Summary: Mrs K complained the Council failed to use its statutory powers to bring a property next to her home into a reasonable standard of repair and occupation. The Council said it found no statutory nuisance and decided not to use is discretionary powers. We found no fault by the Council. It made a decision it was entitled to make. And so, we cannot criticise its decision.

The complaint

1. The complainant, whom I shall refer to as Mrs K, complains about the derelict state of a property next to her home. She says Council has failed to take action to bring the property into a reasonable standard of repair.
2. As a result, Mrs K says she experienced distress from vegetation and vermin entering her property. She also said she experienced distress from the Council’s delays.

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What I have investigated

3. I have investigated the Council’s actions to address Mrs K’s complaint in 2020.
4. The final paragraph of this decision statement sets out why I did not investigate other periods.

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The Ombudsman’s role and powers

5. 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)
6. 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)
7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
8. 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

9. As part of this investigation, I have:
• considered the complaint made by Mrs K and the Council’s responses;
• discussed the complaint with Mrs K over the telephone;
• considered the Council’s responses to my enquiries; and
10. I gave Mrs X and the Council the opportunity to comment on a draft version of this decision and considered the comments received.

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What I found

Law and guidance

11. Councils have a duty to monitor and to investigate complaints of a nuisance by its local residents. It has a duty to act to stop or prevent a nuisance if it deems it to be a statutory nuisance.
12. Local authorities have various powers to act when receiving complaints homes are unoccupied and/or in poor condition. Some of these powers refer to actions the Council can take if a property causes a nuisance to neighbours, becomes a source of anti-social behaviour or has safety hazards. Other powers support the re-use of empty homes for housing. Of potential relevance to this complaint, I note the following:
• Section 17 of the Housing Act 1985. This gives the power to the Council to take legal possession of a property from its existing owner through a compulsory purchase order (CPO) for which the owner is later compensated. Before the Council can use this power, it must show that it has tried other measures to bring the property back in to use and has a plan for its re-use and management.
• Section 132 of the Housing Act 2004. This gives the power for the Council to obtain an Empty Dwelling Management Order (EDMO) to take over a property and repair it. It can then let and manage it on behalf of the landlord for up to seven years with its costs recouped from the rental income. A property must have been empty for over two years and a focal point for anti-social behaviour for the Council to use this power.
• The Local Government Finance Act 2012. This gives the Council the power to charge an “empty home premium” on a property that has been “unoccupied and substantially unfurnished” for over two years. The premium can be up to 100% of the annual council tax bill.
• The Building Act 1984. Various sections of this Act allow the Council to serve notices on building owners, where the condition of a building is dangerous or dilapidated. Other sections allow the Council to act to demolish structures or repair defects and bill the owner for the work.
• The Housing Act 2004 introduced the Housing Health and Safety Rating System. This identifies housing defects and classifies them according to the risk posed to the occupier. The Council can serve notice on a housing owner to remedy such defects. The Council also has the power to inspect a property for hazards on giving 24-hours notice. If the Council cannot gain access it can apply to the Magistrates Court for a warrant which may allow it to force entry.
• The Prevention of Damage by Pests Act 1949 says it is the owner or occupier’s responsibility to keep their land free from mice and rats. The Act gives local authorities powers to require landowners or occupiers to do this. It can serve a notice on the relevant person. If the notice is not complied with it can carry out works in default or instigate prosecution proceedings.
13. If a Council does not agree that a statutory nuisance exists, an individual can take private action in a magistrate’s court against the person responsible for the nuisance.

