Summary: Mr D says the Council failed to act on reports of an unlicensed House of Multiple Occupation and anti-social behaviour. The Ombudsman has completed the investigation and not upheld the complaint because there is no evidence of fault.

The complaint

1. The complainant (whom I refer to as Mr D) says the Council failed to investigate allegations of anti-social behaviour (ASB) caused by neighbours. He also complains the Council has not taken enforcement action against the neighbouring home because it was an unlicensed private rental and a House of Multiple Occupation (HMO). Mr D feels the Council should have engaged with him. He also refers to the Council failing to enforce the Selective Licensing Scheme across his Council Ward.

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What I have investigated

2. I am considering the actions of the Council relating to Mr D’s neighbours, not how the Council has handled the Selective Licensing Scheme across the Ward/ Borough.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the Police. (Local Government Act 1974, sections 25 and 34A, as amended)
6. 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

7. I examined the information provided by Mr D. I asked the Council questions and carefully considered the evidence it provided.
8. I shared my draft decision with both parties.

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What I found

What happened

9. On 1 August 2019 Mr D contacted the Council stating a neighbouring private rental property was unlicensed and an HMO. The Council opened an investigation. A Housing Officer visited the property a week later but could not gain access. On 13 August, the Council sent a “first reminder” letter to the property owner setting out the requirement to licence the property. On 21 August, the Council reviewed the case and sent a “final reminder letter”.
10. On 6 September, the Council received a Selective Licence application. The Council advised Mr D a few days later about the application and the licence investigation would be closed. Mr D responded telling the Council there were various problems with the property including ASB. The Council also visited the property that day and did not witness any additional residents. On 12 September, the Council updated Mr D and further correspondence was exchanged between them. At the end of the month Mr D reiterated the property was an HMO. On 1 October, the Council visited the house and again noted a single household was in occupancy. On 9 October, the Council reviewed the case and found no evidence of issues that would allow enforcement action. Through November and December Mr D reported problems with noise, ASB, litter and other matters to the Council and the Police. The Council kept the licence application on hold while it considered the allegations. It sent Mr D diary sheets to log incidents in December.
11. In 2020 Mr D pursued a formal complaint about the lack of action by the Council. On 4 March, the Housing Enforcement Team visited the property to check if it was an HMO or a single household. They viewed the tenancy agreement and sent a Statutory Declaration to the agent and landlord. This required confirmation of who was resident in the home. In April Mr D reported breaches of covid-19 measures by the neighbours and repeated his concerns about an HMO. The Council placed the licence application on hold whilst it carried out the HMO investigation. In April the Council chased up the landlord for a response to the Statutory Declaration request. Also, that month the Council responded to the second stage of Mr D’s formal complaint. It apologised for delays caused by covid-19 restrictions. The Council explained the two stage complaints process. It said it was still investigating whether there was evidence of a nuisance and an HMO. It was for the Police to consider covid-19 breaches and issues with vehicles.
12. On 5 May the Council visited the property again and gained access. Officers found family members occupying the house and were satisfied it was one household and not an HMO. The Council also carried out visits to the area to check for ASB and street drinking. Officers did not witness any issues. Further visits were made in June and July and again no incidents were witnessed. At the end of July, the Council received a completed Statutory Declaration from the landlord confirming it was a single household occupancy. The Council then closed its HMO investigation. Mr D reported further incidents to the Council which it considered during the latter half of 2020. This meant putting the licence application on hold again.
13. In February 2021, the Council sought legal advice on the case. On 23 March I understand the Head of Service and other senior officers reviewed the case and found “no lawful reason” preventing the licence being issued. On 24 March a draft selective licence was issued.

What should have happened

ASB

14. The Council does not have set written procedures at present. I understand these are being drafted.
15. However, the usual practice would be for the Council to send diary sheets to a complainant to complete and return in order to assess the type and frequency of the nuisance. In addition, Officers can visit the site and witness if there is a nuisance or ASB taking place. The Council cannot take enforcement action unless it has evidence of ASB.

Licensing

16. The Council requires private rental homes to be licensed. A Selective Licence application should be made by the landlord/ owner/ agent if the property is occupied by a single household (members of the same family). If the Council receives a complaint that a property is not licensed it will check ownership of the home and write to the owner with a first reminder letter requiring an application be made. If there is no reply the Council sends a final reminder letter explaining that a failure to comply can result in a fine or conviction.
17. The Council will place consideration of a licence application on hold if it receives allegations the property is an HMO. In this situation Officers will visit the property and may send the landlord/ owner/ agent a Statutory Declaration to complete setting out whether the home is occupied by a single household or not. If the evidence shows the Council the property is a single household it will close the HMO investigation and restart consideration of the licence application.
18. The Council says it has a backlog with licence applications. It should usually take 56 days to reach a decision, but it is around six months at present.

Was there fault by the Council

19. Mr D feels the Council failed to properly investigate his reports about an alleged HMO and associated ASB. The evidence shows me the Council did act in line with procedures and usual processes. Officers visited the site several times but did not witness ASB attributed to Mr D’s neighbours. In addition, the Council also visited the property in 2019 and 2020 to ascertain if it was a single household. No evidence of an HMO was found. This meant there was no basis for the Council to take enforcement action against the owner or residents. Whilst that is frustrating for Mr D, the Council will not take enforcement action without corroborating evidence.
20. I do not see the Council delayed issuing a licence for the property. It did take much longer than usual but this was due to the application being placed on hold at various points in 2019 through to early 2021. The Council had a duty to pause the licence application whilst investigating Mr D’s reports. It would have been at fault had it issued the licence whilst significant allegations had not been fully considered.
21. Mr D says the Council failed to engage with him. I do not see evidence of fault in this matter. The Council is not obliged to meet a complainant for example. The evidence shows it took account of complaints and reports by Mr D and responded to him where appropriate. It acted in line with its procedures.
22. I appreciate Mr D disagrees with decisions taken by the Council. However, the Ombudsman will not question the validity of those decisions in the absence of procedural fault.

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Final decision

23. I have completed the investigation and not upheld the complaint.

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Parts of the complaint that I did not investigate

24. The Ombudsman cannot look at matters that are for the Police to consider, this includes complaints about drugs, untaxed vehicles, breaches of covid-19 regulations and any potentially criminal conduct.
25. I have looked at recent events because the Ombudsman expects a complaint to be made within 12 months of the matter arising.
26. The Ombudsman looks at whether there is a personal injustice to a complainant. We will not consider how the Council has applied a Scheme across a Ward for example.

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Investigator's decision on behalf of the Ombudsman