The Ombudsman's final decision:
Summary: Ms X complains about the action the Council took following her reports of a leak in her home. She says this resulted in her having to live with a leak and a hole in her ceiling for over a year. The Ombudsman finds fault with the level of action the Council took following Ms X’s reports. The Council agreed to the recommendations the Ombudsman made to remedy the injustice caused.
- The complainant, whom I refer to as Ms X, complains about the action the Council took following her reports of a leak in her home.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- As part of this investigation:
- I considered the complaint made by Ms X and the Council’s response.
- I discussed the complaint over the telephone with Ms X.
- I made considered the Council’s response to my enquiries.
- I considered the information provided by Ms X.
- I sent a draft of this decision to Ms X and the Council and considered the comments received in response.
What I found
- 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.
- On receiving a complaint about a possible statutory nuisance, local authorities must take reasonable steps to investigate it.
- Whether a premises is in such a state is a matter for a local authority to decide. 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.
- The Council’s enforcement policy says Council officers will always try to resolve issues informally first. However, should the informal approach fail to prompt action by the owner then the Council will start the next stage of statutory action.
- Ms X lives in a house which is converted into flats. Ms X lives in the ground floor flat (Flat A). In March 2018 Ms X says she noticed a leak coming from her kitchen ceiling. She says she tried to resolve this with the owner of the property upstairs (Flat B) as the leak was coming from this property.
- In June 2018 Ms X says part of her kitchen ceiling collapsed because of the leak. She reported this to the Council in August 2018 and later raised a complaint with the Council in late August 2018 as the owner of Flat B was not acting to fix the leak.
- In early October 2018 a Council officer visited Ms X’s property. The officer witnessed a partially collapsed ceiling and obvious signs of water damage, however could not gain access to Flat B.
- Shortly after the Council officer managed to access Flat B and found out tenants were living there. The Council officer saw several disrepair issues in this property.
- The Council wrote to the owner of Flat B in late October 2018, giving him 14 days to put right the repair issues and the leak into Flat A. The Council also spoke with the owner of Flat B and decided to pursue formal action as the owner of Flat B did not evidence he would complete the needed work.
- In early December 2018 the Council visited Flat B and carried out an inspection. On 14 December 2018 the Council served the owner of Flat B with an improvement notice about the repair issues in Flat B and an abatement notice for the leak in Flat A. The Council was satisfied there was a statutory nuisance in Flat A due to the leak. The abatement notice required within 21 days the owner of Flat B to, ‘Carry out a full survey, of all service water plumbing and waste water drainage pipework, within the curtilage of Flat B, and take such actions as necessary to prevent the occurrence or recurrence of any mains water or waste water leakage, so as to prevent the premises being in such a condition as to be prejudicial to health.’
- On 30 January 2019 the Council wrote to Ms X asking for access to her property to take further photos of the damaged ceiling. Ms X responded in early February 2019 to say water is still leaking from her kitchen ceiling but she did not want to open her home again for inspection.
- On 8 April 2019 Ms X raises a complaint with the Council about how it has handled the leak in Flat A. The Council responded on 24 April 2019 and apologised for not keeping Ms X updated with its actions. The Council also said it visited Ms X after she reported the leak and contacted the owner of Flat B to resolve matters. After that did not work the Council served an abatement notice which the owner of Flat B has not complied with. The Council said the only option is to pursue a prosecution and it will issue a court summons at the end of May 2019. The Council said it followed the correct procedure but should have kept her updated and paid Ms X £200 in recognition of this.
- In late April 2019 the owner of Flat B told the Council Ms X was not allowing him access to Flat A so he could not complete the repairs to his property. He also alleged Ms X had caused the leak herself. The Council visited the building and noted the owner of Flat B had not completed the necessary works.
- In late June 2019, the Council discussed the case with its legal team and decided to proceed with a prosecution against the owner of Flat B.
- Ms X contacted the Council in September 2019 seeking an update as she felt the leak had still not been resolved. The Council responded to say it previously served an abatement notice on the owner of Flat B which he has breached, and the next step is to take enforcement action. The Council said it needs to inspect Ms X’s property again to decide if the nuisance is continuing and take a witness statement from her.
- The Council visited Flat A on 16 September 2019. The officer who attended said he did not witness further damage to the ceiling but noticed bowls of water under the ceiling. The officer also took a witness statement from Ms X where she denied the allegations that she caused the leak and would not allow contractors to visit Flat A.
- The Council and Ms X have been in communication about the content of the witness statement, however Ms X did not sign the witness statement and asked the Council to carry out the works to fix the leak and seek payment from the owner of Flat B. She also told the Council it should have established the cause of the leak.
- In response to enquiries from the Ombudsman the Council said it has instigated prosecution proceedings against the owner of Flat B and the case is now with the Council’s legal team for a court summons to be served. The proceedings include the owner of Flat B’s failure to comply with the abatement notice requiring him to investigate and stop the leak.
- When Ms X complained about the leak in September 2018 the Council came to inspect Flat A and later inspected Flat B. The Council tried to resolve the leak with the owner of Flat B informally by asking him to investigate and take steps to stop the leak however, this was unsuccessful. The Council also wrote to the owner of Flat B giving him notice to complete the required investigations and works however he did not do this.
- After failing to resolve the issue informally the Council decided to serve an abatement notice on the owner of Flat B. This required him to carry out a full survey of the plumbing and to prevent the occurrence of leaks. The Council must have been satisfied a statutory nuisance existed which is why it served an abatement notice.
- There was no fault in the way the Council initially investigated Ms X’s reports of the leaks as it followed its enforcement policy by trying to resolve the issue informally first. Once this was not successful the Council took the decision to serve an abatement notice on the owner of Flat B.
- After the Council served the abatement notice in December 2018 it has delayed in taking further action. Ms X told the Council in February 2019 the leak was not resolved and raised a complaint in April 2019. In response to Ms X’s complaint the Council paid her £200 for not keeping her updated, told her it would be prosecuting the owner of Flat B and will issue a court summons by the end of May 2019.
- The Council did not issue a court summons by the end of May 2019 and it is not clear whether it has done so to date. It only decided to pursue prosecution proceedings in June 2019 after discussing this with its legal team. The Council told the Ombudsman the case is currently with its legal team with a view to serving a court summons.
- From the evidence seen, the Council only started to gather evidence for prosecution after Ms X contacted the Council again in September 2019 saying the leak had not been resolved. This was despite telling Ms X it would issue a court summons at the end of May 2019. I am not satisfied the Council took enough action to ensure the abatement notice was complied with. This is fault.
- The obvious injustice is Ms X has lived with a leak in her property which the Council consider to be a statutory nuisance. Ms X says she cannot use her kitchen properly and must lay out containers to catch the water when it leaks. Ms X says she cannot repair her kitchen ceiling until the source of the leak is identified and repaired so has a partially collapsed kitchen ceiling.
- Had the Council taken steps sooner to monitor compliance with the abatement notice, it may well have decided to pursue prosecution proceedings at a much earlier stage and start to gather evidence to support this. I therefore consider a payment for loss of amenity is a fair remedy. In deciding this I have considered the delay from the Council in taking further action, the severity of the nuisance and Ms X’s circumstances.
- Within one month of my final decision the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
- Apologise to Ms X for the delays in taking further action once it was clear the abatement notice had not been complied with.
- Pay Ms X £800 for loss of amenity for 8 months. I have calculated this on the basis that it may have taken a few months from when the abatement notice was not complied with to establish evidence and commence prosecution proceedings. HHHowever, it has taken nearly a year for the Council to do so. I have also considered the Ombudsman’s guidance on remedies when coming to this payment figure.
- Write to Ms X to update her about the prosecution proceedings and what stage these are at.
- I have completed my investigation and found fault by the Council which caused Ms X injustice. The Council has agreed to the above recommendations.
Parts of the complaint I did not investigate
- I did not investigate how the Council responded to the disrepair issues in Flat B. This would be for the tenants of Flat B to raise. I have included some details about this in the decision however, this is just for context.
Investigator's decision on behalf of the Ombudsman