The Investigation

The complaint

1. Miss X complained the Council delayed inspecting her privately rented property for health hazards and then failed to inspect properly. Further, it did not properly update her on the outcome of its inspection. Miss X says she has lived for longer than necessary in unhealthy conditions and her belongings were damaged.

What we have and have not investigated

2. We have investigated Miss X’s complaints from April 2021. We have not investigated earlier matters as these are out of time and there is not a good reason to exercise discretion.

Legal and administrative background

The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)

6. The law says we cannot normally investigate a complaint unless we are satisfied the council knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the council of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5))

Housing Act 2004

7. The Housing Act 2004 sets out councils’ duties and powers to address hazards in residential properties in their area.

8. Where a council, for any reason, considers it would be appropriate to inspect a property to determine whether any category 1 or 2 hazard exists, it must arrange an inspection.

9. If a council considers a category 1 hazard exists it must take the appropriate enforcement action. This means doing one of the following.

• Serving an improvement notice.

• Making a prohibition order.

• Serving a hazard awareness notice.

• Taking emergency remedial action.

• Making an emergency prohibition order.

• Making a demolition order.

• Declaring the area a clearance area.

10. If a council considers a category 2 hazard exists it has powers to take the following enforcement action.

• Serve an improvement notice.

• Make a prohibition order.

• Serve a hazard awareness notice.

• Make a demolition order.

• Make a slum clearance declaration.

Hazard awareness notice

11. A hazard awareness notice is a notice advising the person on whom it is served of the existence of a category 1 hazard on a residential premises which arises as a result of a deficiency on the premises.

12. A notice under this section must specify:

• the nature of the hazard and the residential premises on which it exists;

• the deficiency giving rise to the hazard;

• the premises on which the deficiency exists;

• the authority’s reasons for deciding to serve the notice, including their reasons for deciding that serving the notice is the most appropriate course of action; and

• details of the remedial action (if any) which the authority consider that it would be practicable and appropriate to take in relation to the hazard.

Council investigation procedure

13. The Council provided a copy of its investigation procedure, in place at the time.

14. Upon notification of a housing standards complaint the Council will:

• check the tenant has advised the landlord of the issue and given a reasonable time for resolution;

• contact the tenant, discuss the case and contact the landlord. If it is being resolved by the landlord monitor for completion. If the landlord is not resolving it arrange a Housing Health and Safety Rating System (“HHSRS”) inspection;

• write to the landlord and tenant following the inspection if there are no hazards to advise and close;

• carry out an HHSRS assessment if there are hazards;

• write to the landlord and tenant to advise what the hazards are, the category, the works required and the timescale (generally around three months for low category 2s, six weeks or a month for category 1s depending on season);

• diarise the timescale;

• if works have been completed, revisit. Write to confirm works are complete and close; and

• if works have not been completed, assess the best course of action to proceed. For low level category 2; informally follow up with the landlord or close. For high level category 2; follow up with the landlord or start formal enforcement action. For category 1; start formal enforcement action.

Council enforcement policy

15. The Council has provided a copy of its 2017 enforcement policy, in place at the time.

16. This explains its primary role is to educate and advise owners and landlords as to the standards expected, including how to obtain resources to assist with works, where necessary. However, in some circumstances it will be necessary to take appropriate formal action.

17. The policy outlines its duties and powers to act on finding category 1 and 2 hazards, as set out in law.

How we considered this complaint

18. We produced this report after examining relevant documents and speaking to the complainant.

19. We gave the complainant and the Council a confidential draft of this report and invited their comments. The comments received were taken into account before the report was finalised.

What we found

What happened

20. In April 2021 Miss X contacted the Council raising concerns about the condition of her property. The Council told her to write to the landlord in the first instance, requesting they take remedial action.

21. In June Miss X contacted the Council again. It again told Miss X to write to her landlord but to contact it should the matter remain unresolved after 28 days.

22. On further contact from Miss X in June the Council contacted her landlord. It established the landlord had agreed to remedial works but due to the level required had asked Miss X to move out while these were undertaken. The landlord also offered alternative accommodation.

23. Miss X declined this offer as she considered the accommodation unsuitable. However, the Council suggested she accept this offer. The Council explained there was limited additional enforcement intervention it could take given her landlord had agreed to undertake the works.

24. On 10 September Miss X contacted the Council’s homelessness team as her landlord had served her notice to quit the property to allow works to take place. The Council says its team offered alternative private rented accommodation which Miss X declined.

25. In October the Council spoke to the landlord who confirmed the works required and said they had offered an alternative flat in the same building Miss X could move to.

26. In January 2022 the Council completed an HHSRS inspection of the property. It identified category 1 hazards for cold, damp and mould and a category 2 hazard for electrical issues. It did not find the property uninhabitable but works were required.

27. In response to enquiries the Council said it decided to inspect at this stage given the works had not yet been undertaken and it needed to appreciate if the state of the property was so significant as to require it to force action to have the property vacated.

28. The Council’s HHSRS report said the following, in relation to damp and mould. “There is a threat to health associated with the increased prevalence of mould and fungal growth resulting from damp and high humidity. This includes threats to mental health and social well being which may be caused by living with damp and mould growth.” The report included photos to show perished plaster work and water staining.

29. On excess cold, the report said: “Heating should be controllable by the occupants, and safely and properly installed and maintained. The installed heaters are old, currently unused and untested. There appears to be insufficient heating in the flat. This increases the likelihood of harm above the national average.”

30. On electrical issues, the report said: “There appears to be insufficient sockets and extension leads being used in the property. It is suspected the electrical system is very old and has been affected by the significant damp issues; it is therefore considered there is a significantly higher likelihood of risk of harm than the national average.”

31. The Council emailed the landlord on 11 January. It said it had found category 1 and category 2 hazards; namely damp, mould, insufficient heating causing cold and electrical issues. It did not give details of the remedial action necessary or a timeframe for action.

32. On 25 January Miss X accepted the landlord’s offer of alternative accommodation while they completed remedial works.

33. In March the Council asked the landlord for an update. They confirmed the tenant was moving to alternative accommodation while it completed works.

34. In March Miss X complained to the Council it had not handled her case properly and had been reluctant to act. She also said it should provide her with a copy of its inspection report.

35. The Council replied in April, apologising for its delayed response. It explained where informal action appeared to be working it would keep to that approach. It understood she had moved out of the property while the landlord carried out works. It was not usual practice to provide a tenant with a copy of its inspection report.

36. Miss X replied that:

• her home had suffered with damp, mould and electrical issues for many years, but the landlord failed to deal with the problems;

• she contacted the Council but it suggested she seek to resolve the issue without its assistance to avoid the relationship between the landlord and tenant breaking down;

• she continued to ask the landlord to carry out the repairs but nothing was done;

• she contacted the Council again and was told it would not inspect the property as there was very little that it could usefully do but advised that she may be able to get legal assistance to deal with the matter;

• she engaged a solicitor and arranged her own inspections;

• she then contacted the Council again and said there was a category 1 hazard. Only then did the Council agree to inspect;

• the Council said it had since asked her landlord to carry out repairs but did not say what these involved or the timeframe for completion. By this time her solicitor had already secured the landlord’s agreement to repairs;

• if the Council had inspected when she first requested this she would not have had to take her own legal action;

• the Council told her it did not initially take action because the landlord said they would complete the works and they had offered alternative accommodation. However, this offer was not made until long after the conditions in the flat had become hazardous and she could not accept the offer for personal reasons; and

• she queried why the Council refused to inspect; why she was not a priority for re-housing in the circumstances and why she was not updated.

37. The Council said:

• it is not under a duty to inspect and has limited resources. It will ask the tenant to approach the landlord first and it will not interfere if it appears the landlord is taking action to resolve matters;

• in her case it found the landlord was taking action and had offered alternative accommodation;

• she should speak to the housing team about their decision on priority; and

• it usually updates tenants and sends a copy of the formal notice served to the landlord. She received a verbal update.

38. Miss X asked to escalate her complaint. She said:

• the Council did not ask for any evidence to check if she had approached her landlord first;

• she had been trying to resolve the matter with her landlord for years to no avail yet the Council refused to inspect until she said there were category 1 hazards;

• the Council told her it had asked her landlord to carry out repairs but had not told her what works it requested or when these would be completed. She expected to receive a written outcome from the Council; and

• she believed the Council had a duty to inspect and take enforcement action under the Housing Act but was failing to do so in her case and others.

39. The Council’s reply is summarised below.

• It outlined actions on the case.

• It acknowledged it could have inspected sooner; however, it said the primary purpose for undertaking an inspection would be to collate evidence to require a landlord to make remedial repairs where they were refusing to do so. In her case, it had been established throughout that her landlord was aware of the necessary repairs and actively wished to undertake them.

• The main barrier was that works would not be reasonably practicable while she stayed in the property. The landlord offered alternative accommodation, though it understands she considered the two offers unsuitable.

• Where there are disrepair issues, it initially seeks that repair works are undertaken. Where a landlord refuses to engage in this process or refuses to undertake the works, then enforcement options may be considered necessary.

• It decided not to take formal action to issue an improvement notice which would notify the landlord of any essential works required. This was because the landlord was already aware of, and was fully prepared to undertake the required works, as soon as they could gain vacant access to the property.

• There were opportunities to improve communication and to seek to provide a swifter resolution. However overall, it responded to her reports appropriately so it did not uphold the complaint.

• She could contact the Ombudsman.

40. Miss X wrote further to the Council to say:

• she told the landlord she could arrange temporary accommodation herself to allow the works to be done, but still nothing was forthcoming; and

• the landlord eventually offered alternative accommodation but this was in an unsafe location. She refused the second offer as the previous tenant died in the property and for other reasons. She is currently staying in a third property. She has still not received any further correspondence or work schedule.

41. When we spoke to Miss X in September 2022 she said works were still not complete and she had not received an update from the Council.

42. In response to our enquiries the Council said:

• it recognised the duty to act in response to a category 1 hazard as set out in the legislation and its enforcement policy. Its policy also says where a landlord agrees to start work it will wait, where appropriate, before serving a notice unless the landlord fails to start work within a reasonable time;

• informing the landlord of the hazards on 11 January and checking works to be undertaken was the equivalent of a hazard awareness notice approach. There is no prescribed format for a hazard awareness notice or the informal approach it took;

• it kept the case under review to determine if any other form of action was required;

• in May 2022 it confirmed with the landlord the tenant was moving out and the works were being done imminently; and

• it is not its practice to provide schedules of work for repairs to either landlord or tenant. The matters of concern at the property were principally electrical and damp. Council officers are not trained and competent to provide detailed assessment and schedules of work for such matters.

43. We had asked the Council for a chronology of its actions up to September 2022. The last action stated was on 27 May 2022.

44. When we spoke to Miss X in January 2023 she said:

• she suffered from the damp, mould and electrical hazards for years yet the Council did not take any action;

• it had been devastating. She has been left unable to function and live a normal life. Her physical and mental health have suffered. She struggles to climb stairs, suffers irritated eyes and skin, coughing, sneezing, fatigue, vomiting, headaches, dizziness and problems with concentration that she believes is due to the mould;

• she has also suffered financial loss, not only because of the damage to her belongings, but also because the faulty electrics caused four pre-payment meters to malfunction, resulting in her being overcharged for many years;

• she moved into temporary accommodation in March 2022 and moved back into her flat on 1 November 2022;

• the problems remain; her flat is still affected by damp and mould;

• she has no faith in the Council and is trying to resolve matters directly with the landlord through her solicitor;

• she has not had contact with the Council since June 2022 when it told her an officer was leaving; and

• she is desperately seeking somewhere else to live but this has been difficult due to a housing shortage and lack of affordability.

She also provided photos to show the state of her property before any works.

Conclusions

45. It is up to the Council to decide if it is appropriate to inspect a property. When Miss X contacted the Council, from April to June 2021, it acted in line with its policy; to seek informal resolution in the first instance. It also explained to Miss X why it would not inspect, namely that the landlord was otherwise willing to carry out the works and offer alternative accommodation. We find no fault in its decision making.

46. After a check in October the Council again found the landlord willing to carry out works pending Miss X moving to alternative accommodation. The Council continued to allow for informal resolution rather than deciding to inspect. We cannot criticise the merits of its decision.

47. We have not seen any evidence Miss X complained to the Council further, until January 2022. We find no fault in the Council’s actions or decision making up to this point.

48. In January 2022 the Council inspected and found category 1 and category 2 hazards. The law says the Council must take formal enforcement action on finding a category 1 hazard. However, the Council did not do so. Its published investigation procedure and its practice in this regard is contrary to the law. This is fault.

49. The Council says it took action equivalent to a hazard awareness notice. However, the content of such a notice is set out in law. The Council’s email to the landlord did not meet these requirements. Therefore, this does not negate our finding of fault above.

50. The Council’s investigation procedure is to write to the landlord and tenant to advise what the hazards are, the category, the works required and the timescale. However, the Council’s email to the landlord did not detail the works required or provide a timescale. And it did not write to Miss X. This is fault.

51. The Council’s investigation procedure is to check if the landlord has completed works within the required timescale and to consider action if not. However, the evidence seen suggested the Council did not check on works from May 2022 to at least September 2022. In comments on a draft report the Council said it was in regular contact with the landlord and understood works were progressing. It then inspected the property in August 2022 and found works complete. In support the Council provided documents showing it inspected the property on 10 August 2022 and on 30 September 2022 asked the landlord for all certification, new Energy Performance Certificate and surveyors sign off paperwork for it to review/close the case.

52. Considering the further evidence we find the Council at fault as there is no evidence it checked on works from May 2022 to August 2022.

53. Although Miss X returned to her property in November 2022 she said she had not heard from the Council since June 2022. However, we would expect the Council to have updated Miss X on the case since then. That it did not, is fault.

54. The Council’s investigation procedure says it will generally allow six weeks for works to resolve a category 1 hazard and three months for category 2. Yet works were not complete until at least eight months following the Council’s inspection. And the Council did not then update Miss X so she could arrange to return to her property. We are therefore satisfied Miss X remained out of her home for many months longer than necessary because of the Council’s fault, causing distress and uncertainty. This is an injustice to Miss X. However, we cannot say Miss X suffered from the hazards themselves for longer due to the Council’s fault. This is because she had the opportunity to move into alternative accommodation before the Council’s January inspection. And did then live elsewhere until November 2022.

55. Because of the Council’s fault, others may suffer injustice in future. We will therefore make service improvement recommendations to prevent this.

56. We are concerned to hear Miss X found hazards remaining when she returned to her home in November 2022. It would not be appropriate to investigate this complaint without first giving the Council the opportunity to investigate and reply. However, we would expect the Council to follow this up with Miss X now we have drawn this to its attention.

57. In comments on a draft report the Council said:

• while it did not technically serve a hazard awareness notice the landlord treated its email as such and so its fault did not cause Miss X injustice. In any event, such a notice does not require a timescale for works. However, as a matter of good practice it will specify a review date within future notices to monitor progress;

• we have not taken into account that Miss X experienced hazards for longer due to refusing to move to alternative accommodation. And that it was for Miss X and the landlord to decide when she would return to her property once works were complete;

• Miss X left her property in March 2022. It does not know why she did not return in August 2022. But March to August is not an unreasonable amount of time given the works required;

• Council Officers were in contact with the landlord for updates on progress and then inspected the works upon completion on 10 August 2022. It operates a reactive service but acknowledges it should have updated Miss X once it inspected and closed her case in August 2022. It has reviewed its procedures so in future at the completion of the inspection of works it will inform the tenant and close the case;

• following Miss X’s complaint, (referred to at paragraph 56), it has inspected the property again and identified a low-level category 2 hazard for damp and mould. It has updated Miss X that it does not propose further enforcement action and given her advice on how to mitigate the low level damp;

• its enforcement policy was revised in March 2022 and is legally compliant. It is now updating its published investigation procedure; and

• it has updated its practice in relation to hazard awareness notices.

58. We have considered the Council’s comments however our findings and recommendations remain the same.

59. We agree the Council’s enforcement policy was legally compliant, however its published investigation procedure was not. While the lack of a formal notice may not have directly caused injustice in this case, it could cause injustice to others in future and so we have made service improvement recommendations. We are pleased the Council has now started amending its investigation procedure.

60. The Council’s published investigation procedure required timescales for action but the Council did not set any. This is what caused the injustice to Miss X in this case. Had the Council set a timescale in January allowing six weeks for works in line with its process, it is more likely than not Miss X would have returned to her property sooner. We would also expect the Council to have updated Miss X once it was satisfied works were complete, so she could arrange to return to her property. It remains we find the Council responsible for Miss X remaining out of her property for much longer than necessary.

61. We took into account times where Miss X could have avoided injustice, as detailed in paragraph 54.

62. We welcome actions already taken by the Council to review its processes.

Recommendations

63. To remedy the injustice set out above, the Council should carry out the following actions.

• Apologise to Miss X.

• Pay Miss X £500 for distress and uncertainty.

• Write to Miss X to provide an update on the Council’s enforcement investigation from May 2022 to date, including any checks on the progress of works, decisions on whether to take enforcement action and reasons for its decision(s).

• Amend the Council’s investigation procedure to ensure it takes formal enforcement action upon finding a category 1 hazard in line with the law.

• Train those staff responsible for housing disrepair complaints on the new process.

64. The Council should provide us with evidence it has complied with the above actions.

65. The Council must consider the report and confirm within three months the action it has taken or proposes to take. The Council should consider the report at its full Council, Cabinet or other appropriately delegated committee of elected members and we will require evidence of this. (Local Government Act 1974, section 31(2), as amended)

Final report

66. We have completed our investigation into this complaint. There was fault by the Council which caused injustice to Miss X. The Council should take the actions identified in paragraphs 63 to 65 to remedy that injustice.

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