Summary: Mrs X complained on behalf of Mrs Y that the Council delayed in taking action to resolve her complaints about her neighbour’s overgrown garden because of which foul smells and rats were entering her property and affecting her enjoyment of her garden. We found no fault on the Council’s part.

The complaint

1. Mrs X complains on behalf of Mrs Y that the Council has delayed in taking action to resolve her complaints about her neighbour’s overgrown garden resulting in foul smells and rats entering her property. As a result, she has suffered distress and has been unable to use her garden. She also says the neighbour, who is unable to look after her property herself, is not being adequately supported by the Council.

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The Ombudsman’s role and powers

2. 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)
3. 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. I have considered all the information provided by Mrs X, made enquiries of the Council and considered its comments and the documents it provided.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

The Prevention of Damage by Pests Act 1949

7. This Act states that a council may serve a notice on the owner or occupier of land requiring them to take reasonable steps to destroy rats or mice on the land. If they fail to take the steps required by the notice within the period prescribed, the Council may take those steps and recover its reasonable expenses for doing so.

The Public Health Act 1936

8. Section 83 states that, where a council is satisfied that any premises:
1. are in such a filthy or unwholesome condition as to be prejudicial to health, or
2. are verminous

it shall give notice to the owner or occupier of the premises requiring them to take steps to remedy the condition of the premises by cleaning and disinfecting them and taking steps to destroy or remove vermin.

9. If the person receiving the notice fails to comply with its requirements, the Council may carry out the work itself and recover its reasonable expenses
10. Section 287 provides the Council with the power to enter premises with a warrant to complete an inspection or to complete works.

Key facts

11. In June 2020 Mrs X contacted the Council on Mrs Y’s behalf reporting that her neighbour’s garden was overgrown, and foul smells and rats were coming from the property. Mrs Y is elderly and was very distressed by the situation and unable to enjoy her garden.
12. On 4 August 2020 an environmental protection officer, Officer A, wrote to the neighbour, Ms Z, explaining that the Council had received complaints about her garden. Officer A had had previous dealings with Ms Z and asked her to contact him to arrange a time to inspect her house. He updated Mrs Y a few days later.
13. Ms Z contacted Officer A requesting details of a gardener she had used previously and he provided this information. However, the situation was not resolved so, in October 2020, Officer A served a Notice under the Prevention of Damage by Pests Act 1949 giving Ms Z 90 days’ notice to clear the garden.
14. On 5 January 2021 the case was transferred to another environmental protection officer, Officer B.
15. On 15 January the notice served by Officer A expired.
16. On 11 February Mrs X contacted Officer A’s manager as she had heard nothing since October 2020 and was aware that the notice expired in January 2021. The manager explained that Officer B had taken over the case.
17. Between 12 and 22 February 2021 Officer B made several attempts to contact Ms Z without success. So, he and his manager reviewed the case and decided to seek further evidence so they could serve a notice under the Public Health Act. This would enable them to apply for a warrant to enter the property and carry out works in default if Ms Z did not comply.
18. Mrs X says that, after persistent emails and telephone calls from her, Officer B contacted her on 3 March 2021 and informed her that he would be serving a different notice.
19. Officer B inspected Ms Z’s garden on 10 March. He found it was overgrown but did not observe the usual evidence of rats such as burrows or food sources. He also inspected Mrs Y’s garden and found no rat activity. He found the rats had not taken bait laid by Mrs Y. The officer wrote to Mrs X with an update.
20. On 17 March Officer B laid test baits in Ms Z’s garden to verify whether there was a pest infestation and updated Mrs Y. He visited again a week later. He found the test baits had been taken but considered this was consistent with foxes rather than rats. He advised Mrs Y he would serve a notice on Ms Z to gain access to her house to assess the situation.
21. On 31 March Officer B served Ms Z with a notice under Section 287 of the Public Health Act for entry to the premises to complete an inspection.
22. Officer B attempted to gain entry to Ms Z’s house on 22, 27 and 28 April but was unsuccessful. So, on 28 April he applied to the court for a warrant of entry.
23. On 5 May Officer B visited Mrs Y’s property. He found no rat burrows but saw evidence of foxes. He also visited Ms Z’s property but obtained no answer.
24. On 28 May Ms Z allowed Officer B access even though a warrant had not yet been received from the court. Officer B completed an inspection of Ms Z’s house. He decided the property met the threshold to serve a Section 83 Public Health Act notice.
25. Officer B served a notice requiring Ms Z to clear the house and gardens and carry out pest control against rats.
26. Mrs X made a formal complaint to the Council. The team manager responded on 2 June 2021. Mrs X was dissatisfied with the response and requested that her complaint be escalated to stage 2 of the Council’s complaints procedure.
27. On 3 June Ms Z agreed she would sign a form allowing the Council to carry out the necessary works. But she did not do so despite emails from Officer B. So, the Council applied for a warrant of entry on 28 June and sent an update to Mrs X.
28. The court granted the warrant on 15 July 2021.
29. On 22 July the Council responded to Mrs X’s complaint at stage 2 of its complaints process. It did not uphold the complaint but accepted it had taken longer to deal with the case than it would expect. It apologised for this and offered Mrs X £100 for her time and trouble in raising the complaint and Mrs Y £150 for any distress and inconvenience caused. They declined the Council’s offer as the issue had not been resolved.
30. The Council arranged for works to the house and garden to begin on 27 July. After completion of the work, baiting was undertaken for rats. Bait was taken from the garden on one occasion but officers did not find live rats or nesting.
31. The Council was satisfied that the garden and house had been cleared and the Section 83 Public Health Act Notice had been complied with. Mrs Y was not satisfied with the works and paid her own gardener to clear branches and brambles which were growing over into her garden.
32. In September the Council’s pest control team completed baiting to Mrs Y’s property. No rats were found.
33. In October, after further correspondence with the Council, Mrs Y accepted £150 to cover the cost of the gardener she had paid to complete the clearing works and Mrs X accepted a payment of £50 as a gesture of goodwill.
34. Officer B visited the property again in December 2021. He found the garden was starting to regrow but was satisfied there were no enforcement issues.

