Summary: Mr X complained about the Council’s actions in relation to a property he was renting to tenants. We found the Council was at fault in requiring him to install a higher specification smoke alarm than was necessary and in failing to respond to some of his correspondence. It also delayed in responding to his complaint. The Council has agreed to send Mr X a written apology for the injustice caused.

The complaint

1. Mr X complains that the Council:
• unreasonably decided a property he was renting to tenants was a house in multiple occupation (HMO) and so required a licence and served an enforcement notice on him;
• required him to install a higher specification smoke alarm than was necessary;
• failed to respond to his correspondence;
• failed to respond to his complaint within appropriate timescales;
• failed to properly respond to his subject access request; and
• breached the GDPR by sharing information with an organisation acting on its behalf.
2. Mr X also complains that an organisation acting on behalf of the Council:
• harassed him and required him to remove CCTV from the property; and
• asked him to allow another tenant to move into the property with the existing tenants despite knowing that he is not licensed to own or manage an HMO and knowing that the Council had served an enforcement notice on him.
3. Mr X says he has suffered distress and has been put to inconvenience because of these matters.

Back to top

What I have investigated

4. I have investigated Mr X’s complaints that the Council: required him to install a higher specification smoke alarm than was necessary; failed to respond to his correspondence; and failed to respond to his complaint within appropriate timescales.
5. I have also investigated Mr X’s complaints about the organisation acting on behalf the Council.
6. I have explained the reasons I am not investigating the rest of Mr X’s complaints at the end of this document.

Back to top

The Ombudsman’s role and powers

7. 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)
8. 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)
9. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
10. We cannot investigate a complaint if someone has appealed to a tribunal or a government minister or started court action about the matter. (Local Government Act 1974, section 26(6), as amended)
11. The Planning Inspector acts on behalf of the responsible Government minister and considers appeals about:

• delay – usually over eight weeks – by an authority in deciding an application for planning permission
• a decision to refuse planning permission
• conditions placed on planning permission
• a planning enforcement notice.

12. We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about Freedom of information or data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

13. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
14. Mr X and the Council had an opportunity to comment on my draft decision. I considered the comments received before making a final decision.

Back to top

What I found

Legal and administrative background

Houses in multiple occupation (HMO)

15. An HMO is a property rented by at least three people who are not from one household but share facilities such as a bathroom and kitchen. Private landlords must obtain a licence where the HMO is occupied by five or more people from two or more separate households (mandatory licensing). Some local authorities may also use their discretionary power under the Housing Act 2004 to designate certain areas to be subject to additional licensing, which would require smaller HMOs in the designated area to be licensed.

Planning

16. The general power to control development and use of land is set out in the Town and Country Planning Act 1990 (‘the Act’). Permission is required for any development or change of use of land and may be granted by a local planning authority or deemed to be permitted if it falls within the limits set out in the permitted development regulations.
17. Permission is required for development which includes building, engineering or other works in, on, over or under land, or the material change in use of any buildings or land.

Use classes

18. The Town and Country Planning (Use Classes) Order 1987 (as amended) puts uses of land and buildings into various categories known as no an optional insured driver ‘use classes’. These include:
• Class C3 Dwellinghouses which covers use by a single person or a family or up to six people living together as a single household; and
• Class C4 Houses in multiple occupation. These are defined as small shared houses occupied by between three and six unrelated individuals, as their only or main residence, who share basic amenities such as a kitchen or bathroom.

Planning enforcement

19. Local planning authorities may take enforcement action where there has been a breach of planning control. Enforcement action is discretionary.
20. A breach of planning control is defined in the Act as:
• the carrying out of development without the required planning permission; or
• failing to comply with any condition or limitation subject which planning permission was granted.
21. Where the breach involves carrying out development without permission, the local planning authority may serve an enforcement notice if it decides it is expedient to do so.
22. An enforcement notice creates a right of appeal to the Planning Inspectorate.

Key facts

23. In 2020 Mr X rented a property to three joint tenants and their three children. He believed they were all one household.
24. In May 2021 the tenants contacted the Council saying Mr X had breached their privacy by installing CCTV in the property without their consent. The property licensing team referred this issue to the Council’s contractor, Company A, which is an independent tenants’ rights service working in partnership with the Council.
25. On 24 May the Council’s planning enforcement team served a planning contravention notice (PCN) on Mr X requiring him to provide information.
26. On 27 May a licensing enforcement officer (‘the officer’) from the Council’s private sector housing and licensing team inspected the property. She found it was an unlicensed HMO as seven people were living there and they were not all related. She also found insufficient fire protection in the property and other disrepair issues.
27. On 7 June Mr X received a telephone call from a caseworker at Company A asking him to remove the CCTV from the property. Mr X explained the CCTV was not working.
28. On 11 June the caseworker sent an email to Mr X asking him to remove or cover up the CCTV cameras around the house within 14 days. She said the eviction notice Mr X had served on the tenants was invalid because there was a licensing breach in the property. She went on to say, “I will also take this opportunity to remind you that the tenants are protected by the Protection from Eviction Act 1977 meaning any harassment or attempts to remove the tenants from the property without due process would constitute a criminal offence”.
29. On 15 June the officer sent Mr X a letter confirming the outcome of the inspection in May. She explained the property was currently an unlicensed HMO and required an HMO licence because it was let to multiple unrelated adults or households. She also listed the deficiencies which required attention to meet HMO standards. She said Mr X should confirm his proposals to deal with the problems identified within 14 days and, if reasonable progress was not made to resolve the issues, the Council would take further action.
30. Mr X explained there had been a breach of the tenancy agreement without his knowledge or consent as he believed he had let the property to one household. He agreed to carry out some of the required works.
31. On 21 June Company A wrote to Mr X explaining the importance of removing the CCTV whether it was working not. Mr X responded explaining his solicitors had advised that there was no breach of the tenants’ rights because the CCTV was non-operational.
32. On 28 June Mr X submitted a mandatory HMO application. He also provided the Council with details of a significantly cheaper alternative to the proposed high specification smoke detectors required by the Council. The officer confirmed the cheaper smoke detectors were satisfactory and Mr X installed them.
33. On 29 June 2021 Mr X wrote to Company A’s caseworker saying the CCTV was not working and Company A was supporting the tenants’ malicious behaviour towards him. The caseworker responded saying, “I am sorry you feel you have been harassed-I am a tenants’ advocate and here to ensure their concerns are heard”. She said that the tenants had provided photographs of the CCTV which had lights on, suggesting it was operational. She said that, whether the CCTV was in operation or not, the tenants felt uncomfortable with it. So, she continued to recommend Mr X or cover it up.
34. Mr X sent the caseworker photographs of the CCTV system unplugged from the electrical socket.
35. On 3 August Mr X wrote to the officer referring to a discussion the previous day where he had asked the Council to review its decision that the property was an HMO. He said his solicitor had advised that the property was not an HMO and set out the reasons for this. He said the officer had agreed to review the position and requested a response by 12 August 2021. The officer responded on 19 August 2021 stating, “I have discussed this case fully with my manager, and she also feels that HMO licence is the correct licence”.
36. Mr X responded on 23 August 2021 requesting “a full and sufficient explanation” to the points he had raised. The officer responded the same day stating that she had forwarded the email to her manager to respond.
37. On 24 August the planning enforcement officer wrote to Mr X saying that, following his inspection and a review of Mr X’s responses to the PCN, he considered the use of the property as an HMO was unauthorised in planning terms as it commenced without planning permission. He said he intended to issue an enforcement notice to require Mr X to stop using the premises for HMO purposes. He explained Mr X would have a statutory right of appeal against the notice.
38. On 10 September 2021 the planning enforcement team served an enforcement notice requiring Mr X to cease using the land as an HMO and remove one of the bathrooms on the ground or first floor levels. Mr X appealed to the Planning Inspectorate.
39. On 27 September 2021 Mr X complained to the Leader of the Council and other Members of the Council. The Council responded to the complaint at stages 1 and 2 of its complaints procedure.
40. In July 2022 Company A’s caseworker contacted Mr X saying the tenants had been unable to pay the full rent because there were now only two of them in the property and asking him to grant permission to have another tenant in the property to allow them to pay the full rent whilst the possession proceedings were ongoing.
41. Mr X’s solicitors responded explaining that Mr X was not licensed to own or manage an HMO property and had no intention of doing so.

Analysis

Smoke alarm

42. Mr X says the Council required him to install a higher specification smoke alarm than was necessary.
43. At stage 1 of its complaints procedure, the Council agreed that this was the case and apologised for the inconvenience caused. I am satisfied this is a sufficient remedy for the injustice caused. Mr X was not put to the expense of providing the higher specification alarm, but he was put to the time and trouble of providing the Council with details of a lesser specification alarm which it agreed would be acceptable.

Failure to respond to Mr X’s correspondence

44. Mr X says he did not receive a response to the points raised in his email to the licensing enforcement officer dated 3 August 2021.
45. The email was detailed and lengthy. Mr X sought further clarification on the HMO status of the property because his solicitor had advised that it was not an HMO. He also commented on each of the deficiencies identified at the inspection in May 2021. He requested a response by 12 August 2021.
46. On 9 August 2021 the officer responded asking “Is the feedback (by 12 August 2021), regarding the HMO status?”. Mr X confirmed this was the case. On 19 August the officer responded saying “I have discussed this case fully with my manager, and she also feels that HMO licence is the correct licence”. The officer therefore confirmed the Council’s position. Although she did not set out any reasons in her email, I am satisfied the Council had already explained why it considered the property to be an HMO.
47. On 23 August 2021 Mr X requested a full explanation in answer to the points he had and requested a response from the officer’s manager. Although the officer confirmed she would forward his email to her manager for a response, this was not forthcoming. This was fault.
48. In response to Mr X’s complaint, the Council accepted he did not receive a response from the manager. It apologised for this and said training would be given to officers and managers regarding expected customer care and standards. I consider this to be a sufficient remedy for any injustice caused by the manager’s failure to respond.

Failure to respond to Mr X’s complaint within appropriate timescales

49. Mr X says it took the Council 101 days to respond to his complaint dated 27 September 2021. The Council’s stage 1 response was sent on 6 January 2022.
50. Mr X did not send his complaint to the complaints team but to the Leader of the Council and other councillors which caused some confusion. However, this does not alter the fact that there was a significant delay in responding to his complaint. This was fault and caused Mr X uncertainty and frustration.
51. Mr X requested that his complaint be escalated to stage 2 of the Council’s complaints procedure on 2 February 2022. The Council responded on 3 March 2022 which was within published timescales.

Company A’s actions

52. Mr X says Company A harassed him. He says its email of 11 June 2021, in particular, was harassment and implied he was a rogue landlord.
53. The email included a reminder that any harassment or attempts to remove the tenants from the property without due process would constitute a criminal offence. I do not consider this to be harassment. Company X was entitled to remind Mr X of his duties as a landlord.
54. I have seen no evidence of harassment or intimidation by Company A. Its role is to advise and advocate for tenants. Its primary duty is to protect tenants’ rights whilst also providing advice to landlords, so there are no grounds to criticise it for trying to resolve the matter for the tenants.
55. Mr X says Company A wrongly required him to remove CCTV from the property. He says the CCTV was installed purely as a deterrent to burglars.
56. The tenants approached the Council because they were not happy about the CCTV in the property and the Council referred the matter to Company A to resolve. As Company A was acting as advocates for the tenants in this matter, there are no grounds to criticise it for asking Mr X to remove the CCTV. Its emails were professional and it explained the reasons for the request and the legal requirements.
57. Mr X says that, in July 2022, Company A acted with fault in asking him to allow another tenant to move into the property with the existing tenants despite knowing he was not licensed to own or manage an HMO and knowing that the Council had served an enforcement notice on him.
58. The Council says Company A is procured by the property licensing team who works closely with them. Company A does not work with the Council’s planning enforcement team, so it may not have been aware of the enforcement notice it had served on Mr X.
59. The Council met with Company A to discuss this matter. It then wrote to Mr X explaining that, although it and Company A had provided differing advice, both were legally correct. It said Company A’s advice was based on the fact that the tenancy agreement contained a clause prohibiting the tenants from bringing in a replacement housemate if one left the property. Because they were joint tenants, they were all jointly and severally liable for the whole rent so such a clause is considered to be an unfair contract term under the Consumer Rights Act 2015 and, so, unenforceable. So, Company A’s advice was legally correct. However, it contradicted the advice Mr X had been given by the Council that it was an offence to operate an HMO without a licence under the Housing Act 2004 and that there was a breach of planning control.
60. The Council explained that the two Acts were, in this instance, contradictory. It apologised for any distress Company A’s advice had caused Mr X. It has confirmed that, in future, steps will be taken to ensure that thorough checks are made before advice such as this is given.
61. I find no grounds to criticise Company A, given that its advice was legally correct. However, it would have been best practice for it to check with the Council before giving such advice. In any event, the Council has apologised for any distress caused so I will not pursue this issue further.

Back to top

Agreed action

62. The Council has agreed that, within one month, it will send a written apology to Mr X for the delay in responding to his stage 1 complaint.

Back to top

Final decision

63. I find the Council was at fault in that:
• it specified that Mr X should install a higher specification smoke alarm than was necessary;
• the licensing enforcement officer’s manager failed to respond to Mr X’s request for further information; and
• it delayed in responding to Mr X’s stage 1 complaint.
64. I have completed my investigation on the basis that the Council has agreed to implement the recommended remedy.

Back to top

Parts of the complaint that I did not investigate

65. I have not investigated Mr X’s complaints relating to the Council’s decision that his property is an HMO and the service of the enforcement notice requiring him to cease the use of the property as an HMO and make alterations to it. Mr X has exercised his right of appeal to the Planning Inspectorate in relation to the required alterations, so this issue is outside the Ombudsman’s jurisdiction. Although Mr X is not disputing the Council’s finding that the property is an HMO through the appeal, he has the right to do so. So, I will not exercise discretion to investigate any issues relating to this matter.
66. I have not investigated Mr X’s complaints relating to his subject access request or breach of the GDPR because the Information Commissioner's Office is better placed to investigate these issues.

Back to top

Investigator's decision on behalf of the Ombudsman