Oldham Metropolitan Borough Council (17 019 766)

Category : Environment and regulation > Other

Decision : Upheld

Decision date : 24 Oct 2018

The Ombudsman's final decision:

Summary: Mrs X complained the Council has not investigated or taken action about her reports of water leaking into her flat from her neighbour’s property in November 2017. The Council did not investigate this report before deciding not to take any action. It relied on investigations from more than 12 months earlier. This was fault. It has already apologised to Mrs X. It has now agreed to inspect Mrs X’s property and decide whether to take enforcement action.

The complaint

  1. Mrs X complains the Council refused to investigate or take appropriate enforcement action against her neighbours when she reported water leaking into her property in November 2017. She says the deeds to her property make it clear her neighbour is responsible for disposal of water, waste and sanitary waste.
  2. The Council last inspected the property in 2015 and has refused to do so since then. She believes the water ingress is from a different source to that previously investigated. She wants the Council to investigate the situation and take appropriate enforcement action.

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What parts of the complaint have I investigated

  1. I have investigated the Council’s actions since 2017. I have not investigated its actions before then for the reasons set out in paragraph 36.

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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. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
  3. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  4. The Ombudsman cannot decide private legal matters. Only the courts can decide in disputes that concern the content of legal documents such as contracts and leases.
  5. 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)

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How I considered this complaint

  1. I spoke to Mrs X about her complaint and considered documents provided by her.
  2. I asked the Council questions about the complaint and considered documents it provided including its enforcement policy.
  3. I considered the Environmental Protection Act 1990.
  4. I gave the Council and Mrs X the opportunity to comment on my draft decision. I considered Mrs X’s comments before making this final decision.

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What I found

  1. Councils must look into complaints that could concern a statutory nuisance. This includes reports that a premises is in such a state as to be prejudicial to health or otherwise a nuisance.

Environmental protection policy

  1. This Council’s website says that if a neighbour’s property is defective and causing problems to someone’s property it can require the owners to carry out repairs. It says it may do so if the property is causing a nuisance, for example from damp.
  2. This is a power, not a duty. This means the Council has considerable discretion on how it exercises this power. Where someone reports a problem to a council it should consider their report, decide whether to investigate it further and explain its reasons if it decides not to do so.
  3. This Council has an enforcement policy explaining how it exercises its enforcement powers. It can decide whether to take no action, informal action, formal action, or decide to take matters to court.

Events before the period covered by my investigation

  1. Mrs X says she has an ‘underlease’ for a flat and that her neighbours have a freehold. She says the deeds show her property’s leaseholder is responsible for maintaining gutters, drop pipes and drains for disposing rain and waste water from the property.
  2. She complained to the Council in 2015 that her neighbour had allowed water to enter her property. An officer visited in December 2015 and noted water entering her flat. The Council wrote to Mrs X in December 2015 to say it had investigated but could not say who was responsible for the water. It decided not to take enforcement action. It referred Mrs X to the court about the matter.
  3. Mrs X replied asking the Council to visit again, referring to her deeds and that her neighbours were responsible. She wrote again in early January 2016 to say she could not afford to take court action and that water was coming through the ceiling.
  4. The Council’s records show it then asked for deeds, a structural report and court decisions affecting the property. It took legal advice about the case. It later told Mrs X this advice said that as the Council could not be certain where the water was coming from this was “a private legal matter rather than a statutory nuisance”. It said because of this, if it served a notice requiring action, it would have to serve one on Mrs X as well as her neighbours.
  5. It wrote to Mrs X, in February 2016, saying:
    • It had made enquiries about who was responsible and could not reach a decision on this.
    • It had received a counter claim from the neighbours about Mrs X.
    • It suggested Mrs X take private civil action concerning the matter.
    • Mrs X could complain to the Ombudsman.
  6. I have not investigated events up to this point any further, other than to provide this context, as Mrs X could then have complained to the Ombudsman and did not do so.

Events from 2017 onwards

  1. Mrs X contacted the Council again in November 2017. Its records shows she told it the damp problems had continued and were getting worse. The ceiling had now partially collapsed. Mrs X asked the Council to inspect the property and, if it could not determine the cause of the water, said it should appoint a surveyor to do so.
  2. She wrote later in November 2017 to complain she had not had any reply to her report. The Council replied in December to say:
    • It had to decide there was a clear and ongoing breach before taking a case to court. Officers had visited to look at the problem before (in 2016). They had not been able to identify the cause. It had therefore decided not to take further action. It had previously advised Mrs X to take civil action. That remained its advice.
    • It should have explained why it had decided not to carry out a new assessment after her complaint in 2017. It had not done so and therefore upheld this part of her complaint. It hoped its response now explained its decision.
    • It should not have told Mrs X her complaint was closed during a phone call. It apologised and would improve practice in future. It referred Mrs X, again, to the court.
  3. Mrs X replied to say no one had been in touch to investigate the new problem. Officers had not visited to see what had happened in November 2017. She could not afford to go to court. Her neighbours had caused very significant damage to her property. Mrs X then complained to the Ombudsman.
  4. Mrs X told me her 2017 report to the Council was about water from a new source. It concerned an area where she did not have any water supply and so she said her neighbours were responsible. She said she had reported this four times to the Council but no-one had got back to her.

My findings

  1. Although Mrs X strongly believes responsibilities are clearly set out in her deeds, neither we, nor the Council can come to a view on this matter. Only a court can do this.
  2. The Council had to decide whether the matters reported by Mrs X constituted a statutory nuisance and, if so, then whether to take enforcement action about it. To do this it wanted to be sure who was responsible for the nuisance. On the basis of its investigations in 2015 and 2016 it was unsure about responsibility and told Mrs X she needed to go to court.
  3. When Mrs X reported new problems to the Council in November 2017 there is no record it considered what action, if any, to take. Mrs X had to call several times and write before it explained how it had considered her new report. This is fault. This fault caused Mrs X uncertainty about what, if anything, the Council was doing. It has already apologised for this fault. It has also apologised for incorrectly telling her the complaint was closed.
  4. In its reply to Mrs X’s subsequent complaint, the Council explained why it had decided not to take any action. Its explanation was that the Council had considered the past history of the property and its earlier site investigations which had been unable to find the root cause of the problems.
  5. Councils should make decisions based on an adequate understanding of their context. As more than 12 months had passed since its last site visit, the Council should have spoken with Mrs X or made a fresh site visit to check on Mrs X’s new report. It did not do so and this is fault. Mrs X says the current problem is caused by a different water source. She says it is clear that her neighbour is responsible because of the location of the leak. The Council has not investigated whether this is the case.
  6. Councils have considerable discretion about what, if any, enforcement action to take. This Council’s policy explains how it will exercise discretion, having regard to the individual circumstances of each case. This is a matter of its officers’ professional judgment. The Ombudsman cannot question the judgment of council officers, providing they consider relevant information, do not consider irrelevant information and have regard to relevant legislation and policies. Once it has visited it is for the Council to decide what, if any, enforcement action to take.

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Agreed action

  1. The Council has agreed that, within two months of the final decision on this complaint, it will carry out a visit to Mrs X’s property, investigate the situation and decide, on the basis of that investigation, what action, if any, to take.

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Final decision

  1. I have completed my investigation. I have found evidence of fault causing injustice. The Council has agreed to carry out action to remedy this injustice.

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Parts of the complaint I did not investigate

  1. I have not investigated what happened before Mrs X’s report in November 2017. This is because the Council’s replies to her earlier complaints referred to the Ombudsman.

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Investigator's decision on behalf of the Ombudsman

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