Summary: The Council served Ms Y with a notice requiring her to abate statutory nuisance in a House of Multiple Occupancy. Ms Y complains she faced unnecessary expense when appealing the notice because the Council withdrew it without her knowledge. We do not find fault because there is evidence the Council told Ms Y of its decision to withdraw the notice. We have discontinued our investigation into the other parts of Ms Y’s complaint because she has already used an alternative legal remedy.

The complaint

1. The complainant, whom I will call Ms Y, complains the Council wrongly served notices to abate nuisance which she was not responsible for.
2. Ms Y also complains the Council ordered her to make improvements to her property, which was a House of Multiple Occupancy (HMO), despite the improvements not being required.
3. As a result of the above, Ms Y says she has experienced unnecessary stress, expense and harassment.

Back to top

The Ombudsman’s role and powers

4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. The courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
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)

Back to top

How I considered this complaint

7. During my investigation I discussed the complaint with Ms Y and considered any information she submitted.
8. I made enquiries of the Council and considered its response. I also consulted any relevant law and guidance around Houses of Multiple Occupancy (HMO) and statutory nuisance.
9. I issued a draft decision statement and gave Ms Y and the Council an opportunity to comment on my draft findings. I considered their comments before making a final decision.

Back to top

What I found

What should happen

10. A House of Multiple Occupancy (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 HMOs which have more than three stories and occupied by five or more persons forming two or more households.
11. Tenants may complain to their council about a failure by the landlord to keep the property in good repair. Local authorities have powers under the Housing Health and Safety Rating System (introduced by the Housing Act 2004, Part 1) to take enforcement action against private landlords where the council has identified a hazard which puts the health and safety of the tenant at risk.
12. Councils can also issue abatement notices under S80 of the Environmental Protection Act 1990 if they consider a person is responsible for creating a ‘statutory nuisance’ which unreasonably and substantially interferes with the use or enjoyment of a home or other premises or injures or be likely to injure health.
13. Those served with a S80 notice have a designated right of appeal to the Magistrates Court.

What happened

14. Ms Y is the owner and landlord of a property which until June 2021 was licensed by the Council as a HMO. At the time of the matters complained about Ms Y had one tenant. Ms Y was also living within the property.
15. In December 2020 the tenant contacted the Council to advise the property lacked vital services such as water and heating. Following the tenant’s contact, the Council wrote to Ms Y outlining their intention to inspect the property the following day. The Council inspected the HMO on 23 December 2020. Ms Y was present during the inspection.
16. Following the inspection, the Council served Ms Y with two notices, by email.
17. The first Notice, served under S235 of the Housing Act 2004, required Ms Y to provide specific documents to the Council within 21 days of the Notice.
18. The second Notice, served under S80 of the Environmental Protection Act, required Ms Y to restore the water supply to the affected flat and to provide a copy of the engineer’s report. The Council said both actions were to be completed ‘forthwith’. The Notice explained Ms Y’s right to appeal to the Magistrates Court.
19. The Council received notification on 4 January 2021 that Ms Y had complied with the S80 Notice because she had arranged to restore the water supply. The Council says it contacted the tenant to verify this information. The tenant confirmed Ms Y had arranged for the water supply to be restored, therefore the Council was satisfied Ms Y had complied with the Notice.
20. However, the tenant reported an additional problem: no heating from the gas boiler. The Council says the tenant explained the boiler and its controls were located in a room which she did not have access to. The tenant also told the Council she did not have a gas credit key to ‘top-up’ the meter
21. The Council says it notified Ms Y of the tenant’s concerns and asked her to rectify the heating issues immediately. Despite this, three days later the Council received contact from the tenant to say Ms Y had not restored the heating or hot water.
22. The Council served Ms Y with a further S80 Notice, by email, on 7 January 2021. This ordered Ms Y to:
• Provide a gas meter fob to the occupants
• Provide full and unrestricted access to occupants for the gas credit meter
• Provide full and unrestricted access to the occupants for the heating and hot water controls
• Remove all obstructions prohibiting access to the ground-floor kitchen
• Provide full and unrestricted access to the occupants of the ground-floor kitchen
• Restore gas supply and make cooking facilities available
23. The Notice required Ms Y to undertake the above ‘forthwith’.
24. The following day the Council reconsidered its position and decided to amend the deadline within the Notice from ‘forthwith’ to 10 January 2021. The Council explained: “I write to inform you that the Section 80 notice under the Environmental Protection Act 1990 served on you yesterday 07/01/2021 is withdrawn and replaced with the one attached. The effect is to allow you more time to comply, which ends on 10/01/2021”
25. Ms Y responded on 12 January 2021 to say that she did not consent to receiving notices by email and quoted caselaw to support her reasoning.
26. Following Ms Y’s contact the Council’s legal department reviewed the Notices. The Council decided to re-serve the Notice by post on 21 January 2021 and amended the deadline to 29 January 2021. The Council explained, “The Notices served on you by email under Section 80 of the Environmental Protection Act 1990 dated 07/01/2021 & 08/01/2021 are withdrawn.”
27. Meanwhile, Ms Y applied to the Courts seeking an injunction against two defendants: the tenant and the Council officer who had inspected her property in December. Ms Y explained in her claim form that she is seeking an injunction against the officer because, “the second defendant is using illegal and defective notices to attempt to aggravate matters a matter most of which are now being appealed in the Magistrate court”.
28. On 29 January 2021 the Council received a summons to appear at Magistrates Court following an appeal made by Ms Y against the withdrawn S80 Notice dated 7 January 2021. Following this, the Council says it contacted its legal department and the Court to explain the Notice which Ms Y appealed had been withdrawn on 8 January 2021. The Council says that Ms Y insisted the hearing went ahead.
29. The S80 appeal hearing went ahead on 11 February 2021. The Council says the Court was again informed that Ms Y was appealing a withdrawn Notice. The Court refused to grant Ms Y’s costs.
30. The Council received a summons to appear in Court following Ms Y’s application for an injunction. The Courts decided to amend the claim so the Council as an entity, rather than the officer, was the named defendant.
31. Following a remote hearing, the judge decided the officer had acted within their duties and no injunction order or costs were made against the Council. However, the judge did grant an injunction against Ms Y’s tenant which prevented her from accessing the ground-floor where the boiler timer and controls were located.
32. Ms Y then appealed the S80 Notice served by the Council on 21 January 2021. The Council received the corresponding summons on 11 March 2021. The hearing date was scheduled for 29 April 2021.
33. On 12 April the Council wrote to Ms Y confirming it had withdrawn the Notice served on 21 January 2021 because it was satisfied the tenant had a gas meter credit key and access to hot water. Furthermore, due to a change in circumstances following the injunction, the Council was no longer able to insist that Ms Y provided her tenant with access to the ground-floor accommodation.
34. The Council says that Ms Y has refused to cancel her appeal, despite the Notice having been withdrawn. The Council says the hearing date has been re-scheduled and it has informed Ms Y of its intention to seek costs if she proceeds.

My analysis

35. The law says we cannot normally investigate a complaint when someone can appeal to a Court or Tribunal. We may investigate if we consider it was unreasonable for the person to appeal, or they were prevented from doing so due to fault.
36. Therefore, any complaint about the service of an appealable Notice would usually be outside of the Ombudsman’s jurisdiction; this includes complaints about technical breaches in the method of service, or a complaint about the grounds of the Notice. The Ombudsman would expect the person affected to use their designated right of appeal to challenge any alleged fault.
37. Furthermore, the courts have said that where someone has used their right of appeal, reference or review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
38. However, the Ombudsman retains jurisdiction to consider complaints subject to misconceived proceedings. For example, where the action taken does not amount to the pursuit of an available right or remedy. Likewise, proceedings may be misconceived where for other reasons the appeal or other action is struck out by the Court or a Tribunal at a preliminary stage because there is no legal basis for the action
39. In this case, the Ombudsman decided to pass Ms Y’s case for investigation because she said the first S80 Notice she appealed was withdrawn by the Council and Ms Y faced avoidable costs in attending an unnecessary court hearing. Ms Y says she was not aware the Notice had been withdrawn prior to the hearing and she was required to participate and pay costs because the Courts listed the case regardless of the Council’s decision to withdraw. Therefore, Ms Y claims that fault in the Council’s actions caused her an avoidable injustice.
40. The S80 Notice which Ms Y first appealed was the one served by the Council on 7 January 2021. I have seen evidence of correspondence sent to Ms Y from the Council on 8 January 2021 which expressly told her the notice had been withdrawn due to an amendment to the deadline. I am satisfied that Ms Y received this correspondence because she later responded to challenge the method of service. Ms Y was therefore aware of the status of the 7 January 2021 Notice and able to make an informed decision about whether to appeal.
41. Ms Y has since appealed the subsequent S80 Notice issued by the Council on 21 January 2021. The Council decided in April 2021 the Notice was ‘discharged’ and its case closed due to Ms Y’s compliance and a change in circumstances. Irrespective of this, the Council says Ms Y has not withdrawn her appeal which is due to be heard later this month.
42. The Ombudsman does not find fault with the Council’s actions because it has notified Ms Y of its withdrawal of both notices, served on 7 January 2021 and 21 January 2021, before the respective appeal hearings. In my view, the injustice Ms Y claims is not caused by Council fault.
43. Turning now to Ms Y’s claim that the Council ordered improvements to the HMO despite there being no legal basis for these improvements. Based on the information available to me, it appears that Ms Y chose to comply with the Council’s order and make the repairs; namely the restoration of gas central heating and water. Ms Y also provided her tenant with a gas credit key. The Council was therefore satisfied by 12 April 2021 that Ms Y had complied with the Notice and closed its case.
44. If Ms Y felt the improvements were not legally required, she could have opted not to undertake them and instead argued her case in Court. For example, Ms Y could have put forward her point about whether her property is technically considered to be a HMO due to the occupancy rate being below the threshold. I am therefore satisfied Ms Y had access to an alternative legal remedy to challenge the lawfulness of the Notices and for this reason I have not investigated the substantive issue around the necessity of the HMO improvements.
45. Ms Y also claims general stress and harassment arising from the Council’s actions, and in particular from the officer who inspected the HMO in December 2020. I have not investigated this point because Ms Y has previously put this matter to the Court when she applied for an injunction against the Council earlier this year. Ms Y’s injunction failed as the judge decided the officer acted within their duties. As this issue has already been considered by the Courts, the Ombudsman is prevented from investigating any further irrespective of whether the Courts provided a complete remedy for the injustice claimed.

Back to top

Final decision

46. We have completed our investigation with a finding of no fault in the matters which we have investigated. We have discontinued our investigation into the other complaints which are outside of the Ombudsman’s jurisdiction for the reasons explained in this statement.

Back to top

Investigator's decision on behalf of the Ombudsman