The Ombudsman's final decision:
Summary: Mrs C complained about the Council’s private water supply testing service. Mrs C says she incurred additional costs and spent unnecessary time and trouble in trying to resolve the matter. We have found fault by the Council in its communication with Mrs C but consider the actions it has already taken of an apology and staff training provide a suitable remedy.
- The complainant, whom I shall refer to as Mrs C, complains the Council failed to offer a private water supply testing service or guidance about alternatives between Autumn 2019 and August 2020 and subsequently completed a test without proper notice or consent.
- Mrs C says because of the Council’s fault, she arranged and paid for her own test which did not meet the relevant criteria and has spent unnecessary time and trouble in trying to resolve the matter.
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)
- 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)
- 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 read the papers provided by Mrs C and discussed the complaint with her. I have considered some information from the Council and provided a copy of this to Mrs C. I have explained my draft decision to Mrs C and the Council and considered the comments received before reaching my final decision.
What I found
Background and legislation
- A private water supply (PWS) is any water supply which supplies one or more properties that is not provided by a water company. It is estimated that about 1% of people in England and Wales use a PWS. These are mostly situated in remote, rural parts of the country. PWS can originate from different sources including boreholes, natural springs and watercourses.
- The Water Industry Act 1991 is the primary legislation and defines the powers and responsibilities of local authorities in relation to PWS and the definition of a relevant person(s). The Private Water Supplies Regulations 2016 (the Regulations) place a duty on local authorities to conduct a risk assessment of each PWS within their area and to undertake monitoring to determine compliance with drinking water standards (except those to single dwellings unless requested). Local authorities have powers under the Regulations to require that a supply is improved by the relevant person(s). Further to this, the Private Water Supplies (England) (Amendment) Regulations 2018 came into force on 11 July 2018.
- The Drinking Water Inspectorate (DWI) is not the regulator for PWS but has a statutory duty to act as a technical adviser to local authorities about the implementation of the Regulations on behalf of the Secretary of State.
- The Regulations do not require monitoring to be undertaken at PWS supplying only a single dwelling where the water is used exclusively for domestic purposes. If the water at a dwelling is being used as part of a commercial or public activity including, short term lets such as holiday cottages monitoring and risk assessment is required. Regulation 9 applies to all PWS which supply:
- an average daily volume of water of 10m3 or more for domestic purposes; or
- water as part of a commercial or public activity.
- Mrs C owns a property that she lets as a holiday home. It is served by a PWS that is required to be tested annually.
- The Council completed a risk assessment and tested the PWS as a commercial activity for the first time in July 2019 as the property had previously been owner occupied. Mrs C took some remedial action following the test and sought a retest at the end of 2019 and again in February 2020. Mrs C says she was told the Council was not testing due to its reorganisation and she would need to arrange her own test.
- The Council says the merging of two Councils’ officer teams was not a factor in the reduction of service provision for private water sampling. The Council says it was contacted towards the end of 2019 by its laboratory services provider to advise they were no longer able to offer their courier service. This meant the Council was only able to offer a limited sampling service until it could obtain the services of a new courier. During this time the Council focussed on sampling higher risk sites which were due to be sampled in line with the regulatory regime. Mrs C’s property was not due to be sampled again until July/August 2020 and so the Council did not prioritise it for sampling.
- Mrs C arranged a private test for her PWS which took place on 2 March.
- The Council says it has no records of Mrs C being advised she would need to arrange her own sampling. The Council says it would normally direct a customer to the website of the DWI which has a list of correctly accredited laboratories if they wished to arrange their own sampling. In any event, the Council says there was no regulatory requirement for a sample to be taken at Mrs C’s PWS until the summer of 2020.
- The DWI wrote to local authorities on 20 March to say that in order to comply with Government COVID-19 guidance they may decide to prioritise or postpone sampling visits until the advice changed.
- The Council wrote to all PWS at the end of March to say it was postponing all routine sampling visits until later in the year when the guidance may change. The letter provided advice about customers’ own risk mitigation measures and that if they were concerned about water quality or required it to be tested for other reasons, they should contact the Council and it would consider any requests on a case by case basis. It would seem likely this letter was sent to the PWS property rather than Mrs C’s home address although I understand Mrs C has a site manager that checks the property including collecting post.
- After sampling restarted in June the Council sent an appointment letter to Mrs C on 27 July advising of an appointment to test her PWS on 6 August. The Council sent this letter to the sampling address rather than Mrs C home address. Mrs C was not made aware of the letter by her site manager until after the appointment. The Council visited the property on 6 August and was allowed access by the occupants on explaining its purpose and completed the water sample.
- Mrs C contacted the Council at the end of August to explain she had not received the above appointment letter as she did not live at the property and confirmed all correspondence should be addressed to her home address. Mrs C further explained she had arranged her own test in March as she had been told at the beginning of the year the Council was not testing. Mrs C enclosed a copy of her privately arranged test results and stated she did not wish to also pay the Council for the same testing.
- The Council provided Mrs C with the results of its testing on 1 September and highlighted the chloride level was in excess of the prescribed value which may increase rates of corrosion in metals. The Council also wrote to Mrs C separately on the same day to say it had updated its records regarding her correspondence address and explaining why it could not accept her privately arranged test results as the sampling did not cover the full range of parameters required and the analysis was not by a United Kingdom Accreditation Service (UKAS) laboratory.
- The Council invoiced Mrs C for £244 for its test at the end of September. Mrs C complained to the Council at the beginning of October. Mrs C explained she had been unaware of the Council’s test and had expected to be contacted when testing restarted as she had checked twice. The Council responded in early October and reiterated why it had written to her home address and why it could not accept her own test results. Mrs C asked for the matter to be escalated. The Council says it was at this the point its officer referred to the merging of the two Councils’ staff teams and systems. The Council says any instructions which may have been in the system about the mailing address for Mrs C were not transferred when the two Councils’ sampling records were brought together and so the appointment letter was sent to the property address rather than to Mrs C’s home address. The Council apologised and updated it’s records when Mrs C highlighted the issue.
- The Council responded to Mrs C towards the end of October and accepted its error in writing to the wrong address. The Council also accepted that the resulting delay in receiving the appointment letter meant Mrs C could have avoided an unnecessary test. The Council explained it would withdraw its invoice and waive the cost of its sampling if Mrs C provided a test result that met the relevant regulatory requirements. The Council commended Mrs C for making her own arrangements to arrange sampling before restarting her business but noted the test results she had provided did not satisfy the requirements of the legislation for the reasons previously explained.
- Mrs C contacted the Council to say its response did not address her point about the property being accessed without her consent. Mrs C also explained she had arranged a further test of the chloride level in October for her own peace of mind. Mrs C also suggested the Council’s sampling was redundant due to the impact of COVID 19 restrictions on guests levels. Mrs C asked the Council to waive its invoice. The Council responded at the end of October and explained its officer had no reason to consider Mrs C was not aware of the appointment and the occupants had raised no issues at the time and confirmed it would not waive its invoice.
- Mrs C complained to the Council on 1 November about the matter and sought a refund of £220 she had paid for her own private testing as the Council had not been providing a service at the time. The Council responded in early November to reiterate its previous position and that it was not responsible for the cost of Mrs C’s own private testing. This final response to Mrs C did not advise of her right to bring a complaint to the Ombudsman.
- The Council has accepted fault in sending a letter to Mrs C at the sampling address rather than her home address. The Council apologised for this error and updated its records. The Council also offered to waive the invoice for its testing if Mrs C could provide evidence of a privately arranged test that met the statutory requirements. Mrs C was unable to do this as her test did not meet the relevant requirements. I have to consider what, if any, injustice was caused to Mrs C by the Council writing to the wrong address.
- The requirement for Mrs C’s property is for an annual test. The previous test by the Council was in July 2019 and so this would normally have been scheduled for a similar time the following year. There was no requirement for a retest ahead of the scheduled annual test. Mrs C wished to have a test sooner than required ahead of the start of the holiday season in March 2020. Mrs C’s privately arranged test was in March and so predates the Council’s error in July when it wrote to her at the wrong address. Therefore, I cannot say Mrs C’s cost of arranging her own test flows from this fault.
- Mrs C’s own test did not comply with the relevant regulations which meant she could not avoid a further test by the Council and associated costs to meet the requirements. I see no fault in the Council requiring its own test to meet the regulations. Although Mrs C was unhappy the Council had visited to test the PWS when she had guests letting the property, there is no evidence this caused a particular problem for Mrs C such as a loss of business.
- I have also considered the Council’s response to Mrs C’s contacts towards the end of 2019 and February 2020 when she was seeking a test ahead of the 2020 holiday season. The Council has explained the limitations affecting its service towards the end of 2019 and how it prioritised properties requiring a test under the regulatory regime. It is clear the Council did not have a scheduled test planned for Mrs C’s PWS before the summer of 2020 and so would not have prioritised such a test for her property. This does not constitute fault.
- It is not clear what information or advice was provided to Mrs C when she telephoned the Council towards the end of 2019 or in February 2020. I have to consider what action Mrs C may have taken if she had been given clearer information about the regulatory requirements or more detailed advice on arranging her own testing if she felt this was necessary. Mrs C may have decided to wait for the Council’s testing to restart thereby avoiding the cost of her own private test or as seems most likely she may still have arranged her own test for her own peace of mind. This private test may still not have met the relevant requirements which include detailed parameters. Any injustice here is speculative and, on balance, I consider it would have been prudent for Mrs C to obtain some written advice from the Council before incurring the cost of her own private test. In the circumstances, I do not consider there are grounds for me to recommend a remedy from the Council.
- Finally, the Council’s complaint response to Mrs C did not inform her of her right to make a complaint to the Ombudsman or provide our details. This is fault. The Council says Mrs C submitted her formal complaint of 1 November through its website which sets out the complaints process, including the right to take a complaint to the Ombudsman. However, the Council accepts it did not specifically refer Mrs C to the Ombudsman in its correspondence which it says was an oversight. The Council has apologised for this and completed complaints training for all relevant officers and will ensure all customers making a complaint are informed this avenue is available to them and how to access the service. The Ombudsman would welcome this action. As Mrs C was able to make her complaint to the Ombudsman in early December, I do not consider she was caused a particular injustice requiring a remedy on this point.
- I have completed my investigation as I have found fault but consider the actions the Council has already taken provide a suitable remedy and we would not seek more.
Investigator's decision on behalf of the Ombudsman