The Ombudsman's final decision
Summary: Mr X complained about overgrown vegetation and vermin around his home which he says is “common parts” and his landlord’s responsibility to maintain. The Ombudsman found fault in the way the Council originally investigated Mr X’s complaint of overgrown vegetation and vermin but considers the Council has since provided a sufficient remedy. The Ombudsman did not find fault in the way the Council dealt with Mr X’s query about “common parts”.
The complaint
Mr X complained about overgrown vegetation and vermin around his home which he says is “common parts” and the responsibility of his landlord to maintain. Mr X is not satisfied the Council thoroughly investigated his complaint, relying on speaking with his landlord’s agent rather than visiting the site or contacting him directly. Mr X would like the Council to inspect the area for vermin and vegetation and confirm that the common parts are the landlord’s responsibility.
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) 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
As part of the investigation, I have considered the following: The complaint and the documents provided by the complainant.
Documents provided by the Council and its comments in response to my enquiries.
The Prevention of Damage by Pests Act 1949, Town and Country Planning Act 1990, Public Health Act 1936 and the Housing Health and Safety Ratings.
Mr X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
What I found
Relevant legislation The Prevention of Damage by Pests Act 1949 puts a duty on every Council to take steps to ensure their district is kept free from rats and mice. The Council must carry out inspections where necessary, destroy rats and mice on land which it occupies, and ensure owners and occupiers of private land do the same.
Section 215 of The Town and Country Planning Act 1990 requires Councils to act where the condition of land adversely affects the amenity of the area. Councils must serve notice on the owner and occupier, explaining what steps they must take to remedy the condition of the land.
The Housing Health and Safety Rating System (introduced by the Housing Act 2004) gave Councils powers to take enforcement action against private landlords where hazards put the health and safety of the tenant at risk.
The Council’s policies and procedures The Council’s policy on dealing with rats and mice from neighbouring properties – Prevention of Damage by Pests Act 1949 (PDPA) The Councils policy sets out how to deal with rats and mice from neighbouring properties. On receiving a complaint, the investigating officer should: Check the history of the property.
Telephone the complainant and establish the problem.
For private property, take details of the alleged infestation and arrange to visit.
Visit the property and carry out a thorough inspection. If no action is required, tell the complainant and close the case.
The procedure continues but this is not relevant for this investigation.
The Council’s policy on dealing with properties where conditions affect the amenity of the area – section 215 of Town and Country Planning Act (TCPA) The Councils policy sets how to deal with properties where the condition affects the amenity of the area. On receiving a complaint, the investigating officer should: Check the history of the property.
Telephone the complainant and establish the problem.
During the telephone call establish the facts, for example, the condition of the property, the owner’s details, how long the property has been in its current condition and if antisocial behaviour is taking place.
Visit the site, take photos and notes.
The procedure continues but this is not relevant for this investigation.
The Councils policy on dealing with complaints about rubbish – Public Health Act 1936 section 79 (PHA) The Councils policy sets how to deal with complaints about dumped rubbish. On receiving a complaint, the investigating officer should: Check the history of the property.
Telephone the complainant and establish the problem.
Determine the type of rubbish and location.
If the rubbish is on private property and not noxious, inform the complainant the Council cannot take action and close the case.
If the rubbish is noxious and on private property, the Officer arranges to visit.
The procedure continues but this is not relevant for this investigation.
The Councils Private Sector Housing Enforcement Policy – Housing Health and Safety Ratings System (HHSR) The Council’s policy states that in the first instance, service users are expected to take their own action to resolve the problem and correspond directly with their landlord. The Council will not take direct action for minor matters.
What happened I have summarised below the key events; this is not intended to be a detailed account.
Mr X emailed the Council in August 2021 about issues at his rented property. Mr X said there was a build-up of rubbish and overgrown vegetation on “common parts” (an area around Mr X’s property which he says is shared with his neighbour and his landlord is responsible for cleaning and maintaining) and he reported sightings of vermin near his house. Mr X sent photos to the Council.
In September 2021, the Council responded to Mr X’s emails and asked for clarification. The Council contacted the landlord’s agent.
A Senior Officer of the Council reviewed the case in October 2021. The Officer decided no further action was needed and referred Mr X to the Citizens Advice. The Officer said they would only intervene if there was a category one hazard under the Housing Act 2004.
Mr X complained to the Council in October 2021. He said his private landlord refuses to maintain/clean common parts which has encouraged vermin and overgrown vegetation. Mr X said he has a disability and had fallen on the overgrown vegetation. Mr X said he wants the Council to visit the property and inform his landlord of his legal responsibility and consider the legal definition of “common parts”.
Mr X received a stage one and two response from the Council in October 2021. The Council said Mr X’s concerns should be directed to his landlord. It was unable to intervene in civil matters and signposted Mr X to the Citizens Advice. The Council did not consider there had been a service failure.
Mr X complained to the Ombudsman in November 2021.
The Council received a copy of Mr X’s complaint to the Ombudsman in the middle of December 2021.
Council Officers visited Mr X’s property before Christmas 2021.
The Council reviewed the matter and emailed Mr X after Christmas with their findings. The Council decided there were no signs of rodent infestation or damage. The vegetation was on private land and not the Councils responsibility to maintain. There was no category 1 hazard so no action was required under the Housing Act. The Council also concluded the volume of litter was not a risk to Public Health so no action was required under the TCPA, Environmental Protection Act 1990 or the Public Health Act 1936. The Council suggested the driveway was not a communal area. It referred Mr X to his tenancy agreement which states the tenant is responsible for the garden, driveway, pathways and hedges. The Council also said Mr X’s neighbours had stopped parking on the driveway after he had raised this as an issue. The Council urged Mr X to seek independent legal advice as this is a civil matter.
Analysis The Councils investigation into overgrown vermin and vegetation The Councils policies and procedures under the PDPA, TCPA and HHSR are explained above. The first two stages are the same under all three policies. The Council must first check the history of the property, and second, telephone the complainant.
Mr X contacted the Council via email to which the Council responded. The policies say the Council must telephone the complainant and discuss the matter directly. The Council explained it applied alternative mechanisms in their investigation during the COVID-19 pandemic. This did not however prevent a telephone call. The Council could have gained a better understanding of the issues via a conversation and asked questions for clarification. The Council did not telephone Mr X as outlined in the policy documents. This is fault.
The policies under PDPA and TCPA show the next stage is for an Officer to visit the property. The PDPA policy says the Council must carry out a thorough inspection. The TCPA policy says the Officer must visit the site and check specifically what the problems are, take photos and make notes. The Council did not visit the site when Mr X first raised the issue. The Council did not follow its own policy and procedure. This is fault.
The HHSRS policy states the Council is not involved in minor matters. The Council said the issues raised by Mr X were not considered category one hazards. They were minor matters and therefore the Council did not act. The Council has followed its procedure as set out in the HHSRS policy. This is not fault.
When Mr X originally complained, Officers were encouraged to find alternatives to site visits because of the COVID-19 pandemic. The Officer considered photographs and emails from Mr X, conducted land registry and council tax searches, and consulted the mapping system. The Officer also searched for other complaints in the area and spoke with Mr X’s managing agent.
When Mr X complained, the pandemic should not have affected the Councils investigation. Legal limits restricting social contact were removed in July 2021. There was no COVID-19 reason why the Council could not have visited the property.
Without telephoning Mr X or visiting the site, the Council decided there was no evidence of damage by pests, nor was the area overgrown with vegetation. It decided there was no risk to the tenant or the wider public. The Council informed Mr X of the decision and closed the case.
In his complaint to the Ombudsman, Mr X said he wanted the Council to send someone to investigate / inspect the area. Following correspondence from the Ombudsman, the Council considered the complaint again and visited Mr X at his property in December 2021. The Council did not find any evidence of rat infestation and the vegetation was not overgrown to an extent where they would act. The Council emailed Mr X with its findings. The result was the same, the Council did not change its position. At this stage, the Council completed some steps set out in the procedure that were missing from its original investigation. The Council also provided the remedy Mr X sought i.e. he wanted someone to inspect the area. I find the Council was originally at fault for not investigating the matter in line with its policy. Since Mr X complained to the Ombudsman, the Council has investigated the matter correctly as per its procedures. The Council remedied this part of the complaint when Officers attended the property, spoke to Mr X and provided a response.
The Councils investigation into “common parts” Mr X also complains about the Councils lack of investigation into “common parts” of the area around his home. Mr X says “common parts” are the landlord’s responsibility to maintain.
It is not within the Councils remit to decide what is “common parts”. This is a civil matter between Mr X and his landlord. The Council signposted Mr X to the Citizens Advice.
Even so, the Council tried to help Mr X understand “common parts”. The Council referred to Mr X’s tenancy agreement which states the tenants repair obligations are “To keep the gardens, driveways, pathways, lawns, hedges and rockeries as near tidy and properly tended as they were at the start of the tenancy…”. The tenancy agreement shows Mr X is responsible for what he calls “common parts”. The Council also said Mr X’s neighbours had stopped parking on the driveway after he had raised this as an issue. The Council answered Mr X’s query and was not at fault.
Conclusion
The Council did not originally follow its own policies and procedures when investigating Mr X’s original complaint about overgrown vegetation and vermin. This is fault. However, the Council has since visited the site and spoken to Mr X. In his complaint to the Ombudsman, Mr X said he wanted the Council to inspect the area. I consider the Council visiting the site completes the investigation according to the Councils policy and mirrors the remedy sought by Mr X.
The Council does not have a duty to consider what are “common parts” as this is a civil matter between Mr X and his landlord. However the Council has tried to help Mr X in this matter. I do not find the Council at fault for how it assisted Mr X with his query.
Final decision
I have now completed my investigation. The Ombudsman found fault in the way the Council originally investigated Mr X’s complaint of overgrown vegetation and vermin but considers the Council has provided a sufficient remedy. The Ombudsman did not find fault in the way the Council dealt with Mr X’s query about “common parts”.
Investigator's decision on behalf of the Ombudsman