Summary: Mr B complained the Council had not sufficiently investigated a problem with damp conditions in his mother’s home, which he attributed to the condition of a neighbouring property. We did not find fault with the Council’s actions.

The complaint

1. I have called the complainant ‘Mr B’. He complains on behalf of his mother, ‘Mrs C’. Mrs C’s house is damp in an area where it adjoins a neighbouring property (‘House X’). Mr B and Mrs C attribute the cause of the damp to the condition of House X, either because of defective drainage or another cause. Mr B complains the Council has not investigated adequately to identify the cause or to require the owner of House X to undertake any repairs that may be necessary.
2. Mr B says as a result the problem with damp in Mrs C’s property has not been identified or resolved. This has possibly caused Mrs C to suffer from asthma and/or exacerbated her symptoms.

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The Ombudsman’s role and powers

3. 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 an organisation’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)
4. If we are satisfied with an organisation’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

5. Before issuing this decision statement I considered:

• Mr B’s written complaint to the Ombudsman and any supporting information he provided;
• correspondence between Mr B and the Council which pre-dated our investigation; there was also correspondence between another relative of Mrs C on her behalf, whom I will refer to as ‘Mr D’;
• information provided by the Council in reply to written enquiries;
• any relevant law, guidance or procedure referred to in the text below.

6. I sent both Mr B and the Council a draft decision statement setting out my proposed findings. I took account of any comments they made in response before finalising this statement.

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What I found

Council powers in regard to defective buildings

7. The Council has various powers it can consider using where someone is adversely affected by the condition of a neighbouring property. For example, because the neighbouring property has defective drainage that is affecting their home.
8. Section 79 of the Environmental Protection Act says that premises “in such a state as to be prejudicial to health or a nuisance” can be considered a ‘statutory nuisance’. A Council must take reasonable steps to investigate where a statutory nuisance is alleged or suspected.
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. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence.
11. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
12. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. This requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
13. Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance.
14. Section 82 of the Environmental Protection Act also allows a member of the public to take a private action against an alleged nuisance using the Magistrates Court.
15. If a Council identifies a particular problem with a drain or sewer in private ownership, then it can serve notice on the owner to remedy the defect using provisions in the Public Health Act 1961. It can also take action to remedy the defect and charge the owner for those works, in the event the owner does not comply with such a notice or successfully appeal it.
16. Section 59 of the Building Act 1984 also gives the Council power to serve notice on a building owner if it identifies that drainage serving a building is inadequate. It can also take action to remedy the defect and charge the owner for those works, in the event the owner does not comply with such a notice or successfully appeal it.

Council policies

17. The Council has a policy for investigating alleged statutory nuisance. This explains in some detail the provisions of the Act and the powers the Council has available to it. The procedure explains the Council will try to acknowledge complaints within three working days and visit where appropriate during an investigation.
18. The Council also has a policy for investigating defective drains. This refers to its powers to serve notices under the Public Health Act or Building Act. It also refers to the importance of liaison with the local water supply company to check who owns sections of the drainage or sewer network.

Background & Chronology of events

19. Mrs C lives in an end terraced house. Her house is at approximately ninety degrees to another row of terraced houses. So, the rear wall of Mrs C’s property is adjacent to the side wall of House X which is the end house of the neighbouring terrace. Mrs C’s house is built on a lower level than House X. This means the ground floor of House X is higher than the ground floor of Mrs C’s home.
20. Mr B reports that the rear wall of Mrs C’s house, at its ground level, suffers a significant damp problem. Over time Mrs C has observed the problem appears to ease when House X (a private let) is left unoccupied, which has sometimes been for several weeks or months at a time and coincided with periods of heavy rain.
21. In September 2020 Mr D contacted the Council on Mrs C’s behalf. He said the problem had first been reported to the local water company. It had carried out a CCTV survey on drains serving House X. Mr D said it reported “an old waste pipe […] discharging in the direction of [Mrs C’s] wall”.
22. A Council EHO picked up the enquiry and offered to visit and liaise with the owner of House X.
23. That visit took place in mid-October 2020. The EHO’s notes show that he observed damp on the wall in Mrs C’s home where it adjoins House X. He noted that the area affected in Mrs C’s home was at a lower level than the ground floor of House X.
24. A few days later the EHO visited House X. His notes record that he checked pipework. He said there was “very little to check” as House X appeared to have a simple drainage system with internal connections to the soil stack (or main waste pipe) from an upstairs toilet, shower and sink and a downstairs sink and washing machine. The EHO put some dye in the downstairs sink to see if that may appear in Mrs C’s home.
25. The EHO advised Mr D of the above. He said he believed the sub soil underneath House X was getting wet. But said there could be many reasons for this and he could not see this was caused by defective drainage serving House X. But he asked Mr D to let him know if dye appeared in Mrs C’s home. He said this might not appear for several weeks.
26. In February 2021 the EHO contacted Mr D to enquire if any dye had appeared. It had not, although Mrs C’s comments suggested the dampness had got worse in recent weeks when she had noted the occupiers of House X using their washing machine more frequently. Mr D asked the Council to visit again.
27. In March 2021, the Council made further enquiries with the water company. The EHO had relayed to the water company the comments made to him by Mr D who understood the water company had observed an old waste pipe. But the letter the water company sent to Mrs C did not mention this; as it only referred to the CCTV finding no defects and the drainage serving House X to be in good condition. The water company offered to carry out a further survey.
28. In April 2021 the water company reported back to the Council saying it had completed a second survey. It said there was again no mention of any spur coming from the sewer serving House X, which appeared to be in good condition.
29. The Council did not visit the site again and after some time Mr B contacted the Council on Mrs C’s behalf making a complaint about the Council’s response.
30. In September 2021 the Council made fresh enquiries of the owner of House X. It wanted information about how rain-water drained from the property. The EHO then arranged to visit Mrs C’s house again to look at how rainwater drained from her property and next door.
31. Mr B reported he found the second site visit a waste of time and wrote to the EHO’s line manager to explain why. He said House X had been empty for six weeks and Mrs C’s wall was drying out as a result, but the EHO would not acknowledge this. Also, that Mrs C had been told of a problem with damp internally in House X. She had been invited in and seen that property too suffered from dampness on the wall adjoining the two properties. Mr B said all this was explained to the EHO, but he did not act on this new information. Mr B indicated that he considered the EHO had a poor attitude during the visit; not answering questions or offering to relay information back to his line manager.
32. Both Mr B’s account of the visit and the EHO’s notes indicate there was discussion about whether the soil stack serving Mrs C’s property could be the source of the problem. But Mr B says this is too far from where the wall becomes damp; that is shows no sign of any defect and it discharges below the level of the dampness in Mrs C’s home.
33. The EHO’s line manager wrote to Mr B in response to his complaint about the EHO’s visit. He did not comment on Mr B’s concerns about the EHO’s attitude, or the specific comments made about the condition of Mrs C’s home and House X; or any discussion around the soil stack serving Mrs C’s home. But the reply said the Council could not establish any fault in the drainage serving House X. As a result the Council was not able to take enforcement action using provisions in the Environmental Protection Act 1990 or Building Act 1984. The line manager suggested Mr B consider using a private remedy, for example using provisions in the Party Wall Act 1996.
34. The Council also offered a further inspection of Mrs C’s house to assess the extent of the damp hazard to Mrs C. But Mr B declined this, saying that she was aware of the extent of the problem. What Mrs C wanted was help in establishing the cause and for the Council to take action to prevent further water ingress.
35. The Council said in the light of the water company inspections and its own inspection it could not justify another visit. As there was nothing to indicate any defective drainage serving the neighbouring property.

My findings

36. As I set out above, the Council has legal powers to take action to ensure repairs to drainage or buildings if the condition is such that they are prejudicial to public health. But for the Council to consider using these powers it must have evidence of defects. So, while Mr B and Mrs C make an understandable connection between the damp problems being experienced in Mrs C’s home and the occupation of House X, that on its own is not enough for the Council to take action, formal or informal. It cannot be expected to act without evidence of a defect in House X.
37. At this time, I find there is no such evidence. I accept the account put forward by the Council that the two inspections it has undertaken – one internal at House X and one external to view rainwater drainage arrangements for both properties – have not identified any defect which could account for the damp. I have no grounds to say either inspection was inadequate given the specific purpose of each. I also make no criticism of the dye test which was undertaken. Because the ground floor of House X is higher than where damp appears in Mrs C’s home. So, any defect in the drainage serving House X may still have been highlighted by such a test.
38. I also consider the Council has liaised appropriately with the water company. The initial written report of the CCTV survey undertaken by the water company did not indicate any defect in the drainage serving House X. But the Council did not ignore the reports it received that Mrs C understood it had observed a pipe which may have caused waste to flow towards her property. Its contacts with the water company led the water company to CCTV a second time. Again, it found no defects and no evidence of any pipe discharging off the sewer network.
39. I considered if the Council should have tried to visit House X again after Mr B reported what Mrs C found when she was invited into that property. I consider best practice would have been for the Council to raise that report with the owner of House X, given that around this time it was liaising with the owner to discuss how rainwater was collected and discharged from the property. It could have considered undertaking a further internal inspection of House X at this point.
40. But I consider any failure to do so would be a matter of falling short of best practice and not a failing justifying a finding of fault. I say this because first, the presence of damp in House X, if confirmed, would not on its own be any evidence of a defect in that property which the Council may be able to enforce against. And I note here that the Council does not act in the way of a building surveyor. It would not usually be expected to undertake lengthy or intrusive property inspections involving actions such as lifting floorboards or removing wall decorations.
41. That said, I would expect the Council to note and explore if an inspection of a property indicated a potential issue with a leak of water not entering the drainage system. For example, if the Council observed water staining on the ceiling or walls indicating a leak. But there is nothing from its internal inspection in October 2020 suggesting any such evidence was present. So I can understand why the Council would not consider a further internal inspection of House X necessary and instead recommend Mr B pursue an alternative route to try and ascertain what causes the damp.
42. Finally, I also note Mr B’s concerns about the second visit undertaken by the Council where he has suggested the EHO had a poor attitude. He suggests both at the visit and subsequently, the Council failed to engage in discussion or answer pertinent questions relevant to the damp seen in Mrs C’s home.
43. I can make no comment on the EHO’s attitude as there is no independent evidence of exactly what transpired at the visit. But I can see that when Mr B raised his concerns with the EHO’s line manager, their response avoided comment on the EHO’s presentation and did not answer or comment on specific points made by Mr B. The response could have better acknowledged Mr B’s concerns therefore. However, I do not think it justifies a finding of fault as I consider the line manager could legitimately focus on the Council’s legal powers and why it saw no scope to use those at the time.
44. I summarise therefore that the Council has done all we expect here in carrying out both an internal and external property inspection and its liaison with the water company. I understand Mr B is unhappy with the outcome of those inspections and I recognise his ongoing concern that something defective in the condition of House X causes his mother’s house to be damp. But I cannot find fault with those inspections nor find fault in the Council not taking further action at this time.

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Final decision

45. For reasons set out above I do not uphold this complaint finding no fault by the Council causing injustice to Mr B or Mrs C. Consequently, I have completed my investigation satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman