The Ombudsman's final decision
Summary: Ms X complained the Council failed to investigate the source of a rat nuisance from her neighbour’s property. Ms X also complained the Council failed to respond to her complaint. The Ombudsman found fault with the Council’s handling of one course of rat treatment. The Council agreed to the Ombudsman’s recommendation to refund the payment Ms X made for this course of treatment and provide an apology for delays in responding to Ms X’s complaint outside its complaint timescales.
The complaint
Ms X complained the Council failed to investigate the source of a rat nuisance from her neighbour’s property. Ms X says the Council has failed to meet its duty or follow procedures.
Ms X also complained the Council failed to respond to her contacts or engage with her over the complaint.
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 cannot question whether an organisation’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) 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 considered all the information Ms X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
Ms X and the Council had opportunity to comment on my draft decision. The Council accepted my recommendations and Ms X did not provide comment.
What I found
Regulations Council’s have a duty to keep Council land free of rats and mice so far as is practicable under the Prevention of Damage by Pests Act 1949.
This Act also grants Councils specific legal powers to take any necessary steps to ensure that owners and occupiers of land keep it free from large numbers of rats and mice. Councils may serve a notice under section 4 of the Act, setting out the steps they require and the time limit for action. They can require a treatment by a professional pest controller, removal of rubbish, or structural works.
Council’s pest control policy The Council provides a pest control service to treat mice infestations in residential and commercial properties. It charges fees for the works carried out to treat infestations.
The Council’s policy says its will respond to all service requests relating to pest control. The Council says it will carry out appropriate investigations and will complete enforcement action in line with its policies.
The Council’s procedure outlines that once it receives a contact from a person about a pest issue it will log it on its system and the contact the person to arrange a visit. At the visit the Council officer will complete an assessment and determine the appropriate course of treatment. Once the Council officer has completed the appropriate course of treatment, they will close the matter.
The Council’s policy says that there is no set course of treatment but this is at the discretion of the officer. Some treatment may require more than one visit or future monitoring while other treatments can be completed on the day.
Council complaints procedure The Council has a three-stage complaint process.
At Stage 1 the Council will try to resolve the complaint directly with the person complaining without the needed for a formal written response.
If the Council cannot resolve a matter at Stage 1 it will pass the case through to Stage 2 for a more detailed investigation. The Council will investigate a complaint at Stage 2 and provide a formal written response to the complainant within 15 working days.
If a person is dissatisfied with the Stage 2 complaint response they can request consideration of the complaint at Stage 3. The Council’s chief executive or directors will review the complaint and provide a response at Stage 3 within 15 working days from the request.
What happened Ms X contacted the Council on 29 May 2018 to report a rat infestation at her property. A Council Officer attended Ms X’s property on 1 June 2018, completed an assessment, laid traps and poison.
The Council Officer returned on 7 June 2018 and found no evidence of rats as the traps and poison was untouched. The Council Officer completed a further visual inspection and found no evidence of rats. The Council Officer also attended Ms X’s neighbour’s property to check for any evidence of rats and found none.
Ms X contacted the Council on 19 September 2019 about a second infestation. The Council Officer attended Ms X’s property and found evidence of rodent droppings. The Council Officer used a course of poison but on the return visit found the poison undisturbed. The Council Officer took no further action and closed the matter. Ms X paid £32 for this course of treatment.
Ms X contacted the Council again on 27 November 2019 to report the ongoing rat infestation. The Council Officer attended and laid further poison. The Council Officer completed revisits on 19 December 2019 and 6 January 2020. On the second revisit the Council found the poison had been taken so placed further poison.
The Council completed two further revisits on 16 January 2020 and 26 January 2020 but found the poison untouched. The Council Officer considered the rats had taken the poison by 6 January 2020 and this had eradicated the infestation. Ms X paid a further £32 for the Council Officer’s actions from 27 November 2019.
Ms X contacted the Council in March 2020 to request it completes a drain survey to determine if the rats were entering her property through her drains. The Council attended Ms X’s property and completed a drain survey but could not identify any issues with her drains. The Council confirmed this with Ms X and provided her with a copy of the recording.
On 19 August 2021, Ms X contacted an independent pest control company, Company 1, to attend for a rat infestation. Company 1 attended on 23 August 2021, inspected Ms X’s property and her neighbour’s property, laid poison and tracking dust at the neighbour’s property.
Company 1 provided Ms X with a report of their work on 21 September 2021. Company 1 said it had completed a structural review of Ms X’s building and found it sound and after baiting and inspection of drains found no evidence of rodent activity. Company 1 said it use tracking dust and laid bait at next door’s property and on the return visits found evidence of rodent tracking and the bait was gone. Company 1 installed a rodent mesh around two suspected entry points in Ms X’s neighbour’s property.
Ms X complained to the Council 23 September 2021 that it had failed to address her rat infestations as the rats returned. Ms X complained Company 1 attended and investigated her neighbour’s property finding the cause of the problem. Ms X complained the Council would not act to investigate her neighbour’s property or force action from the owner to address the rat infestation problem.
The Council contacted Ms X on 4 October 2021 to discuss her complaint. The Council said it visited Ms X’s neighbour’s property in 2018 and found no evidence of rats. The Council said it would attend again to carry out a further inspection.
The Council attended Ms X’s neighbour’s property on 14 October 2021 and carried out an inspection. The Council inspected the structure and found no evidence of rats or access points. The Council also noted the cellar had been pest proofed internally. The Council noted that there was already tracing dust and bait in the cellar which was undisturbed so no evidence of recent rodent activity.
Ms X contacted the Council on 27 October 2021 and complained about the lack of response from the Council. Ms X reiterated her concerns about the Council failing to resolve the cause of the rat infestation from her neighbour’s property. Ms X chased the Council on 2 November 2021 for an update to her complaint.
The Council wrote to Ms X on 5 November 2021 to provide its first written response. The Council said it had attended Ms X’s property for four separate incident since May 2018 about rat infestations and treated these on each occasions. The Council said it had visited Ms X’s neighbour since the contact from Ms X about Company 1 and found no evidence of rodent activity.
Ms X did not receive the contact on 5 November 2021 so raised the matter with her MP on 8 November 2021. Ms X’s MP contacted the Council on her behalf. The Council told Ms X’s MP about the response on 5 November 2021.
On 3 December 2021, Ms X contacted the Council advising she did not receive the letter of 5 November 2021. Ms X also queried why the Council did not complete further investigations about her neighbour’s property including the state of repair and rubbish.
Ms X contracted a drainage company, Company 2, to complete an independent drain survey. Company 2 found no drain defects.
The Council provided Ms X with a final response to her complaint on 20 January 2022. The Council said: It had found no evidence of a rodent infestation at Ms X’s neighbour’s property.
On its visit it found internal pest proofing in place and nothing to suggest further pest proofing was needed.
It was not its responsibility to clear little from Ms X’s neighbour’s property.
It had completed a drain survey to determine if rodents could access Ms X’s property through the drains and it does not have a written report of this survey.
Analysis The Ombudsman cannot question a professional decision when there is no evidence of fault in how it was made, unless it is considered unreasonable. The test for ‘reasonableness’ in administrative law is very strict. The courts have held that a decision made by a public body or its officers will only be unreasonable if it is: ‘So outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.’ (Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948]) The Council’s policy on pest control outlines the qualifications its officer’s must hold to complete pest control visits. The Council Officers are professionals in pest control and the Council’s policy on pest control gives the officers discretion on how to best address a particular infestation. I cannot question the actions of the Council Officers if they have followed the Council’s procedures and taken action that could not be considered ‘unreasonable’.
Visit one Ms X first complained to the Council on 29 May 2018. The Council logged Ms X’s concerns, attended her property and completed an assessment. The Council Officer decided to lay traps and poison to exterminate a potential infestation. The Council Officer returned a week later and found no evidence of rats so closed the matter.
The Council has followed its procedure and the Council Officer has taken suitable measures to address any potential infestation. Ms X did not contact the Council, or any independent contractor, again for nearly a year and a half about any rat infestations. The Council Officer’s actions addressed Ms X’s concerns and I do not find fault.
Visits two and three Ms X raised concerns about a further rat infestation in September 2019. The Council Officer followed the Council’s procedure by attending Ms X’s property, completing an assessment and laying a course of poison because of evidence of rodent activity. I do not find fault with the Council Officer’s initial actions.
The Council Officer returned once and found the poison untouched. The Council Officer took no further action to address the infestation.
Ms X contacted the Council on 27 November 2019 because the Council Officer had not resolved Ms X’s infestation. The Council Officer attended Ms X’s property again, completed a further assessment and put down a further course of poison. In this instance, the Council Officer revisited Ms X’s property a further two times, found the poison had been taken and came back again twice to check for further evidence of infestation.
I am satisfied the Council Officer took suitable action during Visit three to determine eradication of the infestation.
However, the Council Officer did not take as much action during Visit two compared to Visits one and three. The Council Officer found the poison untouched on one revisit before closing the matter despite finding evidence of rat droppings during the assessment. Given the actions taken by the Council Officers in Visits one and three, the actions taken in Visit two do not meet the same threshold of service. The Council Officer also could not have reached a suitable conclusion that any infestation was eradicated.
The Council should consider Visits two and three as part of the same course of rat treatment. This is because of the close proximity of Ms X’s contacts and the failure of the Council Officer to reach an evidenced determination of eradication during Visit two. The Council would only have applied one charge of £32 for the full course of treatment provided had it considered Visits two and three as part of the same course of treatment. Charging Ms X twice in these circumstances is fault and the Council should refund Ms X £32 to reflect this fault.
Visit four and drain surveys Ms X requested the Council completed a drain survey in March 2020. The Council completed these works as requested by Ms X and found no issue with her drains. The Council completed the works Ms X requested and I do not find fault with the Council.
When Ms X contacted Company 2 to complete a drain survey they also found no issues with her drains. Company 2 finding no issues with Ms X’s drains supports the Council completed its drain survey correctly. It was Ms X’s choice to approach an independent company for a second drain survey. Ms X chose to pay for this service and I cannot find fault with the Council for Ms X’s choice.
Company 1 and Visit five Ms X complained the Council failed to carry out its duty to investigate her neighbour’s property for evidence of a rat infestation. Ms X provided evidence from Company 1 of rats at her neighbour’s property to support her concerns.
The Council completed a visit to Ms X’s neighbour in 2018 as part of the course of rat treatment then. The Council found no evidence of rats during the visit in 2018. The Council took suitable steps to ascertain the existence of rats in Ms X’s neighbour’s property in 2018 and I find no evidence of fault.
Following Ms X’s contact in September 2021, the Council attended Ms X’s neighbour’s property to complete an assessment. The Council again found no evidence of a rat infestation at Ms X’s neighbour’s property. It was the Council’s Officer’s professional opinion there was no rat infestation since tracing dust and poison was undisturbed. This decision is not unreasonable and, therefore, not one the Ombudsman can dispute.
Since the Council Officers found no evidence of a rat infestation in either 2018 or 2021 at Ms X’s neighbour’s property it is only appropriate for the Council to take no further action. I do not find fault with the Council’s decision.
While Ms X may be correct and Company 1’s action treated the rat infestation at her neighbour’s property in 2021, this does not show any fault by the Council. Treatments from Visit 1 and the combined Visits 2 and 3 by the Council resolved the rat infestations in Ms X’s property for long periods. This show the Council has acted properly when carrying out pest treatments.
On the balance of probability the Council’s actions treated the rat infestation for 18 months following Visit 1 and then again for a similar time period following the combined Visit 2 and 3. Company 1 could likely have resolved the latest rate infestation for the next 18 months from October 2021. Since Ms X did not contact the Council about this infestation before she contacted Company 1, the Council had no opportunity to address this.
It is not always practical, or possible, for a Council to completely eliminate a rat infestation to such an extent that rats will never return. Rats can return to the same places provided they still have access. It is not the responsibility of the Council to ensure Ms X’s property is protected from entry by rats. The Council can attend to eliminate infestations at Ms X’s request but it is Ms X’s responsibility to ensure her home does not have any entry points for rats.
The Council has attended on each instance Ms X reported a rat infestation. The Council suitably handled rat infestations on each reported incident, except for Visit two which should have continued into Visit three.
Complaint handling Ms X also complained the Council failed to respond to her contacts or engage with her over the complaint.
Ms X complained to the Council in the first instance on 23 September 2021. The Council spoke with Ms X following the complaint and advised it would provide an initial response by 5 October 2021. The Council contacted Ms X on 4 October 2021 to discuss her complaint and advise how it would investigate her concerns.
I am satisfied the Council acknowledged Ms X’s initial complaint and promised a response within the remit of Stage 1 of its complaint process by 5 October 2021. The Council provided this promised informal response through the telephone call on 4 October 2021. I do not find fault with the Council’s actions up to this point.
From the point of the telephone call on 4 October 2021 the Council was aware it needed to complete a more formal investigation. This meant Ms X’s complaint fell into Stage 2 of the Council’s process. The Council should have looked to provide Ms X with a formal Stage 2 complaint response within 15 working days from 4 October 2021, by 25 October 2021.
The Council failed to provide a written response until 5 November 2021, 10 working days later. This delay by the Council is fault.
While Ms X says she did not receive the written response on 5 November 2021, the Council has shown production of this letter. I cannot find fault with the Council if this letter was lost in transit.
Ms X requested a further response from the Council on 3 December 2021. The Council should have provided its final response to Ms X at Stage three of its process within 15 working days from 3 December 2021, by 24 December 2021.
The Council failed to provide the Stage 3 written response until 20 January 2022. Taking into consideration the non-working days over the Christmas period, this is delay of 13 working days. This is also fault.
In total the Council delayed for 23 working days outside of its complaint timescales in responding to Ms X’s complaint. While this delay is fault I do not consider this present a significant delay or a significant enough personal injustice to Ms X that warrants more than an apology from the Council.
Agreed Actions
Within one month of the Ombudsman’s final decision the Council should: Provide Ms X with a refund of £32 for the cost of the rat treatment paid on 1 October 2019.
Provide Ms X with an apology in writing for the frustration caused through delays in responding to Ms X’s complaints outside of the Council’s complaint timescales.
Final decision
There was fault by the Council as the Council has agreed to my recommendations, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman