Luton Borough Council (18 007 174)

Category : Environment and regulation > Licensing

Decision : Not upheld

Decision date : 23 Nov 2018

The Ombudsman's final decision:

Summary: There was no fault in how the Council made an amendment to its selective licencing scheme. The complainant was unaware of the amendment, which led her to take action which was no longer part of the scheme, but this has not put her at a disadvantage. The Ombudsman has therefore completed his investigation.

The complaint

  1. The complainant, to whom I will refer as Dr P, says that there was misleading information on the Council’s website about licencing conditions for private landlords. This has caused her an unnecessary expense.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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

  1. I reviewed Dr P’s correspondence with the Council, an electrical inspection certificate relating to Dr P’s property, and information about an amendment to the Council’s website.
  2. I also sent a draft copy of this decision to both parties for their comments.

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What I found

  1. The Council has recently introduced a selective licencing scheme for private landlords in some areas. The scheme requires landlords to obtain a licence for each property they let, and must meet a number of defined conditions in order to do so. This includes some conditions relating to the health and safety of the property.
  2. Dr P owns a property in one of these areas, which she lets out, and so is required to hold a licence.
  3. In November 2017, the Council agreed that it would require landlords to obtain an electrical installation condition report (EICR) as part of its licencing scheme. This information was then placed on the Council’s website.
  4. In a recent case involving a different local authority, the Court of Appeal decided that there is no legally enforceable requirement under the Housing Act 2004 for private landlords to obtain an EICR. This case was reported at the end of February 2018.
  5. The Council says that, having taken legal advice, it decided to remove this requirement from its scheme and updated its website accordingly.
  6. Dr P says that she noticed the requirement for the EICR on the Council’s website in February. She began arranging for an inspection of her property, which was undertaken on 20 March. The inspection identified some problems which needed to be rectified before the EICR could be issued. Dr P paid for the work to be done.
  7. In June, Dr P says that she saw that the requirement had now been removed from the Council’s website. She submitted a complaint on 18 June, as she considered she had paid unnecessarily for the inspection and work. She asked the Council to refund her £459.
  8. The Council replied on 4 July. It explained why it had removed the requirement from the scheme, but said that landlords were still required to show that their properties were safe. The Council considered that the EICR would assist Dr P in demonstrating her property’s compliance, and so declined to refund her for the costs of inspection and work.
  9. Dr P submitted a stage 2 complaint on 10 July. She said that the Council had confirmed that it was aware of the legal situation in November 2017, and yet had still not updated its website in February / March 2018. She reiterated her request for a refund.
  10. The Council responded on 2 August. It refuted Dr P’s claim that it was aware of the court case in November, and repeated that it was only in February that the case was reported. It again said it could not offer her a refund.
  11. Dr P referred her complaint to the Ombudsman on 6 August.

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Legislative and regulatory background

  1. The Housing Act 2004 gives authorities the power to introduce selective licencing schemes. Section 90 of the 2004 Act lists the mandatory conditions such a scheme must include, one of which is that the licence holder must “keep electrical appliances … in the house in a safe condition [and] to supply the authority, on demand, with a declaration by him as to the safety of such appliances”. The Council’s amended scheme reflects these requirements.
  2. The National Inspection Council for Electrical Installation Contracting (NICEIC) is an independent organisation which regulates and certifies electricians. The EICR obtained by Dr P is on an NICEIC form.

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Analysis

  1. The 2004 Act says that licencing authorities must include, as part of their scheme, a requirement for licence holders to keep electrical appliances safe, and to make a declaration as to their safety. The Act does not, however, define a standard for ‘safe’. The court case mentioned here confirms that authorities cannot require licence holders to obtain an EICR as part of their conditions.
  2. Dr P says that the Council was aware that it could not lawfully require an EICR as part of its licencing scheme in November 2017. She considers that that Council failed to update its website in good time, causing her to be misled.
  3. However, the Council says that Dr P has misunderstood its response to her complaint. The relevant event of November 2017 was not the court case, but the Council’s decision to include the EICR requirement in its scheme. It was not until February 2018 that the court judgment was issued.
  4. I have researched the court case myself online. The judgement was issued on 21 February 2018. I am therefore satisfied that the Council is correct on this point.
  5. I have asked the Council when it amended its website to remove the requirement.
  6. The Council says it cannot pinpoint the exact date. However, it says that it held a drop-in session for local landlords on 8 March, where it discussed several licencing issues with them, and explained that it was going to re-open the consultation period on the scheme, to run until July. It followed this up with an email on 12 March, a copy of which I have seen, where the Council advised it would be making changes to its website, including the removal of the EICR requirement.
  7. The Council said the last date any amendment was made to the relevant webpage was 24 March, and so logically the EICR update must have fallen between these two dates. It has provided a document which lists the dates and times of updates to the website, although it is not clear what exactly the updates were.
  8. I must say that I cannot see any reference to 24 March on this list. There is one entry which is dated 22 March, and three which are dated 23 April. It is not clear which date the website was last updated.
  9. However, the Council has also provided an email it sent to the administrators of the central gov.uk website, which hosts its licencing application form, on 19 March, asking for a similar update to be made. The Council therefore considers it likely that it amended its own website on the same day. I consider this to be compelling evidence.
  10. On the balance of probabilities, I am satisfied that the Council did not unduly delay the update to its website. It seems to have taken about three or four weeks, and in this time the Council also sought legal advice and held a drop-in session.
  11. Even if the Council did not update the website until April, however, I cannot see what difference this would have made to Dr P. She confirms that she looked at the website around the end of February, when she began making arrangements to obtain an EICR. She then noticed in June that the website had been updated.
  12. It was unfortunate that Dr P happened to look at the website when she did. But I do not consider it fault that the EICR requirement was still there at that time. The court judgement had only just been published.
  13. Dr P says that the work she had done to her property to obtain the EICR was unnecessary, and so she has been unfairly left out of pocket by the situation. The Council says that, although landlords no longer need an EICR to obtain a licence, they still need to show demonstrate that their property is electrically safe. It says that it will inspect properties before issuing a licence, and issue a statutory improvement notice where it finds defects. The Council’s view is that Dr P is not disadvantaged by the fact she obtained the EICR.
  14. The NICEIC website includes a factsheet explaining the inspection process. It says that defects identified during an inspection are categorised as either ‘C1’, ‘C2’, or ‘C3’:

C1 - This code indicates that danger exists, requiring immediate remedial action. The persons using the installation are at immediate risk.

C2 - This code indicates that, whilst an observed deficiency is not considered to be dangerous at the time of the inspection, it could become a real and immediate danger if a fault or other foreseeable event was to occur in the installation or connected equipment.

C3 - This code indicates that, whilst an observed deficiency is not considered to be a source of immediate or potential danger, improvement would contribute to a significant enhancement of the safety of the electrical installation.

  1. I have a copy of the EICR obtained by Dr P. It lists several defects which had been identified, all of which are categorised as ‘C3’. It appears that these issues do not prevent the issue of the EICR.
  2. Dr P has also provided a copy of an email she received from the contractor. It says that several issues had been identified as ‘C2’ – potentially dangerous – and that they needed to be rectified before the EICR could be issued.
  3. As I have explained, the 2004 Act does not define a standard for electrical compliance, instead simply requiring that installations are ‘safe’. But it is clear from the evidence that there were several defects in Dr P’s property which had the potential to be dangerous.
  4. It appears likely that the Council would have also identified these defects, and required Dr P to rectify them before issuing her a licence. On the balance of probabilities therefore, I am satisfied that Dr P has not been disadvantaged by the fact she obtained the EICR, as she would have had to pay for the work anyway.
  5. Separately, in her stage 1 complaint to the Council, Dr P says that she had spoken to a member of staff, who advised her that it would refund her money.
  6. I asked the Council to comment on this. It said it had listened to the recording of Dr P’s call with the Council, and the officer had said that, because of the re-opened consultation, he “would imagine” that she would qualify for a refund if a decision was made not to proceed with the scheme.
  7. I have not listened to the recording myself. It may be that the officer’s comments were misleading, but it seems he was referring to the scheme being abandoned entirely, not simply the issue with the EICR.
  8. In either case, I do not consider that the words of an individual member of staff should bind the Council to provide Dr P with a refund. The Council has explained why it will not do this, and I do not find fault with its reasoning.
  9. Dr P has also mentioned that she has spoken to letting agents in the local area who are unaware of the change in the requirements. She says that the Council has failed to keep them informed.
  10. Whatever the facts of this matter, it would not represent an injustice to Dr P, and so I have not investigated it.

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Final decision

  1. I have completed my investigation with a finding of no fault.

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Investigator's decision on behalf of the Ombudsman

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