Summary: We found fault on Ms J’s complaint about the Council failing to properly act on her reports about the condition of her privately rented house. There is no evidence of it assessing whether there were hazards under the housing, health and safety rating system. It needed to do this when considering enforcement under its policy. The agreed action remedies the injustice caused.

The complaint

1. Ms J complains about the Council failing to properly act on her reports about the condition of her privately rented house which suffered from damp, mould, cracking, and vermin: as a result, this affected the health of her, her children, and put her to a great deal of time and trouble making and pursuing reports.

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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)

Housing Health and Safety Rating System (HHSRS)

4. Private landlords are responsible for ensuring rented accommodation is maintained to a certain standard. This includes carrying out repairs and making sure appliances are safe to use.
5. Private tenants may complain to their council about a failure by the landlord to keep the property in good repair. Councils have powers under the HHSRS (introduced by the Housing Act 2004, Part 1) to take enforcement action against private landlords where the 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.
6. The HHSRS enforcement guidance is intended to help a council decide appropriate enforcement action (section 5, Housing Act 2004). It also provides guidance on how councils should exercise discretion.
7. Councils must inspect a property if they consider it appropriate to do so. They will look to see whether there are category 1 or 2 hazards present in the property, using the methods set out in the regulations. Category 1 hazards are for those which are a serious and an immediate risk to a person’s health and safety, and which could cause death, permanent paralysis, or loss of limb, for example.

Assessing hazards is one part of the process leading to action. The score does not determine subsequent action. Action to remove a hazard is based on a three-stage consideration:

• The hazard score determined under HHSRS;
• Whether the Council, in light of the score, has a duty or discretion to act; and
• The Council’s judgement as to the most appropriate means of dealing with the hazard, taking account of both potential, and actual, vulnerable occupants.

8. Council’s must take the most appropriate action when they have duty to act. This can include:

• Serving an improvement notice
• Making a prohibition order
• Serving a hazard awareness notice
• Taking emergency remedial action

9. It is for Council’s to decide which course of action is the best in all the circumstances.

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Council’s privately rented housing enforcement policy

10. This acknowledges the Council is responsible for enforcing a wide range of statutory provision relating to private sector housing and environmental conditions affecting health, wellbeing, and safety. This includes reducing the number of properties with serious risks to health and safety.
11. The Council will base enforcement decisions for residential premises on assessments made under the HHSRS. An officer will decide whether any enforcement action is needed depending on the severity of the hazard or whether there is a duty or discretion to act. Where there is a category 1 hazard, the Council has a duty to act but with a category 2 hazard, its power is discretionary. There is an option to take informal action with a landlord where there is a low risk to health and safety and where there is no history of non-compliance from the landlord.
12. Action by the Council will be based on:

• The hazard rating decided under the HHSRS;
• Whether it has a duty or power to act based on whether they find category 1 or 2 hazards; and
• What it decides is the most appropriate course of action to deal with the hazard.

13. Officers can take no action, informal action, or formal enforcement action. Informal action involves making written requests for action with requests for timescales for the start and completion of any works.

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How I considered this complaint

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

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What I found

15. Ms J has lived in her privately rented property for about seven years with her two adult children, one of whom she says has an allergy to mould. Problems with the property started almost as soon as they moved in. The property leaked and suffered from damp and mould even with windows open for ventilation. The property also suffered from rats. She is unhappy with the Council’s response to her reports and in particular, deciding mould was down to condensation.
16. The landlord has been to court to evict her from the property, which she believes is in retaliation for making reports.
17. The Council confirmed it took no formal action against her landlord/agent. This was because they agreed to do required assessments and any corrective works. It also decided an HHSRS assessment was not necessary at the time.

Private disrepair reports

2021:

18. February: Ms J reported cracking in the bathroom plaster and under the kitchen sink.
19. April: She reported problems with a stair carpet, damp in the property, poor lighting, missing roof tiles, the need for new curtains in the loft, a kitchen vent in need of repair, asbestos, and mould in the bathroom. Pest control treatment was done by the landlord’s contractors which included a sewer survey. During this, a valve was fitted to a redundant pipe.
20. May: An asbestos survey was done which found no asbestos in the property.
21. June: Ms J reported a problem with the electrics shorting. An inspection of the building took place due to the presence of cracks by a housing enforcement officer. The officer wrote to the landlord satisfied with the installation of the extractor fan in the kitchen, adjustments to some doors, and noted a loose door handle. The officer advised him to investigate vermin entering the property and noted gaps around pipes between floors despite some pest proofing that had been done. The cracking under the sink also needed exploring. No problem was noted with lighting levels but fittings in the loft were later clipped by the landlord. Work to the roof was also done by the landlord. Ms J was told curtains was an issue for her and her landlord under the tenancy agreement. The kitchen vent was found to be nothing the Council could pursue as it was in place and secure. No damp or mould was seen during the visit.
22. July: The landlord got a structural surveyor to investigate the cracking within the property. The surveyor’s report noted there was evidence of structural movement when looking at the cracks under the kitchen sink, but this appeared to be historic. It recommended filling the cracks.

The report also looked at the cracking in the bathroom. It noted these were limited to the internal surface only. The most likely cause was moisture and movement caused by heat. Again, it recommended filling the cracks. It noted the general structural condition of the property was satisfactory.

The officer concluded there was nothing to justify any further investigation by the Council of the building’s structure.

23. August: A further drainage survey was done which was clear. It found no defects. Pest proofing was done, monitoring took place, and there was no evidence of active vermin in the property. The Council claims Ms J provided no new evidence about the presence of vermin.
24. September: An officer inspected the property again and asked the landlord to carry out a damp survey. The officer told Ms J this and told her another contractor was due to return to the property after the monitoring period had ended for the presence of vermin.
25. October/November: The landlord got a damp report following a contractor’s inspection. This found damp below the bay window in the front room. This identified possible exterior holes where water might enter. It recommended a full damp treatment of this window with the removal of internal plaster up to one metre in height and a chemical wall damp proof course injected in to it. The electrics were checked. The report said readings for damp were taken for all internal walls and only this wall showed a problem.

2022:

26. February: The landlord’s agent emailed to say a contractor would visit this month to do repairs to the kitchen vent and skirting boards.
27. April: The Council emailed Ms J as the landlord said all works were done apart from the mould wash to the bathroom which she had not arranged contractors to do. It noted Ms J wanted the mould swabbed and identified before the mould wash was done. It explained it could not insist on the landlord doing this. Ms J received her own technical survey report which recommended a damp specialist attend to make further assessments to decide the cause of damp that was present.
28. May: She reported a boiler condensation outlet pipe dripping which the Council confirmed it was supposed to do. A further officer inspection found the only works needed were the removal of mould and applying an anti-fungicidal mould wash to the bathroom. This was to remove mould caused by condensation. It urged her to contact the landlord about it. It also recommended a damp specialist visit to identify the cause of damp present. The officer later noted Ms J refused to allow a mould wash to be done. The officer found no evidence of rats in the property. There was no further action for it to take.
29. July: Ms J reported the presence of slugs in the house. The Council asked the landlord to check the subfloor ventilation.
30. August: She told the Council about further cracks in her daughter’s bedroom, the bathroom, and under the kitchen sink. Monitoring of the cracks in the bathroom and kitchen needed doing. It would also ask the landlord to monitor other cracks she found in the house. She also reported a problem with a subfloor vent to the rear of the property, rising damp in the kitchen, and cracks near the boiler.

Ms J got her own damp report done which found high readings within two external walls in the kitchen. This was for rising and penetrative damp. It recommended damp proof works.

31. September: Ms J told the Council about a missing down pipe from the guttering, an insecure loft curtain rail, and the outside of the house not being painted. An officer carried out a further inspection and told the landlord there were some high levels of damp on certain walls which meant he had to carry out a further damp survey. In addition, the bathroom extractor needed looking at. The Council said the landlord was made aware of Ms J’s report and got his own report which identified remedial works needed. While the landlord employed a contractor to do these works, the problem was getting Ms J’s agreement about access. Ms J denies making problems for access.

The sub ventilation check was done but found no access for slugs. They were cleared of debris. The Council confirmed the paving level near them needed lowering and rubbish and bins near them could affect airflow. The landlord approved quotes to reposition the vents and booked work for the following month.

October: The Council asked the agent to provide details of the works done and paid for in terms of the damp proofing.

32. November: She reported a cracked light bulb holder, peeling window lining, soft loft walls, and stiff doors. The same month, the court granted an order for Ms J’s eviction from the property. The water board confirmed it removed a valve in the drain as it was fitted incorrectly and without consent. The landlord spoke to the water board who said another valve could be fitted which would protect the property from rats. The landlord is arranging for this to be done.
33. December: A further inspection of her property was done by a Council officer to check stiff doors and windows. The letter to her about it said it would look at the housing condition of the property under the HHSRS.
34. The Council explained Ms J refused her landlord’s offer for a suitable contractor to visit for mould removal and apply anti-fungal treatment which is standard practice and not harmful.

My findings

35. I found fault on this complaint and in reaching this decision, took the following into account:
1. There is no evidence showing the Council assessed whether the problems Ms J reported were hazards under the HHSRS. I consider this needed to be done because of the nature of some of her reports, such as those about damp/mould and vermin, for example. There is nothing to show if, and how, it assessed whether there were Category 1 or 2 hazards present.
2. In addition, its enforcement policy states it will base enforcement decisions for residential premises on assessments made under the HHSRS. Whether it decides to take enforcement action or not is based on this assessment. As no assessment was done, and as the Council decided one was not necessary, but failed to explain why, we cannot say it properly reached its decision about enforcement.
3. Its decision to take an informal approach to enforcement with the landlord was fault because it was not based on a HHSRS assessment as required by its enforcement policy. This required it to take account of 3 factors when reaching a decision about enforcement: the assessed hazard rating; whether this meant it had a duty or power to act; and what was the appropriate course of action to deal with the hazard. There is nothing to show the Council took account of these when reaching its decision.

In its response to my draft decision the Council noted: surveys were asked for after an inspection about damp and structural stability; the landlord co-operated; the findings of these would have been considered in any later risk assessment; works were done promptly by the landlord which meant it was not necessary to formally risk assess the hazards as the remedial works were being done. It went on to accept its policy requires a risk assessment to inform all decisions even where works to redress issues is being done informally.

4. There is no evidence of the Council giving the landlord/agent a timescale within which to do works or carry out a survey and complete them. This is fault as it does not follow its own enforcement policy which refers to setting timescales.
5. I am satisfied the identified fault caused Ms J an injustice. This is because she has the uncertainty of not knowing whether problems reported might have progressed sooner had the Council set timescales out for the landlord/agent.
6. When considering the injustice caused to Ms J, I also considered:

• the evidence showing the Council contacted her landlord after officer visits who made recommendations of further investigatory works he needed to do because of the presence of vermin, damp, and cracking in walls, for example.
• evidence confirming the landlord co-operated with the Council about problems and organised further works or surveys needed. This included getting damp specialists and structural surveyors to inspect the property.
• the structural survey showing there was no problem with the cracking Ms J reported. This was because it was historic. This concern was addressed to the Council’s satisfaction.
• the landlord’s initial damp survey finding no problem in the property apart from the bay window. It confirmed all internal walls in the property were inspected. This was sufficient evidence for the Council to conclude it did not need to take any further action on this report. While a later survey done on Ms J’s behalf found rising damp in the kitchen, the Council was entitled to rely on the first survey and findings of the specialist contractor who carried it out.
• the landlord instructing a contractor to do a further survey and do necessary works it found were needed.
• a drainage survey done on the landlord’s behalf which found no problem with access to the property by vermin. Pest proofing was done and although the Council later discovered the landlord’s contractors had not fitted a valve correctly to a pipe, it was entitled to rely on the works done at the time to prevent vermin access. There was no new evidence of active vermin in her property after the Council acted on this report. The Council acted on her reports, and liaised with the landlord about it, who arranged necessary works. It was not responsible for the contractor fitting the valve incorrectly.
• Ms J’s concerns about the presence of mould in the bathroom. The evidence shows she was understandably concerned about it but wanted it testing so it could be identified. This was not a step the Council could insist the landlord should take. It had done what it needed to do. It inspected it, considered the likely cause, and brought it to the landlord’s attention who offered to do a mould wash, which is a common and simple solution to removing mould in such rooms.

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Agreed action

36. I considered our guidance on remedies.
37. I invite the Council to take the following action within four weeks of the final decision on this complaint:
1. Send Ms J a written apology for failing to: show it considered her reports under the HHSRS; give the landlord/agent timescales within which to start and complete works or surveys.
2. Remind officers of the need to carry out HHSRS assessments when reaching decisions about enforcement under its policy.
3. Remind officers of the need to give landlords/agents timescales within which to start and complete works or surveys when pursuing informal enforcement.
38. The Council should provide us with evidence it has complied with the above actions.

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Final decision

39. I found fault on Ms 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