Summary: Miss S complains the Council should have earlier rehoused her, after she told various teams about mould and leaks in her private sector flat. And that it did not inspect the property for disrepair. The Ombudsman upholds the complaint. The Council has agreed to our recommendations, so we have completed our investigation.

The complaint

1. The complainant, whom I shall refer to as Miss S, complains as follows.
1. From the summer of 2021, she started contacting the Council about disrepair in her flat. But it delayed accepting the conditions in the flat were such that she was effectively homeless (as she did not have accommodation it was reasonable for her to occupy).
2. The Council’s Private Sector Housing Team (PSHT) did not investigate the disrepair. It:
• did not visit to inspect the property;
• did not write to her; and
• minimised the disrepair, suggesting it was only affecting her bathroom, despite photographic evidence she had sent its officer showing otherwise.
1. The Council did not respond to her complaint.

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The Ombudsman’s role and powers

2. 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)
3. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Miss S;
• made enquiries of the Council and considered its response;
• spoken to Miss S;
• viewed photographs from Miss S, and social media footage, about the conditions in her flat;
• sent my draft decision to Miss S and the Council and considered their responses.

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What I found

Legal and administrative background

Homelessness

6. A person can be viewed as homeless if it is not reasonable for them to continue to occupy their accommodation, for example, because it is not fit for habitation. In such cases, councils should take a homeless application and consider whether it has a duty to provide alternative accommodation. The council can discharge its housing duties by assisting the person to find private rented accommodation.
7. While the council makes its enquiries and decides what duty it has, if any, it must arrange temporary housing for someone if it has reason to believe that they may be homeless, eligible for help and in priority need. Someone would be in priority need if they have dependent children, are pregnant, are under 18 years old or if they are vulnerable.

Housing Health and Safety Rating System

8. Private tenants may complain to their council about a failure by their landlord to keep the property in good repair. Councils have powers under the Housing Health and Safety Rating System ((HHSRS) introduced by the Housing Act 2004, Part 1) to take enforcement action against private landlords where a council has identified a hazard which puts the health and safety of the tenant at risk. When a council has reason to believe there is serious risk to the health and safety of an occupier it must inspect the property.
9. The Council’s Private Sector Housing Enforcement Policy says:
• it aimed to ensure the enforcement activity it undertakes was proportionate, targeted and coordinated;
• it would normally carry out an initial risk assessment, following a referral. That would not always involve a visit to the property;
• it would take action to deal with health and safety concerns or issues which cause a statutory nuisance. For less serious issues, such as delays to repairs, it would provide advice and support;
• when a private sector tenant contacted it, it would normally make an appointment with the tenant to investigate conditions. The Council could inspect without a landlord’s permission, or presence.

The Council’s complaint procedure

10. The Council aims to acknowledge all complaints in two working days and to respond to stage one complaints in 20 working days and stage two complaints in 25 working days.

What happened

Background

11. In 2020 Miss S approached the Council for help in finding accommodation, as she and her dependent child had to leave their accommodation. The Council gave her advice and provided a financial incentive to a landlord of a private rented sector flat she found. The Council’s Tenancy Sustainment Team (TST) advised Miss S by letter it could provide her with advice and support for up to two years from the start date of her tenancy.
12. Miss S says, by September 2020, she noticed mould in every room of the flat. Her landlord took action to treat the mould. But it became apparent there was a leak into her flat. It was initially unclear if the leak was from the (privately owned) flat above Miss S’s, or a leaking pipe within the structure of the block.
13. During 2021 Miss S says the mould gradually got worse, as did the leak into her flat. She was in contact with her landlord, and the managing contractors of the estate, about the leak. Investigations found multiple leaks.

Miss S contacts the Council

14. Miss S says she was contacting the Council from around July 2021. Its TST’s first record of contact from her is in December 2021, when Miss S emailed it advising she needed help as soon as possible. And that she would like an environmental assessment of the property, as it was not fit for human habitation.
15. The TST responded by emailing Miss S’s landlord advising her of the problem and asking her to contact Miss S directly. It also advised Miss S to contact the Council’s PSHT.
16. Miss S contacted the Council’s PSHT team at the end of December 2021. Its record of that call says Miss S described a leak into her toilet room, where repair works were needed. Because there was inadequate heating in the flat, there was severe mould growth. The officer asked Miss S to send photographs of the inside of the flat and the type of heating.
17. The Council PSHT’s record has some photographs from Miss S’s bathroom from around this time. When she complained to the Ombudsman, Miss S sent me more photographs of mould elsewhere in the flat. She says she sent these to the officer at that time.
18. The PSHT case recording system’s next record is referenced as being an early January 2022 email. But the note was not created until over two months later (after it started taking action in the spring). The note says:
• the photos showed the mould growth as being particularly bad in the toilet;
• discussion was ongoing between Miss S’s landlord and the managing agents for the estate. So she did not want the officer to contact her landlord;
• the officer advised Miss S to keep her toilet door closed at all times to prevent the spread of mould spores.
19. In her complaint to the Ombudsman, Miss S says she totally refutes the suggestion she asked the officer not to contact her landlord.

The Council takes action

20. The Council’s next involvement was in the spring of 2022, after it became aware of new pictures, shared on social media, of the condition of Miss S’s flat. Internal Council emails noted:
• when, in December, Miss S had contacted the TST, it had contacted the landlord. That team was “…not aware of the severity of the leak or damp”.
• the conditions in Miss S’s flat were unacceptable. The options were to arrange temporary accommodation, or to expediate a move to alternative private rented sector accommodation.
21. Miss S also complained. She said she wanted the Council to immediately rehouse her in permanent accommodation, or give her a Band A (the highest) status on its housing register. A manager in the TST responded to advise:
• he would have expected his team to act as it had in December: to contact the landlord and give advice about contacting the PSHT;
• the TST had wrongly assumed the problems had been resolved. He apologised the team had not followed this up; and
• why Miss S’s situation would not fall under the Council’s exceptional circumstances criteria for allocating Band A priority on the Council’s housing register.
22. The Council delayed moving Miss S and her child to temporary accommodation for around two weeks, as this allowed it to source self-contained accommodation, near to where Miss S lived and worked. If it had moved Miss S earlier it would have been to a hostel or bed and breakfast.
23. In the summer, a manager in the part of the Council where the PSHT sits asked an officer to arrange a HHSRS inspection of the flat as soon as possible.
24. After her landlord completed repairs, Miss S moved back into her flat in early July. The Council closed its file.
25. On 17 July Miss S complained. The Council did not respond until 30 September. It advised:
• it again apologised for its TST’s assumption (in December 2021) the issues had been resolved;
• the conditions she had been living in were unacceptable. But they did not meet a definition of exception for a top priority for rehousing.
26. Miss S then contacted the Ombudsman.

Was there fault by the Council?

Tenancy Sustainment Team

27. Miss S says she was in contact with the TST from around July 2021. The Council does not have any records of these contacts. I do not doubt that Miss S contacted the Council. But is unclear which part she contacted or what was said. Without records, I do not have the evidence to investigate further this part of her complaint.
28. There are records of Miss S’s December 2021 contacts. I agree with the Council that, in the first instance, contacting Miss S’s landlord and advising her to contact the Council’s PSHT’s were appropriate measures.
29. But I would also have expected to have seen a record that the TST took more interest into the actual conditions of the flat, and whether the disrepair Miss S was reporting was such that the home was not fit for habitation. It could have done this by itself considering Miss S’s evidence, asking for a response from Miss S’s landlord and/or liaising with its PSHT. Doing none of these things was fault.

Private Sector Housing Team

30. Miss S also contacted the Council’s PSHT. She disputes that team’s record that she asked it not to contact her landlord. There are some issues with the Council’s actions at that time:
• the record of the conversation with Miss S was not entered onto the Council’s system until over two months after it happened (and only after the Council started taking urgent action about the issue);
• Miss S had not objected to an officer from a different Council (TST) team contacting her landlord;
• the officer did not explore with Miss S whether he should visit her (given he could do that without telling the landlord); and
• more likely than not, Miss S sent over more photographs than those on the Council’s system. While the mould appears to be worst in the toilet, the photographs do show, what appears to be, extensive mould elsewhere in the property. So I am surprised these photographs are not also on the Council’s file.
31. My decision, on the balance of probabilities, is Miss S did not intend to say she did not want the PSHT to contact the landlord. And, anyway, she would likely have agreed to a visit from the PSHT’s officers. So I find fault with:
• how the PSHT explored the issues with Miss S; and
• the issues with the records I noted in the previous paragraph.
32. The Council’s enforcement policy Council says it would provide tenants who contact it with advice and support. The conditions Miss S report seem significant enough that the officer should have provided Miss S with some follow-up written advice; perhaps about her options and the team’s availability if she did want it to contact her landlord and/or arrange an inspection. I find fault the PSHT did not do this.

The later actions

33. When the Council was alerted again, in the spring of 2022, it acted quickly and appropriately. Miss S wanted it to immediately rehouse her in permanent accommodation, or give a Band A status on its housing register. But I cannot say the Council should have treated her differently to other tenants. While I understand Miss S’s frustration, I cannot say the Council was at fault for this part of her complaint. Without fault, I cannot question the merits of the Council’s decision.
34. But I am surprised that it was not until June that the Council considered whether it needed to inspect the property under the HHSRS. My decision is that delay was fault.
35. There was also a delay in the complaint response. My decision is that was fault.

Did the fault cause an injustice?

36. The photographs Miss S sent the Council in December 2021 do not seem to be significantly different from the footage that became available the following spring. With the latter, the Council’s view was they showed ‘unacceptable’ living conditions. On the balance of probabilities, if the Council had acted without fault, it would have also taken that view in December 2021. So it would have then offered Miss S and her child temporary accommodation.
37. The issues and delays also caused Miss S some avoidable time and trouble.

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Agreed action

38. I recommended that, within a month of my final decision statement, the Council:
• provide an apology to Miss S;
• make a symbolic payment to Miss S of £750 for the approximately two and a half months she unnecessarily remained in the unsuitable property;
• pay Miss S £100 for her avoidable time and trouble.
39. I also recommended the Council remind relevant officers:
• in its TST of their responsibilities to seek evidence when tenants contact them to advise of properties that they say have poor conditions. Officers need to consider if further investigation is needed into whether the conditions were such that the property might be unfit for human habitation. They should routinely follow up enquiries and liaise as needed with, for example, the tenant, the Council’s PSHT and homelessness team;
• in its PSHT of the need for accurate, complete and contemporaneous records. And the need to consider whether any advice or support needs a written confirmation or follow-up.
40. The Council has agreed to my recommendations. It should provide us with evidence it has complied with the above actions.

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Final decision

41. I uphold this complaint. The Council has agreed to my recommendations, so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman