Summary: We will not investigate this complaint about the Council’s decision to serve an abatement notice. This is because it would have been reasonable for the complainant to use their right to appeal against the serving of the notice in court.

The complaint

1. The complainant, whom I shall refer to as Ms X, has complained about the Council’s decision to serve her with an abatement notice. Ms X says the Council failed to carry out a proper investigation and served the notice without warning. Ms X says the notice should be revoked and the Council should compensate her.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

4. I considered information provided by Ms X and the Ombudsman’s Assessment Code.

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My assessment

5. If a council identifies a statutory nuisance, it must serve an abatement notice. An abatement notice requires the perpetrator or owner of the property to take steps to abate the identified nuisance. The recipient of an abatement notice has a right of appeal against the notice to the magistrates’ court.
6. In this case, the Council was contacted by Ms X’s neighbour in relation to water leaking into their property. An officer from the Council visited and witnessed water coming from the ceiling and concluded the water was likely coming from Ms X’s property. As the officer was satisfied there was a statutory nuisance, they served Ms X with an abatement notice.
7. Ms X says the Council did not carry out a proper investigation and failed to communicate with her before serving the abatement notice. She says had it done so it would have discovered she was not responsible for the source of the leak and the costs she incurred complying with the notice could have been avoided.
8. However, Ms X could have appealed against the serving of the notice in court. I consider it would have been reasonable for Ms X to have used this appeal right and raise her concerns about the notice in court. The Ombudsman will not usually investigate when someone could have taken a matter to court.

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Final decision

9. We will not investigate Ms X’s complaint because she had a right of appeal to the courts.

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Investigator's decision on behalf of the Ombudsman