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London Borough of Wandsworth (20 012 495)

Category : Housing > Private housing

Decision : Upheld

Decision date : 10 Dec 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to take action about water escaping into his property from a neighbour’s property. There was no fault in how the Council decided what action to take about the water leak. However, there was fault in how the Council first responded to Mr X’s complaint which caused him avoidable frustration for which the Council should apologise.

The complaint

  1. Mr X complained the Council failed to make his neighbour prevent water escaping into his property, which caused damage to his ceiling. He said the Council failed to enforce a notice it sent to the landlord in late 2020 and to properly investigate the problem between late 2020 and early 2021. As a result, he said his ceiling suffered further damage and it caused him significant stress and frustration. He wanted the Council to enforce the notice, pay for the damage caused to his ceiling and pay a financial remedy for his distress.

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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)
  2. 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)
  3. 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)
  4. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

  1. I considered the information Mr X provided and discussed the complaint with him.
  2. I considered the Council’s comments on the complaint and the supporting information it provided.
  3. Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Statutory nuisances

  1. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. Many things may be a statutory nuisance, including damp or damage caused by water leaks.
  2. However, for the 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.
  3. There is no fixed point at which something becomes a statutory nuisance. Councils rely on suitably qualified officers (usually an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, make suitable measurements, or undertake site visits.
  4. Once the evidence-gathering process is complete, the environmental health officer(s) will assess the evidence. They will consider factors such as the timing, duration, and intensity of the alleged nuisance. The officer(s) will use their professional judgement to decide whether a statutory nuisance exists.
  5. Councils can also decide to take informal action if the issue complained about is causing a nuisance, but is not a statutory nuisance. They may write to the person causing the nuisance or suggest mediation.

Abatement notices

  1. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice.
  2. An abatement notice requires the person or people responsible to stop or limit the activity causing the nuisance. Failure to comply with an abatement notice is an offence, which can lead to prosecution and a fine.
  3. If someone does not comply with an abatement notice, councils can prosecute them, or can complete necessary works and charge the person the council’s costs.

Council’s complaints process

  1. The Council has a two stage complaints process:
    • Stage 1 – an investigation from a service manager and a response within 20 working days.
    • Stage 2 – a review by the Chief Executive and a response within 15 working days.
  2. At both stages, the Council says it will acknowledge a complaint within two working days and, if it cannot meet the stated timescales, it will explain why.

What happened

  1. Mr X reported a water leak from his neighbour’s property to the Council in September 2020. This followed a similar incident in 2019.
  2. Environmental health officers from the Council inspected Mr X’s property in early October 2020 and measured moisture levels in the affected area. The officers decided the moisture levels were significant, any water leak was likely to injure health if it continued and so there was a statutory nuisance.
  3. The Council sent an abatement notice to the neighbour the following day telling them to take action to stop the leaks within 28 days.
  4. A few days after the deadline, in early November 2020, the neighbour contacted the Council saying they had inspected their property but could not find any leaks. It arranged to access Mr X’s property to try to locate the leaks.
  5. In early December, the neighbour told the Council it had found and fixed several leaks at the end of November. However, Mr X told the Council there was still a damp problem and sent the Council his own moisture readings. The Council told Mr X it might take some time for the affected area to dry out.
  6. Mr X asked the Council to re-inspect the property at the end of 2020. However, during that time the strictest lockdown restrictions were in place because of the COVID-19 pandemic. The Council told Mr X it would not inspect his property until it was safe to do so.
  7. Mr X emailed the Council’s Chief Executive and several councillors at the end of 2020, complaining about delays in the enforcement process. The Chief Executive’s office asked the environmental health team to investigate the matter further.
  8. In January 2021, the Council agreed with the neighbour they would inspect their property again for further leaks. In February the neighbour confirmed they could not find further leaks and had not been able to access Mr X’s property.
  9. The Council started a formal complaint investigation in late February 2021. After some discussion with Mr X, it agreed to treat two issues separately:
        1. The continuing statutory nuisance investigation; and
        2. Mr X’s concerns about lack of action and communication from the environmental health team.
  10. As part of the statutory nuisance investigation, the Council inspected Mr X’s property again in March 2021. Two EHOs attended and measured the moisture levels in the affected area. The Council noted these measurements were significantly lower than those from October 2020.
  11. Four EHOs reviewed the results of the inspection and moisture readings a few days later. The officers decided the moisture levels were no longer likely to injure health and, on that basis, there was no longer a statutory nuisance. The Council wrote to Mr X in early April to explain its decision. It referred to this as a response to Mr X’s complaint which the Council later accepted was incorrect.
  12. At the same time, the Council responded to the second part of Mr X’s complaint. It decided the environmental health team had taken an appropriate approach to enforcement action and had kept in contact with Mr X throughout the process while his neighbour was investigating the leaks.
  13. Mr X was not satisfied with the Council’s responses, so he asked for a stage 2 review. The Council considered both issues in its stage 2 review and reached the same decision that it had taken appropriate action. It also apologised for the confusion caused by how it described the first letter it sent to Mr X in April 2021.
  14. After complaining to the Ombudsman in May 2021, Mr X continued to send moisture readings to the Council. The Council inspected Mr X’s property again in June 2021 and took further readings. Based on this visit and the readings, the Council confirmed there was no longer a statutory nuisance. It confirmed the abatement notice had been complied with and closed the statutory nuisance investigation.

My findings

Investigation of the statutory nuisance

  1. It is not our role to decide if the water leaks are a statutory nuisance, or what enforcement action the Council should take; that is the Council’s responsibility. Our role is to assess whether the Council made its decisions properly.
  2. When making these decisions, Councils should gather suitable evidence and assess that evidence when deciding what action to take. It should also record and explain the reasons for its decisions.
  3. The Council responded quickly after Mr X’s September 2020 report of the water leak and issued an abatement notice the day after it inspected and decided there was a statutory nuisance.
  4. After they had not taken any action, the Council chased the neighbour who agreed to investigate the problem. Although this was shortly after the deadline given by the Council, it was up to the Council to decide what further action it should take. The Council explained it did not take court action or complete the works itself because it was satisfied the neighbour was trying to comply with the notice.
  5. Whether there is enough evidence to take further action is a professional judgment for EHOs. The records show the EHO considered the available evidence before deciding what action to take. There was no fault in how the EHOs decided not to take further formal action at this stage.
  6. Once the neighbour had completed the first set of repairs, the Council was satisfied with their explanation of the action taken and decided to wait to see if the affected area dried out. Given the lockdown restrictions in force at the time, I am satisfied there was no fault in how the Council decided to wait for a future inspection before making a final decision.
  7. After the Council inspected Mr X’s property again in March and June 2021, the Council decided the damp levels were no longer a risk to health and therefore there was no longer a statutory nuisance. The records show, before making this decision, the EHOs considered relevant evidence, including:
    • the two inspections of Mr X’s property;
    • moisture readings taken by EHOs and Mr X; and
    • the actions taken by the neighbour.
  8. Mr X disagrees with the EHOs’ decisions. However, whether there is a statutory nuisance is a matter of professional judgement. We cannot question a decision the Council has made if it followed the right steps and considered relevant evidence.
  9. I am satisfied there was no fault in how the Council decided what enforcement action to take, or that there was no longer a statutory nuisance.
  10. While the Council decided there was no longer a statutory nuisance, and it therefore no longer had a duty to take formal action, it advised Mr X on action he could take privately. It also encouraged Mr X and his neighbour to work together to resolve any remaining water leaks or damage.

Complaint handling

  1. Mr X first told the Council he was unhappy with its investigation at the end of 2020 when he wrote to the Chief Executive. However, the Council did not start considering his complaint formally until late February 2021.
  2. It was clear from Mr X’s December 2020 email that he was making a complaint. The Council should, at that point, have recognised this as a complaint and treated it as such under its complaints process. The failure to do this was fault which led to a delay in responding fully to Mr X’s complaint.
  3. However, while this delay caused Mr X avoidable frustration, I do not think this caused any further injustice. The Council should apologise for the frustration caused by the delay in starting the formal complaints process.
  4. The Council accepted, and later apologised, that how it described the letter it sent to Mr X in early April 2021 caused confusion. However, it is clear from the correspondence between the Council and Mr X that he understood the content of the letter. In the circumstances, I do not consider how the Council described that letter to be fault.

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Agreed action

  1. Within one month of my final decision, the Council should apologise to Mr X for the delays in recognising that he was making a complaint.

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Final decision

  1. I have completed my investigation. There was no fault in how the Council decided what action to take about the water leak. However, there was fault in how the Council first responded to Mr X’s complaint which caused him avoidable frustration for which the Council should apologise.

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Investigator's decision on behalf of the Ombudsman

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