Summary: there was fault in the way the Council responded to Miss X’s request for its private sector housing enforcement team to investigate disrepair in her rented flat. Miss X suffered some distress and frustration. The Council has agreed to pay Miss X a financial remedy and make a service improvement.

The complaint

1. Miss X complained that the Council took too long to respond to her request for assistance to get her landlord to repair a defective heating and hot water system in her private rented flat. She has a disability and was left without heating and hot water during a very cold spell which had a serious detrimental impact on her physical and mental health. By the time a Council officer inspected in mid-February 2023, the managing agents had supplied alternative heaters.
2. Miss X also complained that a Council officer told her an Improvement Notice would be served on her landlord but this did not happen. The landlord served a Section 21 Notice in March 2023 and has since applied for a Possession Order. Miss X says she would have been protected from a retaliatory eviction if the officer had followed through on his promise to serve an Improvement Notice.
3. Miss X wants a financial remedy for the distress and inconvenience and help to find suitable alternative housing.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, section 26(1), 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 spoken to Miss X. I also considered:
• all the information she sent me;
• the Council’s response to my enquiries and relevant records;
• the relevant law and statutory guidance;
• the Council’s Corporate Enforcement policy and service standards.
7. I gave Miss X and the council 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

The relevant law and guidance

8. Part 1 of the Housing Act 2004 gives councils powers to take enforcement action against private landlords when it has identified a hazard which puts the health and safety of the tenant at risk. If a council considers a category 1 hazard exists in residential premises they must take appropriate enforcement action in accordance with section 5 of the Act.  Councils have discretion to take enforcement action if a category 2 hazard is identified.
9. The government has issued statutory enforcement guidance which councils must take into account when carrying out their duties under the Housing Act 2004. It says where the owner or landlord agrees to take the action required by the council, it might be appropriate to wait before serving a notice unless they fail to start works within a reasonable time. When deciding whether to delay enforcement action, the council needs to take into account the risk to the health and safety of the occupier and the likelihood of the owner or landlord cooperating.
10. For tenancies granted since 1 October 2015, the Deregulation Act 2015 protects a tenant from a retaliatory eviction for six months when the council has served a relevant notice on the landlord. This includes an Improvement Notice for Category 1 or Category 2 hazards in the property. The landlord cannot serve a Section 21 notice to terminate the tenancy in the six month period following the service of a relevant Notice.

The Council’s enforcement policy for private sector housing

11. The Council has a corporate enforcement policy. Appendix G sets out the policy and service standards for the Property Regulation team which deals with private sector housing enforcement. It says it will respond to enquiries and complaints from tenants within five working days. It says a property inspection will take place in response to a reasonable complaint or request for a service. In most cases, the Council must give the landlord notice of the inspection.
12. The policy also sets out some general principles for good enforcement. One is about making proportionate decisions. It says officers will consider the circumstances of the case, and the attitude and history of the parties involved, before deciding what type of enforcement action to take. It also says officers will select the most appropriate enforcement method with the aim of achieving the highest standard of compliance within the least time.

What happened

13. Miss X is a tenant in private rented accommodation. She lives with chronic medical conditions which affect her physical and mental health. She was recovering from surgery at the time of these events.
14. On 14 December 2022 Miss X emailed the Council’s Property Regulation team to ask for assistance. She said there had been no heating or hot water in her flat for the past four days and it was very cold. Her landlord had not fixed it. She said this was the third time she had been without heating and hot water since she moved into the flat.
15. Two days later, Officer A, who works in the Property Regulation team, met Miss X at the flat. He did not make any record or notes at the time of the inspection. In his correspondence with the managing agents at the time he said the flat was very cold and there was no hot water. Miss X says she told Officer A about her health conditions.
16. On the same day, the landlord moved Miss X to an empty flat in the same building where the heating and hot water system was working. Gas engineers attended Miss X’s flat on the same day to test the heating and hot water. They found it was operating correctly and achieving required temperatures.
17. On 9 January Officer A spoke to the managing agents of Miss X’s flat. According to an email the managing agents sent after the call, Officer A had referred to serving an Improvement Notice and fining the landlord. The managing agent said she was not sure what the landlord had done wrong. He had moved Miss X to an empty flat in the same building when the issue was reported and he knew that it would not be resolved quickly. The other flat had heating and hot water. The concierge had also helped Miss X move her mattress and personal belongings.
18. The managing agents also forwarded to the Council an email from the building concierge who had checked the heating and hot water in Miss X’s flat on 9 January. The concierge said the hot water temperature was fine at the time of his inspection. (In a later email to Officer A, Miss X disputed that and said the radiators only reached14 degrees after three hours.) Miss X told the concierge the problem with the water temperature was intermittent. He said they would need access to the flat to take three temperature readings every day for the rest of the week. On arrival the concierge found the heating system was switched off but the radiators heated up when it was turned on. The living room radiator had a cold area and took longer to fully heat up. The concierge said Miss X had refused to give them access to the flat that week.
19. On 12 January Officer A emailed the managing agents with several questions and a request for documents, including the gas engineer’s report. He said he would consider waiving the fine if the managing agents satisfactorily responded to his request.
20. Miss X contacted Officer A on 13 January and he agreed to contact the managing agents for an update.
21. On 17 January the managing agents emailed Miss X to explain the concierge would need access to her flat to check temperatures on three consecutive days the following week. Miss X forwarded this email to Officer A on the same day and asked if he had received the gas engineer’s report and how she should respond to the managing agent’s request.
22. On the same day the managing agent replied to Officer A’s 12 January email and attached the gas engineer’s report. She expressed the view that it was not appropriate to fine the landlord because Miss X had been moved to an alternative flat with heating and hot water. She recognised it was inconvenient for Miss X to move out while the heating and hot water issue was being investigated. She said they were waiting to hear back from Miss X about arrangements for the concierge to have access to her flat the following week.
23. On 3 February the managing agent emailed Officer A to ask if the case had been closed because the gas engineer’s report had not identified any defects with the heating and hot water. She said they had installed larger panel radiators as a goodwill gesture.
24. On 10 February the case was reallocated to Officer B who arranged to meet Miss X at the flat on 16 February.
25. When Officer B inspected on 16 February, he found the heating and hot water was working properly. There is a written record of his inspection findings. He noted that a new double panel radiator had been installed. After the visit, he spoke to the managing agent who agreed Miss X could return the keys to the other flat the following day and the concierge would help her move her mattress and belongings back to her flat.
26. Miss X spent two months in the other flat before she returned to her flat on 17 February. She said this was very inconvenient because she was living out of a suitcase.
27. On 6 March Officer B explained to Miss X that the Council could not take enforcement action when he had found the heating and hot water was working properly on 16 February. He said her case was now closed but she could contact the service again if there were any further problems with the heating and hot water.
28. On 9 March a manager in the Property Regulation team contacted Miss X to apologise for the delay after Officer A’s initial inspection on 16 December. She said this was due to sickness absence which led to the case being reallocated to Officer B in February.
29. The landlord has since issued Miss X with a Section 21 notice to terminate her tenancy. Miss X believes this is a retaliatory eviction because she reported the disrepair to the Council. Miss X says that if the Council had kept its promise to serve an Improvement Notice on the landlord, the landlord could not have served a Section 21 Notice and she would not be threatened with eviction.
30. In response to my enquiries, the Council sent a statement Officer A made in December 2023 giving his recollection of the inspection in December 2022. He said he had run the taps in the kitchen and bathroom and the water was hot. The heating was off but he turned it on and found the radiators worked. One radiator in the living room had cold spots at the bottom but gave out some heat. He advised Miss X to keep the thermostat raised while she was in the flat. He said he would speak to his team leader about whether it was possible to take enforcement action given that the heating and hot water was working.
31. In response to my enquiries, the Council said Officer A had discussed the range of potential enforcement options with Miss X during their meeting. This included the possible service of an Improvement Notice. But he did not give her any assurances or commit to this specific course of action. He would have had to complete a full Health and Housing Safety Risk Assessment and discuss the options with his manager before deciding whether to serve a Notice.
32. The Council also told me the Housing Solutions team has been assisting Miss X. It decided the Section 21 Notice her landlord served in March 2023 was not valid. The Council had introduced a Selective Licencing Scheme in the area in early January 2023 and the section 21 Notice was issued before the landlord had applied for a licence.
33. The Housing Solutions team also referred Miss X in June 2023 to an agent for assistance in finding alternative private rented accommodation. She declined an offer to view a studio flat. The team will help Miss X with her defence to the landlord’s claim for possession of the flat. It will also find out if she has changed her mind about looking for other private rented accommodation.

My analysis

34. We cannot investigate the managing agent’s actions. It is responsible for investigating defects in the heating and hot water system in Miss X’s flat. This investigation has examined the way the Council’s Property Regulation team responded to Miss X’s request for assistance.
35. Officer A inspected Miss X’s flat within two days of the Council receiving her service request. There was no fault at this stage. The Council responded promptly and met the service standard in its corporate enforcement policy.
36. However the findings from Officer A’s inspection on 16 December were not recorded in the case notes at the time. That was fault. It was also fault not to make a record of his call to the managing agents on 9 January. This means there is no contemporaneous record of the first inspection or the first contact with the managing agents.
37. In one email to the managing agents, Officer A said there was no heating or hot water in the flat. He also appears to have threatened to serve an Improvement Notice and fine the landlord because the managing agent’s 9 January email queried if that was necessary or appropriate. In a more recent statement, Officer A recalled the hot water was working and the radiators heated up when he turned the system on. There are significant inconsistencies in these statements which we cannot resolve due to the lack of contemporaneous records.
38. Based on the records I have seen, there is no evidence that Officer A told Miss X in December 2022 he would definitely serve an Improvement Notice on the landlord. The managing agent’s emails to Officer A certainly indicate he was considering this option because they challenged the need for a Notice and a fine. But it would not have been proportionate for the Council to have served an Improvement Notice then. I say this because the evidence shows the managing agents were co-operating with the Council to try to resolve the issue. They arranged for a gas engineer to inspect the heating and hot water system, installed a larger radiator and monitored the heating and hot water for a few days to check if it was working properly. The landlord also moved Miss X temporarily to another flat while these issues were being investigated. In these circumstances, there was no fault in the decision not to serve an Improvement Notice as the managing agents were engaging with the Council and were willing to investigate and remedy any defects. For these reasons I do not uphold Miss X’s complaint that Officer A failed to serve an Improvement Notice and she would have been protected from eviction if he had done that.
39. Apart from one brief holding email, there seems to have been no further communication with Miss X between the first inspection on 16 December and the next contact on 10 February to arrange the second inspection. She did not know what the Council was doing to resolve matters. It also took time to arrange the second inspection on 16 February. This delay was due to Officer A’s absence, workload pressures in the service and the need to reassign the case to Officer B. Nevertheless the poor communication and delay in this period is service failure and fault.
40. I have considered the impact on Miss X. I took into account that she moved to another flat in the same building within two days of making her service request to the Council. The other flat had adequate heating and hot water which mitigated the impact on her. Although it was inconvenient for Miss X to have to move out of her home, I understand she kept the keys to her flat and had access to her belongings at all times. For this reason, the injustice is limited to the distress and frustration she felt due to the lack of communication and the time it took to arrange the second inspection. The Council has already apologised to Miss X for the delay so I have not asked it to make a further apology now. I have recommended a symbolic financial remedy to recognise the distress.

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Agreed action

41. Within one month of my final decision, the Council will:
• Pay Miss X £150 to recognise the distress and frustration caused by its poor communication with her and the delay in arranging the second property inspection;
• Send a written reminder to officers in the Property Regulation team about the importance of good record-keeping and the need to make a contemporaneous record of property inspections and telephone calls.
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 the investigation and found the Council was at fault and this caused injustice to Miss X. The Council has agreed to provide a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman