The Ombudsman's final decision:
Summary: The Council was at fault when it delayed in responding to reports of a cockroach infestation in Mr B’s flat. However, it was not at fault when it eventually took action to address the problem.
What I have investigated
- Mr B made his complaint to the Ombudsman in mid-November 2017, however the issue at the centre of this complaint extends beyond this date. Therefore, I have only investigated the Council’s actions up to this date, after it had considered the matter at stage one and two of its complaint’s process.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I have:
- Read the papers submitted by Mr B and discussed the complaint with him.
- Considered the Council’s comments about the complaint and the supporting documents it provided.
- Provided both parties with an opportunity to comment on the draft decision, and considered the comments provided by Mr B.
What I found
- Mr B owns a property management business. One of the properties he owns is a flat, which is situated in a block with five other properties. A management organisation is responsible for overseeing the maintenance of this block. It receives a service charge from the freeholders and shareholders of freehold of the block to cover maintenance and other costs.
- In March 2017, the management organisation held a meeting and a cockroach infestation in the block was discussed. Ms C, who works for Mr B’s property business, attended this meeting. It was agreed that the management organisation would arrange for a pest control company to visit the block and assess the situation. The minutes indicate the management organisation would pay to resolve the issue if the infestation was found to be a block-wide issue, otherwise the residents or owners of the flats would pay. Mr B states this was not agreed, but pronounced by the management organisation. He says he later tried to have the minutes amended to reflect this, but his request was not acknowledged.
- A pest control company visited the block in mid-May and noted there was a “very very heavy infestation” in the flat owned by Mr B, which was deemed to be the source of the infestation. It also noted that there was “heavy” cockroach activity in another flat. Mr B disputes his flat was the source and says experts he consulted state the source cannot be pinpointed with any accuracy.
- The same company revisited the block approximately two weeks later and carried out further work. It returned again in mid-June and noted Mr B’s flat was the only one that still had cockroach activity.
- In mid-July, the management organisation complained to the Council that Mr B was not tackling the problem. When the Council did not respond, it reported the issue to the Council again at the end of August, stating the problem was ongoing.
- At the beginning of September, Mr B emailed the Council stating he was aware the management organisation had reported the issue. He asked that any queries regarding the matter be directed to Ms C and provided the Council with a contact email address.
- In mid-September, the Council emailed the management organisation and apologised for the late response. The officer dealing with the matter stated the individual who normally managed the email inbox had to take compassionate leave. She stated she had taken over this person’s role and had been busy trying to establish what her responsibilities were.
- The officer then discussed the issue with the management organisation on the phone. She was told there was still a cockroach problem at Mr B’s flat and he was refusing to undertake further treatment to eradicate the problem. The management organisation said it was concerned about the residents of the block and asked the Council to intervene.
- On the same day, the Council responded to the email Mr B sent it earlier in the month. The officer asked him for details of how he was dealing with the problem and stated the Council’s environmental health team might have to investigate. Mr B states he then spoke to the Council on the phone and told it the management organisation had not provided any evidence that he was refusing to act. He also said it was the management organisation who took the decision to stop previous treatment.
- The following morning, the officer sent Mr B another email and informed him that he was responsible for treating the infestation as he was the owner of the flat. She asked for evidence that he had booked a treatment to address the problem and requested that it be sent to her within 24 hours. She stated that the Council’s environmental health team would have to investigate if she did not receive this evidence and explained the consequences of enforcement and prosecution. She also said the Council’s pest control team was available to help if required, and offered to put Mr B in touch with them.
- Later that day, Ms C responded to the Council’s email on behalf of Mr B. She outlined the background to the problem and explained that Mr B’s business did not enjoy a good relationship with the management organisation. She stated Mr B did not believe the pest control company who assessed the problem earlier in the year was independent and questioned its findings. Ms C said they thought it was a block-wide issue and reasoned this was why Mr B had not taken any action. However, she concluded that as the management organisation insisted only Mr B’s flat had an issue, the business would have to take action. She also asked the Council to undertake treatment if the business had to pay, and asked the officer to arrange for the Council’s pest control team to visit the flat and lay some traps.
