Decision : Upheld
Decision date : 19 Dec 2017
The Ombudsman's final decision:
Summary: Mr D complains the Authority failed to enforce a fire safety notice. The Ombudsman has found some evidence of fault because there were periods of delay by the Authority. However, it had no obligation to seek formal enforcement action. She has upheld the complaint and completed the investigation because the Authority has agreed to apologise to Mr D for one period of delay.
- The complainant (whom I refer to as Mr D) says the Authority failed to enforce a Notice of Deficiencies (Notice) against the property management company where he lives. He feels the Authority should have taken formal enforcement action to resolve the issue.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether the Authority’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
- If we are satisfied with the Authority’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)
- I have considered the information provided by Mr D. I asked the Authority questions and carefully examined its response and supporting papers.
- I have shared my draft decision with both parties.
What I found
- On 2 August 2016 the Authority carried out a fire safety inspection in the flats where Mr D lives. The information was stored on a hand-held device which developed a technical fault and could not be accessed. At the end of September Mr D complained to the Authority about delay after the inspection. The Authority responded a few days later and explained it was having issues accessing data and was uploading the information onto another device. It would then issue a Notice urgently. It also stated the Authority had been liaising with the designated person at the management company (called a Responsible Person) and they were being co-operative.
- The Authority finalised the fire safety audit report on 19 October and issued a Notice to the Responsible Person. It had found some fire safety matters that needed attention. That included replacing front doors on the flats and installing emergency lighting. The Authority maintained contact with the Responsible Person.
- Mr D complained to the Authority in January 2017 that it had failed to ensure works were completed. The Authority responded on 15 February. It said an Officer had visited the site on 8 February and met with the Responsible Person. The Officer was satisfied they were looking to resolve the problems found in the Notice. They had to carry out a consultation, under the Landlord and Tenant Act 1985, before works could commence. This had caused delays. As a result, the Authority had agreed to keep in contact with the Responsible Person and reinspect later in the year. The Authority also told Mr D its enforcement methodology was based on national standards. It had to apply a level of enforcement that was proportionate to the level of risk. In this case it had taken account of the risk and the statutory requirements faced by the Responsible Person before they could complete the work.
- Mr D did not accept the Authority’s reply and challenged it in February. The Authority responded in March and upheld its decision. A further fire safety audit was carried out and the Authority issued a new Notice on 23 March. It granted the Responsible Person more time to complete the required works with a deadline of 18 July. The Officer who carried out the inspection noted the Responsible Person was taking all reasonable steps to comply with the Notice. It was therefore not suitable to take formal enforcement action based on the level of risk to residents and the actions of the Responsible Person. He found the “property on the whole presents little risk to occupants”.
- The Authority says it monitored the case but has failed to provide any evidence. It also states that an Officer inspected the site on 19 July, the date after the deadline expired on the Notice. Unfortunately I have not seen any evidence from that visit. The Authority carried out a further inspection on 3 October which it did correctly document. At that point an Officer conducted another fire safety audit and found all areas of concern had been “amended and dealt with”. No further action was required.
What should have happened
- The Authority inspects residential premises to assess if there is a fire risk. Its Officers complete a fire safety audit form to document any risks. If the Authority does find deficiencies in a property it will issue a Notice to the Responsible Person within 14 days of the inspection.
- The Notice does not have statutory force, rather it asks the Responsible Person to comply with the actions needed. If the works are not carried out the Authority can consider formal enforcement action. The timeframe for compliance is flexible and is agreed between the Authority and the Responsible Person. It will vary depending on the level of risk and amount of work needed.
- If the Responsible Person tells the Authority work can’t be completed on time the Authority will consider if it appropriate to grant an extension to the deadline. It will take account of the level of compliance by the Responsible Person and level of risk. If the Authority extends the deadline it will monitor the case and carry out a further inspection after the amended deadline has passed. If the Authority is satisfied all works requested and complete it will end the case and take no further action.
Was there fault by the Authority
- There is some evidence of fault.
- The Authority delayed at two points in the process. There was an initial delay of almost two months issuing the Notice in 2016. The Authority says this was due to a problem with recording equipment. Whilst I appreciate such technical issues do happen I consider it unreasonable to take two months to resolve it. It has not shown me evidence of how it sought to progress that matter. The second delay followed the expiration of the revised deadline in July 2017. The Authority says it carried out an inspection in July but has failed to show me evidence to verify this. In any event the required paperwork was not completed until a visit in October. That showed the requested work was complete. This fire safety audit and supporting form should have been in place in July. In my view the Authority delayed formally checking the site by approximately nine weeks.
- I have not found any additional fault.
- Mr D feels the Authority should have taken formal enforcement action when the original Notice deadline expired in January 2017. I am satisfied the Authority acted in line with its policy and procedures. It is not required to take formal enforcement action if the Responsible Person is co-operative. In this case it was clear the delay was due to statutory requirements on the Responsible Person as a landlord rather than an unwillingness to act. The Authority considered the level of risk at the property and the actions of the Responsible Person in deciding formal enforcement was not appropriate. I appreciate Mr D disagrees with the decisions taken by the Authority but those were decision made in line with procedures.
Did the fault cause an injustice
- The delay in October 2016 did not cause Mr D a significant injustice. The Authority explained to him in October 2016 and early 2017 the reasons for delays. He was therefore aware of what was happening. However, the Authority should apologise to Mr D for the delay in completing the fire safety audit in October 2017 because he was left uncertain about what was happening for several weeks.
- I recommended the Authority send Mr D a letter of apology for the point identified above. The Authority may also want to consider improved record keeping regarding the actions of Officers when monitoring progress on a case. That would also aid any complaint handling or Ombudsman investigations.
- I have completed the investigation and upheld the complaint.
Investigator's decision on behalf of the Ombudsman