Summary: Mr X complained the Council failed to take proper action following his reports of health hazards at his privately rented property. The Council failed to tell Mr X of its decision. The Council will apologise and act to prevent reoccurrence.

The complaint

1. Mr X complained the Council failed to take proper action following his reports of health hazards at his privately rented property.
2. He says he and his partner lived for longer than necessary in unhealthy conditions.

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The Ombudsman’s role and powers

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. 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)
5. 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)

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How I considered this complaint

6. I have considered:
• The information provided by Mr X and discussed the complaint with him;
• The Council’s comments on the complaint and the supporting information it provided; and
• Relevant law and guidance.
7. Mr X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Law and guidance

8. The Housing Act 2004 sets out a council’s duties and powers to address hazards in houses rented out by private landlords in its area.
9. Where a council, for any reason, considers it would be appropriate to inspect a property to decide whether a hazard exists, it must arrange an inspection. If the council identifies a hazard which puts a tenant’s health and safety at risk, it must categorise the hazard.
10. The Housing Health and Safety Rating System (HHSRS) has been developed to allow assessment of potential housing hazards. It allows the assessor to generate a numerical score and compare a full range of hazards to determine minor and major hazards. When carrying out an assessment two factors should be considered. These are: the likelihood of occurrence and the potential outcomes. The assessment should also consider whether the tenants’ actions have contributed to the hazard.
11. Potential hazards could include:
• Hygrothermal – damp, excessive cold, and excessive heat.
• Pollutants – Asbestos, carbon monoxide, lead etc.
• Psychological – Space, lighting, and noise.
• Accidents - Fire and electrical, falls, explosions, structure etc.
• Infections from other sources.
12. The HHSRS sets out relevant matters to help determine the likelihood of a hazard occurring for all potential hazards.
13. If the Council considers it a category one hazard it means the council must take appropriate enforcement action. Including:
• Serving an improvement notice.
• Making a prohibition order.
• Serving a hazard awareness notice.
• Taking emergency remedial action.
• Making a demolition order.
• Declaring the area a clearance area.
14. If the council considers it a category two hazard it means the council can take enforcement action, should it choose to. Including:
• Serving an improvement notice.
• Making a prohibition order.
• Serving a hazard awareness notice.
• Making a demolition order.
• Making a slum clearance declaration.

What happened

15. Mr X moved into a privately rented house in early 2022 with his partner. After moving in he became concerned about the condition of the property. He raised the issue with the landlord, but no changes were made to the property.
16. Mr X contacted the Council in mid-October 2022 to raise concerns about the condition of his property. He explained there were issues with the windows and walls. He explained this was causing significant condensation in the property, causing mould growth, and making it impossible to heat. He believed a brick wall had been removed and replaced with boards. He asked the Council to assess the property.
17. In November 2022 Mr X contacted the Council to explain the landlord had agreed to buy some draft excluders and would wait to see whether this worked.
18. The Council carried out an inspection in early November 2022. It noted the property had an EPC rating within the legal requirements. The officer noted the tenants were drying clothes in the property without ventilation. They stated the mould found was consistent with normal condensation mould around windows. They could not find any evidence of rising damp, penetration damp, water leaks or other causes of high humidity. The Council decided that it could not take any enforcement action against the landlord because the energy performance certificate (EPC) was within legal requirements.
19. Following the inspection, the Council provided Mr X with advice about how to reduce condensation in the property. The advice included drying clothes in a closed room with a window open, ensuring they heat all rooms, removing condensation and regularly removing the mould.
20. In early December 2022 Mr X contacted the Council. He explained the issues with the condensation and cold remained despite following the Council’s previous advice. He explained that it was affecting his partners health.
21. The Council carried out an inspection of the property in mid-December. Two officers attended. They identified issues with some windows and noted the tenant’s concerns about the walls. They also identified mould in the master bedroom around the window. They decided the lack of heating and ventilation was causing the condensation and there were no major issues of disrepair. The officers accept the house was on the cold side but also recorded the radiators were turned off.
22. The Council completed an assessment form identifying two hazards - damp and mould growth and ‘uncombusted fuel gas’. For both hazards it worked out a class score and the likelihood of occurrence as required. During the investigation the Council has stated it identified these as category two hazards and chose to take informal action against the landlord.
23. Following the visit, the Council contacted the landlord about the concerns identified. It told the landlord that it had looked around the property and said a few issues needed addressing. It listed concerns Mr X had raised, the concerns it had identified and the action which it expected the landlord to take. This included concerns with the boiler, windows and walls.
24. It stated the walls in the living room and dining room were not properly insulated, which was causing cold in the property and mould. It said the landlord should check these. It raised concerns about the seals round the windows which had perished. It asked the landlord to overhaul them. It also asked the landlord to arrange a gas inspection due to concerns with the boiler and for radiators to be checked. It did not provide a time scale for any action but stated the gas inspection should be carried out as soon as possible.
25. In late December the landlord told the Council that she had arranged a gas inspection for mid-January. She also confirmed a window fitter had already inspected the property and had replaced one window and replaced the gaskets.
26. The landlord served Mr X notice to leave in late January 2023. He contacted the Council to raise a complaint about the decision and told them the landlord had not carried out the repairs or improvements.
27. In mid-February the Council wrote to the landlord’s agents and explained that as they had not carried out the work the Council would need to consider issuing a service improvement notice.
28. In late-February the agent told Mr X and the Council that a contractor was coming to work on the kitchen and shower. Mr X confirmed a contractor had been out but told the Council the shower was still not working, and the landlord had not fitted the extractor fan. He also confirmed the landlord had insulated the stud wall.
29. In early March the agent raised concerns about Mr X’s cooperation. They said Mr X had told the contractor not to bother replacing the seals. The Council spoke to Mr X about this, who said the contractor had said he did not know about seals and didn’t know what to do. The Council asked the landlord to arrange for the correct contractor.
30. The agent told the Council in early March that various work had been carried out but did not provide any supporting evidence of this. They provided a statement from the contractor which stated that Mr X had had told him not to bother replacing the window seals as he was leaving.
31. In late March Mr X emailed the agent explaining the date provided for painting works would not be convenient. He asked they stop emailing him as he was moving out.
32. The Council responded to Mr X’s complaint in late March 2023. It explained that it had considered the most appropriate enforcement action under the Housing Act 2004. It said that it remained in contact with the landlord to confirm the works done and had confirmed the insulation in the property had been remedied. It stated because the landlord had remedied the defects there was no further action it could take.
33. Mr X moved out of the property in April 2023. In early April the Council contacted the agent about further work that would be required based on photos Mr X had provided.

Findings

34. The Council carried out two inspections of Mr X’s home in November and December 2022. Following the inspection in December the officers identified hazards with the windows, boiler and wall insulation. I understand that Mr X disagrees with the Council’s findings and feels there are more hazards especially in relation to excessive cold.
35. I cannot question the Council’s decision where there is no fault in the decision making. The Council carried out an inspection of Mr X’s property to determine any potential hazards and considered the available evidence. It also considered whether Mr X’s actions contributed to the hazards. It rated the classes and considered the potential outcomes of the hazard when carrying out its assessment. There is no fault in the Council’s assessment process.
36. The Council has said its assessment found category two hazards. It also states that it chose to take informal action first. This is in line with the law. However, I note none of the correspondence in December specifically states the finding of a category two hazard nor the decision to take informal rather than formal action. It also did not explain what would happen if his landlord did not carry out the requested repairs. In my view, applying our Good Administrative Practice guidance principles around transparency and openness, it should have. Importantly it did not fully explain its decision to Mr X so he could understand why it was acting on some issues but not others. Nor did it make this clear to the landlord. In both instances this is fault. The lack of specific explanation in the email about the decision sent by the Council caused uncertainty for Mr X.
37. The Council sent an email to the landlord identifying the issues with the property and the work needed. I am satisfied the Council took informal action initially as in March it raised the possibility of formal action being taken. There are no specific requirements for the content of an informal email in law and the Council does not have a specific policy.
38. Mr X says that after the Council’s inspection the landlord did not take enough action to address the issues which were raised. The Council sought confirmation the work had been undertaken from the landlord and Mr X. This confirmation was in relation to work with the insulation, windows, shower, the extractor fan and gas safety.
39. When Mr X raised concerns the work had not been carried out on the windows, the Council returned to the landlord to ensure the works were completed. As a result of this the Council received a statement from the contractor explaining he was unable to complete the work. On review of this the Council concluded the landlord had made reasonable attempts to resolve the outstanding issue. The Council’s actions meant it received evidence to determine which statement it felt appropriate to rely on and acted accordingly. I appreciate that Mr X is not happy with this decision but there is no fault in the Council’s actions.

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Agreed action

40. Within one month of the final decision the Council will:
• Apologise to Mr X for any uncertainty caused by the fault identified in its December 2022 email.
41. Within three months of the final decision the Council will:
• Consider drafting a specific policy outlining the process for assessing the condition of residential buildings and enforcing standards. This should be in line with the Housing Act 2004 and the Housing Health and Safety Rating system guidance. Including guidance on how to record decisions of the category of hazard identified, the decision to take formal or informal action and keeping tenants informed.
42. The Council should provide us with evidence it has complied with the above actions.

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Final decision

43. I have completed my investigation. I have found fault leading to injustice. The Council will take action to address the injustice and prevent reoccurrence.

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Investigator's decision on behalf of the Ombudsman