The Ombudsman's final decision
Summary: We will not investigate this complaint that the Council has failed to take action to resolve problems caused by a blocked gutter on the property next door to the complainant. That is because there is not enough evidence of fault by the Council to justify investigating.
The complaint
The complainant, Mr B, complained that the Council has failed to take action to resolve problems caused by a blocked gutter on the property next door.
The Ombudsman’s role and powers
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 do not start or may decide not to continue with an investigation if we decide: there is not enough evidence of fault to justify investigating, or we could not add to any previous investigation by the organisation, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))
How I considered this complaint
I considered information provided by the complainant.
I considered the Ombudsman’s Assessment Code.
My assessment
The Environmental Protection Act 1990 says councils must take reasonable steps to investigate potential statutory nuisances. There is no fixed point at which something becomes a statutory nuisance. Councils will rely on suitably qualified officers (generally an environmental health officers) to gather evidence. The officers may, for example, carry out site visits. Once the evidence-gathering process is complete, the environmental health officers will assess the evidence. They will consider factors such as the duration and intensity of the alleged nuisance. The officers will use their professional judgement to decide whether a statutory nuisance exists.
Councils can also decide to take informal action if the issue complained about is causing a nuisance but is not a statutory nuisance. For example, they may write to the person causing the nuisance.
In this case, after Mr B had initially reported the problem to the Council, it told him its officers had contacted the property owner on an informal basis. But the owner did not resolve the problem. The Council explained to Mr B it could not then take formal action against the owner because its officers had not witnessed statutory nuisance.
Two of the Council’s officers have visited the site to inspect the problem. The Council has also reviewed Mr B’s video evidence. But it has explained to Mr B its own officers must witness the problem when the guttering is overflowing and water is coming onto his land.
It is for the council’s professional officers to reach their own independent judgement on whether there is a statutory nuisance. Until that point is reached the Council cannot take formal action against Mr B’s neighbour. There is not enough evidence of fault in the way the Council reached its decision not to take formal action to justify investigating this complaint. But, if the problem persists, the Council has told Mr B its officers can visit again during heavy rainfall to re-assess the situation when there is water overflowing from the guttering onto Mr B’s property.
Final decision
We will not investigate Mr B’s complaint because there is not enough evidence of fault by the Council to justify investigating.
Investigator's decision on behalf of the Ombudsman