Boston Borough Council (16 013 127)

Category : Housing > Private housing

Decision : Not upheld

Decision date : 08 Mar 2017

The Ombudsman's final decision:

Summary: Mr X says the Council is at fault for failing to take action regarding an empty property near his home. The Ombudsman has found no evidence of fault by the Council and he has therefore ended his investigation of this complaint.

The complaint

  1. Mr X says the Council is failing to take action regarding an empty property next to his home (which I refer to as ‘the property’). He also says the Council failed to investigate his complaint about this matter. Mr X would like the Council to make the owner repair the property.

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The Ombudsman’s role and powers

  1. 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)

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How I considered this complaint

  1. I considered Mr X’s complaint and information provided by the Council including correspondence between it and Mr X. I also had regard to the relevant Council policy. I set out my initial thoughts on the complaint in a draft decision and invited Mr X and the Council to comment.

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What I found

  1. This policy sets out that the Council can only enforce the sale of an empty home when the Council has placed a local land charge on a property for works in default because the owner cannot be traced or is unwilling to act. With an enforced sale the Council is able to recover reasonable cots through the sale of the property and any remaining funds after paying all the charges are paid to the owner.

The Town and Country Planning Act 1990, Section 215

  1. This section of the Act allows local authorities to take action to require owners to clean up land if it is adversely affecting the local amenity. The use of Section 125 by local authorities is discretionary.

Key events

  1. Mr X lives next door to the property which has been empty since 2006 and is in a state of disrepair.
  2. The Council contacted the owner of the property during the period 2010-2013 attempting to bring it back into use. The Council’s attempts included offering the owner an Empty Home Loan and other schemes to help the owner bring the property into use.
  3. In November 2013 Mr X reported problems about the property to the Council.
  4. Following Mr X’s report the Council contacted the owner and reiterated its offer of assistance including the offer of an Empty Home Loan.
  5. In March 2014 the Council boarded up parts of the property as it was insecure.
  6. Meanwhile the Council considered Mr X’s suggestion that it use S215 of the Town and Country Planning Act 1990 to resolve matters. However the Council did not consider this would be appropriate to use this provision and continued to contact the owner of the property to resolve matters.
  7. In July the owner of the property told the Council works were underway to address the disrepair. Unfortunately the repairs did not commence and the Council had to board up further parts of the property.
  8. The Council wrote to the owner of the property again in August and October as no work was undertaken by the owner.
  9. The Council continued to liaise with Mr X and it told him that it would be seeking changes to its Private Sector Housing Policy to give the Council options to secure a long term solution.
  10. In March 2015 the Council introduced a new Private Sector Housing Policy which included provision for the Council to enforce the sale of empty properties in disrepair.
  11. In May the Council wrote to the owner saying that it would be taking action as the property had been occupied by squatters.
  12. In June the Council gave notice to the owner of the property that it considered it to be a statutory nuisance and would be taking action under the Environmental Protection Act 1990 (EPA). The Council entered the property later that month.
  13. In August the Council cleared the contents of the property and boarded it up.
  14. The Council wrote to the owner sending an invoice for the clearance of the property and advising that it was considering enforcing the sale of the property.
  15. No response was received and the Council issued instruction to its legal representatives to begin work on enforcing the sale of the property. However the owner paid the Council all the outstanding money owed to it. For this reason the Council could no longer enforce the sale of the property.
  16. Mr X says problems at the property persist and he is unhappy the Council has not resolved matters. The Council says the property is in a better condition than it has been previously and there are no grounds for it to take further action at this time.

Analysis

  1. Mr X says the Council has failed to action to address the problems posed by the property. I do not agree. The Council has been trying to bring the property back into use before and after Mr X’s report of problems. Since Mr X has asked for assistance from the Council it has tried to engage with the owner so that works can be carried out and to get the property back into use. I do not see the Council could have done more to encourage the owner to take action.
  2. Following its unsuccessful attempts to encourage the owner to take action the Council considered taking action taking action using section 215 of the Town and Country Act. However it concluded that doing so was not appropriate in this case. This was a decision the Council was entitled to take as use of the act is at the discretion of the Council. Furthermore government guidance on the use of Section 215 says that in some cases other legislation may be more appropriate. In this case, the Council used the EPA to clear and the board up the property in August 2015. I do not find the Council at fault in its handling of these matters.
  3. During its consideration of this matter the Council made changes to its Private Sector Housing Policy so that it would have more options to deal with problems like those posed by the property. The Council used the revised policy to try to enforce the sale of the property following its actions using the EPA. As the Council had incurred costs associated with clearing and boarding up the property it had grounds to pursue an enforced sale. However the owner paid the Council these costs prior to the enforced sale completing. For this reason the grounds for pursuing an enforced sale no longer existed. I do not see what more the Council could have done using these powers.
  4. I understand from Mr X that the Council has altered wording on its website. It had previously said that if you owned a property in disrepair you would be served a notice. The website now says you may be served a notice. I consider the Council has taken appropriate action to alter the wording so it does not raise residents’ expectations about what action the Council might take it such situations. The Council will not always serve notices on empty properties as it needs to consider each case on its merits. I do acknowledge the previous wording would have raised Mr X’s expectations about what the Council would do to resolve problems.
  5. Mr X says the Council did not properly investigate his complaint. I do not agree. The Council replied to Mr X’s complaint but explained that there was no further action it could take. As set out the Council has limited powers to take action on which it can only use if there are grounds to do so. While I understand the property is still in a state of disrepair the Council says there are no grounds for it to return to the property. While I appreciate Mr X is unhappy that his complaint did not result in the Council taking further action this does not mean it did not consider it.

Agreed action

  1. I understand that Mr X continues to have concerns about the property. I recommend the Council continue to monitor the situation and liaise with Mr X so that it can see if any changes at the property provide grounds for it take new action against the owner.

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Final decision

  1. I have found no evidence of fault by the Council and I have therefore ended my investigation of this complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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