Summary: Mr X said the Council failed to respond quickly and positively when he reported damp in his property caused by works on its land. We ended our investigation as the Council had taken steps to remove the works Mr X complained about.

The complaint

1. Mr X said works on the Council’s land had caused damp in his property. And its unhelpful responses to his concerns had added to his frustration and worry in trying to resolve the problem. Mr X wanted the Council, without further delay, to lower the ground levels on its land and remove a pipe it had fixed to his property. Mr X also sought compensation for the time, trouble and distress caused by the Council’s unhelpful responses and delay.

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The Ombudsman’s role and powers

2. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6), 24A(7), and 34B(8), as amended)
3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

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How I considered this complaint

4. I:

• considered Mr X’s written complaint and supporting papers;
• talked to Mr X about the complaint;
• considered correspondence between Mr X and the Council about the complaint and damp problem; and
• shared a draft of this statement with Mr X and the Council and considered any comments received before making a final decision.

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What I found

Background

5. Mr X said, many years ago, the Council carried out works that included raising ground levels on its land. The Council had no records now of when the works were carried out or about any historic increase in ground levels. Mr X’s relatives lived in a neighbouring property (‘the Property’), which was a listed building. (A listed building has added protection for planning purposes because of its special architectural and or historic interest.) A side wall of the Property was on, and formed, the boundary with the Council’s land. Mr X said, following the Council’s works, penetrating damp started to affect the side wall of the Property.
6. Mr X became the owner of the Property in 2020.
7. In 2021, Mr X contacted the Council, paying a £60 fee, for pre application planning advice about the Property. In response to that advice, Mr X contacted the Council’s Asset Management Team about damp in the Property.
8. The Council asked Mr X for evidence of the damp. Mr X paid £210 for a survey and, in about August 2021, sent a copy of the resulting report (‘the Report’) to the Council. The Report included a recommendation to permanently reduce the ground level of the Council’s adjoining land. The Council asked for more information, which Mr X said he provided in September 2021.
9. About six months later, Mr X met with Council officers. The Council then said it was not responsible for damp in the Property as it had not physically changed its land. Mr X found the meeting unsatisfactory and complained. Mr X pointed to the Property being a listed building, the Council’s delay in responding to the Report, and an officer’s (‘Officer F’) behaviour at the meeting. Mr X asked the Council to reduce the ground level on its land and remove both its pipe attached to and a tree near the Property’s side wall.
10. The Council secured a further report that found the ground level of its land was causing damp in the Property. So, having reviewed its position, the Council decided to reduce the ground level. The Council said it needed both to carry out a survey as its land was sloping and prepare a specification for the works. The Council then sought quotes for the works.
11. Receiving no response to his complaint from the Council, Mr X contacted the Ombudsman in October 2022. The Council told us it was investigating Mr X’s complaint and intended replying within the next 10 working day. At the end of October, the Council told Mr X it had only received one quote for the work to reduce the ground level. It needed, and expected soon to receive, a second quote before it could proceed. Mr X said the Council was prevaricating and had not responded to his complaint.
12. In mid-November 2022, the Council, apologising for its delay, replied to Mr X’s complaint. It summarised the steps it had been taking (see paragraphs 10 and 11 of this statement). However, it accepted it was taking longer than normal to resolve matters and referred to demand for good contractors exceeding supply. The Council said it would let Mr X know when it appointed a contractor. It said the tree near the Property had been removed and the pipe affecting the Property would be assessed as part of the ground level works. The Council also referred to Mr X commenting on the officer now dealing with the matter (‘Officer S’) being ‘polite and efficient'. The Council said it would refund Mr X’s £60 application and £210 survey fees if he provided his bank details (see paragraphs 7 and 8).
13. In returning to the Ombudsman, Mr X said the Council’s response did not reflect the gravity of the situation and the misery caused by its appalling treatment of his concerns. Mr X also said the Council had not addressed his complaint about Officer F’s behaviour at the meeting (see paragraph 9). And, it had continued to delay after reviewing its position and deciding it would reduce the ground level on its land. Mr X said the Council should also put right any damage to the Property after it reduced the ground level, including removal of bituminous paint from the side wall. Mr X also said the Council should pay compensation for the years he and his relatives had lived in the Property in deplorable conditions at a risk to their health.
14. In January 2023, the Council wrote to Mr X. It confirmed it had no record of the historic works on its land that Mr X said included raising the ground level. The Council said it considered ‘the only relatively recent’ change concerned applying bitumen to the Property side wall. However, it had reduced the ground level, but its structural engineer then saw no foundations for the Property side wall. On advice from the engineer, the Council said it had reinstated the excavated land so the wall base was not exposed. The Council provided photographs of the works exposing the Property side wall. It said it understood Mr X was now seeking advice about the Property’s foundations and would provide his surveyor with access to its land. The Council also said it would carry out any necessary remedial work in line with advice from its heritage surveyor and relevant planning rules. The Council confirmed it had removed its pipe from the Property. The Council also apologised for the situation arising from the meeting. It confirmed that Officer F was no longer Mr X’s contact, and he should continue to discuss matters with Officer S.
15. Mr X said the Council did not comply with the Report recommendations and excavated to an excessive depth. And what happened showed the Council and its contractors did not understand the differences between the structure of older and modern homes. Mr X said he told the Council, and its contractor, when his surveyor could inspect the site and excavation works. However, the Council instructed its contractor to backfill the excavation the day before his surveyor’s visit. Mr X said the Council knew it had made a mistake in its excessive excavation and so covered up its error before his surveyor could view the site.

Consideration

16. The information I saw indicated works on the Council’s land had taken place many years ago and were said to have included raising the ground level. Mr X said damp affecting the side wall of the Property had arisen before he became the owner in 2020. It was 2021 when Mr X told the Council the ground level on its land was the cause of the damp. It was not clear if Mr X only became aware of the link between the damp and the adjoining ground level in 2021. If Mr X knew of the link much earlier, it would make his complaint a late complaint (see paragraph 3) but also a continuing problem. I saw no grounds for considering matters back any earlier than 2021, when Mr X contacted the Council and, in about August, sent it a copy of the Report about the damp.
17. I did not doubt Mr X was frustrated and upset at it then taking the Council about 16 months to (temporarily) reduce the ground level on its land. However, the Council was entitled to disagree with the Report and seek its own independent advice. Faced with differing professional views, the Council secured a further report. That was an appropriate and reasonable step to take given the previous conflicting views. When that report showed a link between damp in the Property and its adjoining land, the Council decided to reduce the ground level as requested by Mr X.
18. Before signing contracts and carrying out works, councils will need to follow their procurement procedures. This will usually include preparing detailed plans and specifications for works and seeking tenders or quotes from approved contractors. Here, the evidence showed the Council took such steps to engage a contractor to reduce the ground level on its land, which steps needed time to complete.
19. However, the evidence suggested there might have been avoidable delay by the Council between September 2021 and March 2022. While this was regrettable, I did not find any such delay to be significant when considered in the context of a longstanding problem spanning many years. And I did not find that further investigation now into any possible avoidable delay, including in complaints handling, by the Council during 2021 and 2022 was justified.
20. The current position was, as Mr X requested, the Council removed the tree from its land and a pipe attached to the Property and offered to pay his fees (£270). It also reduced, temporarily, the ground level of its land near the Property. I did not find the Council at fault in taking the advice of its structural engineer and reinstating the excavated land because of concerns about the Property’s foundations. Mr X’s next steps, their timing, and how he and the Council go forward are not matters for the Ombudsman to determine.

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Final decision

21. I ended my investigation as the Council had acted in response to the complaint.

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Investigator's decision on behalf of the Ombudsman