Summary: Mrs J complained the Council has not taken effective action to ensure her landlord addresses disrepair in her home. The Council was at fault, because it cannot show it has made robust, evidence-based decisions, and has not escalated its action in response to the landlord’s failure to comply. The Council has agreed to formally apologise to Mrs J and offer her a financial remedy, as well as issuing guidance to relevant staff on the importance of keeping detailed records.

The complaint

1. I will refer to the complainant as Mrs J.
2. Mrs J complains the Council has not taken effective action to ensure her landlord addresses disrepair in her privately rented home, despite its recognition there are significant hazards in the property. In particular, she says the Council should have served a formal improvement notice on the landlord, but has not, which has allowed the landlord to delay completing the necessary improvement works. Mrs J has two disabled children in the property, and says the poor state of repair is a risk to their health.

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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. We cannot investigate complaints about the management of housing let on a long lease by a council that is a registered social housing provider. (Local Government Act 1974, paragraph 5B, schedule 5, as amended)

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How I considered this complaint

5. I considered evidence provided by the Council and Mrs J as well as relevant law, policy and guidance.
6. I also shared a draft copy of this decision with each party for their comments.

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What I found

7. The following chronology will provide a summary of the key events relevant to this complaint. It is not intended to describe everything that happened.
8. Mrs J lives in a privately rented semi-detached property. Her landlord is the leaseholder of the property, with the freehold itself being owned by the Council. To avoid confusion, I will refer to Mrs J’s landlord as the leaseholder from this point forward.
9. In September 2023 Mrs J contacted the leaseholder to say the house was in significant disrepair. This included serious problems with damp and mould in various parts of the house, non-functioning electrics, damage to kitchen and bathroom units, a non-functioning shower, a damaged garden fence, alongside general wear and tear.
10. In November, the leaseholder served Mrs J with a section 21 eviction notice, which Mrs J believed was in retaliation for reporting the disrepair. In response to this, Mrs J contacted the Council’s housing enforcement team.
11. In January 2024 the Council made enquiries with the leaseholder. The leaseholder replied on 29 January to confirm the problems Mrs J had reported, but said it had served the section 21 notice because it needed vacant possession of the property to effect repairs. On 30 January the Council allocated the case to an environmental health officer, to whom I will refer as Officer 1.
12. Officer 1 called Mrs J on 5 February to discuss the disrepair. He noted he had told Mrs J he would visit to undertake an initial inspection on 8 February. The Council says Officer 1 did not record whether he actually carried out this visit.
13. On 4 March Officer 1 served a notice on the leaseholder, requiring entry to undertake a formal inspection (under section 239 of the Housing Act 2004) on 13 March. Officer 1 visited on 13 March but the leaseholder did not attend the inspection. On 19 March Officer 1 emailed Mrs J, explaining he had found a series of hazards in the property, including excess cold, damp and mould, food safety and hygiene problems, electrical hazards and trip hazards. He told Mrs J he intended to serve a formal improvement notice on the leaseholder in April.
14. On 30 April Officer 1 sent a document to the leaseholder. The document was titled ‘Improvement Notice’ but was actually an informal schedule of works for the leaseholder to complete, with a target date of six months. Officer 1 explained in his covering email to the leaseholder he had decided not to serve an improvement notice, but said he was shortly due to leave the Council and that the new case officer might decide to serve one. Officer 1 also emailed Mrs J on the same day to advise her of his decision.
15. On 1 May Mrs J emailed the Council to say she was not satisfied at the decision not to serve an enforcement notice. The Council replied to confirm the case was due to be reallocated to a new officer.
16. On 20 May a senior officer reviewed Officer 1’s handling of the case. They criticised Officer 1’s decision not to serve an improvement notice, and also the fact he had given the leaseholder six months to comply with the schedule of works, which they considered excessive. The senior officer recommended the case be reallocated to a new officer, and if no progress had been made, the officer should carry out a new formal inspection and to restart the process “with a view to serving” an improvement notice.
17. The senior officer also expressed doubt about the leaseholder’s claim it needed vacant possession of the property, but, if so, said the leaseholder had a duty under its contract with Mrs J to provide her with temporary alternative accommodation while it carried out the repairs.
18. The Council then reallocated the case to another officer, to whom I will refer as Officer 2.
19. Officer 2 spoke to the leaseholder on 31 May, during which call it repeated its claim to need vacant possession.
20. On 6 June Mrs J made a complaint to the Ombudsman. We explained we could not accept her complaint at that point because she had not yet made a complaint to the Council.
21. On 17 June, Officer 2 spoke to Mrs J, who expressed frustration at the Council’s failure to take formal action against the leaseholder. Officer 2 then called the leaseholder again, who agreed to carry out the work by the deadline, even with Mrs J and her family still in place.
22. On 16 July Officer 2 contacted Mrs J again to arrange a further inspection. He noted that Mrs J disputed another inspection was necessary.
23. The following day, having accepted a formal complaint from Mrs J, the Council provided its response:

• it acknowledged there had been some delay in reallocating the case;
• it summarised the contact it had had with the landlord and Mrs J to that point;
• it explained it needed to re-inspect the property to support the “change in position” Mrs J had requested;
• it explained it was not required to serve an improvement notice when it had only identified category 2 hazards, and the target date for the informal schedule of works served by Officer 1 had yet to expire;
• it said Mrs J had raised new issues, including a missing carbon monoxide alarm, an out-of-date gas safety certificate, and a rat and fly infestation, and the Council would need to re-inspect to consider these issues.

24. The Council did not uphold Mrs J’s complaint, and she subsequently referred it back to the Ombudsman in September.
25. On 19 August Officer 2 emailed the leaseholder again for an update on the work. At some point after this Officer 2 also left the Council, and in October, the case was reallocated a second time. I will refer to this officer as Officer 3.
26. Officer 3 served a new section 239 notice on the leaseholder for an inspection of the property on 6 November, which the leaseholder attended. On 7 November, Officer 3 emailed the leaseholder, confirming their agreement about the work that needed to be completed. Officer 3 asked the leaseholder to complete some initial steps within 14 days, including the completion of specialist damp report, an electrical and gas safety inspection, and to provide a realistic timeframe for completion of the remainder of the work.
27. The leaseholder arranged a specialist damp survey and provided a copy of the report to the Council on 26 November.
28. On 9 December Officer 3 spoke to another officer in the Council’s estate management team. This officer explained that some of the work needed to the property was the responsibility of the Council, as freeholder, to complete. The officer said he would advise Officer 3 of the exact split of responsibilities in the following few days. On the same day Officer 3 emailed the leaseholder for an update on the electrical and gas safety inspections.
29. On 13 December the estates management officer wrote to Officer 3 to confirm the Council was responsible for resolving the damp ingress and damage to the kitchen, and possibly other issues, while the leaseholder was responsible for “routine maintenance and repairs”.
30. On 4 February, the leaseholder emailed the Council to confirm the completion of various elements of work, albeit with some work still outstanding. Shortly after this the Council wrote to me in response to my enquiry letter. It said:

“[Officer 3] has been liaising with the [Council’s] Property team and anticipate issuing a notice once further details and plans/timeframes have been received. Some of the [leaseholder’s] required works cannot proceed until the Council has completed its own responsibilities, such as damp-proofing. Once timeframes are confirmed and if the [leaseholder] then fails to progress the necessary works, an Improvement Notice may be issued.”

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Legislative background

31. Private tenants may complain to their council about a failure by the landlord to keep the property in good repair.
32. 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.
33. If a council considers a category 1 hazard exists in residential premises, they must take appropriate enforcement action in accordance with section 5 of the Act. Councils have discretion to take enforcement action if a category 2 hazard is identified.

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Analysis

Our jurisdiction

34. Before I proceed to consider Mrs J’s complaint, I must first explain a point about our jurisdiction.
35. As I have noted, Mrs J’s property is let to her by a private landlord. However, this landlord is a leaseholder, and the property’s freehold is owned by the Council. The Council is responsible for a significant element of the work needed to bring the property up to standard; and the Council has also explained that some elements of the leaseholder’s work cannot be completed until the Council completes its own.
36. The law says we cannot investigate complaints about the management of property let on a long lease by a registered social housing provider, which the Council is.
37. What that means here is that, while I can investigate the way the Council has dealt with the elements for which the leaseholder is solely responsible (including how it considered taking enforcement action against the leaseholder), by law I cannot consider how the Council approached its own role in managing the property.

