Summary: The complainant, Mrs X, complained the Council failed to properly exercise its powers over an unlicensed house in multiple occupation. The Council accepted it delayed action and that errors made resulted in it serving a further notice. We find the Council acted with fault and agreed a proportionate remedy.

The complaint

1. The complainant, whom I shall refer to as Mrs X says the Council failed to use its powers to control the overcrowding at a neighbouring property used as a house in multiple occupation. Mrs S says this has resulted in nuisance, disruption and distress to Mrs X and her family.
2. Mrs X says the Council should apologise and provide a financial remedy in recognition of the distress caused.

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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 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)
5. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
6. If 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. In considering this complaint I have:
• Read the information provided by Mrs X with her complaint;
• Reviewed the information sent by the Council on notification of our investigation and its offer to provide a remedy;
• Researched the relevant law, guidance, and policy;
8. I shared with Mrs X and the Council my draft decision and I reflected on any comments received before reaching this final decision.

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What I found

The law

9. The Housing Act 2004 (the Act) sets out the law on Houses in Multiple Occupation (HMO). Detailed regulations are set out in the Licensing of Houses in Multiple Occupation (Mandatory Conditions of Licences) Regulations 2018 and the Licensing of Houses in Multiple Occupation (Prescribed Description)(England) Order 2018.
10. Section 61(4) of the Act says councils must take all reasonable steps to secure applications for licences for an HMO are made to them. A temporary exemption from licensing may apply where a landlord shows he intends to take steps that would mean the property no longer needed a licence. The Act sets out the tests a landlord must meet for the house to be considered an HMO. (Housing Act 2004, Section 65 & 66)
11. A House in Multiple Occupation (HMO) is a property rented out by at least three people who are not from one household but share facilities like the bathroom and kitchen. Private landlords must obtain a licence to rent out a large HMO (which has more than three floors and is occupied by five or more persons forming two or more households). Local authorities may use their discretionary power under the Act to designate certain areas to be subject to additional licensing, which would require smaller HMOs in the designated area to be licensed. The Council has designated its whole administrative area under those powers, so all HMOs need a licence.

What happened

12. In September 2019, the Council exercised its powers to designate the whole Borough for selective licensing of properties in multiple occupation. This meant the rules applying to houses over three storeys applied to all properties.
13. Mrs X lives next door to an unlicensed house in multiple occupation. The owner of the next-door property I shall call Mr Y. Since 2017 Mrs X has complained to the council about the overcrowding at the house, anti -social behaviour and failure to keep the house and garden in proper order.
14. In April 2019 Mr Y presented an application to renew an HMO Licence. The application stated five people lived in the house as five different households with four lettings (Mr Y lived at the property as well). Mr Y wrongly ticked the box for a renewal of a licence when this house had not had a previous HMO Licence.
15. On 11 March 2020, following a visit to the property, the Council wrote to Mr Y saying he had still not presented the correct licence application. The letter said Mr Y was renting out the property illegally. With the letter the Council served a notice under the Act declaring Mr Y’s house an unlicensed HMO. In the covering letter the Council set out what the owner needed to do to gain a licence and reminded him he may need planning permission for an HMO. The Council issued an improvement notice on 2 April 2020 but that could not become active until social distancing measures introduced to manage the Covid 19 pandemic eased. This set out the works needed to comply with regulations. The notice set out the Council’s concerns about how Mr Y managed the property and garden.
16. Mrs X continued to raise complaints with the Council about the anti-social behaviour of residents in the neighbouring house. The Council says the Police took the lead on responding to allegations of anti-social behaviour while it concentrated on dealing with the HMO licence application. The Council recognises it should keep neighbours updated (as far as data protection legislation allows) of progress in the licence enforcement procedure.
17. In May 2020, the Council told Mrs X the court had suspended cases during the Covid-19 pandemic. The Council did not tell Mrs X when the courts resumed hearings later in 2020.
18. The Council says on reviewing the papers in late 2020 it recognised procedural errors in handling the case may result in the court dismissing the Notice issued on 11 March 2020 if it came to court. The Council says it lost the legal paperwork needed to progress the court action during its passage between different sections of the Council.
19. The Council had to issue new proceedings and gather evidence because of the errors in the Notice and the lost papers. The time taken also meant the Notice of March 2020 had expired.
20. In March 2021 following a visit by officers the Council decided to prosecute Mr Y. The officers found Mr Y did not have a licence or temporary exemption. During the visit, the Council’s officer explained to Mr Y the Council had not received an application from him for a licence. The officer found evidence to support a prosecution under the Act and regulations.
21. Therefore, in March 2021 the Council issued a fresh notice and expects that to come to court in August 2021.
22. In responding to our investigation, the Council said it accepted errors made in March 2020 meant it could not enforce the Notice. The Council accepted it should have done more to limit the delay during the latter part of 2020. The Council recognised it should have kept Mrs X updated about why it had not progressed the court action. This has delayed any resolution by the courts. That has added to Mrs X’s anxiety over when the courts will decide the issue and caused her to lose faith in the Council.
23. The Council has offered to apologise and pay Mrs X £400 in recognition of the avoidable distress and anxiety caused by the lack of information and the delay.

Analysis – was there fault leading to injustice?

24. My role is to consider whether the Council acted with fault in exercising its statutory powers and if it did, I must decide what the Council should do to address the impact of that fault.
25. I may only consider the events from March 2019. It is clear the Council responded to Mrs X’s concerns by inspecting Mr Y’s property and found it to be an unlicensed HMO. The Council followed up the concerns by issuing court proceedings. The delay to the court hearings lies outside the Council’s control and my jurisdiction. However, the Council should have kept progress under review and updated Mrs X, so she received the re-assurance the Council intended to enforce the HMO regulations. The Council accepts it did not properly update Mrs X and tell her when the court resumed hearings. I find the Council at fault for this failing.
26. The law forbids me from commenting on the conduct of a court case. However, I may comment on how the Council gathered evidence and issued the notices before it began court action. The Council accepts its officers failed to follow the proper procedure resulting in the notice issued in March 2019 being invalid and unenforceable. This meant the Council had to issue a fresh notice and begin its proceedings again. That resulted in avoidable delay, inconvenience, and distress to Mrs X. I find the Council at fault in the conduct of the investigation before it began legal proceedings.
27. Under our ‘Guidance on Remedies’, we try to place people in the position they would have been but for any fault identified. Where we cannot do that, we will usually expect a council to apologise and undertake procedural improvements. We usually recommend councils pay to the person affected a symbolic payment in recognition of the impact of the fault. In our guidance we suggest a payment of between £100 and £300 for distress and a similar payment for the inconvenience caused. Applying that guidance, I must decide if the Council’s offer is a proportionate remedy.
28. Mrs X experienced delay, inconvenience in following up her complaint and confusion about what was happening in the court case. Complainants must expect some inconvenience when presenting a complaint and dealing with the responses. However, Mrs X experienced significant avoidable distress and inconvenience in following up progress in the case. Usually, we recommend the higher end of the scale of between £100 and £300 for this distress. A payment of £100, recognises the avoidable inconvenience caused by the lack of information and delay to the court proceedings. Therefore, I find the Council’s proposal to apologise and pay £400 represents a proportionate remedy in line with our Guidance and what we would recommend.

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Agreed action

29. The Council agrees to within four weeks of this final decision:
• Apologise to Mrs X and;
• Pay Mrs X £400 for the distress and inconvenience the delay and errors on the Council’s part have caused;
• Introduce a regular six weekly update for Mrs X on the progress of the current court case with immediate updates when hearings take place.

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Final decision

In completing my investigation, I find the Council at fault and agreed a proportionate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman