Summary: the complainants say the Council failed to use their statutory powers to stop water leaking from their neighbours’ home from entering their home. The Council says it considered the repair to the blocked sewer stopped the leak and therefore did not need to consider exercising its powers further. The Ombudsman finds the Council acted without fault.

The complaint

1. The complainants, whom I shall refer to as Mr and Mrs X, complain the Council failed to investigate and use their statutory powers to stop leaking from a leaking sewer from entering their home.
2. Mr and Mrs X says this caused distress and inconvenience. They want the Council to exercise its statutory powers to protect them as a vulnerable family and compensate them for the delay and damage caused.

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The Ombudsman’s role and powers

3. 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)
4. If 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)
5. 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)

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How I considered this complaint

6. In considering this complaint I have:
• Spoken with Mr X, listened to his audio recordings, viewed his video and read the information presented with the complaint;
• Put enquiries to the Council and reviewed its responses;
• Researched the relevant law, guidance, and policy.
• Shared my draft decision with Mr and Mrs X and the Council and reflected on comments received.

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What I found

The law, guidance, and policy

7. Under the Building Act 1984 and Building Regulations 2010, councils may take action to protect the public if they consider a building or structure is unsafe. Councils may issue an order to carry out works to improve defective, dangerous, or dilapidated buildings or structures. If the building owner does not comply with an order, the Council may carry out the works and charge the owner for the costs.
8. The Environmental Protection Act 1990 imposes a duty on councils to investigate possible statutory nuisance and issue an Abatement notice to stop the nuisance if satisfied there is a statutory nuisance.
9. For the issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home, or other premises; and / or
• injure health or be likely to injure health.
10. Once the evidence-gathering process is complete, the environmental health officer will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer will use their professional judgement to decide whether a statutory nuisance exists.
11. The Council has powers under the Public Health Act to resolve faults with drains and private sewers. The Council’s website sets out these powers saying:
• In respect of defective or blocked private drains or sewers the Council may serve a 48-hour Public Health Act notice. If this is not complied with it can do the work and charge the owners for the costs;
• In respect of minor repairs to drains or private sewers, the Council can serve a 7- day Public Health Act notice. This give notice of its of intention to deal with any drains or private sewers that have not been maintained and kept in good repair. It may recover expenses it incurs in repairing them;
• In respect of major defects in drains or private sewers affecting many houses the Council can serve a Building Act notice requiring repair within 28 days.
12. Anglian Water is responsible for public sewers in the area.
13. The courts decide liability for any damage to property.

What happened

14. Mr and Mrs X live in a semi-detached property. In January 2019 they noticed water coming through the party wall. They say the water poured in through the wall when the neighbours used their washing machine.
15. In February 2019 Mr and Mrs X sought help from the Council. A Council environmental health officer wrote in reply to Mr and Mrs X saying the Council had sought permission to access the neighbouring house. Mr and Mrs X asked the Council to also visit their home to witness the leak. Mr and Mrs X explained to the Council they had concerns there may be more than one leak because they also experienced unhealthy smells possibly from leaking sewage.
16. In March 2019, the Council wrote to Mr and Mrs X saying it continued to work with the neighbours to check the cause of the leak. The Council confirmed it had not commissioned the contractors currently working on the drains or sewers. However, the Council said if it found defects in the drains or sewers it would ensure the neighbours carried out repairs. As part of its investigation the Council conducted a dye test. The Council asked Mr and Mrs X if they had noticed any dye coming through from the neighbour’s home. They did not.
17. The Council’s officers visited Mr and Mrs X in April, May and June 2019. The latter two visits Mr and Mrs X recorded. I have listened to the recordings. The Council’s officers said the seepage had improved but it would take some weeks for the wall to dry out. The Council followed up the June visit with a letter advising Mr and Mrs X to continue airing the property and to lift the carpet tiles to help the area dry out.
18. In July 2019 Mr and Mrs X complained to the Council about the continued seepage. They complained Council officers had not properly inspected the leak from their property by using suitable equipment. The Council treated this as a stage 1 complaint under the Council’s complaint’s procedure. It responded in August 2019 saying it had identified the cause as a blocked sewer. After clearing the blockage, the water seepage had stopped. Mr X disputes a blocked sewer caused the leak. The Council said Building Control officers had liaised with the Environmental Health officers and therefore did not need to visit Mr and Mrs X’s home.
19. Mr and Mrs X responded saying the Council should investigate racial discrimination against vulnerable people. They felt the Council had not properly explored the problem which continued placing them in their view at risk of serious ill health. Mr and Mrs X wrote to the Council’s Standard’s Committee saying the problem continued even after hot weather which should have dried out the wall.
20. In December 2019, the Council wrote to Mr and Mrs X saying its officers found no continuing water seepage when visiting the property earlier in the year. In the Council’s view the wall had been drying out as expected. The Council denied the allegation its officers had said it could not justify the expense of a camera test of the neighbouring pipework or engaging a surveyor. The Council said there had not been a need to do this because the neighbours had cleared the sewer blockage and it now worked properly. The Council denied it had treated Mr and Mrs X any differently from other residents. The Council says it has followed its usual procedure and referred Mr and Mrs X to their insurers for help with the costs of cleaning up after the leak.
21. When Mr and Mrs X first contacted the Council, they shared with the Council a newspaper article. This suggested councils may use powers under environmental health and building control legislation to restore defective property. This article led Mr and Mrs X to expect the Council to serve a formal notice. If that did not result in repairs by the owner, then they expected the Council would carry out the works and recover expenses from the owner.
22. In response to my further enquiries the Council says its officers did not need to revisit Mr and Mrs X’s home following the visit in June 2019. The Council says Mr and Mrs X had not complained of any further water entering their home. The Council says unless there is evidence of further leaking water or worsening damp it is unlikely it would have any reason to carry out a further investigation.

Analysis – was their fault leading to an injustice?

23. My role is to decide if the Council considered whether on the evidence presented it should exercise any of its statutory powers to stop water leaking into Mr and Mrs X’s home. If I find the Council failed to properly consider exercising those powers, I must decide what the Council should do to put that right.
24. The newspaper article Mr and Mrs X read set out powers open to a council. Unfortunately, it raised their expectations of the Council carrying out the works. That is rare because councils usually succeed in persuading property owners to conduct repairs or carry out the necessary works themselves. Some of the powers outlined in the article refer to defective and dangerous buildings. In the Council’s assessment Mr and Mrs X’s neighbour’s home did not meet the criteria of a dangerous building under the Building Act.
25. The Council has several statutory powers it may use. It is for the Council to decide using its usual procedures and with officers exercising their professional judgement which powers to use. Both building control and environmental health officers believed in the exercise of their professional judgement the removal from the sewer of a blockage resolved the leak. Mr and Mrs X dispute a blockage caused the water that entered their home. To decide whether to use its statutory powers Council officers contacted the neighbours, and visited Mr and Mrs X. The Council’s officers had noted improvement in the drying out of the wall and decided that would dry out in time and did not show evidence of any further leaks. The Council acted in line with its usual procedure and in line with the Council officers’ professional judgement. Therefore, I find the Council acted without fault.
26. Mr and Mrs X continued to report the signs of a continuing leak. The Council did not carry out any further inspections. Mr and Mrs X say how can the Council know they are not experiencing further leakage possibly from a source other than the sewer without inspecting their home. The Council says it can take time for a property to dry out after a leak. It did not revisit Mr and Mrs X before issuing its decision in February 2020 because Mr and Mrs X had not complained of, or put forward evidence of further water leakage. The damp complained of is what the Council would expect as the wall dried out after the previous leak. Officers exercised their professional judgement on whether to visit again before sending the final decision on the complaint. While a further visit may have been helpful to Mr and Mrs X’s understanding of the Council’s decision, I do not find fault in the lack of a visit.
27. The Council has shown that it followed its usual procedures in response to this complaint and so treated Mr and Mrs X no differently than it would any other resident who complained about a water leak in their neighbour’s home affecting their home. Therefore, I find the Council acted without any discrimination towards Mr and Mrs X.

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Final decision

28. In completing my investigation, I find the Council acted without fault

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Investigator's decision on behalf of the Ombudsman