Mrs J’s complaint

38. The Ombudsman’s role is to review how councils have made decisions, in the course of performing their duties. We may criticise a council if, for example, it has not followed an appropriate procedure, not considered relevant evidence, or not properly explained the reason it has made a decision. We call this ‘fault’, and, where we find it, we can consider the consequence of the fault and ask the council to address this.
39. But we do not provide a right of appeal against a council’s decisions, and we cannot make operational or policy decisions on a council’s behalf. If a council has acted without fault, then we cannot criticise it, even if a complainant feels strongly that its decision is wrong. We cannot uphold a complaint simply because someone disagrees with what a council has done.
40. In a case like this, that means it is not for me, for example, to make my own decision about the significance of the hazards in Mrs J’s property. This remains a matter of professional judgement for council officers, regardless of any findings of fault I might make.
41. However, despite this, I have several criticisms of the Council’s handling of this matter.
42. First, the Council has said it is not clear whether Officer 1 actually visited the property for the initial inspection he arranged for 8 February 2024. In fact, in her complaint to the Ombudsman Mrs J appears to confirm this visit did take place (albeit she says in January), and so on balance I am satisfied it did. But, and this being so, it is concerning that Officer 1 could neglect to record an important event like this in his notes.
43. The senior officer who reviewed Officer 1’s work also made several comments, which I infer to mean he had failed to save copies of other important documents on the Council’s casework system.
44. Second, and in connection with this, I am not satisfied the Council has shown Officer 1’s decisions were made properly.
45. The law says a council must serve an improvement notice if, upon inspection, it is satisfied a property contains one or more category 1 hazards. A council also has discretion to serve an improvement notice if it finds only category 2 hazards in a property, but it is not legally required to do so, and may choose to take informal action instead.
46. As I have noted, it is not for me to make my own judgement whether the hazards in Mrs J’s property amount to category 1 or 2, but noting that Officer 1 had listed fire and electric shock amongst the hazards he had identified, I asked the Council to explain its rationale for deciding they amounted only to category 2. Having sought comments from its housing enforcement team, the Council replied:

“The Case Officer whose judgment this was no longer works at the London Borough of Bromley and there are no photographs on file from [Officer 1’s] inspection. Decisions here would follow the operating guidance for the Housing Health and Safety Rating System [HHSRS]. There are a number of factors present that affects the likelihood when assessing this hazard including some noted as being present. This does not mean that the hazard would move from a category 2 to a 1 - this is possibly more likely to be the case where there is the presence of water or young children in the property. Unfortunately I can’t comment further without further detail or inspection.”

47. Not only are there no photographs from Officer 1’s inspection, I also cannot see, in the Council’s notes, any explanation for his conclusion the hazards all amounted to category 2. The Council says Officer 1 would have followed the HHSRS guidance, but this appears to be a general comment about procedure, and not an assessment of how the officer considered this particular case.
48. And this is particularly concerning because Mrs J does, in fact, have children, which the Council has now said would be a potential reason to find a hazard was more serious.
49. My concern is reinforced significantly by the comments of the senior officer who reviewed Officer 1’s handling of the case. The senior officer criticised both Officer 1’s decision not to serve an improvement notice, and for giving the leaseholder six months to comply with the schedule of works, which they considered excessive for some aspects, such as the outstanding electrical inspection. The senior officer went so far as to recommend the Council restart the investigation process and re-inspect the property, which I infer means they did not consider Officer 1’s judgement on the case could be trusted.
50. I am conscious the Council has said Mrs J did not permit Officer 2 to reinspect the property after the case was reallocated to him in May. For her part, Mrs J denies this, saying she never refused access to the property in general, but that Officer 2 only ever gave very short notice when he wished to visit and she could not accommodate him.
51. I am not in a position to resolve this dispute, although either way it is clear Mrs J questioned the need for a re-inspection, which I appreciate may have presented an obstacle to the Council. Even accepting this though, I am not satisfied it explains why the Council could not at least withdraw and reissue the schedule of works with a more appropriate timescale. For example, the fact the electrical inspection was overdue was surely a simple matter of fact, and not something the leaseholder could reasonably dispute. I cannot see why a re-inspection would be needed for this.
52. This leads me to my third concern, which is that, even accepting Officer 1’s decision to take informal action with a lengthy target date, the Council did not then escalate matters once this deadline lapsed. This is despite the fact there had seemingly been no progress whatsoever by the leaseholder in that time.
53. I note Officer 3 did re-inspect the property shortly after the case was re-allocated to him, and just after the deadline in the schedule of works had lapsed. However, this inspection simply led to a further informal agreement with the leaseholder – which, even then, it did not appear to fully comply with.
54. I therefore find fault by the Council. There is compelling evidence the original inspection and decision-making by Officer 1 were not adequate, but despite its own recognition of this, the Council made no robust move to rectify it. It has also permitted the leaseholder to repeatedly miss the deadlines it set, but without any meaningful escalation.
55. And in fact the Council has conceded this itself. In response to my enquiries, the Council “acknowledged … there have been delays and, potentially, errors in judgment that warrant an apology”. I will note the Council has since clarified it was referring explicitly to Officer 1 with this comment.
56. At this point I must return to the fact that a significant element of the work is out of the leaseholder’s control, either because it falls to the Council to complete, or because the leaseholder must wait for the Council. I cannot investigate or make any findings whether the Council is at fault for how it has handled this aspect, as distinct from its housing enforcement role.
57. However, even if the Council was not at fault in this latter respect, it is clear there would still be major disrepair at Mrs J’s property. I cannot say, therefore, that the problems would be entirely, or even mostly, resolved had it not been for the Council’s fault.
58. I remain of the view the Council’s fault has caused an injustice to Mrs J, in that it is possible some of the work needed to the property would have been completed sooner, had the Council acted more robustly.
59. The Council has explained the leaseholder has now completed some of the work, and other elements are in progress. It also says it will consider serving an improvement notice if the leaseholder fails to complete the work in good time. This being so, I do not consider anything would be gained by recommending the Council review and reconsider its decision-making in general now, although we would consider accepting a further complaint from Mrs J if she remains dissatisfied with the ongoing progress.
60. But, and while I acknowledge the Council’s offer to apologise to Mrs J, I consider this alone is not adequate to remedy the injustice she has experienced. This is particularly so given the presence of children in the property, who Mrs J has explained are disabled.
61. Our guidance on remedies says that, where we find a complainant has suffered distress because of uncertainty arising from a council fault, “we will normally recommend a remedy payment for distress of up to £500”. This can depend on several factors, including the length and the severity of the distress, and the number of people involved, and whether any person or people involved are particularly vulnerable.
62. In this case, I consider a remedy of £500 is warranted. This is because Mrs J referred the matter to the Council some 17 months ago, but has only recently seen some progress; and in the meantime has had to remain, with vulnerable children, in a property with significant damage and disrepair. I also agree the Council should write a formal letter of apology to Mrs J, as it has offered.
63. Separately, and although I acknowledge I have seen no evidence this is a wider problem at the Council, I still consider it should issue guidance to staff in its housing enforcement team of the importance of keeping comprehensive notes. This should include details (and, where appropriate, photographs) of visits they have undertaken, as well as giving a clear explanation for any decision they make about the categorisation of hazards and enforcement action.

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Action

64. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mrs J £500, in recognition of her distress and frustration arising from its failure to properly inspect and make decisions about the disrepair in her property;
• write a formal letter of apology to Mrs J for the same reason. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• circulate guidance to staff in its housing enforcement team, to remind them of the importance of keeping detailed notes, particularly around inspections and decisions whether to take enforcement action.

65. The Council should provide us with evidence it has complied with the above actions.

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Decision

66. I find fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman