Summary: Mr X complained the Council delayed responding to his reports of a drain leaking on his property from the privately owned property next door and did not properly consider the matter. Mr X further complained the Council delayed in considering his complaint about the matter. The Council delayed in taking action, failed to communicate with Mr X and failed to consider his complaint. This caused Mr X frustration, uncertainty and time and trouble. The Council agreed to apologise and pay Mr X £200 to recognise the same.

The complaint

1. Mr X complained the Council delayed responding to his reports of a drain leaking on his property from the privately owned property next door and did not properly consider the matter. Mr X further complained the Council delayed in considering his complaint about the matter. Mr X says this caused him and his child harm and distress.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (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 read the documents Mr X provided and discussed the complain with him on the telephone.
6. I considered the documents the Council sent in response to my enquiries.
7. Mr 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

Relevant legislation and guidance

Statutory nuisances

8. 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:
• noise from premises or vehicles, equipment or machinery in the street;
• smoke from premises;
• smells from industry, trade or business premises;
• artificial light from premises;
• insect infestations from industrial, trade or business premises;
• accumulation of deposits on premises.
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. 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.

Building control

12. Councils have extensive powers to protect the public, ranging from checking building works for compliance with Building Regulations, and requiring or carrying out emergency works to make buildings safe. Council’s powers are set out in the Building Act 1984 and the Building Regulations 2010.
13. The regulations apply to building work including:
• the erection or extension of a building
• the material alteration of a building
• provision or extension of a controlled service or fitting to a building
• underpinning a building.
14. Councils may take action to protect the public if it considers a building or structure in its area to be unsafe. Councils may order works to improve defective, dangerous or dilapidated buildings or structures. If the building owner does not comply with the order, the council may carry out the works and charge for its costs.

Council’s complaints procedure

15. The Council’s corporate complaint procedure sets out how it will consider complaints about services it provides. It has three stages:
• Stage one – an investigation by a service manager and a response within 10 working days
• Stage two – the corporate complaints team will investigate and respond within 20 working days
• Stage three – a review by an Adjudicator within 30 working days.

What happened

16. Mr X lives in a property that is attached to a pub. Mr X describes the pub as being permanently closed.
17. Mr X complained to the Council’s Safer Communities Service (SCS) in February 2022 about a drainpipe on the outside of the pub that went into his garden. He said the rainwater pipe had been replaced with a wastewater pipe and was causing flooding and contamination in his garden.
18. The SCS responded in March 2022 and told Mr X incorrect pipework would not be a statutory nuisance. It advised him to complain to its Building Control Department. The SCS also contacted the Building Control department on Mr X’s behalf.
19. Mr X contacted the Building Control department but did not receive a response. Records show the Building Control department did not respond because it was not responsible for monitoring repairs to existing drains.
20. Mr X complained to the Council in September 2022. He said the Council had not investigated his complaint about the drain, and had not communicated with him.
21. Mr X also complained to a Councillor in September 2022. The Councillor passed the complaint to the Council. Mr X said:
• a small drain for surface water had been replaced with a large drain that now contained wastewater and was a health hazard; and
• he had been complaining to the Council about it since October 2021 but had not got a response.
22. Internal communication shows the Council considered the complaint in October 2022 and decided it was not a matter for the Building Control department as it was not a new drain. It said it was a civil matter between neighbours and could be considered by the SCS.
23. The SCS contacted the property manager of the pub who said they were aware of the leak and had fixed it. Mr X told the Council the problem was continuing.
24. The Building Control department visited the pub in November 2022. It confirmed to the SCS that the property had not been recently converted and therefore it was not responsible for considering the drainpipe. It did not tell Mr X.
25. The CSC also visited the property in November 2022, with Mr X and the property manager. The property manager identified the problem had been caused by a blockage and he had taken action to ensure it would not happen again. At that time there was no leak and no standing water. The Council said it informed Mr X there was no evidence of a statutory nuisance to investigate. It confirmed it would not take any further action.

My findings

26. Mr X contacted the SCS and Building Control departments of the Council. Both departments considered the matter to be the other’s responsibility and so neither took action. The poor internal communication caused a delay of eight months in the Council taking any substantive action. That was fault and caused Mr X frustration.
27. When the SCS department investigated it found the problem had already been rectified by the property manager, there was no statutory nuisance to investigate and no basis on which to take any action. There was no fault in the way the Council made that decision.
28. The Building Control department considered there was no action it could or should take. This was because Mr X’s complaint was not about new building work covered by the regulations, as the property had not been redeveloped. There was no fault in how it made that decision. However, the Building Control department did not respond to Mr X or tell him its decision. This caused Mr X frustration and uncertainty about whether the Council had properly considered his complaint about the matter.
29. Mr X complained to the Council in September 2022. The Council did not respond to that complaint under its corporate complaint procedure. That was fault. Had the Council acted without fault it could have resolved the complaint without Mr X having to complain to us. The fault caused Mr X frustration and time and trouble.

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Agreed action

30. Within one month of this decision, the Council will apologise for the frustration, uncertainty and time and trouble caused to Mr X by the delay and poor communication. It will pay him a symbolic amount of £200 to recognise the same.
31. Within two months of the final decision, the Council will:
• remind relevant staff within the Building Control department to respond to enquiries and complaints directly, and provide an explanation where it decides it has no remit to investigate; and
• remind relevant staff to follow its own corporate complaints policy in considering complaints about Council services.
32. The Council will provide us with evidence it has complied with the above actions.

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Final decision

33. I have completed my investigation. I found fault leading to injustice and the Council agreed to my recommendation to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman