Book states ‘The longer the delay between sampling and commencement of analysis, the more likely that microbiological changes will occur within the sample’.
  5. I made enquiries of PHE. It responded that “coliform bacteria would not be expected to increase as a result of a 6h delay in testing the sample (testing within 30h after sample collection as opposed to the recommended 24h)… Furthermore, these organisms should not be present in a 250 mL sample of mineral water or in drinking waters in bottles and containers or in 100mL for other waters of portable quality… Therefore, a report of any coliform is considered to be not complying with the regulation and would require follow-up action”.
  6. The evidence from PHE is that the delay in analysing the samples did not alter the result because, for coliforms to be present after 30 hours, they must also have been present when the sample was taken. And, as PHE says, the presence of any coliform is considered to not comply with the regulations and would require follow-up action. PHE also says that any interventions, actions and treatment would be based on a combination of the microbiological results and the risk assessment of the supply rather than a reliance on the microbiological results taken in isolation.
  7. I therefore conclude the presence of coliforms in the sample required the Council to take follow-up action. This action would have been the same regardless of the number of coliforms in the sample.
  8. I am therefore satisfied that failure to analyse the samples within 24 hours did not cause Mrs B any injustice because the samples would have failed even if they had been analysed sooner.

Risk assessment

  1. Mrs B says the risk assessment was not carried out correctly.
  2. The Council says the risk assessment aims to evaluate risks to the water supply and examine all potential sources of contamination. It says Officer X’s risk assessment report identified sources of contamination and made recommendations for the physical improvement of the supply and increased management and maintenance arrangements.
  3. The Regulations require a risk assessment to be carried out to establish whether there is a risk of supplying water that would constitute a potential danger to human health. Monitoring (sampling and analysis) alone cannot provide assurance about the safety of a private water supply so risk assessment is a key aspect in the Regulations.
  4. Risk assessment involves examining the source of the private water supply and the surrounding area and checking the safety of the supply in storage and distribution as well as the existence and effectiveness of any treatment. It also involves checking any storage tanks, treatment systems and the pipework on the supply distribution system. The risk assessment will identify actual and potential hazards on the supply that may affect the health of those drinking the water.
  5. The risk assessment prepared by Officer X is very detailed and sets out recommendations in respect of the hazards identified. I find no grounds to question it.

Advice

  1. Mrs B says the Council failed to properly advise her how to remedy the problem with the water supply.
  2. Officer X gave advice at her initial site visit and in the risk assessment report. She also gave Mrs B a list of water treatment specialists to provide further assistance. The Council says Officer X also gave advice at her follow-up visits.
  3. I have seen no evidence to suggest the Council failed to properly advise Mrs B how to remedy the problem. But, as set out above, it should have queried whether the anomalous results were because the samples were tested outside 24 hours and at least ensured that on the second occasion the sample was analysed within that time.

Charges

  1. Mrs B also complains about the amount charged by the Council for carrying out the risk assessment and water sampling.
  2. The Council’s water sampling charges were endorsed by the Cabinet in 2012. The Cabinet decided to aim for full cost recovery.
  3. Officer X gave Mrs B details of the Council’s charges at the outset. The charges sheet states that typically a risk assessment and follow-up report on a small supply may take 2 to 4 hours and the charge will be £53.04 per hour up to a maximum of £500. Mrs B was therefore expecting to pay around £200.
  4. The Council charged Mrs B £420.82. Sampling costs were £58.38. Officer X spent 8 hours 50 minutes visiting the site, carrying out the risk assessment and compiling the report. She visited the site five times to carry out retests.
  5. The Regulations allow the Council to charge for: risk assessment up to a maximum of £500; £100 for each sample visit if its purpose is to verify the effectiveness of improvements and not just to confirm previous test results; and laboratory testing costs. I find the charges are in accordance with the Regulations.

Mrs B’s response to my draft decision

  1. Responding to a draft of this decision, Mrs B argued that:
      1. the WRC study on Effects of Storage on Analysis Results for the Total and Faecal Coliform Parameters does not apply to her private water supply because the samples tested in the study were raw, untreated waters and not disinfectant treated drinking water; and
      2. the Council took the first four samples from her kitchen tap rather than from a tap in the holiday let. It took the final sample from the holiday let which was clear despite no further works having been undertaken. Mrs B says the samples taken from her kitchen tap were not representative of the water supply to the holiday let because of the different ‘journey’ the water takes to each property after leaving the UV treatment tank. One pipe takes the water from the UV treatment tank directly to the holiday let. Another, longer, pipe takes the water from the tank to Mrs B’s home.
  2. In light of these comments, I made further enquiries of PHE who told me:
      1. untreated water was used in the WRC study because the scientists wanted to find coliform bacteria in the sample so they could analyse the effects of 6, 12 and 24 hours of refrigerated storage. Treated water should contain no coliforms whatsoever so it would have been pointless to use this for the purposes of the study;
      2. there was no fault in the Council taking samples from the tap in Mrs B’s home rather than the holiday let. Although the water taken from her kitchen tap was not representative of the water in the holiday let, the fact that coliforms were found in that sample meant all the water passing through the UV system was potentially a risk, including the supply to the holiday let. The UV treatment tank feeds both properties. There is no physical separation of the water between Mrs B’s home and the holiday let so coliforms found in the water taken from her kitchen tap could also affect the supply to the holiday let because the bacteria has potential to back seed into the UV tank. It is irrelevant that the water has a separate journey from the UV treatment tank to Mrs B’s home and to the holiday let because there is only one UV treatment tank for both properties.
  3. I am therefore satisfied there was no fault in the way the Council took it samples or in the action it required Mrs B to take as a result.

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Final decision

  1. I find the laboratory was at fault in failing to analyse the samples within 24 hours.
  2. Where a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the laboratory’s actions, the Council is responsible as it commissioned the laboratory to test the samples.
  3. For the reasons set out above, I do not consider the delay in analysing the samples caused Mrs B a significant injustice.
  4. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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