Summary: Mr X complains that the Council has not taken satisfactory action about his report of an unlicensed House in Multiple Occupation (HMO) next door. He also complains about the way the Council has handled his complaint. He says the neighbours cause a nuisance which affects his health and work, and cause him ongoing psychological trauma. He says the sale of his house fell through when he told the buyer about the neighbours. The Ombudsman does not find fault with the Council.

The complaint

1. The complainant, who I refer to here as Mr X, complains that the Council has not taken satisfactory action about his report of an unlicensed House in Multiple Occupation next door. He also complains about the way the Council has handled his complaint.
2. Mr X says the neighbours cause a nuisance which affects his health and work, and causes him ongoing psychological trauma. He says the sale of his house fell through when he told the buyer about the neighbours.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)

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How I considered this complaint

4. I considered the information and documents provided by Mr X and the Council. I spoke to Mr X about his complaint. Mr X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments before I reached a final decision.
5. I have considered the relevant legislation and policies, set out below.

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What I found

6. The government set out two criteria for a property to be considered a House in Multiple Occupation, known as an HMO. Firstly, there needs to be at least three tenants living in the property, forming more than one household. Secondly, the occupants must share bathroom, toilet or kitchen facilities with other tenants.
7. The Housing Act 2004 says councils are responsible for licensing HMOs and keeping this under review.
8. The Council has a policy for inspecting and enforcing property licensing. The policy says that houses with three or more storeys and/or which are occupied by five or more tenants constituting more than one household must be licensed. This is mandatory.
9. The policy says that additional licensing is aimed at all other HMOs occupied by three or more tenants who constitute more than one household.
10. The policy outlines the process that enforcement officers must follow when inspecting properties. This process includes visiting the property to carry out an inspection, assessing if the property is licensable, inspecting the property, taking the appropriate action, and completing records on its database.

Complaints procedure

11. The Council has a two-stage corporate complaints procedure. It says the Council will respond to a complaint at stage one of its procedure within 20 working days.
12. If the complainant is dissatisfied with the response, they can ask to escalate the complaint to the second stage of the complaints procedure. Details on how to do this are given in the stage one response letter or email.
13. The Council says it will respond to a complaint at the second stage of its procedure within 30 working days. If the complainant remains dissatisfied, they will be signposted to the Ombudsman.

What happened

14. In April 2018, Mr X told the Council he suspected the house next door was an unlicensed House in Multiple Occupation (HMO). The Council wrote to the owner of the property (the landlady). In May, the Council closed the case. It was satisfied that the property was not an HMO and did not need an HMO licence.
15. In July, Mr X complained to the Council that it had not acted on his report of an unlicensed HMO.
16. In August, the Council sent Mr X its stage one response to his complaint. It said the owner told the Council the property was occupied by one household. For this reason, the Council said the property did not need an HMO licence. The Council said Mr X’s photos were not admissible in court as evidence.
17. The Council said it would do an unannounced visit to the property.
18. Mr X replied, asking why his photos were not admissible in court.
19. The Council replied the next day, saying that photos do not prove that someone lives at an address or pays rent. It also said photos do not prove that a property needs an HMO licence. The Council said officers need to witness an offence to have a chance at a successful conviction.
20. In September, the Council did an unannounced visit to the property.
21. A few days later, Mr X emailed the Council. He said the neighbour’s post had been delivered to him by accident, and he believed it proved the house was an HMO. He wanted the Council to take action.
22. The Council replied, saying it had done extensive investigations. It said the property was occupied by one household, so the property did not need an HMO licence. It explained that the need for an HMO licence does not depend on the number of occupants, but if they are related.
23. The Council said receipt of post at an address does not prove that person lives at that address.
24. Mr X replied, saying the Council’s investigation was not extensive. He disagreed with the Council’s application of the guidance, and also disagreed that there was one family living in the property.
25. The Council replied, saying it was satisfied that one household occupied the address. It said there would be ongoing monitoring to make sure this remained the case.
26. In October, Mr X complained again to the Council.
27. In November, the Council sent its stage one response to this second complaint. It summarised the actions the Council had taken in response to Mr X’s reports. It said its system was not able to give updates to people who had made referrals. The Council said it was exploring how it could introduce a tracking system.
28. The Council explained how referrals are investigated. It said it had done an announced visit to the property and concluded that the property was not an HMO and did not need an HMO licence, so it was not appropriate to take any enforcement action.
29. Mr X asked that his complaint was progressed to the second stage of the complaints procedure. He asked why the Council had done an announced visit when it said the visit would be unannounced.
30. Two days later, the Council emailed Mr X. It said that the visit was unannounced. It said it had been unable to gather evidence to substantiate his allegation. It said that in order to prosecute a landlord, it has to be able to prove beyond reasonable doubt that an offence has been committed.
31. In December, the Council sent Mr X its stage two response. It said it had written to the property owner twice. It said the visit was announced. It acknowledged that it had initially told Mr X the visit would be unannounced, but said the nature of the visit did not make any significant difference to its findings. The Council acknowledged that Mr X disagreed with its findings but said it had acted reasonably in this case given all the evidence.
32. The Council said that the further concerns Mr X raised in October should have been forwarded to the complaints team for consideration at stage two of the complaints process, rather than the Council sending a second stage one response.
33. The Council said one reason this happened was because Mr X logged two separate new complaints on its website, rather than following the advice at the end of the first stage one complaint response. It said this advice gave instructions about what to do if he wanted to escalate his complaint to the next stage.
34. The Council said that despite this, it should have realised that the two complaints were connected, and the complaints team should have been alerted. The Council apologised for this and said it would remind officers to be mindful of this in future.
35. The Council signposted Mr X to the Ombudsman.

Analysis

Mr X’s evidence

36. Mr X complains that the Council said his evidence was not admissible in court.
37. Mr X told the Council he had photos of people he believed lived there. The Council said photos do not prove that someone lives at an address.
38. Mr X told the Council that he believes the neighbour’s post proves the house is a House in Multiple Occupation (HMO). The Council did not agree.
39. The Council explained to Mr X that it has to prove an allegation beyond a reasonable doubt.
40. I do not find the Council at fault for saying Mr X’s evidence was not admissible in court. It is for the Council to decide what evidence it uses to prosecute a property owner. In this case, the Council did not find that the property was an unlicensed HMO and so did not prosecute the owner. This is entirely appropriate.
41. I find that the Council considered the relevant evidence and took the appropriate action to investigate whether or not this was an unlicensed HMO. There is no evidence of fault here.

Notification of closing the case

42. Mr X complains that the Council did not tell him in May 2018 that it had closed the case.
43. The Council explained in its responses to Mr X’s complaint that its current system does not notify people who have made referrals about subsequent developments in the case.
44. It is not fault that the Council’s system does not automatically tell people who have made referrals about subsequent actions. When Mr X contacted the Council to ask for updates, the Council provided as much information as it could without breaching data protection laws.
45. I find that the Council responded appropriately to Mr X’s referrals and to his requests for updates. It repeatedly told Mr X that the house was not an HMO and so the Council could not take enforcement action. The Council is under no obligation to keep people informed of actions it has taken after a referral has been made.
46. Also, the Council says it is exploring the possibility of introducing a system that enables people who have made referrals to track the case. However, it recognises that data protection laws might limit the amount of information that can be given to third parties.
47. It is positive that the Council is looking to improve ways it can communicate with people using its services.

‘Extensive’ investigation

48. Mr X disagrees that the Council’s investigation was ‘extensive’, saying the Council only did one visit to the property.
49. I have seen evidence of the Council’s investigation into Mr X’s allegation of an unlicensed HMO. This cannot be shared with Mr X due to data protection laws. I am satisfied that the Council’s investigation was thorough, proportionate, and consisted of more than one visit.
50. Also, the Council’s actions were in line with its policy on inspections and enforcement.
51. For these reasons, I do not find fault with the Council.

Announced or unannounced visit

52. Mr X complains that the Council failed to follow its own policy because it did an announced visit. He also complains that the Council contradicted itself by initially saying it would do an unannounced visit, but then saying it did an announced visit.
53. The Council’s policy on inspecting and enforcing property licensing says, “licensing inspections can be carried out via unannounced attendance”. The Council visited the property in line with its policy. So, there is no evidence of fault here.
54. The Council’s first stage one response (in August) said it would do an unannounced visit. Officers then did an unannounced visit.
55. The Council’s second stage one response (November) and its stage two response (December) both said the visit was announced.
56. The Council acknowledges that it said contradictory things to Mr X. It says this was an error.
57. The Council did an unannounced visit, as it initially said it would. The nature of the visit was appropriate to the action the Council should have taken. I do not find the error of giving conflicting information is significant enough to constitute fault.

Unlicensed House in Multiple Occupation?

58. As I have said above, the government set out criteria to determine what is and what is not a House in Multiple Occupation (HMO). In this case, the Council’s investigation showed that the people living next door to Mr X are one family, and therefore are one household.
59. Therefore, the Council is correct that this is not an HMO.

Complaint handling

60. Mr X says the Council dealt with his further complaint as a new complaint and blamed it on him. He says he did not get a normal automated response, so he re-sent his complaint using a different method to make sure it was received.
61. The Council said in its complaint response to Mr X in December that he did not follow the advice given at the end of the first stage one response, which told him how to ask for his complaint to be dealt with at stage two.
62. The Council accepted that it should have realised that the two complaints were connected. It has apologised to Mr X and reminded officers to be mindful of this in future.
63. While the Council accepted that it should have realised that Mr X’s complaints were linked, I do not find this is significant enough to constitute fault.
64. The Council sent its first stage one response 16 working days after Mr X complained. It told Mr X how to ask for his complaint to be escalated to stage two. This is in line with its complaints procedure.
65. The Council sent its second stage one response after 17 working days, and told him how to ask for a stage two response. This is in line with its complaints procedure.
66. The Council sent its stage two response after 29 working days. This is in line with its complaints procedure.
67. I find that the Council handled Mr X’s complaint in line with its complaints procedure, so I do not find fault with the Council.

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Final decision

68. I have completed my investigation and do not uphold Mr X’s complaint. This is because I have found no evidence of fault in the Council’s actions.

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Investigator's decision on behalf of the Ombudsman