Summary: Mrs X complained the Council failed to respond appropriately to her concerns about noise from a neighbour’s drainpipe. The Council was not at fault.

The complaint

1. Mrs X complained the Council failed to respond appropriately to her concerns about noise from a neighbour’s dripping drainpipe. She also complained about the Council's communication and complaints handling.
2. Mrs X said this affected her and her husband’s mental health and meant two rooms of her home became unusable.

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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. 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

4. I have considered:
• all the information Mrs X provided and discussed the complaint with her;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the Council’s policies and relevant law and guidance.
5. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

Noise

6. Under the Environmental Protection Act 1990, councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’.
7. For an issue to count as a statutory nuisance, it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises; and/or
• injure health or be likely to injure health.

Drainage

8. Section 59 of the Building Act 1984 gives councils the power to act where they find satisfactory provision for drainage from a building has not been made, or that a rainwater pipe is insufficient, prejudicial to health or a nuisance.
9. A section 59 notice imposes a duty on the recipient to carry out the necessary repairs within a specified time.

Council enforcement policy

10. The Council's enforcement policy says it will ensure owners of privately owned houses ‘do not cause statutory nuisance, or an unacceptable risk to public health and safety, or to the environment or neighbourhood’.
11. The Council first tries to resolve the issue informally by contacting the person responsible. If the person does not resolve the issue, the Council will consider whether it is appropriate to issue an enforcement notice, such as a section 59 notice. If the Council serves a notice and the recipient does not comply with its terms, the Council can take further action including prosecution.

Complaints

12. The Council's complaints policy has two stages. At each stage the Council aims to respond within 15 working days.

What happened

Drainage

13. In 2018, Mrs X told the Council a rainwater pipe on her neighbour’s house was causing unacceptable noise when it was raining. The Council assessed whether the noise was a statutory nuisance and found it did not meet the threshold. The Council issued a notice under the Building Act to compel the neighbour to fix the pipe. The neighbour complied with the notice and carried out a repair.
14. In early June 2020, Mrs X told the Council the repair had failed and the noise had returned. The Council asked Mrs X’s neighbour to contact it within seven days to discuss the issue.
15. A Council Environmental Health Officer (EHO) visited the property three times in June but could not see any issues with the pipe. It was not raining on any of the visits.
16. Nine days after the Council wrote to the neighbour, it had not received a response, so it issued a section 59 notice. The notice required the neighbour to fix the pipe within fourteen days. The Council says it issued the notice despite not seeing evidence of the defect because it was the same issue Mrs X had complained of in 2018.
17. After nineteen days, in early July, the neighbour told the Council he had looked at the pipe but could not identify any issues with it. The Council therefore cancelled the notice. It asked Mrs X to send it evidence of the issue if it continued.
18. In late July, Mrs X sent the Council a video of the gutter leaking. The Council contacted the neighbour again. The neighbour spoke to the Council in early August and said he would repair the pipe within a week.
19. Mrs X complained to the Council. She said it had not acted according to its policy and had given the neighbour extensions to every deadline.
20. The Council visited the house in late August 2020 and found the neighbour had not repaired the pipe. It issued a new notice requiring the neighbour to replace the pipe where it had failed within 14 days.
21. The neighbour contacted the Council in early September to say he was trying to book a tradesperson. The Council agreed an extension of 28 days.
22. The Council responded to Mrs X’s stage one complaint in early September, ten days late. Mrs X escalated her complaint to stage two the same day. She said the stage one response did not address all the issues she raised, including that she felt the EHO involved in her case was biased. She also said the response contained incorrect information.
23. In late September, the Council visited the property and confirmed the neighbour had replaced the guttering. It therefore recorded the neighbour had complied with the section 59 notice and closed Mrs X’s case. Mrs X disputes this and says the issue continued until December, when the neighbour fixed the pipe.
24. The Council responded to Mrs X’s stage two complaint in early October, seven days late. It said the delay was due to issues caused by the COVID-19 pandemic. It accepted the timeline it provided in its stage one response was incorrect and explained why. It addressed the points Mrs X felt the stage one response had missed and said it did not agree the EHO was biased.
25. The Council said it had served the section 59 notice when it should not have because the noise was not a statutory nuisance and the pipe was not causing any damage. It did not have a justification for taking enforcement action but had done it to try and resolve Mrs X’s concerns.

Communication

26. Mrs X says the Council did not update her on its progress. I have reviewed the Council's contact. The Council up dated Mrs X at the key stages of investigation. It did not always update Mrs X on the day an event happened.
27. In its response to my enquiries, the Council said the EHO had a heavy caseload and had not been able to update Mrs X as quickly as they would have liked. It offered to remind all enforcement officers to ensure they keep complainants informed regularly.

Findings

Drainage

28. Mrs X reported the dripping rainwater pipe was causing disruptive levels of noise when it rained. The Council confirmed in 2018 that it was not a statutory noise nuisance, and in 2020 that it was not causing damage to her property. It accepts it did not have any grounds to take enforcement action on Mrs X’s neighbour.
29. However, I do not consider this sufficient to make a finding of fault. The Council was attempting to resolve Mrs X’s concerns and the alternative was that Mrs X would have had to take action against the neighbour herself.
30. Mrs X was unhappy with how the Council updated her on the case and the speed at which it took action against the neighbour. In particular, she was unhappy the neighbour did not respond to the Council within the timescale it set, and that the Council allowed him extra time. I am satisfied the EHO updated Mrs X when there had been a major development. The Council has offered to remind its enforcement officers to keep complainants updated frequently. While I have not found fault with the Council for its communication, I welcome its offer to take action to prevent any future issues.
31. Enforcement is a lengthy process, with multiple stages. Councils must assure themselves all reasonable action has been taken before progressing to the next stage. The Council progressed Mrs X’s case appropriately and was not at fault for allowing the neighbour a few extra days after each deadline, particularly considering the impact of the COVID-19 pandemic.

Complaints handling

32. The Ombudsman expects council complaint responses to accurately address the key matters complained about in a timely way. The Council stated incorrect information in its stage one response and failed to respond to Mrs X’s comment that the EHO was biased. It responded to both of her complaints late, by seven and ten days.
33. The Council corrected the information and responded to Mrs X’s allegation properly in its stage 2 response. The delay was not significant, especially given the complaints occurred during the COVID-19 pandemic. I will therefore not make a finding of fault on the matter.

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Final decision

34. I have completed my investigation. I have not found evidence of fault.

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Investigator's decision on behalf of the Ombudsman