Summary: Mr X complained the Council failed to take action against his landlord following his reports of disrepair at his rented property. The Council inspected Mr X’s property and found no category 1 hazards. However, it failed to record or determine whether any of Mr X’s concerns were category 2 hazards as outlined in the Housing Health and Safety Rating System. It also failed to prepare an accurate record of the inspection. The Council agreed to carry out a new inspection of Mr X’s property and remind inspecting officers to write accurate reports of their inspections.

The complaint

1. Mr X complained the Council has failed to take appropriate action against his landlord for private housing disrepair. Mr X says his property has a number of hazards which he says is making it both unsafe and uncomfortable to live in.
2. Mr X wants the Council to take action and force his landlord to make the necessary repairs.

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The Ombudsman’s role and powers

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 significant injustice, or that could cause injustice to others in the future 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 how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), 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 spoke to Mr X about his complaint and considered information he provided.
7. I considered the Council’s response to my enquiry letter.
8. Mr X and the Council had an opportunity to comment on the draft decision. I considered comments before making a final decision.

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What I found

Private housing disrepair law and guidance

Housing Health and Safety Rating System (HHSRS)

9. 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 Housing Health and Safety Rating System (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. The hazards are categorised as:
• Category 1 hazards which are hazards which could cause serious harm such as death.
• Category 2 hazards are less serious hazards which may need remedial work by the landlord.
10. The HHSRS is a risk assessment tool used to assess 29 potential hazards and risks to the health and safety of occupants in homes. The assessment method is used to identify hazards most likely to be present in homes. The aim is to tackle these hazards to make homes healthier and safer to live in.
11. The government has published guidance titled ‘Housing Health and Safety System Enforcement Guidance’ which outlines councils’ duties and powers under the Housing Act with regards to housing fitness and disrepair.
12. The guidance states councils should arrange an inspection of a property if, following a complaint or other reason, to determine whether a category 1 or 2 hazard exists in the property.
13. The guidance says it is good practice for councils to carry out as full an inspection of the property as possible. The law requires an accurate record to be prepared and kept of the inspection in written or electronic form.
14. 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 action if a category 2 hazard is identified. This could be in the form of a hazard awareness notice to the landlord or an improvement notice. Councils can take action against the landlord if they ignore these notices.

The Council’s enforcement policy

15. The Council’s policy sets out how it enforces issues around private housing. The policy outlines the HHSRS which enables the Council to assess risks to the health and safety of occupants by scoring the severity of any hazard to decide whether improvements are needed.
16. The policy says the Council will take appropriate enforcement action if category 1 hazards are found and has a discretionary power if category 2 hazards are found.
17. For category 2 hazards the Council says it will generally not take any action unless it has served a notice regarding category 1 hazards. The policy outlines the Council’s options when it finds category 2 hazards which includes issuing the landlord with a hazard awareness notice, an improvement notice or asking them to carry out emergency remedial action.

What happened

18. Mr X lives in a house which is privately rented and owned by the landlord. Mr X lives in the house with his family including six adults and one child under the age of 16.
19. Mr X began reporting issues and concerns about the state of the property towards the end of 2021. He complained the house was damp and water was leaking in the bathroom. Records show the Council’s Environmental Health Officer (EHO) visited the property and explained there were no category 1 hazards and that Mr X should report the leak to his landlord.
20. The Council recorded Mr X’s landlord made attempts to visit the property but could not gain entry. The Council heard nothing more from Mr X and so it closed the case in February 2022.
21. In May 2022 Mr X contacted the Council again. Mr X said he wanted the EHO to carry out a full inspection. He said there was still a water leak, some windows were broken and there was mould. The Council said it tried to visit Mr X but could not get a response, so it closed the case again in October 2022.
22. Mr X complained to the Council in March 2023 that the Council had failed to take any action against his landlord for the damp, leaks and mould in the property. Mr X further said his electric performance certificate expired in 2019 and the landlord had never provided a gas, electric or boiler safety certificate. Mr X said his property was unhabitable and wanted the Council to take action.
23. The Council responded to Mr X at stage 1 of its complaints procedure. The Council said it had previously visited Mr X and explained there were no category 1 hazards. The Council said it had informed the landlord Mr X’s concerns who had agreed to carry out repairs but could not gain access. The Council said it was down to Mr X to arrange this with his landlord. It said Mr X had not previously raised any issues regarding gas and electric issues. However, it would now contact the landlord advising him to take appropriate action. The Council provided Mr X with contact details of the inspection officer if he wished them to carry out a full inspection.
24. Records show the Council, upon Mr X’s request visited his property in March 2023 to carry out an inspection. There is no formal inspection report, however the Council’s cases note record:

‘Tenants worried as bath creaks when stood on for shower but seems stable and solid. Some mould to bathroom ceiling, no extractor fan. Glass to front has been broken three or four times by vandalism. No cat 1s’.

25. The Council updated Mr X by email of the conclusions of the inspection as outlined above in April 2023.
26. Mr X escalated his complaint to stage 2 of the Council’s procedure in May 2023. He said he had not received the inspection report and the issues still exist. Mr X said the inspector who visited listed a number of category 2 hazards. He wanted a copy of how the inspector assessed the 29 hazards from the HHSRS.
27. The Council provided a final response to Mr X in June 2023. It said the inspector did not identify any category 1 hazards and so it did not have a mandatory duty to take further action. The Council said Mr X’s landlord had now provided new EPC, gas and electrical reports for the property which it was satisfied with.
28. Mr X remained unhappy and complained to us.

My findings

29. The Ombudsman is not an appeal body. This means we do not take a second look at a decision to decide if it was wrong. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
30. Following Mr X’s ongoing concerns about disrepair issues at his property the Council appropriately agreed to carry out an inspection in March 2023. The Council decided based on its inspection there were no category 1 hazards. It ensured Mr X’s landlord supplied it with new EPC, electric and gas certificates and so it would not take further action. There is no fault in that decision.
31. However, the guidance says when councils carry out inspections that officers should determine whether there are any category 2 hazards. The HHSRS outlines a number of potential risks and hazards, some of which are concerns Mr X reported. The Council’s policy explains it will assess these hazards, using a scoring system to decide on their severity. Both the inspection officer’s summary and the Council’s response to Mr X is silent on category 2 hazards. The Council had agreed to offer Mr X a full inspection. If the officer decided there were no category 2 hazards, I would have expected this to be clearly explained in an inspection report. The lack of any determination on record of category 2 hazards is not in line with the guidance and is fault. It leaves uncertainty around whether the inspection properly assessed Mr X’s property against the HHSRS and whether any category 2 hazards existed.
32. The law and guidance require an accurate record to be prepared following an inspection. The Council has provided a brief summary of the inspection visit but this does not constitute a detailed, accurate report. As above there is no mention of how the inspector assessed the 29 risks outlined by the HHSRS. This is not in line with the relevant law and guidance and is fault.
33. It is for the Council to decide, in line with its policy whether to take any action against category 2 hazards and it would not be fault if it decided not to do so following a full inspection. However, a full inspection, with consideration of any category 2 hazards would enable Mr X to raise these concerns with his landlord and take private action if he wished to do so.

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Agreed action

34. Within one month of the final decision the Council agreed to take the following action:
1. Carry out a new inspection of Mr X’s property. The Council should ensure the officer assesses whether the hazards outlined in the HHSRS exist, using the scoring system outlined in its policy with accurately recorded conclusions. The Council should provide Mr X with the outcome of the inspection within two weeks of the visit.
2. Remind all officers who carry out inspections to complete an accurate report of inspections which includes considerations of both category 1 and 2 hazards in line with the HHSRS. The Council should ensure officers write to complainants with a copy of the report outlining the inspection conclusions.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I completed this investigation. I found fault and the Council agreed to my recommendations to remedy the injustice caused by the fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman