Summary: Mr X complained the Council failed to take proper action against the owner of two houses in multiple occupation (HMO) near his home, failed to do due diligence before issuing HMO licences, failed to communicate between different departments, and failed to respond in a timely manner. There was no fault in the Council’s response to Mr X’s complaints about HMO licensing and household waste issues where he lives.

The complaint

1. Mr X complained the Council failed to take proper action against the owner of two houses in multiple occupation (HMO) near his home, failed to do due diligence before issuing HMO licences, failed to communicate between different departments, and failed to respond in a timely manner.
2. Mr X said:
• One of the HMOs was unlicensed and then had too many occupants.
• The owner did not get planning permission from the Council to change the use of the property from a residential home to an HMO, but the Council still issued a new HMO licence anyway.
• The owner of the two HMOs lied on his planning application to the Council by saying he intended to live in one of the houses. The Council did not address this before issuing the owner a new HMO licence for that house.
• There have been ongoing problems at the two HMO since May 2021 with overflowing household waste bins and fly tipping.
3. Mr X said there are now problems with parking on the street and with overflowing bins because there are too many people. He also said HMO tenants leave rubbish out in the street, create noise nuisance, and take drugs.

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What I have investigated

4. I have addressed Mr X’s complaints about licensing and household waste in this decision statement. I have considered his complaint about planning matters separately.

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The Ombudsman’s role and powers

5. 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)
6. If we are satisfied with an organisation’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. As part of the investigation I have considered the following:
• Mr X’s complaint and supporting information.
• Documents provided by the Council and its comments in response to my enquiries.
8. Mr X and the Council and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Houses in multiple occupation

9. An HMO is a house or flat occupied by three or more unrelated people who are not from a single household and who share amenities. It is a legal requirement for HMOs with five or more occupiers, who live in two or more households, and share amenities, to be licensed by the Council.
10. Landlords of HMOs must ensure the property is not overcrowded, has enough rubbish bins, has fire safety measures, and has the gas supply and electrics checked.
11. The Council may consider prosecution where an HMO is unlicensed or where there is non-compliance with a condition of the licence. The Council will decide this on a case-by-case basis.
12. You need planning permission to convert a house into an HMO for more than six people. For six occupants or less planning permission may not be needed.

What happened

13. I have detailed below some of the key events leading to Mr X’s complaint. This is not intended to be a detailed account of what took place.

Background

14. Mr X lives on a residential street consisting of several houses. I will refer to the two properties relevant to this complaint as Property A and Property B.
15. Property A is an HMO on the development where Mr X lives.
16. In about February 2021, the owner of Property A also bought Property B, which is on Mr X’s street. The owner applied to the Council for permission to convert the garage of Property B into a habitable room. The owner told the Council they intended to live in Property B. The Council granted planning permission.
17. Mr X told me the owner then split the living room of Property B into two bedrooms and installed bathrooms in each room. The owner also started work on a staircase for the new floor they wanted to build.
18. Mr X said the previous owner of Property B had a licence for a four person HMO, but the new owner made the property into a larger HMO without permission.
19. Mr X complained to the Council in September 2021 about Property A and Property B not having enough household waste bins. He said their bins were overflowing and occupants were using other resident’s bins.
20. The Council wrote to owner of Property A and B asking them to address the problem. The managing agent of the properties said they ordered more bins in May or June and awaited delivery. The Council delivered extra bins by 20 September.
21. Mr X also complained there were too many people living at Property A and B. He said the new owner of Property B converted the house from a four-bedroom home to seven bedrooms.

Property A

22. The Council inspected Property A on 18 October 2021. It found nine bedrooms with planning permission. However, one bedroom was undersized. The Council therefore reduced the number of permitted households on the HMO licence from nine to eight.
23. The Council also found several HMO licensing issues for the owner to correct.
24. The owner provided confirmation the issues were fixed in December.

Property B

25. The Council contacted the owner of Property B in September 2021. It transpired the new owner was not aware they needed a new licence and thought the old licence was transferrable. The Council revoked the old HMO licence and invited the new owner to make a new HMO licence application.
26. The Council’s environmental health department visited Property B on 24 September. They found it was occupied by seven households, but one room was undersized and could not be used as a bedroom.
27. The managing agent for Property B filed a new HMO licence request on 11 October 2021. The Council issued a new licence in December 2021 for a six household, six occupant HMO. The Council allowed an occupant to remain in the undersized bedroom until their tenancy expired. Afterwards, the managing agent was not permitted to let the room out to a new tenant.
28. After liaising with the Council’s licensing department, the planning department confirmed Property B was used as a seven-bedroom HMO and that it did not have the required planning permission.

Household waste

29. Mr X continued to complain about excess household waste and overcrowding. In January 2022, the Council’s environmental health department monitored the bins outside Property A and B for two weeks. However, it did not find evidence to support Mr X’s allegations of poor waste disposal.
30. The Council’s environmental health department inspected Property B again on 9 February 2022. It found no breach of the HMO licence, the property was not over-occupied, and there was no evidence of overflowing bins. However, the Council did find that its waste disposal team only emptied one general waste bin per house, despite the Property A and B having more than one general waste bin. The Council told its waste disposal team to empty all bins in future.

Formal complaint

31. Mr X complained to the Council on 13 October 2021. He said the Council found a breach of planning permission and breaches of the HMO licence at Property A and B but has not taken action to improve the situation for residents. He said there were unreasonable delays and the Council approved HMO licences with no prior checks.
32. The Council sent its final complaint response on 2 December 2021. It said:
• It became aware of issues at Property A and B after reports of lack of, and overflowing, bins in September 2021. An environmental health officer investigated, and the managing agent bought new bins. Officers did not witness fly tipping or overflowing bins.
• Officers found Property A was converted to a seven-bedroom home. One bedroom was undersized and cannot be rented out again once the current tenancy expires.
• The HMO licence for Property A will be reduced from nine homes to eight. Minor deficiencies were brought to the agent’s attention to be rectified.
• The planning team are investigating an alleged breach at Property B and have served a contravention notice.
• It is not unusual to issue HMO licences before carrying out an inspection. There is no duty on the Council to do an inspection beforehand, only to do one within three years of issuing a licence.
• It inspected Property B recently and it now occupies six people.
• There are limited grounds on which a HMO licence can be revoked. Certain criteria must be met. The licensee also has a right of appeal.
• The owner of Property B has submitted a new HMO licence application for a six household, six occupant property. The licence will contain a condition that the undersized bedroom cannot be used for sleeping and officers will oversee compliance. As it will be a new licence and new licensee, the Council must allow time for the new conditions to be implemented.
• Following intervention, the Council has seen an improvement with the new bins and the number of occupants controlled in the licence.

My investigation

33. Mr X told me the previous owner of Property B had permission for a four person HMO. However, the new owner transformed the house into a bigger HMO without planning permission. He said the Council did not carry out any checks before issuing a new HMO licence.
34. In response to my enquiries, the Council told me when its environmental health department grants a HMO licence for more than six occupants it passes the details to its planning department. The owner must then apply for planning permission. If the owner does not apply for planning permission within six months it is up to the planning department to decide whether to take enforcement action.
35. If the planning department take action against an owner, the environmental health department would then consider whether to vary or revoke the HMO licence.
36. The Council said, so far, there has been no successful planning prosecution against the owner of Property B, so there are no grounds to vary or revoke the HMO licence.
37. The Council also said a lack of planning permission is not grounds for refusing to issue a HMO licence under Section 64 of the Housing Act 2004.
38. The Council told me it received many complaints about breaches of the HMO licence at Property A and B. It carried out visits and either did not confirm the complaints or the owner corrected any issues found.

Analysis

39. Mr X’s injustice relates to occasional noise and ASB from tenants of Property A and B, as well as overflowing bins, discarded rubbish, and parking problems. Mr X blames poor management of the HMOs by the owner and a lack of enforcement action by the Council.
40. The important factor for my investigation is whether the Council properly considered the complaints and took what steps it could to improve the situation. I found that it did that.
41. The Council carried out inspections at Property A and B. In the main it found only minor defects which the managing agent put right.
42. Property A had planning permission as an HMO and the Council varied the HMO licence so the undersized bedroom could not be used after the occupants’ tenancy expired.
43. Property B had more rooms and more occupants than its licence allowed and did not have the necessary planning permission. The new owner was seemingly unaware of the need for a new licence and planning permission.
44. I have considered section 64 of the Housing Act 2004. It mentions suitability of the property and owner, or manager, as well as the number of occupants, but it does not mention a requirement for planning permission.
45. I therefore did not find fault with the Council’s decision to issue a new HMO licence for Property B. While the owner may not have had planning permission, I found the Council took legal advice and properly considered the position before making its decision.
46. In addition, a later inspection found the managing agent was complying with the new licence.
47. The Council’s planning department served an enforcement notice regarding the lack of planning permission at Property B. The owner had until September 2022 to stop using it as a HMO. If the owner does not comply, the Council can consider prosecution. Its environmental health team can then consider whether to vary or revoke the HMO licence.
48. Mr X was unhappy the managing agent was aware of the Council’s visits in advance, giving them time to prepare. The Council did try an unannounced visit, but the tenants denied access, leaving the Council no choice but to liaise with the managing agent.
49. After more complaints, the Council got a warrant from the court and could carry out an unannounced visit at Property B. It found no licensing breaches and no evidence of overflowing waste bins.
50. I have seen photographs from Mr X of overflowing waste bins and some waste left in the street, so I do not dismiss his complaint. However, the Council liaised with the managing agent to ensure more bins were ordered, put waste monitoring in place, and ensured its waste collection team emptied all bins at the properties. I therefore do not find the Council at fault for its response.
51. Mr X also complained about the Council’s communication, between different departments and with residents. I found there was contact between the Council’s environmental health and planning departments as part of the Council’s decision-making. I also found the Council engaged with residents, including Mr X, and provided several detailed email updates. The contact was not as swift as Mr X wanted. However, there were complex and evolving matters the Council had to investigate and I did not find any unreasonable delays in its contact with residents.
52. If there are issues with household waste in future, Mr X can report this to the Council, and it can consider whether more monitoring is needed.
53. If there are specific issues in future with noise or ASB, Mr X can report this to the Council’s environmental health department or, where relevant, the police.

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Final decision

54. I have completed my investigation. There was no fault in the Council’s response to Mr X’s complaints about HMO licensing and household waste issues where he lives.

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Investigator's decision on behalf of the Ombudsman