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North Devon District Council (19 016 192)

Category : Environment and regulation > Other

Decision : Not upheld

Decision date : 17 Mar 2021

The Ombudsman's final decision:

Summary: Mr X complained the Council is failing to comply with its legal responsibilities regarding Radon gas in rented accommodation in its area. We have discontinued our investigate as there is no evidence of a personal injustice to Mr X.

The complaint

  1. The complainant, whom I shall refer to as Mr X complains the Council is failing to comply with its legal responsibilities regarding Radon gas in rented accommodation. Mr X is concerned that officers were unaware North Devon was designated as a radon affected area and that the Council does not have policies or procedures in place to ensure radon monitoring and compliance by landlords.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

  1. 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. I considered any comments received before making a final decision.

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What I found

Radon gas

  1. Radon is a naturally occurring, colourless, odourless radioactive gas. It is found everywhere in the UK, but some parts of the country are more likely to have high levels in buildings than others. Maps identifying Affected Areas are available on Public Health England (PHE) website.
  2. In the open air radon is diluted to very low concentrations, but in confined spaces, such as within a building, it can become trapped and build to dangerous concentrations. The only way to know if a building has a high radon level is to have it tested. PHE advise that action should be taken to reduce radon levels if the annual average radon concentration in a property is at or above the Action Level of 200 Bq/m3.
  3. It is a landlord’s responsibility to ensure they assess their properties and minimise any potential risk to their tenants. Local authorities have powers under the Housing Health and Safety Rating System (HHSRS) 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.

Mr X’s concerns

  1. Mr X is concerned the Council does not have any policies or procedures in place to ensure landlords, including the Council, routinely carry out radon tests in their rental properties. Mr X is also concerned the Council does not advise tenants of the risk of radon or their landlords’ responsibilities.
  2. Mr X complained to the Council as he considered it unfair that there was no system to warn tenants about the risk of radon in the same way there was for home buyers.
  3. The Council’s response advised Mr X that the Council’s area had not been designated a Radon Affected Area. It acknowledged small pockets of radon may still be identified but advised there was no legal obligation on landlords or the Council to routinely monitor properties outside of designated areas.
  4. Mr X challenged the assertion that North Devon was not a Radon affected Area and referred the Council to PHE’s map. The Council then confirmed that some locations within the Council’s district are Radon Affected Areas. It acknowledged that PHE advise that all properties in Radon Affected Areas should be tested using the validated method of two detectors in the property for a three-month period. And that the property should be occupied during testing.
  5. It also acknowledged that mitigation measures may be required in properties with higher radon levels, and that the Council has powers and duties under the Housing Acts. But the Council must have irrefutable evidence of a problem before it can act.
  6. Mr X asked the Council to develop a radon plan of action in relation to rental properties in its area.
  7. In response to my enquiries the Council initially stated it does not have its own radon policies as its district has not been designated a Radon Affected Area by PHE. It has subsequently confirmed this does not accurately reflect the position. The PHE information shows there is a possible risk associated with all but a very few areas in North Devon.
  8. The Council states that all housing standard issues, including those related to radon, should be assessed with reference to the Government’s HHSRS enforcement guidance. Residents concerned about radon should be advised on their ability to arrange for a test to support the Council’s assessment of risk. It states the resident should be advised how to engage their landlord on the matter and that the legal duty to undertake any remedial works, if required, is with the landlord.
  9. The Council would also now expect its investigating officers to outline the options which are available to tenants under the Homes (Fitness for Human Habitation) Act, which came into force in 2019, at the start of any investigation.
  10. Although the Council is not a stock holding authority, it does own, lease, and manage a small number of houses to meet the needs of households under homelessness legislation.
  11. The Council states its property team risk assessed the Council’s assets in relation to radon using the PHE database in 2019. It was in the process of commissioning tests in the properties identified as higher risk. This assessment did not include properties leased as temporary accommodation. The Council states its housing officers would liaise with its property team to ensure a consistent assessment is carried out and the jointly procure the necessary tests. It states the property team were planning to undertake this work this winter which is the most appropriate time for any test to be carried out.
  12. The Council states it has not yet taken a view on how it should proactively raise awareness of the risk of radon in the community and highlight the responsibilities of duty holders under the Housing Act. It acknowledges it is deficient in not using its current web site to promote general awareness, highlight the responsibilities landlords have to address the related risks, and to promote PHE advice that all properties in radon affected areas should be tested. The Council has confirmed it is addressing this.
  13. Since issuing the draft decision the Council has updated its website to include advice and information on Radon in the home and workplace.

Analysis

  1. The Council acknowledged it does not currently have any policies on radon. Nor does it proactively raise awareness of the risk of radon or highlight landlords’ responsibilities.
  2. It is of concern that the Council’s initial responses to both Mr X and then the Ombudsman incorrectly state North Devon is not a designated radon affected area. It is clear from PHE data that there is a possible risk of radon associated with the vast majority of areas in North Devon. I would expect Council officers to be aware of this designation, and to be able to advise on and respond to queries related to radon.
  3. It is also disappointing that until recently there was no advice or information about radon on the Council’s website. However, the Council has now addressed this.
  4. As Mr X does not want the Ombudsman to investigate a complaint about his particular circumstances, the lack of Council policies and readily available information does not cause him a personal injustice.
  5. I do not consider it appropriate to exercise discretion to consider Mr X’s concerns further in the absence of a personal injustice. There is no evidence of wider systemic issues or failings in the way the Council responds to enquiries about radon.

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Final decision

  1. We have discontinued our investigation on the basis there is no evidence of a personal injustice to Mr X from the issues he complains of.

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Investigator's decision on behalf of the Ombudsman

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