Leicester City Council (18 019 953)

Category : Other Categories > Other

Decision : Upheld

Decision date : 14 Jan 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council did clearance works to the garden of his home without giving him any notice. Or, if any notice was given, it was not in large print which he needs because of his visual impairment, which the Council is aware of. He considered to remedy the damage done would cost £30,000. There was fault by the Council which has caused some injustice to Mr X. The Council will apologise and review its procedures.

The complaint

  1. Mr X complained the Council did clearance works to the garden of his home without giving him any notice. Or, if any notice was given, it was not in large print which he needs because of his visual impairment, which the Council is aware of. He considered to remedy the damage done would cost £30,000.

Back to top

The Ombudsman’s role and powers

  1. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
  2. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  3. 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)
  4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  5. 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)

Back to top

How I considered this complaint

  1. I considered the complaint and documents provided by Mr X. I asked the Council to comment on the complaint and provide information. I interviewed an officer who visited the property and dealt with the correspondence. I sent a draft of this statement to Mr X and the Council and considered their comments.

Back to top

What I found

Summary of the relevant legal and policy background

  1. Under the Equality Act 2010 Act, the councils have a duty to make reasonable adjustments (or changes) to avoid putting people with disabilities at a substantial disadvantage compared to those who are not disabled. The duty deals with three different requirements.
    • Provisions, criteria or practices - including company policies.
    • Physical features, such as the layout of and access to shops.
    • Provision of auxiliary aids - including providing information in an accessible format such as braille, large print or email.
  2. Under the Environmental Protection Act 1990 (EPA), councils have a duty to take reasonable steps to investigate potential ‘statutory nuisances’. A statutory nuisance can include an accumulation of deposits on premises.
  3. 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.
  4. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officer, or EHO) to gather evidence. They may, for example, ask the complainant to complete diary sheets, fit noise-monitoring equipment, or undertake site visits. Councils will sometimes offer an ‘out-of-hours’ service for people to contact, if a nuisance occurs outside normal working time.
  5. 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.
  6. 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.
  7. If the council is satisfied a statutory nuisance is happening, has happened or will happen in the future, it must serve an abatement notice. If the nuisance is noise from premises, the council may delay service of an abatement notice for a short period, to attempt to address the problem informally.
  8. 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.
  9. A person who receives an abatement notice has a right to appeal it in the magistrates’ court. It may be a defence against a notice to show they have taken reasonable steps to prevent or minimise a nuisance.

Summary of what happened

  1. In April 2017 the Council received a complaint about the condition of the gardens at Mr X’s property. Officer B visited the property in May. He said he thought the property was unoccupied, he looked in the bin and there was no domestic refuse in it. He went into the back garden as the gate was unlocked. He considered the accumulation of empty milk cartons by the side door and the overgrown state of the garden was such that it amounted to a statutory nuisance. In early June he posted an abatement notice to Mr X. This referred to a build-up of domestic refuse including empty milk cartons and overgrowth in the front and rear gardens. It required the specified work to be done within 14 days. This was not in large print.
  2. Mr X visited the Council offices on 9 June and made a written complaint that the correspondence was not in large print which he said the Council knew was necessary because of his visual impairment.
  3. I cannot be certain what happened next but I think it is likely that while Mr X was at the Council offices a version of the letter and notice in slightly larger print was produced, but not in the font Mr X needs, and handed to him.
  4. The Council responded to Mr X’s complaint. I have seen a large print copy of this but it is undated so I cannot say when it was sent. It is mostly about council tax and it refers to action being put on hold until 17 July so I think it is likely it was sent a few weeks before then. This refers to the correspondence about the abatement notice and says it has been sent in large print but it does not provide any detail.
  5. Officer B visited the property at the end of June. He said he thought there might have been fewer milk cartons but the property appeared to be still unoccupied and there had been no other works done. The Council applied to the court for a warrant to enter the premises and carry out the works. The Council wrote to Mr X giving him notice of the court date.
  6. The court granted a warrant for the Council to carry out the works specified in the notice. The Council wrote to Mr X, in large print, at the end of July giving a week’s notice of a contractor coming to do the works. When the contractor and Council officers arrived Mr X would not allow them entry. The Council returned the next day with the police. The works were done over the next three days.
  7. There was then some further correspondence between Mr X and the Council about a tree which the Council arranged to have pruned.
  8. The Council sent an invoice to Mr X in October for over £4,750 for the works done. Mr X did not pay. The Council then imposed a charge on Mr X’s property in the middle of October but then removed it in early November.
  9. The Council sent reminders in November saying if the bill was not paid the Council would take action in the county court to recover the debt. The original invoice was in large print but the reminders were not.
  10. The debt remains outstanding.

Analysis

The abatement notice

  1. The way to challenge the abatement notice was by appealing to the magistrates court. But Mr X said he did not receive the notice in large print so did not know what was happening and did not, therefore, have the opportunity to challenge it.
  2. The Council wrote to Mr X serving the abatement notice on 1 June 2017. This was not in large print. When Mr X questioned it the Council said it reissued it. The Council has provided one version of the letter dated 9 June to Mr X. This is not in the font Mr X needs. It changed the time period for compliance to ten days giving the date by which works must be completed as 19 June. I have also seen a copy of the abatement notice dated 12 June at the top of the document but 9 June at the bottom. This is in the required large font and requires the nuisance to be abated in ten days. Officer B believes that he produced a revised letter and notice in the correct font and these were posted to Mr X. But the internal email from Officer B’s manager to the complaints section encloses a copy of the letter that was sent, and this is the version I refer to above, which is not in the correct font and does not include the abatement notice.
  3. Once Mr X told the Council that he needed adjustments made because of his disability the Council should have restarted the process to ensure he was put back in the position he would have been in. The information the Council has provided about this has been inconsistent. In response to a draft of this statement, the Council provided a copy of the bundle of documents that were before the court. This included new information which I had not seen before including a copy of a letter to Mr X of 4 July 2017 giving notice of the court action.
  4. The purpose of the court action was to obtain a warrant to enable the Council and its contractors to enter on the land and carry out the works as the abatement notice had not been complied with. In granting the warrant the court had to be satisfied that the proper process had been followed. Having now seen the documents that were before the court I do not consider I can come to any view on whether the action was done properly because this is something the court has considered as part of its decision to grant the warrant. If I were to consider this again I consider I would be trespassing on the decision already made by the court.

Communication with Mr X

  1. Although I cannot say whether or not there was any fault in the Council’s service of the notice and subsequent action I do have concerns about the Council’s records of its correspondence with Mr X.
  2. Mr X complained about this, and other matters, when he went into the Council offices on 9 June 2017. The Council replied and it has sent me a copy of a large print letter. However this is undated and has no address on it so it unclear how and when this was sent. Nor does it contain any detail about the statutory nuisance action. This was a missed opportunity to explain to Mr X what was happening. Once it was clear that the Council needed to make adjustments for Mr X it should have ensured it kept proper records of its contact with him and ensured it met the adjustments he needed. I have seen various different versions of the correspondence with Mr X and the Council has been unable to produce a clear explanation of what was sent when and where it was sent to. Some of the correspondence was in the required font but not all and this is fault. But because I cannot comment on the substance of the action as I explain above I cannot say that these failures to meet Mr X’s reasonable adjustments meant that the works were done when they would otherwise not be.
  3. I consider this complaint shows a need for the Council to improve its record keeping both in terms of complaint handling and when it is taking formal action and the follow up to that.

The charge for the works

  1. It is unclear what has happened about the outstanding debt for the works. The information the Council has provided about this has been confusing and contradictory. It is clear Mr X has not paid and it appears the Council has not pursued that for the duration of the complaint. It also appears as if the Council imposed a charge on his property in October 2017 but it was then removed. Again the information the Council has provided about this has been unclear. But as there is no charge on the property it is not of any significant consequence to Mr X so I am not pursuing the point further.

Damage to Mr X’s property

  1. Mr X said the contractors damaged his property and removed a fixed building. He believed it would cost £30,000 to reinstate the property. I cannot come to a view on this. The Council is very clear that no building was removed and the photographs I have seen do not support Mr X’s position. I also note that in email contact through a social worker shortly after the works were done there was no mention of this or that Mr X was otherwise dissatisfied with the works. Also, Mr X agreed to have further works done through the Council and its contractors and there was no mention of dissatisfaction by Mr X at this point. I would have expected to see Mr X raising concerns at this point if he considered there was damage to the extent he later reported.
  2. The appropriate way to address this, if Mr X remains aggrieved, would be through a claim in the courts and it is not for me to consider the matter further.

Other matters

  1. Officer B said that when he attended the property he believed it to be empty. There was no waste in the rubbish bin and he looked through the letterbox to see if there was accumulation of post, and through the windows. But he did not knock the door. Mr X said there was an occasion when he was aware of people in the garden and thought it was intruders. I cannot say if the event Mr X reports was when Officer B was there but I consider it would have been good practice for the officer to have knocked the door when he visited the property. I understand the background to this is the Council thought the property was empty, or had been unoccupied. But, regardless of the appearance of the property and the history, I consider it should be standard practice for an officer to attempt to introduce themselves to an occupier of the premises when entering on land under the powers they have.

Agreed action

  1. The Council will, within one month of the final decision, apologise to Mr X for failing to make the reasonable adjustments he needs in all its correspondence with him.
  2. Within two months of the final decision the Council will review its approach to record keeping both in terms of its actions when dealing with complaints of untidy land and in its complaint handling. It will tell the Ombudsman of the outcome.

Back to top

Final decision

  1. There was fault by the Council which caused injustice to Mr X. The Council will apologise and review its procedures.

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

Privacy settings

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.