The Ombudsman's final decision:
Summary: Mrs X complained the Council asked her to accept a criminal caution for not complying with the conditions of an Abatement Notice the Council issued under the Environmental Protection Act 1990. I have discontinued my investigation because Mrs X had a right of appeal against conditions of the notice and legal proceedings remain ongoing.
- Mrs X complained the Council asked her to accept a criminal caution for not complying with the conditions of an Abatement Notice the Council issued under Section 80 of the Environmental Protection Act 1990 (EPA). Mrs X believes she has shown she has a reasonable excuse.
The Ombudsman’s role and powers
- We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
- The law says we cannot normally investigate a complaint when someone can appeal to a government minister. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(b))
How I considered this complaint
- As part of the investigation I have considered the following:
- The complaint and the documents provided by the complainant.
- Documents provided by the Council.
- The Council’s enforcement procedure
- The Environmental Protection Act 1990 (Section 80).
What I found
- The Local Government Act 1972 (section 222) gives local authorities power to prosecute criminal offences investigated by their own departments. These departments include trading standards; health and safety; environmental health/food safety and hygiene; education; housing; and council tax benefit.
- Mrs X is the secretary of a company which owns a property it rented to a private tenant. At first Mrs X used a property management company to let the property, but from February 2018 Mrs X let the property by dealing directly with the tenant.
- Shortly after February 2018, the tenant reported problems with the electrics. Mrs X arranged for an inspection and repairs. The electrician provided an Electrical Installation Condition Report (EICR).
- The Council wrote to Mrs X to tell her of a complaint from the tenant about the electrics, meaning it would need to inspect the property. Mrs X received the letter at her company address on 7 January 2019.
- The Council served an Abatement Notice (the notice) under section 80 of the EPA on 7 January 2019. The notice needed Mrs X to carry out an electrical inspection and carry out any repair works by 10 January 2019. It also gave details of how to appeal.
- Mrs X said there were issues with an electrician gaining access to the property, as the tenant refused to let them in. After an electrician could assess the property, the Council gave Mrs X until 24 January 2019 to complete the works.
- Mrs X said the tenant then gave notice of their intent to quit the property on 31 January 2019. As the tenant was moving, they again refused to allow an electrician access to the property. As a result, the works could not be completed on time.
- The Council asked Mrs X to attend an interview under caution where she was questioned about the failure to comply with the legal notice. Mrs X said the Council did not send her a transcript of the interview, despite promising to do so.
- The Council wrote to Mrs X on 29 March 2019 to tell her she would not be prosecuted if she agreed to accept a caution.
- Mrs X asked the Council for a copy of the CD recording of the interview. She said the Council sent this six weeks later. Mrs X took the recording to a solicitor. She was told she had a defence to the caution if she could show she had a ‘reasonable excuse’. Mrs X said she did not continue legal advice because it was too expensive.
- Mrs X complained to the Council about its decision to issue a caution. The Council responded on 25 June 2019. It said she admitted guilt in the interview and although Mrs X gave some mitigation, it was not enough to give a reasonable excuse.
- Mrs X wrote back to the Council on 3 July 2019. She stated she did not agree with several points in the Council’s complaint response. She said the property does not belong to her, but to the company and she is an employee. Mrs X agreed the works were not completed but said she did not admit guilt, due to extenuating circumstances.
- The Council sent its final complaint response on 12 July 2019. It said Mrs X was the company secretary and was responsible for repairs to the property. The Council accepted Mrs X had mitigation, but if she accepted the offence took place it considered a caution was suitable. The Council signposted Mrs X to the Ombudsman if she remained unhappy.
- Mrs X complained to the Ombudsman on 9 September 2019. She said she made genuine attempts to comply with the notice and feels she has a reasonable excuse.
- The Council considered what Mrs X said about the tenant not allowing access to the property. It said this was mitigation and for that reason it offered Mrs X a caution, rather than continuing with a prosecution. It did not believe Mrs X had shown a reasonable excuse. This is a question of judgement. Before the Ombudsman can question the judgement of a Council officer it must be established there was fault in the decision-making process. I have not seen evidence the Council did not follow the correct process.
- Mrs X has not yet accepted the caution, meaning the legal process is continuing. Mrs X can refuse the caution. The Council would then have to decide whether to continue with a prosecution. In which case Mrs X can try to show she has a reasonable excuse in court.
- Mrs X had a right of appeal against the conditions imposed by the notice issued under the EPA. Details of the appeal rights are clearly written on the notice. It was reasonable to expect Mrs X to read the notice carefully and to have been aware of her right of appeal. I have therefore decided not to exercise discretion to investigate, as it was not unreasonable to expect Mrs X to appeal when she could not comply with the notice.
- I have discontinued my investigation. Mrs X had a right of appeal against conditions of the Abatement Notice and legal proceedings remain ongoing.
Investigator's decision on behalf of the Ombudsman