Summary: Mrs X complains the Council has failed to take sufficient action to investigate nuisance from flies. The Council is at fault as it failed to carry out an investigation into whether flies were causing a statutory nuisance to Mrs X and other residents which will have caused frustration to them. The Council also failed to keep appropriate records of how it was dealing with the concerns and delayed in dealing with Mrs X’s complaint. The Council has agreed to remedy Mrs X’s injustice by sending a written apology to her and to other residents who were complaining about the flies.

The complaint

1. Mrs X complains that the Council has failed to take sufficient action to investigate nuisance from flies from a water treatment plant and ensure the water company controls flies at the site. In particular Mrs X complains that the Council has relied on a neighbouring council to take action despite part of the water treatment plant being in the Borough, failed to keep records of residents contact and evidence of fly infestation and delayed in responding to her complaint. As a result, Mrs X considers she has suffered from nuisance from excessive flies for longer than necessary.

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What I have and have not investigated

2. Mrs X has complained to the Council about excessive flies for a number of years. I have investigated events from November 2020 as I consider Mrs X could have made a complaint to us sooner and there are no good reasons to consider the earlier events.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. I have:

• considered the complaint and the information provided by Mrs X;
• discussed the issues with Mrs X;
• made enquiries of the Council and considered the information provided;
• invited Mrs X and the Council to comment on the draft decision. I considered the comments received before making a final decision.

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What I found

Law and guidance

7. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Typical things which may be a statutory nuisance include insect infestations from industrial, trade or business premises
8. 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.
   

9. 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. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
10. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
11. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices
 

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. An abatement notice 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. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Council’s complaints procedure

14. The Council has a two stage complaints procedure. It provides the Council should respond at stage one within 10 working days and at stage two within 15 working days.

What happened

15. Mrs X lives within the vicinity of a water treatment plant which is in the Council’s area and another council’s area who I shall name council A. Mrs X and other residents have complained about excessive flies from the treatment plant for a number of years.
16. In late 2020, council A served an abatement notice on the water company due to excessive flies which amounted to a statutory nuisance. The Council held a meeting with residents to discuss how the flies were affecting residents and the action to be taken. Residents’ records of the meeting showed the Council undertook to work with council A to find a long term solution to the problem. The Council has not provided records of the meeting.
17. In August 2021 Mrs X raised complaints about excessive flies entering her home. She also provided photographs to show the extent of the problem. Officer B, environmental health officer, advised Mrs X and other residents that he had contacted the water company and council A for an update as he was aware the previous lead officer had left. Mrs X chased for an update in October 2021 and raised that flies were still a problem.
18. Officer B replied and advised Mrs X and other residents that he and an officer from council A would visit the water treatment plant. He also stated that the Council would need to assess whether the nuisance was recurring as its residents were most affected and advise council A accordingly. Another resident also reported flies at this time.
19. Council A advised officer B that it could not enforce the abatement notice on evidence of nuisance caused to the Council’s residents. It could only take action on nuisance caused to council A’s residents. So, the onus was on the Council to take its own action. Officer B provided an update to councillors and said it would be worth arranging a meeting with residents, members and the water company to lead to a better understanding of what could be achievable.
20. In early February 2022 Mrs X made a complaint to the Council that it had failed to take sufficient action to prevent nuisance from flies. She also complained the Council did not have records of action taken or the meeting held in November 2020.
21. The Council replied on 31 March 2022 at stage one of its two stage complaints procedure. The Council said it had liaised with council A to address the problem, held meetings with the water company and residents. It also said the water company was carrying out treatments to control the flies and this appeared to be the best method to control the situation despite being 70% effective. The Council acknowledged communication between it and council A had been disjointed due to officers leaving both councils but effective dialogue was now being undertaken. The Council said it would carry out a review of the situation and consider lessons to be learned.
22. Mrs X escalated her complaint to stage two. The Council responded in early May 2022 and acknowledged it should have set out the scope of the proposed review which should be carried out within eight weeks.
23. The Council issued the review in early August 2022. It found:

• communications with all parties had been ad-hoc and sporadic. Notes of verbal communication had not been recorded.
• The Council had not obtained evidence of a statutory nuisance from the water treatment plant. There was limited evidence of recent monitoring visits to obtain evidence of nuisance.
• that it had duplicated records of complaints from residents making it difficult for managers to keep track of activity to address service requests.

24. The review made a number of recommendations about record keeping and the future actions to address the fly problem. This included promptly or proactively undertaking observation visits to monitor the site, recording evidence of the evolution of flies or if there is no presence of flies. If the Council found evidence of a statutory nuisance then it should engage with the water company to abate the nuisance. If no resolution could be found to abate the nuisance then the Council should seek legal advice.
25. The Council has now served an abatement notice on the water company.

The Council and Mrs X’s positions

26. In response to my enquiries, the Council has said it had intended to work with council A to enforce its abatement notice. There had been problems with case officers leaving both councils and emails sent to a former officer dealing with the case had not been diverted. The Council has continued to work with the water company but there does not seem to be another solution other than carrying out dosing treatments.
27. Mrs X considers the Council has failed to take action to prevent nuisance from excessive flies from the water treatment plant. She says the flies infest her and other residents’ homes in large quantities which is distressing.

Analysis

28. Councils have a duty to take reasonable steps to investigate complaints of a potential statutory nuisance. They also have a duty to inspect their areas from time to time to detect any statutory nuisance.
29. On balance, I consider the Council failed to investigate whether the flies were causing a statutory nuisance to its residents between November 2020 and August 2022. There is some evidence to show the Council was liaising with both council A and the water company regarding the control of the flies. But there is no evidence to show the Council investigated whether the flies were causing a statutory nuisance. The service of the abatement notice by council A showed there was a potential statutory nuisance in the Council’s area. The Council had held meetings with residents so it was aware of their concerns. The Council should therefore have carried out its own investigation into whether the flies were causing a statutory nuisance to Mrs X and other residents in its area. Its failure to do so is fault.
30. The Council may have thought it could rely on the abatement notice served by council A in November 2020. The Council has said there have not been any previous occasions where an abatement notice has been served on land bordering its area or affecting more than one local authority. As this was an unusual situation the Council should have taken advice as to what effect council’s A abatement notice had on its own powers and duties to investigate and abate statutory nuisances in its own area.
31. There is also no evidence to show the Council investigated whether the flies were causing a statutory nuisance in 2021 when residents made further complaints and when council A confirmed it could not rely on another council’s evidence to enforce the abatement notice. I note the Council’s review stated it did not have evidence to show the flies were a statutory nuisance. But the Council has not provided any evidence to show it investigated whether the flies amounted to a statutory nuisance. The failure to investigate is fault.
32. Evidence provided by Mrs X show the Council has now investigated the fly nuisance and considered whether the flies amount to a statutory nuisance. It intends to serve an abatement notice. But I cannot conclude, on balance, the outcome would have been any different for Mrs X if the Council had investigated sooner. I cannot know if the Council would have found a statutory nuisance if it had investigated earlier. Even if it did and served an abatement notice, I cannot know this action would have reduced the fly nuisance. I say this as the abatement notice served by council A has not prevented nuisance from the flies and there are limited options for controlling the flies. But Mrs X and other residents will have been caused frustration and distress by the Council’s failure to investigate. The Council should apologise to Mrs X and the other residents who have complained about the flies for this injustice.
33. The Council’s review identified issues with the Council’s record keeping. I also consider the Council’s record keeping is poor and amounts to fault. The Council does not have records of the meetings held with residents, members, the water company and council A. The Council therefore does not have an audit trail of how it has dealt with the concerns and how it has made its decisions. I note the Council intends to review its statutory nuisance procedures and reinforce the instructions to officers to record events and make appropriate records. But it should quickly review its recording keeping procedures to ensure it is keeping appropriate records of ongoing and new investigations.
34. The Council delayed in dealing with Mrs X’s stage one complaint and its response was outside the timescales set out in its complaints procedure. This is fault. The Council also did not provide the outcome of the review to Mrs X within its promised timescale of eight weeks. This will have caused additional frustration to Mrs X which the Council should apologise for.

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Agreed action

35. That the Council will:
1. send a written apology to Mrs X and the other residents who raised complaints about fly nuisance between November 2020 and August 2022 for the frustration caused by its failure to investigate whether the flies were causing a statutory nuisance.
2. send a written apology to Mrs X for the frustration caused by its delay in dealing with her stage one complaint and the review. This can be included in the apology set out at a) above.
3. review its record keeping for dealing with and investigating complaints of statutory nuisance to ensure it has a record of complaints, key actions including site visits, contact and correspondence with relevant parties and reasons for decisions. The Council should explain to the Ombudsman how it has improved its practice in this area.
36. The Council should take the action and a) and b) within one month of my final decision and the action at c) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

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Final decision

37. Fault causing injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman