Summary: Mr B complains that the Council has not taken adequate steps to deal with food hygiene and waste disposal issues at a takeaway next door to the property which he owns and lets to tenants. He considers that this has resulted in infestation by rodents. The Ombudsman has found no fault in the Council’s actions in respect of matters that fall within the scope of the present investigation.

The complaint

1. Mr B complains that the Council did not deal properly with food hygiene and waste disposal issues at a takeaway restaurant next door to the terraced house that he lets to tenants. He says the takeaway leaves frozen chips thawing on open shelves near to bait for rodents, leaves rubbish and food in unsealed containers and disposes of oil and food waste down the drain. He says the Council did not take appropriate action when the takeaway displayed an out-of-date hygiene rating. He also questions the way the Council addressed issues with the takeaway’s drainage.
2. He considers that this has resulted in him having rats, mice and flies in his property. He also considers that the takeaway represents a health risk to members of the public and that the Council should close it down.

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What I have investigated

3. I have investigated Mr B’s complaint about the Council’s actions from November 2018, when Mr B contacted the Council about a rat infestation, up to March 2019 when the Council invited Mr B to complain to the Ombudsman. The final section of this statement sets out matters that I have not investigated.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by “maladministration” and “service failure”. I have used the word “fault” to refer to these. 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)
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)
6. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
7. The law says we cannot normally investigate a complaint when someone could take the matter to court or appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court or to appeal. (Local Government Act 1974, sections 26(6)(c) and (a), as amended)
8. The Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.

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How I considered this complaint

9. I have considered Mr B’s written complaint and supporting papers and discussed his complaint with him. I have made enquiries of the Council and considered its response. I have also sent Mr B and the Council a draft decision and considered their comments.

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What I found

Legal and administrative background

Food Authorities

10. Councils are Food Authorities under Section 5 of the Food Safety Act 1990 and have statutory duties to enforce the law in relation to food. Their main role is to ensure that food is produced, stored and handled without risk to the health and safety of consumers.
11. Duties include food hygiene inspections to ensure compliance with the Food Safety and Hygiene (England) Regulations 2013. Councils have powers to enter and premises and seize contaminated food under the 1990 Act.
12. The Food Law Code of Practice gives instructions for councils to consider when enforcing food law. This includes a risk and a scoring system called the Food Hygiene Intervention Rating Scheme to calculate the frequency of inspections - the Council calls this the Food Hygiene Inspection Risk Rating (FHIRR).
13. On finding breaches of food law, councils may take a range of actions including serving improvement, remedial action or emergency prohibition notices. All these actions carry a right of appeal to the Magistrates Court. Failure to comply with a notice is an offence and may lead to prosecution.

Food hygiene rating scheme (FHRS)

14. Food hygiene ratings are run in partnership by local authorities and the Food Standards Agency (FSA). 99% of English councils participate in the FHRS. English local authorities operating the scheme are expected to follow guidance known as the Brand Standard.
15. Councils may inspect food premises and award an FHRS rating based on food hygiene standards, structural condition and management performance. Ratings range from 5 for very good premises to 0 for those needing urgent improvement. Businesses with low ratings are given advice about how to improve. Business owners can request a re-inspection and revised rating when they have made improvements. Businesses do not have to display the food hygiene rating.

Registration of food business

16. Subject to some exemptions, UK law requires all food businesses to register with the local authority within 28 days of starting operations. That includes all premises (and stalls, vehicles etc) used for storing, selling, distributing or preparing food.
17. Councils should keep a register of food businesses in their area which is available for public inspection. Business owners are required to notify the council of any significant changes to their business.

Food safety complaint investigations

18. Councils have a duty to inspect premises when they receive a complaint from the public about food hygiene. Investigations will be in line with local procedures.

Rats and mice

19. Councils have specific legal powers under the Prevention of Damage by Pests Act 1949, to take any steps deemed necessary to ensure that owners and occupiers of land keep their land free from large numbers of rats and mice. Councils may serve a notice under section 4 of the Act, setting out the steps they require and the time limit for action. They can require a treatment by a professional pest controller, removal of rubbish, or structural works.
20. If the owner / occupier does not carry out works within a reasonable period of time, councils can carry out works on their behalf and look to recoup the costs. There is a right to appeal a notice to the Magistrates Court within 21 days, under sections 290 and 300 of the Public Health Act 1936.

What happened

21. Mr B owns a terraced house which is divided into flats and let to tenants. The house adjoins a takeaway restaurant. There is a block of flats to the side and rear of the takeaway and Mr B’s property.
22. In January 2018, an officer from the Council’s Food Safety Team (FST) visited the takeaway to carry out an FHRS re-rating. The Council awarded an FHRS rating of 1, meaning that major improvement was necessary. The Council also gave the takeaway an FHIRR score of 75. This falls within the 72 to 91 range set out in paragraph 5.6 of the Code of Practice, putting the takeaway in category B. Category B establishments are to be visited at least every 12 months.
23. In October 2018, one of Mr B’s tenants advised him of evidence of rats in and around her toilet, and scratching noises in the ceiling. After Mr B contacted the Council on 2 November, an Environmental Protection Team (EPT) officer visited Mr B’s property, though not the takeaway which was closed. The officer asked Mr B to complete pest records to evidence the rodent infestation.
24. There were several written exchanges between Mr B and the Council. Mr B said he had put rat poison in the roof void which was connected to the takeaway. He also thought the takeaway was pouring oil down an open drain serving both properties.
25. The EPT case officer asked Mr B to complete pest records to evidence the rodent infestation. She said, if the Council could not rule out the drain as an access point for rodents, she may have to serve an enforcement notice on him and any neighbouring properties with an internal rodent problem.
26. Officers gained access to the takeaway on 20 November and checked the drain. There was no inspection chamber, so officers unscrewed the grate to the gully. They found no evidence of oil disposal down the gully.
27. In early December, officers visited several addresses including the block of flats and the takeaway to check for evidence of rodent activity. Residents of the flats raised no concerns about rodents at this point, and Mr B confirmed that the bait in the roof void was largely untouched from the previous week. Officers could smell dead rats when they were in the downstairs toilet and bedroom area.
28. On 10 December, officers met the regional water company and identified a buried manhole chamber in the takeaway’s yard. The water company found the chamber had three entries from the takeaway and an “illegal” rainwater connection from Mr B’s property. Mr B says he had no prior knowledge of this and it was disconnected and blocked within three days. The water company also identified a break in one of the takeaway’s private lines and notified the landlord. However, it could not access the drainage to Mr B’s property as there was a blind connection.
29. The following week, the EPT case officer emailed Mr B. She said that residents of neighbouring properties had told her they were not currently experiencing rodent activity and bait was not being taken from the takeaway. So, at that point, the infestation appeared to be confined to Mr B’s property. The officer asked him to carry out a CCTV survey and provide a detailed drainage report within 21 days.
30. Mr B arranged for the water company to undertake a CCTV survey. He said the water company had identified a broken soil pipe at the takeaway, but none at his property. He had also checked the bathroom ceiling, as there was a stench. He says he had already taken four dead rats from the roof void but there were no further signs of dead rats – he therefore assumed that the smell was from dead rats in the takeaway’s roof void.
31. On 6 January 2019, Mr B complained to the Council about its handling of matters. He no longer wished to deal with the EPT officer. He believed the rats were dead but was concerned that they would return if the Council did not take further action over food hygiene breaches at the takeaway.
32. On 8 January, after a change of business operator, an FST officer inspected the takeaway. The officer found no food safety issues that presented a serious risk to health and awarded an FHRS rating of 4, but required the takeaway to:
• repair the drain cover in the yard PA says within six weeks;
• monitor for mice droppings (as there were some near the sink);
• arrange a pest control visit, and bait the loft; and
• ensure that staff decant tins into suitable containers.
33. Shortly after, the Council served notices on Mr B and the takeaway’s landlord to carry our works necessary to identify and control the rodent infestation. Although Mr B had had a CCTV survey carried out, he was required to:
• arrange a further CCTV survey and provide a detailed report and structural survey;
• undertake any necessary structural repairs to prevent entry and egress of rodents; and
• engage a pest control company to keep the land free of rodents.
34. Mr B corresponded extensively with the Council, including making Freedom of Information (FoI) requests. He said the rats had now returned and understood that residents of the block of flats were reporting the same problems.
35. Another EPT officer visited the takeaway the following week but did not identify any further food safety issues. On 22 January, the officer visited the takeaway and confirmed that the gully repair was complete.
36. The Council did not uphold Mr B’s complaint at the first stage of its complaints procedures. Mr B continued to raise concerns about food safety issues, including storing chips at room temperature, waste left in bin bags and empty oil containers.
37. Officers visited again on 15 February with Mr B’s local councillors. Mr B says he showed them pictures showing that he had proofed the party wall and that there were no entry points. He says he referred to the staining of the wall (which he believed was from defrosting chips) but officers said the stain was not a matter for their department, and there was no law requiring rubbish to be put in bins. Officers did not consider it unreasonable for the takeaway to leave the back door ajar during business hours.
38. Another officer visited the following week and noted that:
• the takeaway had a current trade waste agreement;
• it used a 240-litre wheelie bin to store waste;
• a sealed refuse bag was next to the bin, but immediately put in the bin;
• a sealable drum was used for waste oil and this is collected regularly;
• the floor of the yard was sticky, likely to be overspill from pouring oil into the drum; and
• there was no evidence of oil being poured directly into the drain.
39. The takeaway was advised:
• not to store bags outside the wheelie bin;
• to ensure that spent oil cans are carefully emptied into the drum;
• to keep the yard clean; and
• ensure food stuffs are securely stored.
40. Officers told the takeaway that they would monitor this issue.
41. On 4 March, Mr B’s independent contractors undertook a CCTV survey of his drainage. This identified redundant drainage, which can provide access for rodents. Officers asked Mr B to seal the access within 28 days.
42. FST officers visited the takeaway again the following week. They noted that the FHRS sticker had been updated. They also noted bags of chips being left at an ambient temperature but did not consider this a risk. There was no sign of any rodent infestation, so they considered that no further action was required.
43. An EPT officer visited the takeaway in mid-March regarding pest activity. The officer viewed the pest records and discussed the report with the pest technician. There was evidence of limited mice activity, so the bait was replenished, but no evidence of high-risk activity in the loft area.
44. Later in March, the Council responded to Mr B’s complaint at the second stage of its complaint procedures. It also responded to numerous questions he had raised about food hygiene practices. Mr B complained to the Ombudsman in early April.
45. In April 2019, an FST officer undertook a further inspection of the takeaway. The Council awarded a 5 FHRS rating and recommended some minor actions. Mr B visited the takeaway and was allowed to take photos of their pest control records.
46. Mr B continued to raise concerns about food hygiene practices, including the takeaway leaving: bags of chips out overnight close to bait boxes; the top off a pan of sauce overnight; bags of onions close to the ground in the store in the yard; the door ajar; and black bags, oil cans and cardboard in the yard.
47. In May, the Council told Mr B it had responded to his complaints and it would not respond further on these matters. The following month, the Council responded to Mr B’s FoI request. Mr B requested a review of the response – the Council later responded to the review request but said it had already responded fully.
48. Mr B says he then started getting problems with mice in June 2019. He says he complained to the Council about this but received no response. In July, Mr B contacted the takeaway owner and explained that the problems with rats had stopped but he was now having problems with mice.
49. Since then, Mr B says the takeaway has improved some practices but is still leaving oil cans and cardboard out. He considers that the problems with rodents are a result of the takeaway’s poor practices. Accordingly, he has not carried out the Council’s request to seal the redundant drainage.
50. Mr B has also engaged a consultant to prepare a report on safety standards at the takeaway, based on photographs and information provided by Mr B, though without having undertaken a visit.
51. In January 2020, Mr B reported a mice infestation to the Council. He said that mice had chewed redundant electrical cables and this might be a fire safety risk.

My assessment

52. Mr B has raised many questions about the Council’s actions and there is a great deal of detail in the correspondence between him and the Council. It is for the Ombudsman to consider if there has been administrative fault by the Council and whether this has caused Mr B injustice. However, it is not the Ombudsman’s task to answer every question that Mr B may have about these events.

Frequency of inspections

53. Mr B considers that the Council should have carried out more frequent inspections after awarding the takeaway a low FHRS rating in January 2018. He says the takeaway did not have pest control in place and this resulted in problems with rodents in the nearby block of flats from Spring 2018, when residents of the block of flats complained to the Council. He considers that, had the Council acted earlier, he would likely not have suffered a rat infestation in October 2018.
54. I do not know what action the Council took in response to alleged vermin problems in the block of flats earlier in 2018. However, the Council awarded an FHRS rating of 1 in January 2018, so it is reasonable to assume that it would have given advice on the steps required to improve its food hygiene.
55. Mr B did not experience problems with vermin until October 2018, so any alleged inaction by the Council did not cause him any injustice before then. Moreover, although Mr B then experienced a rat infestation, I could not determine whether this resulted from inaction by the Council or third parties or from Mr B’s unsealed drainage access. So I have not investigated the Council’s actions over this period.
56. As to the frequency of food hygiene inspections, the takeaway was placed in category B under the FHIRR scheme, so the Council was not required to visit the premises again for 12 months. The Council was therefore not at fault in not arranging a further food hygiene visit to the takeaway before Mr B notified it of problems with rodents in November 2018.

Disposal of waste in drain / waste storage

57. Mr B complains that the takeaway disposes of oil and food down the drain in the yard and does not store waste securely. He has provided photographs to the Council showing oil / food deposits. He says the Council gave the takeaway six weeks to put a cover on the drain. It did this and then took it off again. He considers that this has contributed to the problems with rats in his property.
58. Council officers visited the premises on several occasions and inspected the drain. They found no evidence of fat build-up in the drain which would suggest that the drain top was being removed to put material down the drain.
59. I see no fault here. Officers have taken appropriate in response to Mr B’s reports of disposal of items down the drain but have not found evidence to support Mr B’s assertion. They have advised Mr B to report issues of this nature directly to the water company.
60. As to Mr B’s concerns about storage and disposal of waste, officers have also visited and checked the waste disposal measures in place and provided advice to the takeaway on this. This seems to me a proportionate response, given that there has been no recurrence of the problems with rats.

Food storage

61. Mr B complains that the takeaway is storing bags of chips overnight at ambient temperatures and close to bait boxes. He considers that the run-off from the chips attracts vermin. He notes that the pest control company advised the takeaway to keep food covered at night. He says the Food Standards Agency has told him that high-temperature cooking does not remove contamination by vermin and the takeaway’s practices present a risk of contamination of food and are likely to encourage rodents. He has commissioned an independent report which sets out concerns about this practice.
62. The Council considered this matter but did not consider that the storage of chips at ambient temperatures presented a significant risk to public health.
63. I appreciate that Mr B feel strongly on this point. I also note the comments in the consultant’s report. However, the Council has considered this matter and reached a view on this. I do not consider that it is for the Ombudsman to adjudicate between the professional assessment of Council officers and the views of Mr B’s consultant on this matter, particularly when the Council’s own decision has been informed by several site visits.

Takeaway gully drain repair

64. Mr B considers that the Council should have asked the takeaway owner to carry out a fresh CCTV survey to confirm that the gully drain was properly repaired.
65. The Council has explained that officers were present when the original CCTV survey was carried out, and an officer visited in January 2019, viewed and was satisfied with the works.
66. I see no fault here. The Council has required the owner to carry out works, inspected them, and there has been no recurrence of the problems with rats.

Displaying incorrect hygiene rating

67. Mr B complains that the takeaway owner wrongly displayed a sticker showing an FHRS rating of 4, which belonged to the previous owner, when the correct rating was 1. He considers that the EPT officer should have brought this to the attention of Trading Standards when visiting the takeaway in November 2018.
68. The purpose of the EPT officer’s visit in November 2018 was to respond to Mr B’s reports of a rat infestation rather than to check the takeaway’s food hygiene rating. I therefore see no reason for the officer to have been aware of any discrepancy in the FHRS rating or for this to have been brought to the attention of Trading Standards.
69. Once Mr B raised concerns about this, although the takeaway was displaying an historic FHRS 4 sticker, the present rating was also 4. This was not felt to be overtly misleading to the public and so did not warrant formal action. In a subsequent inspection, the takeaway was advised that it was good practice to display only the current sticker and did so from then on.
70. I see no fault here. It was for the Council to decide what action to take in respect of the incorrect sticker. Besides, while Mr B may disagree with the Council’s actions, this is not a matter that has caused him any personal injustice.

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Final decision

71. I have closed my investigation into Mr B’s complaint because I have found no fault in the way the Council responded to his concerns.

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Parts of the complaint that I did not investigate

Requirement for further CCTV survey

72. Mr B considers that it was unreasonable for the Council to ask him to arrange a second CCTV survey of his drainage. He has also questioned the need for him to undertake works to seal the redundant section of the drain given that the water company had confirmed that there were no problems with his soil pipe.
73. The Council served a notice on Mr B in respect of the second CCTV survey. This carried a right to appeal to the Magistrates Court within 21 days. I consider that it would have been reasonable for Mr B to have used that appeal right If he disagreed with the requirements of the notice, so this matter is outside the Ombudsman’s jurisdiction.

Request to the seal the redundant section of drain

74. Mr B complains that the Council was wrong to ask him to seal the redundant section of drain. He has declined to comply with this request. He says he has taken the whole hallway floor up and the drains are under several inches of concrete. He says there is no evidence that rats entered his property in this way and there have been no problem with the rats since the takeaway’s infestation.
75. The Council asked Mr B to seal the redundant section but has not served a notice on him. The Council has explained that if the problem with rats recurs, it will serve a notice to require him to seal the redundant drainage section.
76. I have not investigated this matter because it is for Mr B to decide whether to seal the redundant drainage section. Moreover, in the event that the Council serves a notice on him, it will be open to him to appeal to the Magistrates Court.

Mice infestation

77. Mr B has recently contacted the Council about a mice infestation which he considers results from poor hygiene practices at the takeaway.
78. I have not investigated this matter because this is a new matter since the original complaint and the Council’s Environmental Protection Team is currently looking into Mr B’s concerns. Once the Council has decided what action, if any, is required, it will be open to him to make a new complaint to the Council if he is dissatisfied with its actions.

Further complaints about poor hygiene practices

79. Mr B has complained about further examples of alleged poor food hygiene practices since the end of March 2019. He has continued to raise concerns about the storage of chips and says that the takeaway has stored bags of onions in an unsecured location. He has continued to raise concerns about the takeaway leaving cardboard, oil cans and bin bags being and not in bins with a closable lid. He has also engaged a consultant who has prepared a report expressing concerns at some of the takeaway’s hygiene practices.
80. He says he has not raised all of these issues with the Council because it declined to correspond further with him, apart from responding to his FoI requests.
81. Much of what Mr B has subsequently raised is a repetition of issues which he has already raised with the Council and form part of his present complaint to the Ombudsman. While councils should continue to provide services in line with their policies and procedures, the Ombudsman would not generally expect a council to continue to correspond with the complainant on the same matters that are the subject of an Ombudsman investigation.
82. However, if Mr B has new evidence of alleged poor hygiene practices, he may provide this to the Council, so that it may take this into account as part of its investigation into the current mice infestation.

Failure to provide information

83. Mr B has complained that the Council has refused to provide information that he has requested.
84. If Mr B considers that the Council has failed to respond properly to his requests for information, it is open to him to take this matter up with the Information Commissioner. I consider that it would be reasonable for him to do so. This matter is therefore outside the Ombudsman’s jurisdiction.

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Investigator's decision on behalf of the Ombudsman