Summary: Mr Y complained about the way the Council dealt with his reports of persistent drain odour, rat infestations and noise disturbance from slamming doors at his private rented accommodation. We found fault by the Council because it did not follow its enforcement policy and did not suitably follow up on reports made by Mr Y between July 2022 and November 2022. The Council has agreed to apologise and make a payment to Mr Y in recognition of the uncertainty and time and trouble caused to him.

The complaint

1. Mr Y complains the Council has not taken enough action to resolve nuisance from persistent drain odour, rat infestations and noise disturbance from slamming doors at his private rented accommodation. He says this has affected his health and put him to the time and trouble of pursuing a resolution.

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What I have and have not investigated

2. I have investigated Mr Y’s reports of rat infestations, persistent drain odour and noise from slamming doors at his private rented accommodation as raised in his stage one complaint to the Council in August 2022.
3. I have not investigated matters that took place prior to the events raised in Mr Y’s complaint of August 2022. This is because the Ombudsman expects a complainant to raise concerns with us within 12 months of knowing something has happened which affects them. I am not aware of any reasons why Mr Y could not have complained about earlier matters sooner.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
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. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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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How I considered this complaint

8. I discussed the complaint with Mr Y and considered information he provided.
9. I made enquiries of the Council and considered its response and the relevant policies and legislation.
10. I set out my initial thoughts on the complaint in a draft decision statement and I considered Mr Y’s and the Council’s comments in response.

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What I found

11. Private landlords are responsible for ensuring rented accommodation is maintained to a certain standard.
12. Private tenants may complain to their council about a failure by their landlord to keep a property in good repair. Councils have powers under the HHSRS (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. The Council must inspect a property if it has reason to believe there is a serious risk to the occupier.
13. If the Council considers it appropriate to inspect a property it will look to see if there are category 1 or 2 hazards present. Category 1 hazards as those which are serious and pose an immediate risk to a person’s health and safety which could cause death, permanent paralysis, or loss of a limb, for example. If the Council considers a category 1 hazard exists, it must take appropriate enforcement action. The Council has discretionary powers to deal with less serious category 2 hazards.
14. The HHSRS Enforcement Guidance provides help to local authorities to decide when, and what, enforcement is appropriate.
15. The Council’s decision about what action, if any, is required to remove a hazard is bases on a three -stage consideration:

• The hazard score determined under the HHSRS;
• Whether the Council, in light of the score, has a duty or a discretion to act; and
• The Council’s judgement as to the most appropriate means of dealing with the hazard, taking into account of both the potential, and actual, vulnerable occupants.

16. The Council must take the most appropriate action when they have a duty to act. There are a range of options available to the Council include serving an improvement notice, making a prohibition order, serving a hazard awareness notice or taking emergency remedial action. It is for the Council to decide what course of action is appropriate.

The Council’s corporate enforcement policy

17. This explains how the council will consider taking enforcement action in relation to its services with enforcement duties.
18. It says that when deciding what course of action is appropriate its officers should have regard to any specific legislative guidance and regulations and the need to maintain a balance between formal enforcement action and other activities such as trying to resolve matters informally, inspection, advice and education.

What I found

19. Mr Y lives in a privately rented apartment located in a development which includes communal outside areas.

What I found

20. What follows is a brief chronology. It does not contain all the information I reviewed during my investigation.
21. In April 2022 Mr Y reported seeing rats in the grounds of the development where he lives.
22. The Council spoke with Mr Y about his concerns. He told the Council he continued to see rats and about a persistent foul smell from the drains. He explained he could not open the windows at his home because of these problems.
23. The Council sent Mr Y’s landlord a hazard letter asking him to act to resolve Mr Y’s concerns. Mr Y’s landlord told the Council he had acted to address the rat infestation.
24. Mr Y continued to report sightings of rats throughout June 2022. He said the rats were entering and exiting untreated and unsealed holes within the grounds of the development. The Council followed the reports up with Mr Y’s landlord who said pest control visits were ongoing with works to fill in holes used by the rats.
25. In July 2022 Mr Y reported new sightings of rats. He said that previously sealed holes were being used by the rats again.
26. In response the Council arranged an inspection at the development with Mr Y. Mr Y says that officers who attended refused to remove their shoes before entering his home.
27. Case notes from the visit identified the need for further works to address the rat infestation including filling more holes and baiting, including in the cellar. Removal of waste items including an old mattress were also recommended to help prevent rats and other pests.
28. The visit also identified smells from the drains and noise from a fire door that slammed when closing. The Council asked for maintenance works to the drains and gulleys and a door closer for the fire door to prevent it from slamming. The case notes do not show that officers considered if the issues found amounted to a category one or two hazard under the HHSRS. Following the visit, the Council wrote to Mr Y’s landlord asking him to act to resolve all the issues it found.
29. In August 2022 Mr Y told the Council all the issues identified at the July visit remained. He said the smell from the drains had worsened and he had an infection which he attributed to the problem. The Council asked for an update on works from Mr Y’s landlord who advised most works were complete and gave timescales for the outstanding works. The Council was happy with the action taken and it did not consider further action or inspection was appropriate.
30. Unhappy with the Council’s response Mr Y made a formal complaint. The Council replied explaining that it was obliged to try and resolve issues with landlords informally and it was satisfied that his landlord was cooperating. It said it would continue to oversee matters to ensure his concerns were resolved. It also said it would ask his landlord to carry out a survey of the drains.
31. Also, in August 2022 Mr Y reported several bluebottle flies in his bedroom. In September 2022 Mr Y’s landlord cleaned his bedroom and fumigated the property, as requested by Mr Y.
32. In September 2022 Mr Y told the Council about further rat sightings and continuing problems with odour from the drains. The Council followed up matters with Mr Y’s landlord who said that regular maintenance visits were taking place.
33. Also, in September 2022 Mr Y escalated his formal complaint to the second stage of the Council’s complaints process. It responded saying officers were working with Mr Y’s landlord to resolve all the identified issues. It was satisfied with the informal approach officers were taking and that his landlord was cooperating. It also said that officers are required to wear shoes when entering properties for health and safety reasons.
34. In October 2022 the Council began arranging a follow up inspection as Mr Y continued to report rat sightings and that works identified during the July inspection were outstanding. Due to the availability of the attendees the visit was arranged for November.
35. In November 2022 the inspection took place at Mr Y’s home with the Council and him in attendance. During the meeting Mr Y explained he had been in touch with the Environment Agency and the utility company who said there was no blockage in the public sewer thereby indicating the problem was in the private sewer and a matter for his landlord to resolve. Mr Y says officers from the Council downplayed the importance of this during the visit. The Council says that officers did not witness any odour from the drains during the visit. Mr Y said the mattress seen at the July visit was still present and the fire door was still not closing properly.
36. Following the visit Mr Y reported further sightings of rats. The Council spoke with Mr Y’s landlord about filling the rat holes with sand and cement as the foam used previously was proving ineffective. Mr Y’s landlord also said other rat holes would be bricked up.
37. However, in December 2022 Mr Y reported seeing rats coming from filled and sealed holes. In response the Council sent Mr Y’s landlord a hazard warning letter requiring him to resolve matters.
38. In February 2023 Mr Y’s landlord told the Council all matters were resolved. The Council wrote to Mr Y asking him to confirm if this was the case but to date it has not received a response.

Finding

39. The evidence I have seen shows the Council first responded to the concerns raised by Mr Y informally by contacting his landlord and asking him to address the issues raised. The Council’s enforcement policy says that it may seek to resolve matters informally. I do not find fault by the Council in its early handling of Mr Y’s reports.
40. The Council’s policy says that it will also use inspection when appropriate to decide what, if any, enforcement action it will take. The Council inspected the development where Mr Y lives when it became clear that problems were persisting. I find the Council’s actions were in keeping with its policy and proportionate given Mr Y’s concerns persisted.
41. The Council’s enforcement policy says that it will have regard to any specific legislation, guidance and regulations when deciding what, if any, enforcement action it will take. The HHSRS enforcement guidance says that when the Council visits a property it should decide if a category one or two hazard exists. The notes of the visits carried out by the Council in July 2022 and November 2022 do not provide an assessment of whether the issues identified constituted a category one or two hazard. This is fault.
42. However, I recognise that following both visits the Council sent Mr Y’s landlord a hazard warning letter saying a hazard may be present and asking him to act. It is therefore my view that despite the fault found above the Council sought to remedy the issues found with the landlord. I do not therefore consider the fault I found caused Mr Y an injustice.
43. The Council did not inspect Mr Ys home between July 2022 and November 2022 despite him disputing his landlord had carried out works and telling officers the rat infestation and drain odour were getting worse. He also said his health was being affected. I do not see how the Council could have verified what action had been taken by the landlord or if the situation at that time required additional action without visiting.
44. The November 2022 inspection found Mr Y’s landlord had not completed all the actions as claimed. For example, the old mattress was still present something officers identified in July and concluded may be contributing to the rat infestation. It also found no evidence of odour from the drains, however officers did notice an odour at the July visit. The lack of a visit in the interim means I cannot be sure if the problem persisted in the intervening months and if further action should have been taken by the Council. There is also no evidence that officers sought to clarify if Mr Y’s landlord had carried out a drain inspection as recommended in its stage one complaint response. I would have expected the Council to pursue this matter with Mr Y’s landlord following the November visit when Mr Y explained it had been established there was no blockage in the public sewer.
45. Mr Y says that officers were dismissive of his findings that there is no blockage in the public sewer during the November meeting. He says the officer’s actions meant his landlord was less likely to act to resolve the problem. There are no independent accounts of the visit and so I cannot come to a view on the officer’s actions.
46. Mr Y says the Council did not take expedient action to resolve problems with noise from a slamming fire door and from bluebottles present in his home. The evidence shows the Council asked Mr Y’s landlord to act and he did so with the door closers altered and fumigation and cleaning of Mr Y’s bedroom. While I recognise Mr Y would have liked both issues to have been resolved sooner it can take time to do so. The Council and Mr Y’s landlord were acting on both matters continuously until resolved. I do not find fault in the Council’s handling of these matters.
47. The evidence I have seen does not show that Mr Y asked officers wear protective footwear before them visiting his home in July. I do not see officers are at fault. Without a request being made in advance officers could not consider if there were grounds to deviate from its policy of wearing shoes on visits for health and safety reasons.

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Agreed action

48. The Council will take the following action within in four weeks of the final decision on this complaint:

• send Mr Y a written apology for failing to visit his home between July 2022 and November 2022 to verify if works had been completed and if the situation had deteriorated. It should also pay him £150 in recognition of the uncertainty and the avoidable time and trouble he was caused by the fault I have found.
• contact Mr Y and ask him what matters, if any, remain at his home. If Mr Y says matters are still outstanding officers will visit his home again and complete a HHSRS assessment. It should also write to his landlord telling him what actions is required and a timeframe to complete any outstanding works.

49. The Council will take the following action with three months of my final decision on this complaint:

• issue a memo reminding officers of the need to carry out HHSRS assessments when reaching decision about what, if any, enforcement action is appropriate when responding to reports of issues with private rented accommodation.
• the memo will also remind officers of the need to carry out inspections to establish if works have been completed and to respond to tenants claims matters have deteriorated.

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

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Final decision

51. There was fault by the Council, which caused Mr Y an injustice. The Council has agreed to take actions to address the injustice caused to him and to improve it service.

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Investigator's decision on behalf of the Ombudsman