What happened

14. Mrs K owns her home. Her neighbouring property (the property) has been unoccupied for several years and is owned by Mr Y.
15. The Council investigated a complaint by Mrs K in 2014 about the state of the property. It did not find a statutory nuisance, and so no further action was taken.
16. In 2019 Mrs K asked her local MP to help her. She said the property was in a state of disrepair causing vegetation and vermin to enter her property. She said the Council should use existing legislation to make the Mr Y bring the property into a reasonable state of repair. She also asked if council tax was charged for the property.
17. In response, the MP explained there is no legislation available to enforce an owner to keep a property in a good state of repair. But the Council do have discretionary powers to serve notice on Mr Y if the property is unsafe or affecting local amenity.
18. In late 2019, Mrs K asked her local councillor to help her get the Council to action her concerns regarding the property. This led to the Council agreeing to visit her Mrs K.
19. In early 2020 the Council’s Environmental Health officer visited Mrs K. It told her it could only take action on empty properties for significant pest activity and statutory nuisances. It also said it had no duty to ensure properties are resold or reoccupied and there was not a high housing need in the area. The Council asked Mr K to provide any evidence she had of pest activity or a statutory nuisance.
20. Mrs K was unhappy with the Council’s response. And so, she contacted her local MP again for help. She also provided the Council with a photo of a hole in the property’s backdoor. She said this clearly showed it had been created by vermin and because of this, she had rats in her attic on several occasions.
21. In response, the Council agreed for its Environmental Health Officer to visit again. It also said it had discussed her concerns with her MP to explain its legal duties.
22. In March 2020, the Council told Mrs K it had to postpone its scheduled visit until further notice due to the outbreak of COVID-19.
23. In August 2020, Mrs K complained to the Council. She said it:
• had failed to deliver a meaningful response to her;
• had failed to make any progress over the last decade;
• should use the legal provision available to purchase the property; and
• should use the legal provision available to bring the property back into a habitable condition.
24. In response, the Council said it had investigated the property in 2014, but it did not receive a response from Mr Y, and it had found no reasons to take further action. It said it had opened a new case in early 2020, but due to COVID-19 the case had been put on hold. It explained the case has since been reopened and its Environmental Health Officer has had positive discussions about repairing the property with Mr Y. It told Mrs K it did not uphold her complaint and it will decide whether to take formal action later.
25. Mrs K did not find the Council’s response and the previous responses from her elected representatives did enough to progress her concerns, and so she escalated her complaint. She said COVID-19 did not stop tracing of people or contacting people by phone or in writing.
26. The Council did not find fault in how it handled Mrs K’s case in its final complaint response. It said:
• It was satisfied appropriate and proportionate action had been taken in 2014.
• It acknowledged her frustration that her case was not moved forward during the first lockdown of COVID-19. It told her this was due to its staff sickness and many of its officers had been diverted from their usual roles into community-facing roles to provide support during the pandemic.
• It was considering her case again following the easing of the lockdown and there are ongoing discussions with Mr Y. It said its officer will revisit the property and check if the requested work had been carried out by Mr Y, or whether enforcement action could be taken.
• The area is not considered a priority as it does not have a high housing need.
27. The Council asked Mrs K to visit her to get access to view the neighbouring property. However, she told the Council her property does not have access to the neighbouring property.
28. Mrs K remained unhappy about the progress and lack of action by the Council, and so she complained to the Ombudsman.
29. In response to my enquiries, the Council explained the actions it had taken to address Mrs K’s complaint with Mr K. It also said it formally inspected the property in late 2020. However, it did not find sign of a rodent infestation, nor any statutory nuisance. It then considered applying for an Empty Home Management Order, but it found a reasonable prospect of the property being occupied and no housing needs in the area. And so, it decided not to take any formal action at this stage.

Analysis

30. Mrs K is unhappy because the Council decided not to take any formal action to address her concerns about the property. While I understand her concerns, it is necessary to distinguish between the Council’s statutory duties and the actions it can take under its discretionary powers.

The Council’s statutory duties

31. The Council’s only statutory duty in relation to Mrs K’s complaint was to investigate her concerns about a nuisance from her neighbour’s property. Based on the evidence available, the Council considered her concerns, visited Mrs K and inspected the neighbour’s property. It did not find a statutory nuisance or any significant hazards and so therefore it was under no duty to take any further action. The Council was therefore not at fault for failing to act in accordance with its statutory duties.

The Council’s discretionary powers

32. The Council had several discretionary powers available to it to address Mrs K’s concerns about her neighbour’s empty and poorly conditioned property. As these powers are discretionary, the Council were not required to take any action. However, I would expect the Council to consider all of its relevant powers and decide if it appears reasonable to it to use any of them. Based on the evidence available, I am satisfied the Council considered:
• potential hazards that could result in harm;
• pest control issues;
• forcing a sale of the property;
• an empty Dwelling Management Order to repair and allow the property to be rented out; and
• a Compulsory Purchase Order.
33. The Council decided not to use any of its discretionary powers at this time. In making its decision it told Mrs K it did not find any significant hazards and it found no evidence of pests. It also said it had positive engagement from Mr Y and it would continue to work with him to arrange for the property to be repaired and make it available for occupation.
34. While I understand Mrs K disagrees with the Council’s decision not to use any of its discretionary powers, the Council made a decision it was entitled to make. I cannot therefore criticise its decision.

Delays

35. Mrs K was unhappy about the Council’s delays and progress in addressing her concerns about the property.
36. Based on the information available, the Council and the elected officials responded to Mrs K’s concerns without any significant delay. However, there was a delay in the Council’s inspection of the property as this was postponed due to the outbreak of COVID-19.
37. The Council continued to try and reach Mr Y during this time and it was successful in doing so by summer 2020. It discussed Mrs K’s complaint and concerns with Mr Y during the following months. It also responded to Mrs K’s complaints and told her about the actions it had decided to take, including the reasons for its delays due to the impact of COVID-19.
38. In December 2020, the Council inspected the property, but it did not find any evidence of a statutory nuisance or pest activity.
39. While I understand Mrs K was frustrated with the Council and how it progressed her concerns, I am conscious that the delays were primarily due to COVID-19 and lack of engagement from Mr Y. I acknowledge the Council’s challenges during this period, and it was necessary for it to prioritise its task accordingly. And so, there were delays by the Council to address Mrs K’s concerns, however, I cannot fault the Council for matters outside its control. I am therefore not satisfied the Council was at fault for causing delays.
40. If Mrs K disagrees with the Council’s view that the property is not causing a statutory nuisance. She can bring the matter to the attention of a magistrate’s court for its consideration.

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Final decision

41. There is no evidence of fault by the Council in this complaint. It is on this basis; the complaint will be closed.

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Parts of the complaint that I did not investigate

42. I did not investigate the Council’s handling of Mrs K’s concerns between 2014 to 2019. This is because this part of her complaint is late. We normally expect complainants to bring matters complained about to our attention within 12 months of a Council’s action or inaction. I have saw no good reason Mrs K did not do so, and so I have not exercised my discretion on this matter.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman