Summary: Mr B complained the Council unlawfully charged him council tax for an unsafe property. He said it also failed to ensure the property was not occupied and it failed to respond properly to his concerns. As a result, Mr B said he experienced distress and had council tax costs. The Council was at fault because it failed to inspect the property for hazards under the Housing Act 2004 when it said it would. It did not unlawfully charge Mr B council tax, but on balance, the property would have been exempt earlier if it had inspected it. The Council was also at fault for its failure to respond to Mr B’s solicitor and explain its need for consent. There was no fault on the other matters complained about. The Council should apologise to Mr B and make a payment to acknowledge the distress caused. It should also write-off or reimburse Mr B for the council tax cost from March 2020.

The complaint

1. The complainant, whom I shall refer to as Mr B, complained about the Council’s council tax charges for a property he owns and its handling of his concerns about the condition of the building. He said it:
• failed to respond properly to his complaint and caused delays;
• failed to take action to ensure the property is not occupied; and
• unlawfully charged him Council tax from July 2019.
2. As a result, Mr B said he experienced distress from the delays and council tax costs. He also said he has been unable to sell his interest in the property and had the risk of potential liability if occupiers were injured.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (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 Information Commissioner's Office considers complaints about freedom of information. Its decision notices may be appealed to the First Tier Tribunal (Information Rights). So where we receive complaints about freedom of information, we normally consider it reasonable to expect the person to refer the matter to the Information Commissioner.
7. If we are satisfied with a council’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

8. As part of this investigation, I:
• considered the complaint made by Mr B and the Council’s responses;
• discussed the complaint with Mr B over the telephone;
• considered the Council’s responses to my enquiries; and
• gave Mr B and the Council the opportunity to comment on a draft version of this decision and considered their comments.

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What I found

The relevant Law and policy

Building Control

9. The prime responsibility for the condition of a building or structure lies with its owner; however, local authorities have an obligation under the Building Act 1984 to deal with dangerous structures in their areas and if the owner cannot be found or contacted, they can do work to make the building or structure safe and recharge the owner its reasonable costs for doing so.
10. Dangerous structures vary from collapsing boundary walls, falling masonry and tiles, vehicle impact into buildings, fire damage, wind and weather damage neglect and poor maintenance.
11. For the purposes of Building Regulations, there are two types of dangerous structures:
• Imminent: structures which are at risk of collapse and must be secured for public safety. The owner will normally be recharged for emergency works carried out in these cases.
• Hazardous: structures which from a survey are unstable but not imminently dangerous. In these cases, the owner is given a reasonable time to remove the danger. Failure to respond may result in a Magistrates Court Order being obtained.
12. The Building Control surveyor will visit the site to inspect the structure and to arrange for appropriate action to be taken to remove any danger. If it is found there is no danger or the danger is not considered imminent or hazardous, no further action is required.

The Housing Act 2004

13. Local Authorities also have a duty under the Housing Act 2004 to inspect any residential property within its area if it becomes aware that category 1 or 2 hazards may exist. If a category 1 hazard exists, it has a duty to take the appropriate enforcement action in relation to that hazard.
14. Local authorities have powers under the Housing Health and Safety Rating System (introduced by the Act) to take enforcement action against property owners and private landlords where the council has identified a hazard which puts the health and safety of the tenant at risk. Enforcement action includes issuing a Prohibition Order which prohibits the use and occupation of a property.
15. A local authority can issue criminal proceedings in a magistrate’s court if a person fails to comply with a Prohibition Order. This can result in imprisonment or a fine, unless the person has a reasonable excuse for breaching the Order.

Council tax

16. The primary legislation for council tax is the Local Government Finance Act 1992 (as amended). The Council Tax (Exempt Dwellings) Order 1992 (as amended) set out the categories of property exempt from council tax. This includes properties in category G which are those unoccupied because occupation is prohibited by law or is prohibited by a planning restriction. For example, where a council has issued a Prohibition Order prohibiting the use of a property under the Housing Act 2014.

Council policy

17. In 2017 the Council changed its policy on council tax exemptions. It has since not offered any exemptions for empty properties.

What happened

18. Mr B jointly owns the freehold of a property with seven flats (the property) with another person, Mrs X. He also owns the leasehold on one of the flats and Mrs X owns the leasehold of five of the flats.
19. Mr B does not live in the property and he does not rent out the flat he owns. He says the property is in such state that it is uninsurable and should not be occupied due to the risk to the health and safety of occupiers or visitors.
20. In 2014 Mr B asked the Council to be exempt from council tax charges for his leasehold flat in the property. He told the Council his flat was unoccupied and the whole property required extensive repairs to make it safe to occupy.
21. In response the Council arranged for a Council Tax Inspector to visit the property. However, it found some of the flats occupied and it did not find the property uninhabitable for council tax purposes.
22. In 2019, Mrs X applied to the Council for a House in Multiple Occupation (HMO) licence for the property.
23. Mr B was unhappy as he did not agree to this and said he had not giving his permission for this. And so, his solicitor raised his concerns to the Council. The solicitor told the Council that a licence should not be granted due to the poor condition of the property and reminded the Council of its duties to inspect the property to assess its condition.
24. The Council told Mr B it had received an application from Mrs X for a HMO licence and it was intending to grant it. And so, Mr B objected to the grant of the licence.
25. The Council decided not to grant Mrs X a temporary HMO licence. However, it granted Mrs X a temporary exemption to licencing. It said it granted the temporary exemption to help Mrs X evict the tenants and address the issues with the property.
26. In September 2019, the Council’s Housing Renewal Officer inspected the property from the exterior. He noted the property had structural defects, but the Council decided not to carry out a full inspection under the Housing Act 2004 until the temporary licencing exemption granted to Mrs X expired. However, it asked its Building Control team to investigate under the Building Control Act 1984.
27. Building Control inspected the property in September 2019, but it did not find the property to be of imminent risk of collapse or danger to occupiers and visitors.
28. In early 2020, Mr B’s solicitor told the Council again that it was its duty under the Housing Act 2004 to inspect the property for hazards.
29. The Council did not respond to Mr B’s solicitor. However, it says it checked the Council tax records and found only Mrs X’s daughter still living in the property. And so, it decided not to grant Mrs X any further temporary licencing exemptions.
30. Mr B’s solicitor wrote the Council on five further occasions in relation to the condition of the property and concern about the health and safety of occupants. He provided the Council with a structural engineer report from 1994 for the property, which raised concerns about the structural integrity of the property. He asked the Council to consider the information he provided and for it to comply with its duty under the Housing Act 2004 to inspect the property for hazards.
31. In August 2020, the Council’s Revenue and Benefits department told Mr B’s solicitor that it did not hold a record of consent to discuss the case with him. However, it did give information about the Council’s policy on council tax exemptions. It also said the structural engineers report was not enough evidence as the property had been occupied since 1994.
32. Mr B was unhappy with the Council’s response. And so, he asked his local MP to help him bring his complaint to the Council’s attention. He said the Council:
• had granted a HMO licence to Mrs X despite his objections and concerns about the condition of the property;
• handled his concerns poorly and was unhelpful;
• failed to respond to his solicitor and said it did not hold consent to discuss the case with him;
• failed to inspect the property for hazards under the Housing Act 2004; and
• charged him council tax for a period when the property should be under a Prohibition Order for occupation.
33. In response to the MP’s letter, the Council did not uphold Mr B’s complaint and addressed each part of his complaint. It said:
• The property was not exempt from council tax as an empty property between 2015-2017 as Mr B had lived in the property for a short period in 2015.
• The Council changed its policy in 2017 and no exemptions were available for empty properties. It explained Class G exemptions could only be applied if a planning condition was imposed that prohibited occupation and it would only apply for the date of the relevant order imposed.
• It had granted a temporary licencing exemption to Mrs X to support her to evict the tenants. It believed Mrs X was doing so, but decided not to grant any further licencing exemptions when it became aware the remaining occupant was her daughter.
• It had considered enforcement action but decided this would not be appropriate, as Mrs X was working with it and complied with its requests.
• The freeholder of the property holds the ultimate responsibility of the condition of the property. It did not receive any complaints from the tenants, and it will not get involved in disputes between freeholders.
34. Mr B was not happy with the Council’s response, and so he asked it to consider his complaint under its stage two complaints procedure. He asked the Council to explain the steps it took to inspect the property under Building Control and the Housing Act 2004. He also asked the Council to provide further information about its arrangement with Mrs X.
35. The Council said it was told by a leaseholder the property was still occupied, and so it decided to inspect the property.
36. The Council’s inspected the property under the Housing Act 2004. Its Housing Health and Safety Rating systems report says it found serious risk of entry by intruders, fire and structural collapse, and falling elements. It also referred to the concerns raised in two previous report about the property in 2006 and 2019.
37. The Council reviewed its findings and decided this amounted to Category 1 hazards. And so, it issued a Prohibition Order to stop occupation of the property, but it did not find the risks significant enough to serve any other notice or order.
38. A month later, the Council’s Building Control officer inspected the property. He noted the same fractures and cracks as its 2019 inspection and some defective glazing. However, he did not find the property sufficiently dangerous to require any action under the Building Act 1984.
39. In response to Mr B’s complaint, the Council apologised for not asking Mr B’s solicitor to provide the necessary consent for it to discuss the case with him. It did not find fault in its actions on any other part of his complaint. However, it explained Class G exemptions and the Valuation Office Agency’s role in relation to his council tax charges. It also explained its inspections under Building Control and the Housing Act 2004, including its recent findings of Category 1 hazards.
40. The Council served the Prohibition Order on the relevant individuals, including Mr B, and this came into effect 28 days after the Order was made. It also recalculated Mr B’s council tax liability, as the property was exempt from council tax from the date of the Order.
41. Mr B remains unhappy with the Council’s handling of his concerns, its actions to ensure the property was not occupied and his council tax charges. He is also unhappy the Council is allowing the remaining tenant to be in the property when a Prohibition Order is place.

Analysis

42. We expect complainant to bring their concerns to our attention within 12 months of the action complaint about, unless if there are good reasons for us to exercise our discretion to consider the complaint from an earlier period.
43. I have seen no good reason to exercise my discretion in this case and I will only consider Mr B’s complaint from December 2019. I will therefore not consider his complaint about the Council’s handling and decision to grant of a HMO licence to Mrs X, as this is late. However, I have considered earlier events relevant to the complaint for context.

Complaints and information handling

44. Mr B said the Council did not respond properly to his complaints and the information he asked for. He also said it did not respond to his solicitor.
45. The Council’s responses to Mr B’s complaints addressed his main concerns regarding the inspection of the property and his council tax charges. It also provided some information and guidance. It did not address each and every point of Mr B’s complaint. However, I am not satisfied there was fault in the Council’s complaints handling.
46. The Council told Mr B’s solicitor it did not hold the necessary consent to discuss the case with him. It later apologised to Mr B for not explaining what consent it required. However, Mr B’s solicitor wrote the Council five times before the Council told him it did not hold the necessary consent. This is fault. The Council should have asked Mr B or his solicitor to provide this consent after the first contact. I am satisfied this caused some distress to Mr B and delay in the Council actioning his concerns.
47. Mr B also said the Council did not provide some of the information he asked for. The Council told Mr B this was because the information contained information about a third party. I understand Mr B has since made a Freedom of Information request to the Council. Complaints about matters relating to access to information and data are best considered by the Information Commissioner. I will therefore not consider this matter any further.

Did the Council act on its duties?

48. Mr B and Mrs X are the owners of the property. They are therefore responsible for its the condition and safety of any occupiers. However, the Council also have duties to ensure the safety of occupiers and visitors to the property.
49. In 2019, when Mrs X applied for a HMO licence, Mr B told the Council the property was not safe for occupiers or visitors because it was in a state of disrepair. In response, the Council’s Housing Renewal Team inspected the property from the exterior and found visible cracks and fractures. And so, it arranged for its Building Control Officer to inspect under the Building Control Regulations.
50. The Council’s Building Control inspected the property. It found some crack and fractures in the building, but it did not find the property to be of imminent or hazardous risk of collapse. And so, it decided no further action was needed.
51. A further inspection by Building Control took place in late 2020. It noted the same crack and fractures, including some defective glazing. However, it still did not find the building at risk. There was no fault by the Council’s for its actions under its Building Control duties. It inspected the property on two occasions and came to a decision it was entitled to make. I cannot therefore criticise the merits of its decision.
52. In 2019, the Council also said it would inspect the property under the Housing Health and Safety Rating System as set out in the Housing Act 2004. It said it would do so after its temporary licencing exemption for Mrs X expired in December 2019. It then decided to grant a further exemption to Mrs X to enable her to evict the remaining tenant and start repairing the property. While Mr B disagrees with the Council’s decision delay the assessment, I have not found fault with this decision. This is because the Council believed Mrs X was taking the necessary steps to evict the remaining tenant.
53. In February 2020, the licencing exemption expired, and the Council decided not to grant any further exemptions or a licence to Mrs X. However, it did not inspect the property under the Housing Act 2004 until September 2020 when it was told by a leaseholder the property was still occupied. This is fault because:
• it said it would inspect the property under the Housing Act 2004 when the temporary licensing exemption expired;
• between February and August 2020, Mr B and his solicitor told the Council the property was still occupied on at least three occasions; and
• It did not inspect until Mr B, his solicitor and his local MP raised his complaint with the Council.
54. I am satisfied this caused Mr B some distress and time and trouble to get the Council to act on its duties. However, I cannot say Mr B had any injustice from a potential risk of injury to occupiers or visitors, as no claim against him was made.

Council tax charges

55. Mr B is the joint owner of the property and leaseholder of one of the flats. He is therefore liable to pay council tax for the property.
56. Since 2017 the Council’s policy does not offer any council tax exemptions for empty properties, including those in disrepair.
57. Mr B does not dispute he was liable for Council tax. However, he said it should be exempt as a Class G exemption under The Council Tax (Exempt Dwellings) Order 1992, as an unoccupied property prohibited to be occupied by law. He said the Council failed make to a Prohibition Order and ensure the property was empty since 2019.
58. The Council was not at fault for unlawfully charging Mr B council tax for the property. This is because the property was occupied and there was no Order to prohibit occupation. When a Prohibition Order was made in late 2020, the property was exempt from council tax and the Council corrected Mr B’s council tax bill.
59. However, I found fault by the Council for failing to inspect the property in February 2020 under the Housing Act 2004. When the Council did inspect the property in September 2020, it found Category 1 hazards and arranged for a Prohibition Order. On balance, I am satisfied that if the Council had inspected the property in February 2020, it would have found Category 1 hazards in the property and served a Prohibition Order. The Order takes 28 days to come into effect and so the property would therefore have been exempt under a Class G exemption from March 2020.
60. In reaching my view I am conscious the property has been predominantly unoccupied and previous inspections referred to by Mr B and the Council identified similar concerns with the property. I therefore find it unlikely for the Category 1 hazards to have developed between February 2020 and September 2020.

Recommended action

61. To remedy the injustice the Council caused to Mr B, the Council should, within one month of the final decision:
1. Pay Mr B £150 to acknowledge the distress caused and the time and trouble he had to complain to get the Council to comply with its duties; and
2. Write-off or reimburse Mr B for its council tax charges from March 2020.
62. Within three months of the final decision the Council should also:
1. Ensure its officers are aware of its responsibilities under the Housing Act 2004 to carry out inspections for hazards without delay.

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Final decision

63. There was fault leading to injustice. The Council has said it will act in accordance with my decision. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman