The Ombudsman's final decision
Summary: Mrs B complained the Council put her family in danger by failing to make a neighbouring property safe. She said the Council failed to deal with her complaints about pest infestation and nuisance and caused both her and her family distress, anxiety, and frustration. The Council was not at fault for its actions when making the property safe. However, the Council was at fault for failing to communicate effectively or deal with Mrs B’s concerns about pest infestation. The Council has agreed to remedy the injustice caused.
The complaint
Mrs B complained the Council failed to secure and make a neighbouring property safe. She says the Council also failed to deal with her complaint about nuisance and pest infestation and has failed to communicate effectively with her.
Mrs B says the Council has abandoned her, placed her family in danger, leaving them feeling unsafe in their own home. This has caused her distress, inconvenience, and frustration.
The Ombudsman’s role and powers
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) We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended) 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) 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.
If we are satisfied with an organisation’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)
How I considered this complaint
I have corresponded with Mrs B and considered the information she sent us. I made enquiries to the Council and considered the correspondence sent with its response.
Mrs B and the Council have commented on my draft decision. I have considered their comments before making a final decision.
What I found
Relevant legal background Building Act 1984 Section 78 says if it appears to a local authority that a building or structure is in such a state as to be dangerous, immediate action should be taken to remove the danger.
The Council’s dangerous structures webpage The website advises the Council’s building control service operates a 24-hour, 365-day emergency service that will take immediate action to protect the public from a dangerous structure. It gives a contact number and says, “once a report is received an experienced building control officer will visit the site as soon as possible to assess the structure and associated risks.”
It says that if a structure is found to be in poor condition but not dangerous at the time of inspection it can advise the owner or serve notice under Section 77 of the Building Act 1984 by applying to the Magistrates Court to have them undertake repairs in a reasonable time.
The Prevention of Damage by Pests Act 1949 This Act states that a council may serve a notice on the owner or occupier of land requiring them to take reasonable steps to destroy rats or mice on the land. If they fail to take the steps required by the notice within the period prescribed, the Council may take those steps and recover its reasonable expenses for doing so.
The Public Health Act 1936 Section 83 states that, where a council is satisfied that any premises: are in such a filthy or unwholesome condition as to be prejudicial to health, or are verminous it shall give notice to the owner or occupier of the premises requiring them to take steps to remedy the condition of the premises by cleaning and disinfecting them and taking steps to destroy or remove vermin.
If the person receiving the notice fails to comply with its requirements, the Council may conduct the work itself and recover its reasonable expenses Section 287 provides the Council with the power to enter premises with a warrant to complete an inspection or to complete works.
What happened I have set out a summary of the key events below. It is not meant to show everything that happened.
In April 2021, Mrs B’s neighbour’s house suffered roofing and structural damage because of a nearby fire which affected the terraced properties linked to it.
Mrs B is the owner-occupier of an end terrace house in the Council’s area. The houses are not linked but shares a boundary fence to the rear of her property.
Mrs B’s neighbour’s house is privately owned and managed by a letting agency.
Mrs B says a Council representative attended her house the day after the fire. The Council asked if it could install scaffolding to the front of Mrs B’s house and in a small corner of her garden. Mrs B says she agreed to this as she felt the neighbouring property was unsafe and posed a safety risk to both her family and her.
The Council commissioned a private contractor to install scaffolding. Mrs B says she did not receive any correspondence from the Council about the safety of the building or its plans to make the structure safe.
Mrs B said she believed the scaffolding supporting her neighbour’s house would only be on her property for a brief time. However, she says the scaffolding is still in place and has become a nuisance, causing disruption to her home, and affecting her life.
Mrs B contacted the Council in May 2021 by its website. She raised concerns that: Her neighbour’s property was accessible because of the rear door being open.
There were rats present in her neighbour’s garden which was untidy.
The scaffolding and empty house was attracting people trying to gain entry and causing nuisance.
She felt abandoned by the Council.
Mrs B says that she received an email saying the Council would respond within 24 hours. However, she says she did not receive a response putting her to the trouble of making a formal complaint in June 2021. She said: The Council had not contacted her since installing the scaffolding in April 2021 and had not replied to her concerns.
Boarding securing the neighbouring property had now been removed and it had been broken into, which had left her terrified and scared in her own home.
The Council had not told her how long the scaffolding would be in place.
The scaffolding had caused her garden to become shaded and had caused damage to her gate.
The Council responded to Mrs B’s concerns in June 2021, it said it had undertaken works to Mrs B’s neighbour’s property using Section 78 of the Building Act 1984. It told Mrs B “the Council may only do works to remove danger and protect the public.” It said the scaffolding was an issue for the contractor and would remain in place until necessary works were completed. It told Mrs B crime was a policing matter, it could not treat private property for pests, and it had completed a site visit and had taken photos of her neighbour’s house.
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The Council told Mrs B to contact the environmental health team herself or email the nuisance team. It apologised to her for not contacting her following its visit. It said it would report this to its Neighbourhood Enforcement Team to ensure that future concerns received a response in the specified time.
Mrs B responded to the Council and again questioned its approach.
The Council completed an independent review in July 2021 and directed Mrs B to the Ombudsman if she remained unhappy. It said there had been no further reports of falling debris and it had informed the letting agent of her concerns.
Mrs B complained to the Ombudsman in November 2021.
The Council’s Comments The Council responded to my enquiries in March 2022 and said: It was not aware of Mrs B’s complaint until June 2021.
It had passed Mrs B’s concerns to the building control section.
It had contacted the letting agent and asked it to attend and look into the situation.
It had contacted the Public Building Maintenance Team to do the inspection.
It had liaised with the scaffolding contractor and a site inspection was completed and material removed.
It had told the letting agency the rear of Mrs B’s neighbouring property was insecure.
The letting agent told the Council it had contacted its maintenance team.
Suitable barriers were in place to the rear of the damaged house preventing members of the public from getting too close to potential danger.
It had provided suitable advice about pests and given Mrs B contact details and information about environmental health.
Analysis We cannot question whether a council’s decision is right or wrong because the complainant disagrees with it. We must consider if there was fault in the way the council reached its decision.
This complaint engages different roles of the Council which are governed by separate legislation.
The Council has powers to deal with properties it does not own but which are causing a danger under the Building Act 1984. However, responsibility for the condition and upkeep of the property remains with the owner. The Council ensured it carried out immediate structural scaffolding by commissioning a scaffolding contractor the day after the fire.
The Council responded to further concerns raised by Mrs B and a local councillor by conducting a site visit. It also contacted its public maintenance team and liaised with the scaffolding contractor to ensure removal of unsafe material. The Council’s notes also show it contacted the letting agent and the owner of the house and has continued dialogue with them. It said there had been no further reports of falling brickwork or other materials. On the evidence seen, I am satisfied the Council responded to reports about the safety of the building and took necessary action. Mrs B raises the issue the Council has failed to make the structure safe, however, this is a matter of professional judgement for the building control officers and one the Ombudsman cannot decide.
I recognise the Council needed to act swiftly to ensure safety when it approached Mrs B to install scaffolding on her land in April 2021. However, Mrs B had the reasonable expectation of proper notification from the Council, confirming her consent and the likely duration of installation of the scaffolding on her property and providing her with a point of contact. It would have been best practice for the Council to have written and communicated with Mrs B to avoid any confusion or doubt. This was fault.
Mrs B says she contacted the Council in May 2021, but the Council disagrees and says it was not aware of her concerns until June. The Council’s letter refers to Mrs B contacting it in May, and therefore on the balance of probabilities I find the Council were aware of Mrs B’s concerns in May. There is no evidence the Council contacted Mrs B until June 2021 following her complaint. While this did not prevent Mrs B from contacting the Council, I consider this was fault and a missed opportunity for the Council to communicate its actions to Mrs B. This caused Mrs B delay and frustration. It also put her to the time and trouble of complaining.
Mrs B’s complaint engaged several separate functions of the Council, specifically environmental health, the enforcement and nuisance team, and health and safety. We would have expected the Council to have delivered a joined up corporate response on receiving Mrs B’s concerns and to have passed this to the relevant departments. I appreciate it said it had spoken to the relevant departments, however, the notes show the Council asked Mrs B to contact both the environmental health team and the nuisance team herself. This was fault and caused Mrs B delay and frustration.
I accept the Council said it was possible to act and serve notice about the rubbish build up. However, it did not follow this up and told Mrs B it could not enter private properties or buildings. On the evidence seen, the Council has not shown what action it took to deal with the pests or rubbish in the property. I also consider this was a missed opportunity for the Council to attend Mrs B’s property to explore her concerns and consider and communicate its wider legal powers such as The Prevention of Damage by Pests Act 1949 or The Public Health Act 1936. I have seen no evidence it did this and this was fault. I consider the Council’s handling of her requests caused Mrs B avoidable inconvenience and frustration and left her feeling abandoned.
Agreed action
To remedy the injustice to Mrs B the Council will by 11 August 2022: Apologise to Mrs B for the delay, frustration and distress caused.
Pay Mrs B £200 for distress, delay and frustration and putting her to the time and trouble of complaining.
Provide Mrs B with any relevant updates about the installed scaffolding on her land and the likely duration of this.
Give Mrs B details of a named officer she can contact if she needs to report further issues with her neighbour’s property.
Review this decision (by a manager in corporate services) and share my findings within the customer experience team to ensure when a complaint engages different functions of the Council it forwards the concerns to the correct department(s) and provides a corporate response.
Final decision
The Council was at fault for failing to deal with Mrs B’s concerns about a rat infestation and for failing to effectively communicate with her about her concerns. This caused an injustice to Mrs B. However, I do not find fault with the Council for its response to ensure the safety of the building. The Council has agreed to remedy the injustice caused to Mrs B.
Parts of the complaint that I did not investigate Mrs B complained the installed scaffolding has caused damage to her property. Damage to property is a matter for the Council’s insurers and Mrs B will have to consider making a claim if she believes her property has been damaged. Ultimately, she has recourse to court and that is the appropriate place to decide the Council’s legal liability for any damage. We will not investigate this part of her complaint.
Investigator's decision on behalf of the Ombudsman