Summary: Mr C says the owner of the house next-door carried out building works that caused dampness in his house which made family members ill. He says the Council is at fault for a failure to accept this and for failing to take enforcement action having said it would. The Council was not at fault. The Council made a professional judgment that the damp was caused by condensation. It never said it would take enforcement action against the neighbour and could not do so as it does not accept he is responsible.

The complaint

1. The complainant, who I have called Mr C, says the Council is at fault because it:
1. has wrongly decided that damp in his kitchen is caused by condensation when it is, in fact caused by works carried out by his neighbour, Mr N;
2. failed to take sufficient enforcement action against Mr N, possibly due to undue influence being brought to bear; and
3. went back on a promise made by an environmental health officer to take such enforcement action.
4. Delayed in dealing with his concerns.
2. Mr C says he has suffered injustice as a result. He says the damp in his house has caused health problems for several members of his family.

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What I have investigated

3. The events Mr C complained about took place between June 2017 and early 2019. Mr C contacted the Ombudsman in April 2019. Therefore, the events of summer 2017 may technically be out-of-time because of the Local Government Act 1974, sections 26B and 34D.
4. However, I have decided to use my discretion to investigate because there is, in my view, good reason to do so: The events are best understood as a single interaction between Mr C and the Council between summer 2017 and late 2018. The Council never dismissed Mr C’s concerns and invited him to come back to them if matters got worse. Therefore, until Mr C actually did so and was dissatisfied with the response, he was not really in a position to complain.

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The Ombudsman’s role and powers

5. We cannot investigate late complaints unless we decide there are good reasons. A late complaint is one made more than 12 months after something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
7. If we are satisfied with a council’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

8. I spoke to Mr C. I wrote an enquiry letter to the Council requesting further information. I considered the Council’s response and applied the relevant law and guidance to the evidence I gathered.
9. I sent my draft decision to Mr C and the Council and invited their comments.

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What I found

10. The Environmental Protection Act 1990 s.79 defines matters which constitute a statutory nuisance. S.79(1)(a) says ‘any premises in such a state as to prejudicial to health, or a nuisance’ is a statutory nuisance.
11. On receiving a complaint about a possible statutory nuisance, local authorities must take reasonable steps to investigate it.
12. Whether a premises is in such a state is a matter for a local authority to determine. If, after inspection, the authority decides that a premises is in a state prejudicial to health or a nuisance, it should serve an abatement notice requiring the owner to abate the nuisance and when it should do so. The owner can appeal to the Magistrates Court.

Building Act 1984

13. The Council’s website sets out its powers under s. 59 Building Act 1984, ‘If [a] property has defective drainage, for example gutters, which are affecting the neighbouring properties, the Council can serve a notice requiring the owner to repair them. If the notice is not complied with the Council can prosecute the owner and/or carry out the works in default (do the work themselves). All costs associated with doing the work will be registered against the property, recoverable through enforced sale of the property.’

Enforcement Action

14. The website also states, ‘The Council is keen to avoid enforcement action and prefers to work with responsible property owners to rectify issues relating to their properties without resorting to enforcement action….This Service would prefer to work with owners to resolve the issues around empty properties and so avoid the need for formal action but enforcement action will be used where required’.

What happened

Background

15. Mr C lives in a mid-terrace house in the Council’s area. The next-door house is owned by Mr N. Mr N is an absentee landlord. Mr C says he does not get on well with Mr N who has placed unsuitable tenants in the house.
16. Mr C says Mr N carried out works to his kitchen in 2015 which, in time, caused a damp patch to appear in his kitchen. He says he complained to the Council when he noticed it. The Council’s records show he complained in August 2017. The original complaint was about ‘guttering issues between two properties’.
17. Later the same week, a Council environmental health officer, Officer O, visited Mr C’s house to inspect the site.
18. Officer O’s contemporaneous note reads ‘Visited [Mr C] and he explained that his gutter had deteriorated since the next door made matters worse by ill-fitting their gutter some years ago. I explained to Mr C that his guttering was also damaged and that he would also need to fix his own. I also explained there were defects both in his brickwork and the next-door neighbour’s. I have told Mr C that I will be writing to both himself and his neighbour for both parties to repair their gutter and wall area. He said he was happy for that to happen and said he would make sure that his work was completed’
19. Officer O wrote to Mr C and Mr N. He said he had visited the house and found the gutter was inadequately draining rainwater because it was displaced and had come away from the wall. He asked Mr N to securely reattach it and suggested cooperating with Mr C and must complete the works by 12 September 2017.
20. The final paragraph said, ‘if satisfactory progress is not made then the department may have no other option but to take formal action under the above legislation. I would be grateful if you would acknowledge this letter with a response.
21. Mr C carried out the requested works promptly. Mr N did not respond or carry out the works. Officer O returned to Mr C’s house in early September 2017 and confirmed Mr C had carried out the works.
22. While he was there, Mr C pointed out a damp patch in his kitchen and said Mr N’s works had caused it. Mr C says Officer O agreed with him. The Council’s contemporaneous notes, made by Officer O, say, ‘The damp in the kitchen looks like a small area of condensation mould growth and not penetrating damp’.
23. A week later, Officer O called Mr C. Mr C asked him how he intended to make Mr N repair the wall. Officer O’s notes say he told Mr C ‘I may have to take further enforcement action but this will need to be assessed and justified’. He said he told Mr C he would let him know once his manager, Officer P, had visited to assess the site and they had discussed the matter.
24. Mr C says, shortly thereafter, Mr N forced entry into his house and told him he would not carry out repairs and said he was ‘untouchable’ as he had friends at the Council. He says that, a few days later, Officer O reversed his decision and decided not to take any action.
25. In early October 2017, Officer O and his manager Officer P went to Mr C’s house. Later the same day, Officer O wrote to Mr C saying, ‘Just to confirm in writing following my visit with my senior colleague, Officer P, currently, the guttering at your property and your neighbour’s is watertight and fully operational. The issue with mould on the interior wall of the rear kitchen is currently not a statutory nuisance under the Environmental Protection Act 1990. If the problem becomes worse, then Housing Standards would only be too happy to assess the matter at that time and take any appropriate enforcement action’.

2018

26. In June 2018, Mr C wrote to Officer O again saying that the damp in the kitchen had deteriorated to the extent that the wallpaper in the kitchen had peeled off.
27. He said, ‘Please note, when you started your visits last year, you initially agreed to service notice to my neighbour and if the repairs were not done within a certain time scale then you would enforce the Buildings Act. Sadly, you changed your mind and had become argumentative and even go your manager involved to support your change of plan’.
28. Officers O and P visited Mr C’s house in early July 2018. Having inspected, Officer O wrote a note saying there was no statutory nuisance and no reason to think the damp was caused by Mr N’s property. It seemed to be condensation. Officer P said Mr C could contact the Council again if the problem got worse.
29. Mr C wrote to Officer O four days later saying he had felt intimidated during the visit as there were two officers present. He said he did not believe two people should have visited without permission.
30. Mr C complained to the Council. The Council did not uphold his complaint. He escalated the complaint to stage two of the Council’s internal complaints procedure where it was dismissed again.

2019

31. Mr C complained to the Ombudsman in April 2019.
32. In May 2019, Mr C contacted the Council to request a visit from an officer to investigate the ongoing guttering and damp problems. He said that, when it was raining, water cascaded over his back porch. A different Council officer, Officer Q, said he would not come until it rained so he could judge the problem himself.
33. Mr C said he wanted Officer Q to visit sooner as he had video evidence and had received advice from a damp expert that the damp was caused by Mr N’s works. Officer Q said he would look at the experts’ reports and the video when he visited.
34. He visited a few days later and found that the joint on the guttering at the point where the two houses met had popped and needed joining. Officer Q wrote to Mr C asking if he had a guarantee for the work he had had done in 2017 as he understood it had been done very recently. Officer Q suggested that, if Mr C had no warranty, he should split the costs of the works with Mr N as it was not clear whose side of the party wall the problem lay.
35. Since then, Mr C says Mr N carried out some repairs to his guttering in June 2019 but he says these were inadequate so his gutter is still leaking. He has many other concerns about Mr N none of which are relevant to this complaint other than his suspicion that Mr N has used influence to avoid enforcement by the Council’s environmental health department.

Was there fault causing injustice?

Conflicts of evidence

36. Mr C says Officer O gave him an undertaking that he would take enforcement action and then went back on that undertaking. He suspects this is because Mr N used his influence on the Council to have the action dropped.
37. We must make our decisions on the available evidence. Officer O made detailed contemporaneous notes which, because they were contemporaneous were made before Officer O could have known Mr C would later complain and before Mr N could have placed undue influence on him to have enforcement action dropped. I therefore find these notes convincing evidence.

Decision that damp is caused by condensation

38. The Ombudsman does not generally find fault with the decisions of expert council officers deciding on professional matters. Our remit also says we will find fault with a decision only where there is fault in the way it is made. It is not enough that the complainant disagrees with it.
39. In this case, Mr C is sure the damp is caused by water entering the wall cavity through holes made by Mr N. Officers O and P disagree. They believe it is caused by condensation. I am not in a position to judge who is right. There is no fault I can see with the way the decision was reached. Therefore, I do not find fault.

Failure to take sufficient action against Mr N

40. Mr C says the Council failed to take sufficient action against Mr N. Mr C says Mr told him in 2017, shortly after the Council had told Mr N to carry out repairs to his guttering, that he was ‘untouchable’ because of his Council contacts and therefore would not carry out the works.
41. If Mr N said this, and I cannot make any finding on whether he did or did not, it does not mean this statement was true. The Council states that neither Officer O nor Officer P had ever heard of him before Mr C mentioned him. There is no evidence to suggest this is not true.
42. Neither is there any evidence of an inappropriate relationship between Mr N and the Council in the decision not to take legal action against him. The evidence does not support Mr C’s claim that Officer O initially said he would take action against Mr N. And the Council is clear on its website that it prefers to avoid enforcement action if possible. Therefore, the decision not to take legal action seems perfectly understandable.

Breach of agreement to inspect Mr N’s property

43. After attending Mr O’s house in June 2017 after Mr C’s initial complaint about guttering, Officer O wrote to Mr C and Mr N and told them to repair their guttering. He said that, if they did not, ’he may have no choice’ but to take enforcement action. This was not an undertaking to do so in the event of non-compliance.
44. Mr N did not carry out the works but Mr C did. Officer O decided the work done was adequate and did not take action against Mr N. He was not legally obliged to do so. The Council understands why Mr C is aggrieved but it is not the Council’s fault that Mr N did not comply with the request to carry out works.
45. On his second visit, Mr C alerted Officer O to the damp in the kitchen. It seems Officer O considered this to be an environmental health matter and considered whether this amounted to a statutory nuisance. If it had, he says he would have taken enforcement action.
46. I do not quite understand how this could be. If the damp was caused by condensation as Officer O says, the Council could not take enforcement action against Mr N. However, this confusing statement does not affect the underlying decision made by Officers O and P that the damp seemed to be caused by condensation and there was no reason to pursue Mr N about it. Any failure on the Council’s part was insignificant and caused Mr C no injustice. I do not find fault.
47. Mr C can register his concerns with the Council at any point and ask for his concerns to be considered.

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Final decision

48. I have considered the evidence I have gathered and have reached a decision that the Council was not at fault. I have closed my investigation.

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Investigator's decision on behalf of the Ombudsman