Analysis

35. I find no grounds to criticise the Council’s handling of this matter.
36. I find it was appropriate for Officer A to deal with the matter informally at the outset, particularly as Ms Z had cooperated previously. When she did not carry out the required works, he served a notice under the Prevention of Damage by Pests Act 1949 which allows a council to deal with a nuisance in a garden and carry out works in default if the resident fails to comply with the notice.
37. It was a matter for Officer A’s professional judgement which legislation to use in the circumstances. Although such a notice does not include a right of entry, he was entitled to conclude that this would not be necessary given that Ms Z had previously cooperated and allowed works to be undertaken.
38. When the notice expired in January 2021, officers acted appropriately by reviewing the case and considering how best to proceed. Given that Ms Z was not engaging with Officer B, there are no grounds to criticise their decision to use different legislation and serve a notice under the Public Health Act. This would give the Council the option to apply to the court for a warrant to enter the premises and remedy any problems, both internally and externally, if Ms Z did not comply.
39. At this stage officers were not satisfied there was sufficient evidence to serve a notice because the overgrown garden was not enforceable, and Officer B had found no evidence of rats or observed any foul smells. So, Officer B tried to gain access to inspect the house. He visited several times but was unable to gain access. He therefore applied to the court for a warrant of entry. It was not until Officer B completed the inspection on 28 May 2021 that he considered there was enough evidence to support the service of a notice. This was a matter for his professional judgement.
40. I accept this was a lengthy process but the delay in achieving clearance of the house and gardens was caused by the fact that Ms Z was not cooperating with the Council which meant that officers had to visit on numerous occasions and, ultimately, had to obtain a warrant of entry from the court.
41. I appreciate Mrs Y does not consider the works went far enough. But officers were satisfied the clearance works were sufficient to comply with the requirements of the notice. This it is a matter for their professional judgement.
42. Mrs X says the Council should provide support for Ms Z to prevent the situation recurring in future. For confidentiality reasons I cannot say what support the Council is providing to Ms Z. However, there is no requirement for the Council to maintain or monitor the condition of Ms Z’s garden.

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Final decision

43. I do not uphold Mrs X’s complaint.
44. I have completed my investigation on the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman