Summary: We found fault on Miss J’s complaint against the Council of it failing to deal properly, promptly, and effectively with her reports about the condition of her privately rented home. It relied too much on information from the landlord, failed to provide evidence of the assessment it carried out, communicated poorly with her, and did not consider whether the condition of the property was so unsuitable that she was homeless. The agreed action remedies the injustice caused.

The complaint

1. Miss J complains about the Council failing to deal properly, effectively, and promptly with her reports of disrepair in her privately rented property; as a result, she lived in an uninhabitable and dangerous property which affected her quality of life and placed her under a great deal of stress.

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The Ombudsman’s role and powers

2. 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)
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)

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Housing Health and Safety Rating System (Housing Act 2044)

4. This system evaluates the potential risks to health and safety from deficiencies identified in dwellings. It looks at the likelihood of an occurrence that could cause harm and the probable severity of their outcomes. It assesses hazards and is evidence based. It requires a thorough inspection of the dwelling to collect evidence of its condition. Its focus is on threats to health and safety. Its underlying principle is a dwelling should be designed, constructed, and maintained free from unnecessary and avoidable hazards.
5. The system uses judgements made by an inspector based on an inspection of the whole dwelling to produce a numerical score. This is used to place each hazard found in a band. Those in the top three bands are Category 1 hazards. These are the most serious and the council has a duty to remedy or reduce them. They include hazards which may lead to death, permanent paralysis, or serious fractures, for example. Those in the next 7 bands are category 2 hazards and may also be subject to enforcement powers.
6. The first step for a council is to approach the landlord informally. If a landlord does not respond, it is likely a council will move to formal action by way of an improvement notice on the owner, for example. This requires works to be done to remove or minimise a hazard within a period of time, usually 28 days. Where a category 1 hazard is so serious it is an ‘imminent risk of serious harm’ to the occupants, it can serve an emergency notice to remove the hazard. This allows the council to enter the premises and take urgent action to deal with the hazard, charging the owners later for the works.
7. For minor hazards, a council could serve a hazard awareness notice instead. These simply give advice and do not actually require an owner to do anything.

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Homelessness code of guidance for local authorities

8. Under section 175 (3) Housing Act 1988, a person shall not be treated as having accommodation unless it would be reasonable for them to continue to occupy it. It is for the housing authority to make a judgement on the facts of each about what is reasonable, taking account of the circumstances of the applicant. (paragraph 6.23)
9. Housing authorities have a duty to carry out an assessment in all cases where an eligible applicant is homeless or threatened with homelessness. (paragraph 13)

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How I considered this complaint

10. I considered all the information Miss J sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries. I sent a copy of my draft decision to Miss J and the Council. I considered their responses.

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What I found

11. Miss J and her partner moved in to her privately rented property in 2020. The landlord also owns and rents out the flat above them. From the moment they moved in they experienced problems. She says she made her first report to the Council in early 2021 about a hole in the roof as the landlord failed to repair it. She claims despite making further reports, the Council’s just said the landlord was co-operating and she was not keeping to agreed appointments to allow contractors access to do works. She believes the Council took what the landlord said at face value as they were either never given notice, or enough notice, of visits to allow them to plan being home. This was important to them as they were key workers during the Covid-19 pandemic.
12. She complains the only time a Council officer visited was when she got a solicitor involved. The officer noted the ceiling could collapse at any time, which it later did. She also reported their bathroom drained into an open gully. Miss J believes the Council failed to consider whether they were homeless because of their living conditions.
13. A year after her first report, in its response to her formal complaint, the Council noted: she was unwilling to allow contractors in to the flat; the landlord offered to rehouse her to more suitable temporary accommodation while works were done; he gave assurances it would involve as little disruption as possible; she did not agree to the disruption that would be caused; she refused access to contractors; the landlord is considering taking action against her for not allowing him access to perform statutory duties. As the landlord was prepared to do the works, there was no need for the Council’s further involvement.
14. Miss J denies the landlord offered to relocate them, noted the unrealistic five-week schedule of works proposed by him, and says she has never refused access. She claims she lost annual leave waiting in for contractors who failed to turn up.
15. These are key dates and references to Miss J includes her partner:

2021:

• April: Miss J emailed the landlord about leaks from the kitchen ceiling. After a few days a builder came to view the problem. Two weeks later she was still complaining about the issue. They denied the builder’s claim he had visited but they were out because Miss J was home.
• May: The Council received her first report about the property. It asked her for evidence of her contacting the landlord about it. This was after emails between Miss J and the landlord in which she said she was unhappy as there were still leaks in the bathroom, mould, and acid drain blocker had dripped through her kitchen ceiling. His builder had not contacted her, and she noted nothing seemed to happen. The same month she made further reports as the boiler upstairs leaked into her flat. The contractor failed to attend an appointment.
• June: The Council contacted the landlord. The landlord replied saying contractors visited to repair the collapsed ceiling, but this was difficult due to Covid-19. Miss J confirmed a contractor visited to give an estimate for works. The landlord’s solicitor emailed Miss J on a Friday to say a builder would visit the following day to repair the bathroom and leaks from the upstairs flat. Access would be needed over the whole weekend.

The landlord later confirmed the contractor fixed the bathroom heating. Miss J complained about repairs done which involved nothing more than wrapping tape round pipes. The same month, the ceiling collapsed.

The landlord also confirmed receiving a quote from contractors for works and arranging access with Miss J. She emailed saying she cannot take time off work for the date suggested and proposed a start date eight days later. The landlord apologised to the Council and Miss J for the contractor failing to turn up. He arranged a new start date later the same month. Evidence shows the landlord’s solicitor asked them about access with four days’ notice. Miss J replied saying they had repeatedly said they need a week.

• July: Miss J confirmed contact about the builder looking at what works were needed. Miss J and her partner both had Covid-19 and were isolating so the visit could not take place. They again asked for a week’s notice of works so they can cover work commitments.
• August: Miss J confirmed to the landlord’s solicitors that the ceiling had been made safe.
• October: Miss J made her complaint to the Council under the first stage of its complaints procedure. A copy of a screen shot for this month shows her name and address. In a box for her name, an entry was made saying, ‘Here we go again’. She also sent an email to the landlord with a video following rainfall as it entered her property. She asked when this would be fixed so she could be at home for the builders. Five days later with no response, she again emailed to say the situation was now worse with multiple leaks. About a week later she chased the landlord again.
• November: Miss J confirmed the contractor had access three days earlier. Two days later, the landlord said the roofing contractor was unable to gain access. An email from Miss J to the landlord’s solicitors said it was not acceptable for them to have to reschedule their own work commitments to deal with this as the builders failed to show up. She complained three days’ notice of works was too short considering their jobs and suggested doing the works after 5pm. The solicitor replied saying the contractor needed light to do the works, so their suggestion was not feasible. His solicitor asked for access for another date but gave one day’s notice. Two days later she reported yellow water from the flat above entering her property.
• December: The Council asked the landlord for an update. He confirmed drainage works were done the previous month along with the roof works. The landlord served Miss J with a section 21 Notice requiring them to leave by mid-February.

2022:

• January: Miss J said roofing works were not done and the drainage was only a temporary fix. The landlord claimed there were four visits arranged but Miss J’s solicitor failed to respond. The Council wrote to the landlord after an inspection. It warned this found category 1 and 2 hazards under the Housing Act 2004 Housing health and safety rating system (HHSRS). These included: the kitchen waste pipe directed in to fresh water drain pipe; possible defective flat roof to the extension; defective radiator; thermostatic regulator missing; damaged ceiling due to ongoing leak; excess cold through windows; no fire door; ongoing leaks in bathroom; no fire separation under stairs; water meter not separated from flat above; the need to provide gas certificates, electrical testing certificate.

In response to my enquiries, the Council confirmed it could not provide a copy of the assessment scores done under the HHSRS. This is because none were done.

It invited the landlord to send proposals within seven days about addressing them. The Council decided to deal with the hazards informally. The landlord’s solicitor told Miss J he would not cover the costs of the work required under the expert report. The landlord’s solicitor told the Council questions emailed to Miss J’s solicitors were not responded to, such as dates for access.

• February: Miss J told the Council there were no access attempts as claimed. She offered to take 2 weeks leave to allow works. She received a report from her construction expert about defects in the property which she sent the Council.

This noted many problems including: incorrect external door fitted; only the bedroom radiator worked; no fire door to the kitchen; the kitchen had combustible plastic tiles and polystyrene tiles; leaking kitchen sink; incorrectly installed condensation pipe to boiler; poor insulated bathroom; incorrect damp proofing; incorrect roof construction to extension; sinks/showers draining in to an open gully inside shower room which is unhygienic. Miss J pointed out waste from the upstairs flat also went in to this open gully.

The report concluded the property was uninhabitable as it was not fit for human habitation and likely had no planning consent. It recommended demolishing the extension and rebuilding it. The Council says the conversion took place before 2013 which means the four-year enforcement period had expired.

• March: Miss J sent an email when she became frustrated with the lack of action by the Council. She had offered to use two weeks leave to allow the works to be done. The landlord provided electric and gas certificates and confirmed he received no contact from Miss J’s solicitor about access as he wanted to do further works that month.
• April: Miss J’s solicitor asked for a property inspection by officers. Work dates were sent in response giving four days’ notice. Miss J’s solicitors contacted those for the landlord noting he had failed to provide a full schedule of works and the initial time scale of 7-10 working days to complete them was not the 19 days he now claimed he needed. They asked for a full timetable for the works. Nor were they happy they had only received one day’s notice of the date for access.

The landlord sent a schedule of works and evidence of serving notice of entry. Miss J’s solicitor asked the Council to serve an improvement notice and Miss J emailed to confirm no works were done. She referred to previously telling officers her shifts and work rotas were published three weeks in advance and that in January, she had offered to take several weeks off to allow the works to be done. She was frustrated with the lack of response from the Council. The landlord’s solicitors sent the Council details of the contact between him and Miss J as well as action taken.

• July: Miss J left the property. The Council closed its investigation.
• August: The case notes record officers satisfied the landlord would not relet the property until the works were completed.

16. In its response to my enquiries, the Council said it considered serving a Hazard Awareness Notice but, decided not to do so because the landlord showed he had attempted to arrange works.

My findings

17. I found fault on this complaint and in reaching this view, took the following in to account:
1. Problems Miss J faced go back to the start of 2021 before she complained to the Council.
2. The evidence shows there were occasions when contractors failed to keep to arranged visits. For example, contractors failed to keep arranged appointments in May, June, and November 2021.
3. There is evidence of the landlord making efforts to get contractors out to do works. I have seen emails between the landlord and Miss J about it, for example.
4. There is also some evidence of contractors saying they had turned up, claiming nobody was in. I have also seen evidence of Miss J rejecting the claim saying she had been in at the time.
5. The evidence shows Miss J telling the landlord on several occasions about the need to have at least seven days’ notice of planned works which would allow them to arrange time off from work to be home. She explained this was important because of the nature of their jobs.
6. There is also evidence of the landlord giving Miss J very short notice of intended works. For example, in November 2021, he gave her only one days’ notice. While I appreciate the difficulties the landlord faced getting contractors to agree to give specific times for works, I also acknowledge the need for Miss J to receive reasonable notice.
7. The Council is clearly not responsible for the actions of the contractors or the landlord. I referred to this evidence because on balance, I am satisfied there was an over reliance by the Council on the landlord’s solicitor’s claims which amounts to fault. For example, there is much correspondence between the Council and the landlord’s solicitor about the case, particularly about missed appointments caused by Miss J. There is little evidence the Council contacted Miss J or her solicitor about missed appointments direct. Before holding Miss J to blame in full or in part for the delays, or excusing the landlord of blame, the Council should have at least cross checked what the landlord’s solicitor claimed with her.
8. This over reliance is seen in the Council response to my enquiries, in which it confirmed its claim of Miss J refusing to allow contractors access was, ‘based on information provided by the landlord’. I consider it needed to seek her version of events because she may have refused some or all access but, she may well have valid reasons for doing so. This would be the case if the landlord gave very short notice, for example, making it difficult or impossible to get time off work.
9. The failure to contact Miss J for her version was important because the Council explained it took no action against the landlord because she provided no date for access.
10. The Council had information from Miss J directly, such as her email sent in February 2022, confirming she had not been contacted about repairs. Whether this was a failure by her own solicitor to pass on messages was an issue the Council could have explored with her.
11. While the landlord’s solicitor claimed he offered to temporarily rehouse Miss J, which she denied happened, there is no evidence of it.
12. The impression given by the entry on the Council’s computer case note is that she was a nuisance with little credibility.
13. There is no record of the HHSRS assessment officers carried out when visiting the property. The Council explained it could not provide a copy because one had, ‘Not been carried out’. This is fault.
14. Without this evidence, I query how the Council was able to inform the landlord about the hazards found and what evidence it would have relied on had it needed to go on to take formal enforcement action. There is no record of how, and what, hazards were assessed. Nor is there a record showing which hazards were category 1, and which category 2. This is fault. The letter to the landlord after the inspection merely lists all the defects found requiring action.
15. Officers visited the property in January 2022, nearly a year after Miss J made her first report. There is no evidence showing, given the nature of the reported problems, whether officers considered visiting earlier to assess the hazards. If they did consider it, there is no record of any decision or reasons for the decision. I consider this failure amounts to fault.
16. In its response to my enquiries about what consideration it gave to Miss J’s expert report, the Council said its conclusions might be inflated by Miss J’s desire to take legal action against the landlord and receive a payment. It said this was mentioned during the officer’s visit to the property. No record of this visit, or evidence of what Miss J had apparently said, was produced. As there is no record of the inspection the officer carried out, the expert report is the only evidence setting out in detail the faults and issues found with this property.
17. The government’s guidance to local authorities (Rogue Landlord Enforcement: guidance for local authorities: April 2019) outlines strategies local authorities can take. They have powers to drive up standards of privately rented housing in their area, for example.
18. The guidance refers to advising tenants on their rights and responsibilities, including providing them with clear reporting procedures for complaints. It also explains officers can carry out reactive and proactive inspections if they receive a complaint. It says it is essential for clear communication and engagement with landlords and tenants, so rights and responsibilities are properly understood.
19. There is little evidence of the Council keeping Miss J updated about the progress of its own investigation. Communication with her was poor. Nor have I seen evidence of the Council acting proactively during its investigation. This is fault.
20. I am also satisfied there is no evidence of the Council considering whether the unsuitable living conditions meant Miss J and her partner were homeless when alerted to the problems with the property. The Council needed to consider whether it was reasonable for them to continue to occupy the property because of its conditions. The expert report I have seen suggests it was not suitable. The failure to consider whether they were homeless amounts to fault.
18. In response to my draft decision about homelessness, the Council said there was no imminent risk to life or limb. It did not consider it necessary to get a Prohibition or Emergency Prohibition Order at the time of the visit. Taking this course of action would have caused Miss J to be considered homeless. The problems found were not so significant for it to take such measures. The property had a valid gas certificate and the bedroom and living room were unaffected. The heating and hot water were in good working condition and there was no issue with cooking facilities. All of these are issues considered to be present for accommodation to be unsuitable.
19. I note what the Council says but, there is no evidence of it considering the issue of homelessness at all. After all, this was a property in which the Council’s officer had found category 1 and 2 hazards and Miss J’s own expert found problems which in his view made it unfit for human habitation.
20. I am satisfied the failures found caused Miss J an injustice. The injustice to her includes:

• The uncertainty of not knowing whether the outcome of the Council’s investigation might have differed but for the over reliance on the landlord’s solicitor’s version of events. It also meant she lost the opportunity to explain her version of events in response and lost confidence in the Council’s impartiality.
• She also has the uncertainty of not knowing whether the HHSRS assessment was done properly and lost of the opportunity of seeing whether it supported what her own expert report found. Not having the evidence could have undermined any formal action it decided to take.
• There is also the uncertainty to her of not knowing whether events might have differed had the Council visited the property sooner than it did.
• The failure to communicate properly and give her information about the progress of its investigation caused her frustration and a loss of confidence in the Council.
• She suffered the lost opportunity of having the Council consider whether they were homeless because of the condition of the property making it unsuitable. She has the uncertainty of not knowing whether it would have made a difference and whether they would have been offered temporary accommodation.

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Agreed action

21. I considered our guidance on remedies.
22. The Council agreed to take the following action within four weeks of the final decision on this complaint:
1. Send Miss J a written apology for: relying too much on the landlord’s evidence and not seeking her view of events; failing to make and keep a written assessment under the HHSRS; not showing whether it considered making an earlier visit to her home to assess the problems reported; failing to communicate with her properly and keeping her updated about its investigation; not considering whether her housing conditions amounted to her being homeless.
2. Pay Miss J £450 for the injustice caused by the identified fault.
3. Remind officers dealing with these cases of the need to: i) ensure decisions not to take further action are not over reliant on the evidence of just one party; ii) keep written records of any HHSRS assessment; iii) ensure good and timely updates are communicated with those reporting problems.
4. Ensure officers are aware of the need to consider and decide whether an early visit to inspect reports of housing disrepair is needed.
5. Ensure officers are aware of the need to consider whether those reporting problems are homeless where they consider it unreasonable for them to continue to live in unsuitable accommodation.
6. Contact the landlord for confirmation and evidence that works to rectify the category 1 and 2 hazards it identified have now been done, particularly before the property is relet.

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Final decision

23. I found fault on Miss J’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman