Summary: Mr X complained the Council failed to properly investigate his reports of water contamination in his home. We find fault with the Council’s complaint handling, but we find it has already acted to remedy the uncertainty and frustration caused by this.

The complaint

1. Mr X complains there was delay by the Council in responding to reports that the private water supply (PWS) to his home was unfit to drink. Mr X says the Council sent a notice to the wrong company, failed to communicate with him about its actions and delayed responding to his complaint. Mr X says this caused stress and anxiety, and he had to pay for bottled water and tests.
2. Mr X also complains about the Council’s actions in relation to works to the PWS and ensuring it was safe from October 2024 to February 2025.

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The Ombudsman’s role and powers

3. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)
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(1), as amended)

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What I have and have not investigated

6. We cannot usually investigate complaints unless we are satisfied the Council has had a chance to look into them first. This includes events that are linked to or ongoing from the complaint that has been brought to us.
7. As Mr X brought his complaint to the Ombudsman in October 2024, any complaint about events that have taken place since that time would be considered new issues and Mr X would need to raise these with the Council directly.

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How I considered this complaint

8. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
9. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and policy

10. The Private Water Supplies (England) Regulations 2016 are designed to protect public health by ensuring that private water supplies are safe to drink. The regulations set out Local Authorities’ responsibilities for sampling and risk assessing private water supplies in their area.
11. Regulation 4. (1) states that a private supply of water is to be regarded as wholesome if the following conditions are met—
1. it does not contain any micro-organism, parasite or substance, alone or in conjunction with any other substance, at a concentration or value that would constitute a potential danger to human health;
2. it complies with the concentrations or values prescribed in Part 1 of Schedule 1 for each parameter; and
3. the water satisfies the formula “[nitrate]/50 + [nitrite]/3 1”, where the square brackets signify the concentrations in mg/1 for nitrate (NO3) and nitrite (NO2).
12. Water with nitrate levels above 50 mg/L is unwholesome and a potential risk to human health. The Local Authority must carry out an investigation to establish the cause if it suspects a PWS is unwholesome.
13. Regulation 18 of The PWS (England) Regulations 2016 requires a Local Authority to serve a notice on the relevant persons where water is a potential danger to human health. This requires the supply to be temporarily restricted and improved.
14. A relevant person according to the regulations is
• The owner and occupier …of premises supplied with water...by means of a private supply.
• The owner occupier…of land on which part of the supply is situated.
• Any other person who exercises powers of management or control in relation to that supply.
15. The Drinking Water Inspectorate (DWI) issues guidance on drinking water quality and has oversight of Local Authority enforcement of regulations for PWS.
16. The United Kingdom Accreditation Service (UKAS) is a government body which assesses and accredits testing and inspection organisations.
17. The United Kingdom Health Security Agency (UKHSA) is a government agency which prevents, prepares for and responds to infectious diseases and environmental hazards.

What happened

18. I have summarised below some key events leading to Mr X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
19. Mr X owns a property with a PWS via a borehole which supplies water to his home and other dwellings on his road. The development company owned the land on which the borehole was sited.
20. In March 2024 Mr X asked the Council to test the water because he had concerns about its quality. Mr X said it had been tested a year earlier.
21. The Council responded in three days that it was required to monitor PWSs according to the Private Water Supply Regulations and said it would arrange water sampling later in the year.
22. Mr X contacted the Council again to explain tests showed bacteria in the water and he believed the filtration system was not suitable.
23. The Council contacted the development company for the properties about proposed changes to the responsible parties, and the contractor who had installed the filtration system.
24. Mr X contacted the Council again in April 2024 to explain he had been trying to reach it as he felt the situation was urgent and was worried the development company was not taking action and he would arrange testing of the PWS himself.
25. The Council explained it had been working with the development company and the company that had carried out the original risk assessment and water sampling. The Council said the PWS did not represent a risk to public health and the filtration system was suitable. The Council said its contractor would carry out testing of the water in the near future and asked whether the sampling Mr X had arranged was by a UKAS accredited laboratory.
26. Mr X told the Council the testing was completed by a UKAS accredited laboratory and provided results showing nitrate levels of 55 mg/L. Mr X said this was higher than the maximum levels and was a risk to human health. Mr X again said he was concerned about the development company and asked the Council to take urgent action.
27. The Council sent the tests to the development company and it said it was committed to resolving the issues. The Council also discussed the tests with its risk assessment contractor.
28. On 19 April the Council told Mr X the nitrate failures at the sampling level would not be a health risk unless there were babies under the age of three months in the household who were bottle fed using the water. The Council said it would carry out risk assessments and sampling to decide if remedial action was needed.
29. The Council then sent questionnaires to Mr X and the other households to identify whether there were any vulnerable people who may be affected by the PWS.
30. Mr X questioned why the Council had said the PWS was not a health risk when the Private Water Regulations 2016 set out the maximum nitrate levels. Mr X said high levels were a cancer risk.
31. In late April 2024 Mr X told the Council the development company, being the landowner, was responsible for the borehole and provided Land Registry records to confirm this. Mr X said the Council should complete a risk assessment as soon as possible and serve notice if the water presented a potential danger to health.
32. The Council said it was following legislation and explained regulations required intervention when nitrate was over 50 mg/L “as potentially unwholesome water (not a public health risk)”. The Council said it was arranging further testing and a new risk assessment within 28 days. It said the regulations deemed the water fit for human consumption at current levels, but if nitrate rose to 100 mg/L it would consider this a potential danger to human health and would prohibit drinking the water.
33. The Council said that its risk-based evaluation would consider:
• Whether the nitrate exceeded the level on more than one occasion.
• The likelihood of further breaches based on the risk assessment.
• Minimum and maximum and average recorded levels to identify rising trends.
• The likely maximum concentration in the supply if not mitigated by other measures.
34. Mr X again questioned the Council’s view on regulatory levels and its comments regarding levels up to 100 mg/L and said the Drinking Water Inspectorate had confirmed the limits in the PWS regulations were mandatory.
35. The Council liaised with the DWI and UKHSA regarding the nitrate limits. The Council noted the DWI agreed it was taking the correct action in investigating, completing a risk assessment and further sampling before issuing a notice if necessary.
36. The Council’s contractor completed a risk assessment on 17 May, recommending works to improve the PWS. That same day, the Council sent further questionnaires to the owners who had not replied.
37. The Council emailed Mr X about the change in responsibility for the PWS from the development company to the management company. The Council said it understood the development company had applied to the Land registry to transfer the land to the management company, but Mr X said the transfer of ownership had not yet taken place and was being investigated.
38. In June 2024 Mr X’s solicitor told the Council the transfer of ownership of the PWS and common parts had not taken place and it should issue a notice to the development company. The Council sought further information about the change in ownership and, in late June 2024, said it would serve notice on the development company to complete remedial action.
39. On 3 July the Council’s contractor completed sampling of the PWS, which showed nitrate levels of 56 mg/L. The Council received the results the next day.
40. On 5 July the Council told the development company about the nitrate results and said it intended to serve a regulation 18 notice on it, restricting the supply and requiring remedial action. The development company then notified all owners of the results and said they should not drink the water as it was unwholesome and should drink bottled water instead.
41. In the following days the Council contacted the development company, who said it was not the responsible party, and the land had been transferred to the management company and the owners were responsible for PWS management.
42. The Council received evidence ownership of the communal land with the borehole had been transferred to the management company. On 10 July, the Council served a regulation 18 notice on the directors of the management company. This notice referred to the development company and stated the development company must restrict the supply, advising consumers they must not drink the water as it contained nitrate in excess of the PWS regulations. It said the development company must display the notice and complete the remedial works in its risk assessment within 60 days. The notice explained the right of appeal to a Magistrates Court.
43. The development company confirmed it displayed the notice and delivered bottled water to residents.
44. Mr X complained to the Council in July 2024 saying it had failed to act urgently and had delayed since March 2024. Mr X said the Council had not followed PWS regulations as it should have acted when sampling showed nitrate levels above 55 mg/L in April 2024. Mr X said the Council had not explained why it said the water was only unsafe for bottle fed infants, when the DWI said it was unfit for all humans. Mr X also said the Council had delayed serving notice between 5 July and 10 July and then had incorrectly served this on the management company prior to the change in ownership being registered with Land Registry.
45. On 2 August the Council extended the compliance period by 14 days because it had not provided all the sampling information to the development company.
46. The Council responded to Mr X’s complaint, explaining it accepted Mr X’s UKAS accredited sample results in April 2024. It discussed the matter with its risk assessor and determined the water was unwholesome but was unlikely to cause imminent danger. It explained it sought advice from UKHSA. It said:
• the nitrate levels were above the UK regulatory limit for the general population. “This does not mean that adverse effects would occur, but it reduces the margin of safety generally considered desirable to protect public health.”
• As a precaution, it was not recommended that anyone should drink water containing nitrate above the regulatory limit of 50 mg/L regularly, and an alternative source of clean drinking water should be used.
• If the nitrate concentration is above 50 mg/L, then infants up to the age of six months should not drink the water and should be given ready-diluted liquid formula or feeds made from an alternative supply.
47. The Council said it had carried out a risk assessment in May 2024 and its contractor sampled the water on 3 July, the result of which was the second incidence of nitrate level exceedance. The Council said it had carried out Land Registry and Companies House checks before issuing notice on 10 July. It said there were five days, two of which were non-working days, between receiving the information and issuing the notice. The Council explained it had agreed an extension for compliance due to delays in the contractor providing information.
48. Mr X asked the Council to reconsider his complaint and he said it had not responded fully and had not explained why the wrong party was served notice.
49. On 21 August, after considering Mr X’s comments, the Council issued a regulation 18 notice to the development company, the management company and to each owner of the properties. The Council explained it was serving notice to all those it reasonably believed were relevant parties and it was imperative they all worked together to rectify the issue.
50. Remedial works were completed in September 2024 and sampling on 1 October found nitrate levels reduced to acceptable levels.
51. The Council then responded to Mr X’s complaint, apologising for the delay, and explaining it had issued the notice to the management company as it believed them to be the correct party. The Council said it had now served notice to the development company as well as the owners.
52. On 24 October the Council advised the development company the notices were revoked as the nitrate levels had reduced to acceptable levels. The development company forwarded this information on to the owners.

Analysis

53. The Council arranged a risk assessment within 28 days of receiving evidence showing nitrates in excess of 50 mg/L. The Council’s contractor carried out sampling on 3 July 2024 and owners were advised not to drink the water on 5 July 2024. The Council then promptly issued a regulation 18 notice within a week of receiving the results of the sampling. I do not find the Council at fault for delays in progressing matters.
54. The Council explained its reasons for not issuing notices after the first nitrate exceedance in April 2024 and explained this in more detail in August 2024. There were no vulnerable groups identified using the PWS and I do not find the Council at fault here.
55. The Council sent questionnaires to all occupiers to assess whether they were affected by the PWS. The Council then reissued the questionnaires to occupiers who had not responded. I do not find fault with the steps the Council took to assess who was affected by the PWS. However, this questionnaire did not ask for details for the Council to be able to assess whether there were vulnerable people who were likely to be affected. That said, the Council’s opinion was that the PWS was unwholesome but not a public health risk so I would not find it at fault for not doing more to identify any vulnerable occupiers.
56. In any case, the Council has confirmed its officers and contractors made numerous site visits and did not identify any vulnerable people in that time and bottled water was provided. The Council has also confirmed it will use a questionnaire going forward with a question to help it identify any potentially vulnerable occupiers. So even if I were to find fault, I find the Council has taken suitable action to address this going forward.
57. The Council sent notice to the management company on 10 July 2024 in good faith based on the information it had at the time. While the notice referred to the development company rather than the management company, this does not appear to have affected the progress of the rectification work, and I do not find the Council at fault here.
58. Even if I were to find the Council at fault for serving notice on an incorrect party, it appears the development company took the required action to restrict the supply, provide bottled water and carry out the works. It is unlikely I would find any fault here caused significant injustice.
59. The Council extended the time for the management company to comply with the notice by 14 days. This is not an unreasonable delay, and I do not find the Council at fault here.
60. Mr X asked the Council to reconsider his complaint in August 2024, but it did not respond until more than 10 weeks later. This is a delay and amounts to fault, which would have meant Mr X spent more time in the complaints process than necessary and was caused frustration and uncertainty, which is injustice. However, the Council has already apologised for the delays, and I find this suitable action to address the injustice to Mr X.

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Decision

61. I find fault causing injustice, but the Council has already acted to remedy this injustice.

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Investigator's decision on behalf of the Ombudsman