- The next day, the officer liaised with the Council’s pest control team and asked it to contact Ms C or Mr B and organise the treatment. She also emailed Ms C and said this team would contact her or Mr B to arrange treatment.
- Later that same day, Mr B emailed the officer and said he was concerned the Council was not challenging the information presented by the management organisation. He stated it said that other flats were paying for their own treatment, which suggested they were also experiencing issues. He questioned the adequacy of the treatment initially commissioned by the management organisation and said it had no way of knowing the source of the infestation.
- The officer responded shortly after and said she was told the other flats did pay for a second set of treatments. She stated if those flats were treated and no longer had any issues she could understand why the residents that paid were complaining Mr B’s flat still had a problem. She suggested that this was a good time to resolve the issue and said if he arranged an independent treatment, this would provide sufficient evidence that he acted to eradicate the infestation.
- Four days later, Mr B emailed the officer and stated the management organisation had lied to the Council about the source of the infestation. He said she had not taken his or Ms C’s perspective into account and accused her of engaging in scare tactics and threatening sanctions. He stated the Council had discriminated against his business and suggested the Council was biased toward the management organisation. He said he did not believe she would deal with the matter in an impartial manner and said he had no other option but to lodge a formal complaint.
- The officer responded later that day and refuted Mr B’s comments. She outlined the actions she had taken and explained this was normal procedure. She rejected allegations of bias and said the Council could leave cockroach traps to check whether the flat had an infestation, if this was disputed. She highlighted it was not the Council’s aim to attribute blame, rather it was to ensure residents were living in a pest-free environment. She stated she acted urgently when dealing with the matter as pests such as cockroaches can multiply very quickly.
- She continued and said the email she initially sent Mr B was to notify him of the problem and ask that he address the matter. She said he could have contested the issue at this stage and had he done so, the Council would have investigated the matter further. She requested a copy of the lease if this indicated he was not responsible for pest control treatments. Finally, she asked him to confirm whether he wanted the Council to investigate the problem, or whether he accepted there was a problem and would provide evidence of treatment.
- Mr B then emailed the officer and said she had misunderstood the points he made. He reiterated he wanted the matter to be treated as a formal complaint and asked how it would be handled.
- The next day, the officer contacted the Council’s pest control team and was advised Mr B had not booked any treatments. She then emailed Mr B and said she had forwarded his concerns to the Council’s complaint’s team. She also asked that he confirm whether he had booked a pest control appointment.
- The pest control officer stated he had told Mr B or Ms C to book the treatment through the Council’s call centre so payment could be taken. Mr B says he attempted to call the Council about the matter but was forced to wait in a long queue. Whilst waiting, he states he reconsidered his position and how the Council had handled matters, then decided to end the call.
- The Council responded to Mr B’s complaint at the beginning of October. It provided an overview of events and concluded Mr B did not contest the allegation that his flat had a cockroach infestation, nor refuted the need to undertake treatment at the property.
- Mr B responded the same day and escalated his complaint. He stated the cockroach problem was a block-wide issue and thus should be dealt with by the management organisation, as per the lease. Consequently, he asked the Council to contact it in order to resolve the issue.
- Later that day, the officer who dealt with the issue emailed the officer that had responded to Mr B’s complaint. She said that Mr B had called her about the matter and was “extremely abusive” to her during the call, and swore at her several times. Mr B emphatically refutes the officer’s comments and states he was not abusive.
- The Council provided a second response to Mr B’s complaint at the beginning of November and did not find any fault in the actions its officers had taken. It also stated no referral was made to its environmental health team while the complaint was being dealt with, and asked Mr B to provide evidence of any treatments he had been undertaking.
- Mr B contacted the Ombudsman the day after he received the Council’s final response to his complaint. He complains about the way the Council handled the referral from the management organisation and states the matter has been very stressful to deal with. He requests that the Council takes action against the management organisation and not him, and provides compensation for the distress caused.
- The Council took approximately two months to respond to the management organisation’s initial report on this matter. I note the officer who normally dealt with these issues was absent on compassionate leave, which appears to be the reason given for the late response. I appreciate this may have caused a delay, however the Council should have monitored the relevant email inbox in this person’s absence and dealt with the matter sooner. It did eventually do this, but by delaying it undermined its own assertion that these matters must be dealt with urgently due to the risk that pests can multiply quickly. Consequently, I find the Council was at fault for not dealing with the issue in an expeditious manner. However, I do not believe this caused any injustice to Mr B.
- The Council’s procedure note on this matter states that once a complaint is received, it will inform the landlord and give them 24 to 48 hours to outline what action they intend to take. The note states that landlords can either investigate the problem themselves or treat it. It also says the Council will investigate the matter if the landlord does not.
- When it did deal with the management organisation’s report, the officer assigned to the case contacted it to establish if there was still a problem. As there was, she sent Mr B two emails about the matter. This correspondence shows she asked Mr B to provide evidence of treatment within 24 hours, however they do not state he can investigate the matter himself. I believe it should have made this option explicit. In addition, it asserted that Mr B was liable to take action as he was the owner of the flat, but did not state he could dispute liability if he felt he was not responsible. I believe it should also have done this. However, I do not consider these issues, in isolation, are so serious as to merit a formal finding of fault against the Council.
- I do accept the tone of the emails were rather direct and understand why the content may have caused Mr B concern. Yet I also understand the Council had established there was still a problem and decided it had to act quickly to resolve the matter, as per its procedure note. As a result, I believe the Council was right to ask Mr B to take action, but the way it communicated this could have been better. For example, Mr B was told if he did not send evidence of treatments within 24 hours then the officer would “have no option but to arrange for an Environmental Health Officer from my Team to visit and investigate the matter further”. This was followed by the sentence “If cockroaches are found at the property you will be issued with an enforcement notice giving you a time period to undertake the treatment”. Given the Council had just contacted Mr B for the first time and was trying to resolve the matter informally, I believe the tone should have been more collaborative and focused on what might happen, rather than what “will” happen. I do accept the Council has to notify individuals of the potential for enforcement action and prosecution, but believe this could have been communicated more sensitively. However, while I would encourage the Council to reflect on these points, I again do not consider these issues are so serious as to make a formal finding of fault.
- I note from Ms C’s response that she and Mr B believed the costs of treatment should be taken from their service charge, as they thought this was a block-wide issue and the management organisation was thus liable. They also questioned whether the pest control company employed by the management organisation were acting impartially and doubted its findings. I see that Ms C then asked the Council to investigate and lay traps at the flat, even if she and Mr B incurred the cost. The later emails indicate that Mr B didn’t agree with this course of action and decided not to use the Council’s pest control team, despite assurances that it was impartial and would provide the evidence needed that Mr B was addressing the issue.
- I cannot find any fault with how the Council acted in this regard. The issue at this stage appears to be who was liable to pay for the work that was required, Mr B or the management organisation. This is not a dispute I would expect the Council to get involved in, and it did not. The Council acted according to the information it received from the management organisation. Mr B disputed this information therefore the only way to resolve the issue was to have a third party look at the problem. The Council offered to do this but this offer was not accepted. I appreciate this would likely have meant that Mr B would have incurred some cost, but I cannot see any other way that the issue could have been resolved without this happening.
- I also note that Mr B highlights the tenants of the flat never complained about the issue and states because of this, any action taken by the Council is not legally enforceable. I have reviewed the legislation concerning this subject matter and have found nothing which suggests a complaint must be made by a tenant.
- The Council has written to all managers responsible for dealing with environmental health matters and reminded them of the need to monitor email inboxes. It has also granted access to the inbox to more staff and ensured it is monitored daily.
- The Council has confirmed it has a triage system already in place to deal with reports of environmental health concerns, and it is reviewing its response times.
- The Council was at fault when it delayed in responding to reports of a cockroach infestation in Mr B’s flat. However, it was not at fault when it eventually took action to address the problem.
Investigator's decision on behalf of the Ombudsman