Summary: Mr X complained the Council provided contradictory information when it told him he had to evict his tenants as the property was overcrowded but told the tenants to resist the eviction. There is no evidence of fault in in the way the Council considered the overcrowding at Property 1 or in its advice to Mr X and his tenants. Nor is there any evidence the decision to issue an SPO was a response to Mr X’s formal complaint.

The complaint

1. The complainant, whom I shall refer to as Mr X complained the Council provided contradictory information when it told him he had to evict his tenants as the property was overcrowded but told the tenants to resist the eviction.
2. Mr X also complained that when he complained to the Council about its contradictory position the Council retaliated by serving a Suspended Prohibition Order (SPO).

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. (Local Government Act 1974, section 26(6)(a), as amended)
6. The First Tier Tribunal (Property Chamber) considers appeals against prohibition orders where notices are served under the Housing Act 2004.
7. 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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What I have and have not investigated

8. I have not investigated the Council’s actions since it issued a Suspended Prohibition Order in April 2023 as Mr X has exercised his right of appeal to the Tribunal.

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How I considered this complaint

9. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X
• Mr X and the Council had an opportunity to comment on my draft decision.

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What I found

What happened here

10. Mr X is a private landlord. He owns Property 1, a one-bedroom flat, which he rents to tenants. In October 2022 the Council received a complaint about noise nuisance and anti-social behaviour, and concerns Property 1 was a House in Multiple Occupation (HMO) and was overcrowded.
11. An Environmental Health Officer (EHO) carried out an informal inspection in early November 2022 and noted Property 1 was a single-family dwelling. The EHO telephoned Mr X on 7 November 2022 to discuss the overcrowding and noise complaints. The EHO says they advised Mr X it was not safe to allow two adults, two teenagers and a baby to live in the property long term. They told Mr X they would take enforcement action which could include informal and formal action. The EHO noted Mr felt the Council should rehouse the tenants without taking any action against him. The EHO says that as Mr X would not provide an email or postal address they told him they would send notices to Property 1 for him to collect. In addition, the EHO says they advised Mr X to take legal advice to deal with the issues.
12. Mr X made a complaint the same day. He was unhappy the EHO had advised him to evict his tenants or face legal action from the Council. He complained the EHO had harassed him into taking legal action and had refused to provide written warning of any legal action as they did not have Mr X’s address.
13. Mr X asked the Council to confirm no action would be taken against him; to review its procedures regarding how officers approach citizens; and to reprimand the EHO.
14. On 8 November the EHO sent Mr X a notice under section 235 of the Housing Act 2004 requesting information about Property 1. They also gave Mr X notice of their intention to enter and inspect Property 1 on 29 November 2022. They advised Mr X the property would be rated under the Housing Health and Safety Rating System (HHSRS).
15. Councils use the HHSRS to assess the condition of residential housing. The HHSRS looks at the risks to the health and safety of occupants or visitors to a particular property. The HHSRS calls these risks ‘hazards’. There are Category 1 and Category 2 hazards. Category 1 hazards are the most serious.
16. The Council responded to Mr X’s complaint on 18 November 2022. It apologised that Mr X had perceived the EHO had acted inappropriately in her advice regarding evicting the tenants. The Council noted the EHO had advised Mr X to take legal advice to deal with the issues as the officer’s role was to deal with hazards at the property. Rehousing needs do not fall within the EHOs remit, but advice can be sought from the Council’s Housing Options service.
17. Mr X provided the documentation requested in relation to Property 1 on 18 November 2022. He also confirmed a single household was living at the property. On 24 November 2022 Mr X confirmed the ages of the children in the property and acknowledged the property narrowly fell within the definition of overcrowding as the tenants counted as 3.5 people and the occupancy limit was 3 people. Mr X told the EHO he had served an eviction notice on the tenants. He asked the officer to inform the relevant Council services that the tenants might need support to find alternative accommodation.
18. The EHO inspected the property and wrote to Mr X on 6 December 2022 confirming they had concluded their investigation and would not take any further action at that time. They confirmed their findings were that the property was not an HMO.
19. In March 2023 the EHO wrote to Mr X again. They advised they were reviewing the complaint and asked Mr X to confirm whether, having served an eviction notice, he was taking any action to resolve the overcrowding at Property 1. Mr X told the officer that based on a notice to vacate sent in December 2022 the tenants were due to leave Property 1 by 28 February 2023. However, the tenants had told him the Council had advised them to resist the eviction by not vacating the property. Based on this advice the tenants had decided not to vacate Property 1. Mr X told the Council that given this conflicting advice he had extended the deadline for the tenants to vacate until 30 April 2023.
20. Mr X also made a formal a complaint about the Council’s inconsistent approach in advising him to evict his tenants while advising them to resist eviction and remain in the property. The Council responded to Mr X’s complaint in early April 2023 and apologised for the conflicting advice as eviction was not what was intended for the tenants. It said that as the family is overcrowded the intention is that the family would find alternative accommodation when their tenancy ends. The Council understood this would be 30 September 2023. This would give the family the opportunity to find alternative accommodation suitable for the size of their family.
21. The Council advised Mr X a Suspended Prohibition Order (SPO) would become operative on 30 September 2023 when the tenancy agreement ends. It also confirmed it had updated the housing advisory officer supporting the tenants.
22. On 28 April 2023 the Council served an SPO in relation to Property 1 on the basis of overcrowding and space, and fire hazards. The Order was suspended until 28 October 2023 or until the current occupiers vacate the property or the current tenancy ends, whichever is sooner unless there is an appeal against the order.
23. As Mr X was unhappy with the Council’s response he asked for his complaint to be consider further. Mr X says he requested a review on 28 April 2023 and 8 May 2023. As he did not receive a response he submitted a further complaint on 21 May 2023
24. Mr X also appealed to the Tribunal in relation to the SPO.
25. The Council responded to Mr X’s complaint in July 2023. It apologised for the delay in responding which it said was due to a staffing shortage. The Council also apologised it had not responded to Mr X’s review requests which was due to an administrative error.
26. In relation to the SPO, the Council said this was served as the most appropriate course of action for the overcrowding hazard. It explained the time provided before the Order is in force is to enable Mr X to lawfully evict the tenants under section 21 of the Housing Act 1988.
27. The Council also confirmed that as the tenants could only be evicted by the County Court Bailiff enforcing a possession order, the housing options team had rightly instructed them to remain in the property. It said the housing options team would only be able to assist the tenants with rehousing once Mr X had obtained a possession order.
28. On this basis the Council advised Mr X to proceed with the section 21 eviction process to comply with the SPO, unless he intended to appeal.
29. Mr X was not satisfied and has asked the Ombudsman to investigate his complaint. He complains the Council has given conflicting advice to him and his tenants and pressurised him to evict his tenants even though it had decided Property 1 was not overcrowded. Mr X also complains that having previously closed the case the Council only issued a SPO in retaliation for his complaint. He is unhappy the SPO prohibits more than two people living at Property 1 as this will limit his ability to let or sell the property. He also complains the Council took too long to respond to his complaint.
30. In response to my enquiries the Council has provided a timeline of its actions in this matter. It determined in December 2022 that Property 1 was not an HMO and advised Mr X there would be no further action from Health and Housing at that time.
31. The Council says the case was left open to be reviewed in the next weeks with regards to the overcrowding element. Although the Council told the building’s managing agents it was investigating the allegations of overcrowding, there is no record it told Mr X of the ongoing investigation. The Council held an internal meeting in early February 2023 to discuss the next step including possible action under HHSRS Crowding and Space.
32. The Council says that following a Council meeting in March 2023 the Head of Service advised all principal officers there was a clear requirement for the Council to take more robust action on overcrowding. The Council also developed a new decision panel process for dealing with enforcement on overcrowding issues.
33. Based on the Head of Service’s advice, and in line with the new process the Council held a meeting in early April 2023 to discuss the SPO, which was approved on 26 April 2023.
34. The Council has also confirmed it accepted a homelessness prevention duty to the tenants. The prevention duty requires councils to help applicants to secure that accommodation does not stop being available for their occupation but it does not extend to the authority actually having to secure suitable accommodation. Under the prevention duty the Council advised the tenants it would look for alternative accommodation for them. The tenants also had to look for alternative accommodation and the Council could provide financial assistance if they found one.
35. In addition the Council says it advised the tenants about the possibility of interim accommodation but as it could not guarantee this would be in the borough the tenants preferred to remain at Property 1. The Council also notes that Mr X extended the deadline for vacating Property 1 and then renewed the tenancy for a further six months in June 2023. The Council says it appeared Mr X did not intend to evict the tenants.

Analysis

36. Based on the documentation available there is no evidence of fault in the way the Council considered the overcrowding at Property 1. Nor is there any evidence the decision to issue an SPO was a response to Mr X’s formal complaint.
37. Mr X says the Council had previously told him Property 1 was not overcrowded and he was surprised when the case was reopened. I have not received any evidence the Council told Mr X Property 1 was not overcrowded. Rather, I note Mr X acknowledged it was overcrowded in his correspondence with the Council in November 2022, and served an eviction notice.
38. In November 2022 the tenants counted at 3.5 people when considering occupancy and overcrowding. This had increased to 4.5 people by March 2023 due to the increase in the children’s ages.
39. The Council assessed the overcrowding as a HHSRS category two hazard. While The Council has a legal duty to take action where it identifies a Category 1 hazard, it has discretionary powers to deal with Category 2 hazards. The Council made the decision to take a more robust approach to overcrowding based on the outcomes of a case entirely unrelated to Mr X. The Council used it new decision panel process for enforcement on overcrowding cases to consider the situation at Property 1 and decided to issue an SPO. There is no evidence Mr X’s complaint was a factor in the decision to issue an SPO.
40. Mr X disagrees with the Council’s decision to issue an SPO and the restrictions it places on Property 1. We are unable to consider this issue as Mr X has appealed to the Tribunal.
41. Mr X expected the Council to assist him by rehousing his tenants when it told him to evict them. He is disappointed the Council told the tenants to resist the eviction and that he will incur costs in obtaining a possession order.
42. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness. When Mr X served a section 21 notice to evict the tenants the Council was satisfied they were threatened with homelessness and accepted a prevention duty.
43. The prevention duty is intended to help applicants find a solution to their housing situation. Under this duty the Council does not have to directly source and provide accommodation for the applicant.
44. The duty ends after 56 days except where the applicant has been served with a s21 notice, in which case the duty continues for as long as they continue to occupy the property subject to the notice. The documentation provided suggests the tenants were looking for alternative accommodation but had not found anything suitable or affordable. It also suggests the tenants wanted to remain at Property 1.
45. If the tenants considered the Council should have accepted a relief or the main housing duty rather than a prevention duty it was open to them to challenge this. I have not received any indication they did.
46. Mr X did not attempt to evict the tenants either when the section 21 notice period expired or at the end of the tenancy period. Rather he entered into a new tenancy agreement with the tenants for a further six-month period in June 2023. Mr X also contacted his local councillor in August 2023 to ask for their assistance in preventing the eviction of his tenants.
47. In the circumstances I consider the Council’s actions were appropriate.
48. I do however consider the delay in responding to Mr X’s complaint was fault. The Council’s complaints process says it will respond to complaints at both stage one and stage two within 20 working days. Although the Council responded to Mr X’s initial complaints within this timeframe, it took significantly longer that 20 working days to respond to his stage two review request or follow up complaint. We expect Council’s to adhered to their published polices and a failure to do so is fault. I do not however consider the delay has caused Mr X a significant injustice. Mr X has appealed against the SPO and this is being considered by the Tribunal.

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Final decision

49. There is no evidence of fault in in the way the Council considered the overcrowding at Property 1 or in its advice to Mr X and his tenants. Nor is there any evidence the decision to issue an SPO was a response to Mr X’s formal complaint.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman