Worthing Borough Council (20 006 247)
The Ombudsman's final decision:
Summary: Mr X complained about the Council’s decision on his housing priority need. Mr X also complained his current property is in disrepair and the Council has not taken enough action to address this. Mr X says this has caused him to live in unsatisfactory living conditions. The Ombudsman does not find fault with the Council’s consideration of Mr X’s housing banding. The Ombudsman does find fault with the Council’s handling of Mr X’s complaints about the disrepair of his rental property. The Council agreed with the Ombudsman’s recommendation to provide Mr X with an apology and a payment of £750 to reflect the injustice he experienced through the Council’s fault.
The complaint
- Mr X complained about the Council’s decision on his housing priority need. Mr X says his current property is in disrepair, he suffers antisocial behaviour from his neighbour and his circumstances justify a higher housing banding.
- Mr X also complained to the Council about his rental property being in disrepair. Mr X says the Council served an improvement notice on his landlord but this has not improved the situation.
What I have investigated
- I have investigated Mr X’s complaints about the Council’s decision about his housing priority in 2021 and the disrepair of his rental property.
- I have not investigated Mr X’s complaint about the Council’s actions about the antisocial behaviour and noise nuisance from his neighbour. I have also not investigated the Council’s decision about his housing priority banding before 2021. I have explained this within the section of this decision titled “Parts of the complaint that I did not investigate”.
The Ombudsman’s role and powers
- 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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- If we are satisfied with a council’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)
How I considered this complaint
- I have considered all the information Mr X provided and discussed this complaint with him. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
- Mr X and the Council had opportunity to comment on my draft decision. The Council provided comments which I considered before making my final decision.
What I found
The law and the Council’s allocation policy
- The Council is under a legal duty to have a scheme for allocating accommodation. The Council has the right to set its own housing policies and decide all aspects of the allocations process.
- The law says the Council must give people with a high housing need “reasonable preference” through the allocations scheme. This includes people at risk of homelessness and those who need to move for medical or welfare reasons.
- The Council decides reasonable preference by placing applicants in a certain priority band depending on their circumstances. Applicants have a right to ask for a review of this decision.
- There are four bands, A to D. A is for applicants with an urgent need to move and Band D for applicants who are the lowest priority for housing or have no housing need at the current time.
- The Council also breaks down the bandings into numerical sub-categories. Band A1 through A11, Band B1 through B7, Band C1 through C9 and Band D1 through D4.
- The Council awards Band A for housing applicants with an urgent need for housing. This banding is for a household experiencing or threatened with homelessness, having high medical priority, experiencing imminent personal risk if they remain where they are and or experiencing statutory overcrowding.
- The Council awards Band B for housing applicants where:
- The Council has previously given an undertaking to accommodate that person.
- Where a person needs to move on social or welfare grounds.
- Where a Council or landlord cannot correct a category 1 hazard within a reasonable time.
- A person has a medium medical priority.
- An applicant has multiple or complex needs.
- The Council awards Band C for housing applicants where:
- The Council has placed an applicant in private or temporary accommodation to avoid homelessness.
- The Council identifies a household in a care plan with accommodation needs.
- There is low medical priority.
- A person lives in other unsatisfactory housing conditions such as disrepair that cannot be easily remedied.
- The Council awards Band D2 for housing applicant with no other housing need.
- A person in Band D2 can move to a different banding if their circumstances change and the new circumstances place them into a different band.
- Once allocated a priority band applicants can bid on properties advertised by the Council.
- The size of the accommodation the Council can allocate an applicant depends on the size and makeup of the applicant’s household.
Housing Health and Safety Rating System (HHSRS)
- The Council used the HHSRS to assess all the main housing related hazards. It recognises that all homes will contain some hazards. The HHSRS provides a means of assessing homes which reflects the risk from any hazard. It allows a Council to decide whether the risk in the is, or is not, acceptable. The assessment is solely about the risk to health and safety and not about the quality or standard of works.
- Private tenants can complain to a council about the failure of a landlord to keep the property in good repair. The Housing Act 2004 gave councils powers under the HHSRS to inspect and assess the condition of tenanted properties.
- The HHSRS Enforcement guidance says that while there is no express duty on a council to inspect a property, the Council must have good reason not to investigate the report of a housing defect.
- Hazards assessed under the HHSRS fall into two categories. The most serious hazards are category 1, with less serious hazards being category 2. If a council identifies a category 1 hazard in a property it must serve an improvement notice saying what the owner must do to stop the hazard. If a council identifies category 2 hazards it has the power, but not a duty, to act.
- Where a council officer discovers a hazard under the HHSRS they must make a report in writing about the hazards “without delay” and the authority must consider any report “as soon as possible”. (Housing Act 2004, section 4 (6 and 7)).
- There are several notices available to councils that require an owner to comply with requirements related to category 1 or category 2 hazards. These include:
- Hazard Awareness Notice- gives formal notice that a hazard exists. The landlord does not have act on the notice but a council can take further formal action should an unacceptable hazard remain. This notice is most commonly used for category 2 hazards.
- Improvement Notice- requires remedial works within a set time and must, as a minimum, remove category 1 hazards.
- Government guidance says if a landlord agrees to take the action required by a council it might be appropriate to wait before serving a notice. This is unless the landlord fails to start the work within a reasonable time.
Council’s private sector housing enforcement policy
- This policy sets out the process the Council will take when deciding what actions to take when carrying out statutory duties about private sector housing conditions.
- The Council’s policy sets out the Council has a duty to investigate complaints about defects in dwellings if they have reason to believe that a category 1 hazard is likely to exist. The Council will also complete an investigation if an informal request to a landlord to correct defects has not been successful.
- The Council will tell the owner, landlord, managing or letting agent and tenant of the plan to carry out an inspection. The Council will complete an assessment under the HHSRS and decide if any defected is a category 1 or 2 hazard.
- The Council’s policy says it will not take further action if it considers a tenant has caused defects.
- The Council’s must act for category 1 hazards. The Council’s policy also says it will, in general, take action for Band D and Band E category 2 hazards but would unlikely act on Band F category 2 hazards.
- If the Council discovers defects which are Band D and Band E category 2 hazards, it will invite a landlord to correct these defects.
- The Council will issue a formal improvement notice to the landlord for correcting category 1 hazards and sometimes category 2 hazards, including a timescale for completing works at the discretion of the officer. Failure to follow the requirement of a statutory notice will normally result in prosecution or a civil penalty notice.
- The Council may impose a civil penalty or apply to the First-Tier Tribunal for a rent repayment order if a person fails to follow an Improvement Notice.
- The Council will only prosecute a person in a minority of circumstances where there is a blatant disregard to follow the law. The Council will not prosecute a person for minor breaches.
What Happened
- Mr X moved into his private rental property on 17 May 2016.
- Mr X applied to join the Council housing register in March 2017. The Council assessed Mr X’s application and placed Mr X in Band D2 as having no housing need.
- Mr X complained to the Council about disrepair of his private rental property at the start of 2018. A council officer, Mr A, attended Mr X’s property on 1 February 2018 to carry out an inspection of the hazards.
- Mr A sent Mr X’s landlord a Hazard Awareness (informal) Notice on 3 April 2018 detailing the findings of his inspection on 1 February 2018. Mr A identified category 2 hazards at the property. Mr A provided the landlord with a list of works the Council considered the landlord needed to carry out. Mr A asked the landlord to contact him within 14 days to discuss how to resolve the issues or the Council “will likely” take enforcement action. The Council detailed the following works the landlord needed to take in line with the hazards identified:
- Arrange for a surveyor to investigate the penetrating damp to the flat and provide a copy of the report to the Council. Carry out any remedial works identified from the surveyor’s report.
- Provide an external venting extractor to the kitchen and the bathroom.
- Repair or replace the window in disrepair in the kitchen.
- Make good the section of wall in the kitchen below the worktop and carry out works necessary to properly join the kitchen worktop together.
- Infill any cracks in the wall between the kitchen and the bathroom.
- Replace the missing light in the electric hob.
- Replace the cracking casing to the power switch to the boiler.
- Secure and suitably protect from damage surface mounted cables.
- Install a fire-resisting door to all front doors to the flat to the specifications provided by the Council.
- Replace the smoke detector head with a heat detector head.
- Provide stand-alone smoke detection within the hallway of the flat.
- Recommend improving sound insulation between this flat and the flat above to reduce sound transmission between flats.
- The Council did not contact Mr X’s landlord again following this letter.
- Mr X complained to the Council on 15 August 2018 about his neighbour throwing urine and faeces on to the roof outside his kitchen window. The Council passed this matter to Mr A in the environmental health department.
- The Council did not contact Mr X or his landlord about Mr X’s complaint.
- Mr X contacted the Council on 31 January 2019. Mr X said his landlord had completed some remedial work at the property, but some hazards remained.
- The Council sent a Notice of Inspection letter to Mr X and the landlord advising it would be attending the property on 6 February 2019 to identify any continued deficiencies at the property.
- The Council attended Mr X’s property on 6 February 2019. The Council confirmed the landlord had completed the remedial works for the following issues:
2. Provided an external mechanical extractor in the kitchen.
3. Window replaced in the kitchen.
7. Replaced the cracked casing to the boiler switch.
8. Secured and suitably protected the surface mounted cables.
- The Council officer noted the other eight deficiencies remained outstanding but had not worsened since April 2018.
- Mr X contacted the Council on 20 February 2019 to advise his landlord had not been in contact to arrange repairs of the remaining eight deficiencies.
- Mr X applied for a change in circumstances to his housing banding on 7 May 2019. Mr X told the Council he suffered from Asperger’s syndrome and anxiety. Mr X said his private rented property had been in disrepair since 2016 and the Council’s Environmental Health department had not resolved the issue. Mr X also complained about the antisocial behaviour and noise nuisance from his upstairs neighbour. Mr X provided evidence of the support from the mental health charity MIND, the Council’s decision about disrepair of the property and his complaint about noise nuisance from his neighbour.
- The Council reviewed Mr X’s change of circumstances application but considered Mr X’s circumstances did not warrant a change in his banding. The Council advised Mr X could ask for a review of its banding decision.
- Mr X requested a review of the Council’s banding decision on 15 May 2019. Mr X provided evidence of the unsafe and unsanitary condition of his flat and questioned why the Council did not reference his anxiety or Asperger’s within its banding decision. Mr X also complained the Council’s Environmental Health department was not speaking with him about continuing issues.
- Mr A responded to Mr X’s email of 24 February 2019 on 20 June 2019. The Council said following inspection of his flat it had received the notice of inspection letter sent to his landlord returned to the Council as undelivered on 11 February 2019. Mr A said he had not been able to chase his landlord because he did not know the landlord’s address. Mr A said the remaining works are category 2 works so the Council cannot require the landlord to complete these. Mr X responded on 24 June 2019 disputing that only category 2 hazards remained outstanding.
- The Council completed its review of Mr X’s banding decision on 24 June 2019. The Council told Mr X it still considered his housing banding was D2. The Council said it reached this decision because:
- Environmental Health was chasing up Mr X’s landlord for rectification of the disrepair issues identified.
- The Council would only consider a higher priority on the housing register if the hazards at the property were category 1 but the hazards at Mr X’s property were category 2.
- The noise captured through its recording equipment was not a statutory nuisance and advised Mr X to wait the outcome of his complaint made about noise and antisocial behaviour.
- The Council contacted Mr X’s lettings agent on 31 October 2019 to ask for the landlord’s address. The Lettings agent provided this on the same date.
- The Council wrote to Mr X and his landlord on 1 November 2019 to confirm it would complete a reinspection of the property on 8 November 2019.
- The Council attended Mr X’s property on 8 November 2019. The Council officer confirmed Mr X’s landlord had not completed any works to correct the remaining deficiencies from the February 2019 visit. The Council officer also noted the penetrating damp previously noted had worsened and was now a statutory nuisance. Mr X also brought the Council officer’s attention to the faeces outside the window on the flat roof.
- The Council did not contact Mr X’s landlord about the continued category 2 hazards and the statutory nuisance identified.
- The Council officer completed an inspection of a flat neighbouring Mr X’s property on 27 January 2020. The Council officer found no evidence that Mr X’s neighbour was the cause of the water ingress into Mr X’s flat. The Council determined the most likely cause of the water ingress was the condition of the exterior of the building.
- The Council wrote to Mr X’s landlord on 10 February 2020. The Council sent two abatement notices to the landlord about statutory nuisance. The first about cat faeces on the roof outside Mr X’s kitchen window and the second about water ingress. The Council allowed Mr X’s landlord 45 days to fix these statutory nuisances.
- The Council also sent an improvement notice to the landlord for category 2 hazards requiring the landlord to begin remedial action by 10 March 2020 and finish by 11 May 2020. The Council detailed the following category 2 hazards and remedial action required:
- The front door is not compliant with fire safe door and the Landlord needs to replace this.
- Replace the smoke detector heads with heat detector heads.
- Install a standalone fire detector in the flat.
- Fill holes through walls and ceiling where services had been run through.
- Make good a section of wall below the kitchen worktop.
- Fill any cracks to wall between the kitchen and bathroom.
- Carry out works to properly join the sections of the kitchen worktop.
- While the Council noted sound insulation between Mr X’s flat and flat above is poor it considered this did not require remedial action.
- Mr X’s landlord contacted the Council to advise he had completed remedial works to prevent the water ingress on 13 February 2020. Mr X’s landlord then confirmed on 13 March 2020 he had completed works to prevent cats from accessing the flat roof and cleared up the faeces.
- The lettings agent contacted the Council on 21 May 2020 to query when the landlord need to complete the category 2 works. The lettings agent said it had not been able to correct the deficiencies so far because of the Covid-19 pandemic.
- The Council responded to advise works should have been completed by 11 May 2020 but recognised the difficulties caused by the Covid-19 pandemic.
- The lettings agent spoke with Mr X and arranged to carry out remedial works. The lettings agent confirmed with the Council it had completed the works on 27 July 2020.
- The Council arranged to inspect the property on 10 August 2020. The Council attended the property on 10 August 2020 and noted the landlord had corrected the statutory nuisances and had also corrected category 2 hazards 1, 5, 6 and 7. The Council noted the remaining three category 2 hazards did not justify a category 1 status and were not sufficient enough for the Council to act.
- Mr X complained to the Local Government and Social Care Ombudsman who made enquiries of the Council. Following these enquiries, the Council contacted Mr X about his housing banding on 6 July 2021. The Council asked Mr X for up-to-date information about his mental health and how his rental property impacted this.
- Mr X responded to the Council providing details of the issues with his neighbours and the lack of action by Environmental Health. Mr X said he did not have any up-to-date medical information.
- The Council sought medical advice from a medical consultant about Mr X’s medical condition to decide potential medical priority for his housing application. The medical consultation said Mr X’s particular medical conditions did not warrant medical priority for his housing banding.
- The Council confirmed with Mr X on 6 August 2021 that following consultation with medical professionals that his banding remained Band D2.
Analysis
Housing priority decision
- Mr X complained about the Council’s decision on his housing priority need.
- I have not investigated Mr X’s housing banding application in May 2019. I have explained my reason for this in paragraphs 111 to 113. However, I have considered the Council’s decision in May 2019 and its rationale for this, when considering the Council’s review of Mr X’s housing banding in July 2021.
- The Council considered the disrepair of Mr X’s property, the noise nuisance and antisocial behaviour Mr X experienced within its 2019 housing banding decision. The Council also considered Mr X’s medical conditions and considered these not “severe enough” to justify a higher housing banding.
- From May 2019 to July 2021, Mr X’s landlord has removed any statutory nuisances at the property and most category 2 hazards. The state of disrepair of Mr X’s property is lesser now in 2021 than it was 2019. I have explained this in paragraphs 80 through 100. This means Mr X’s need for housing would be lower for this aspect in 2021 compared to 2019.
- The Council also got extra information from Mr X and sought medical advice from a medical consultant about Mr X’s medical condition in July 2021. The medical advice reaffirmed the Council’s housing banding decision of Band D2 for Mr X in May 2019.
- The Council took appropriate steps to consider its May 2019 housing banding decision in July 2021 and to tell Mr X about its decision. I do not find fault with the Council.
- Should Mr X consider his housing banding need has changed since May 2019 he would need to apply to the Council for a change in circumstances to his housing banding.
Private tenancy hazards
- Mr X complained the Council issued his landlord with an improvement notice for hazards at his property, but this has not improved his living situation.
- When Mr X contacted the Council to report housing deficiencies at his rental property at the start of 2018, the Council attended his property to complete an inspection. The Council acted in line with the HHSRS Enforcement guidance and its own policy by attending Mr X’s property on 1 February 2018 to complete an inspection.
- The Council identified 12 category 2 hazards at Mr X’s property during the visit on 1 February 2018. The Council sent a Hazard Awareness Notice to Mr X’s landlord on 3 April 2018 inviting him to correct the 12 hazards identified. The Council said Mr X’s landlord “must complete” the works detailed in the letter and provided a schedule of works “the need to be carried out”. The Council also advised Mr X’s landlord that if he did not contact the Council within 14 days “enforcement action will likely still be taken”.
- The Council investigated Mr X’s concerns and sent a Hazard Awareness Notice to the landlord shortly following this. I do not find fault with how the Council responded to Mr X’s initial concerns about the hazards at his property.
- The Council detailed the actions it expected of Mr X’s landlord and the timescales for response. Mr X’s landlord did not respond and failed to address the category 2 hazards identified by the Council. A landlord does not have to act in response to a Hazard Awareness Notice but a Council can take further formal action should an unacceptable hazard remain.
- It is the Council’s decision about whether to take further action about a category 2 hazard. The Ombudsman would not be able to question the decision of a Council which is properly made.
- The Council did not make a decision in Mr X’s complaint. The Council failed to check for a response from the landlord and failed to check for compliance with the remedial action “required” in the Hazard Awareness Notice. The Council took no further action in relation to the Category 2 hazards until Mr X contacted it again on 31 January 2019. The Council’s inaction from 3 April 2018 to 31 January 2019 is fault.
- Mr X also brought a potential category 1 hazard to the attention of the Council on 15 August 2018 about the existence of urine and faeces on the roof outside his kitchen window. The Council’s policy says it has a duty to investigate complaints about deficiencies where it has reason to believe a category 1 hazards exists.
- The Council failed to investigate a potential category 1 hazard in August 2018. This is fault.
- When Mr X contacted the Council on 31 January 2019 it attended Mr X’s property to complete a second investigation and told the landlord of the plan to visit the property. The Council acted in line with its policy, and I do not find fault.
- The Council noted that eight of the twelve deficiencies from the 3 April 2018 Hazard Awareness Notice remained outstanding. The Council became aware on 11 February 2019 that it held the wrong address for Mr X’s landlord.
- The Council took no action to find Mr X’s landlord’s correct address and contact him following the visit on 6 February 2019 until 31 October 2019. This was despite Mr X’s contact on 20 February 2019 and a promise from the Council on 20 June 2019 to follow up the matter. This delay from 6 February 2019 to 31 October 2019 is fault.
- The Council completed a third inspection on 8 November 2019. The Council noted no remedial works from the landlord since the February 2019 visit. Because of this, one of the category 2 hazards was now a statutory nuisance. Mr X also pointed the Council to the faeces outside the kitchen window which the Council confirmed was also a statutory nuisance.
- The Council failed to recognise the faeces during the visit in February 2019, despite Mr X’s complaint in August 2018. This was fault. Additionally, the failure of the Council to investigate a potential category 1 hazard, which the Council found to be a statutory nuisance, from August 2018 to November 2019 is fault.
- Where a Council discovers a statutory it should act without delay. The Council did not contact Mr X’s landlord about the statutory nuisance, or remaining category 2 hazards, for over three months following the visit on 8 November 2019.
- The Council has delayed in contacting Mr X’s landlord to correct the hazards and statutory nuisances. This is fault.
- The Council sent Mr X’s landlord an abatement notice for the statutory nuisances and an improvement notice for the category 2 hazards on 10 February 2020. The Council acted in line with its policy and legislation in sending these notices. I do not find fault.
- The Council allowed Mr X’s landlord 45 days to correct the statutory nuisances. Mr X’s landlord confirmed he had corrected these within 32 days. The Council ensured Mr X’s landlord complied with the abatement notice within the timescales identified, I do not find fault.
- The Council “required” Mr X’s landlord to correct the category 2 hazards by 11 May 2020. Mr X’s lettings agent liaised with the Council about the category 2 hazards. While the timescale elapsed for rectification of these hazards, the Covid-19 pandemic impacted the letting agent. I consider the Council acted appropriately to allow the lettings agent further time to comply with the improvement notice in these circumstances.
- When the Council completed its site visit on 10 August 2020 it confirmed compliance with the two abatement notices. It also confirmed Mr X’s landlord had completed remedial action for four of the seven category 2 hazards. The Council decided not to take further action for the remaining three category 2 hazards.
- A council is not under any obligation to take formal action for category 2 hazards. The Council’s policy also says while it may impose a civil penalty for failing to comply with an improvement notice, it will not take such formal action for minor breaches. The Council’s decision the remaining three category 2 hazards were a minor breach of the improvement notice is a decision the Council was entitled to make. I do not find fault with the Council for deciding to take no further action in August 2020.
Injustice to Mr X
- While the Council has ensured Mr X’s landlord corrected the statutory nuisances and most the category 2 hazards, the Council’s delays and inaction have caused Mr X and injustice.
- The Council delayed from 3 April 2018 until 10 February 2020, 22 months, in taking any further action against Mr X’s landlord for the category 2 hazards it identified in February 2018. From 3 April 2018 to 10 February 2020, the Council attended and identified outstanding category 2 hazards twice but failed to follow up with Mr X’s landlord.
- Because of the Council’s inaction, one of the category 2 hazards deteriorated to a statutory nuisance. The Council then failed to require Mr X’s landlord to correct this for three months following it identifying this statutory nuisance.
- Mr X also complained about a potential category 1 hazard in August 2018. The Council failed to take any action to investigate this until November 2019. When the Council found this was a statutory nuisance, rather than a category 1 hazard, the Council took until 10 February 2020 to require Mr X’s landlord to fix it. This caused total delay of 18 months from August 2018.
- Because of the Council’s inaction, Mr X was living with at least seven category 2 hazards (though often more) for 22 months, a statutory nuisance for 15 months and two statutory nuisances for three months before the Council took appropriate action. This has impacted Mr X’s quality of life by living in unsatisfactory living conditions causing him distress and upset.
Agreed action
- Within one month of the Ombudsman’s final decision the Council should:
- Provide Mr X with an apology in writing and a payment of £750 for its delays and inaction in relation to the hazards identified at Mr X’s property.
Final decision
- There was fault by the Council as the Council has agreed to my recommendation, I have completed my investigation.
Parts of the complaint that I did not investigate
- I did not investigate Mr X’s complaint about the Council’s actions in relation to his concerns about antisocial behaviour and noise nuisance from his neighbour. This is because the Council is handling this complaint under a separate complaint reference.
- When Mr X brought this complaint to the Ombudsman, we registered this under a separate complaint reference. This was because the Council had not had opportunity to address this issue before Mr X brought this part of the complaint to the Ombudsman.
- Mr X can pursue this complaint with the Council and through the separate complaint reference with the Ombudsman.
- I also did not investigate Mr X’s complaint about the Council’s decision over his housing banding before 2021. The Ombudsman cannot investigate complaints when someone takes more than 12 months to complain to us without good reason.
- Mr X brought his complaint to us in October 2020. The Council’s decision on his housing band in May and June 2019 is more than 12 months before this.
- While I have investigated Mr X’s complaint about the hazards at his property before May 2019 this forms part of the same continuing issue. Mr X’s housing banding review application in May 2019 was separate from the Council’s actions in 2021 about his housing banding.
Investigator's decision on behalf of the Ombudsman