Summary: Mr X complained about the way the Council dealt with disrepair at his private rented accommodation and his priority banding on its housing register. We have found fault by the Council in its delay in dealing with the disrepair issues and failing to properly consider his requests for a change in his priority banding. These faults caused injustice. The Council has agreed to remedy this injustice by apologising to Mr X, making payments to reflect the upset and worry, and impact of living in unsuitable accommodation for longer than they should have done, together with service improvements.

The complaint

1. The complainant, who I am calling Mr X, complains about the way the Council dealt with his complaint about disrepair at his private rented accommodation. The disrepair included damp and mould. He says the Council allowed his landlord too much time to carry out the repairs and failed to ensure the damp and mould issues were resolved.
2. Mr X also complains the Council failed to consider these issues, and their impact on his family’s health, when assessing the priority banding for his housing register application.
3. Mr X says the disrepair, damp and mould caused his family health difficulties, which meant he had to take time off work. His heating bills increased due to the cold. The issues have caused him worry and distress.
4. He wants the Council to pay financial redress and provide him with suitable housing. He also wants the Council to improve the way it deals with complaints about disrepair in private rented accommodation.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), as amended)
7. 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)
8. 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

9. 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)
10. I have not considered Mr X’s complaint about anything that happened before April 2022.
11. This is because Mr X did not complain to us about the Council’s handling of the disrepair issues and his housing application until June 2023. Based on the evidence seen, I do not consider there are good reasons why Mr X could not have brought his complaint to us before this.

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How I considered this complaint

12. I spoke to Mr X, made enquiries of the Council and read the information Mr X and the Council provided about the complaint.
13. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

The duty to inspect and assess the condition of residential properties

14. Councils have duties and powers to address risks to the health and safety of occupants or visitors to residential properties in its area (Housing Act 2004). This includes private rented properties.
15. The Housing Health and Safety Rating System (HHSRS) is used to assess the main housing related risks. The HHSRS calls these risks hazards.
16. Hazards assessed under the HHSRS fall into two categories. The most serious hazards are classed as category 1, with less serious hazards being category 2.
17. A council must arrange an inspection of residential property if it considers this is appropriate to determine whether a category 1 or category 2 hazard exists at the property, as a result of any matters of which it becomes aware in carrying out its duties under the Act, or for any other reason (Sections 3 & 4 of the Housing Act).

Powers and duties to take enforcement action where a hazard is identified

18. Councils have powers under the HHSRS to take enforcement action against private landlords where they have identified a hazard which puts the health and safety of the tenant at risk.
19. A council must take enforcement action when it identifies a category 1 hazard. (Housing Act 2004. HHSRS enforcement guidance (Part 1: housing conditions)).
20. It has the power (but not a duty) to take action in relation to category 2 hazards, although it cannot take emergency measures in the same way as it can for category 1 hazards.
21. The action a council can take to address a category 1 hazard includes:

• serving an Improvement Notice;
• making a Prohibition Order;
• serving a Hazard Awareness Notice; or
• taking emergency action to reduce or remove the risk

22. An Improvement Notice requires the person on whom it is served to take the action set out in the notice to address the hazards. This must be enough to make sure the hazard is no longer a category 1. In private rented properties, it is usually served on the landlord.
23. A Hazard Awareness Notice gives formal notice that a hazard exists. It does not have to be acted on, but a council can take further formal action should an unacceptable hazard remain. This notice is most commonly used for category 2 hazards.
24. The Guidance says it might be appropriate to wait before serving a notice if the landlord agrees to take the required action and starts this within a reasonable time.
25. It is for the council to decide which course of action is the best in all the circumstances.

Addressing damp and mould issues in the private rented sector

26. The information published about this on the Council’s website refers to the letter from the Secretary of State for the Department of Levelling UP, Housing and Communities to all local authorities in England in November 2022.
27. In this letter, the Secretary of State referred to councils’ legal and regulatory requirements for managing damp and mould. He directed them to have a particular regard for high scoring damp and mould hazards. He also asked for information about actions to address damp and mould issues affecting privately rented properties in their areas.

The Council’s allocations policy

28. Every local housing authority must publish an allocations scheme that sets out how it prioritises applicants, and its procedures for allocating housing. All allocations must be made in strict accordance with the published scheme. (Housing Act 1996, section 166A(1) & (14))
29. Housing applicants can ask the council to review a wide range of decisions about their applications, including decisions about their housing priority.
30. The Ombudsman may not find fault with a council’s assessment of a housing applicant’s priority if it has carried this out in line with its published allocations scheme.
31. The Ombudsman recognises that the demand for social housing far outstrips the supply of properties in many areas. The Ombudsman may not find fault with a council for failing to re-house someone, if it has prioritised applicants and allocated properties according to its published lettings scheme policy.

The Council’s priority bands

32. The Council’s allocations policy sets out how it assesses applicants’ priority for housing. Once it has assessed their level of housing need, it places applicants in one of five bands, from Band A (for applicants in urgent housing need) to Band E (for applicants with no recognised housing need).
33. The criteria for each band include:

• Band A: serious medical – life at risk
• Band B: unsuitable condition of privately rented property with a vulnerable age group present
• Band C: medical condition; overcrowded lacking one bedroom or more + another hazard; overcrowded lacking 2 bedrooms or more.
• Band D: applicants without a recognised housing need.

34. The policy also says:

• priority related to a health condition will only be awarded when the property the applicant is currently living in is exacerbating their health condition (and not just because the applicant suffers that condition);
• all medical applications must be supported by medical information. The application will then be assessed by a Panel, taking account of each individual’s circumstances. All decisions are subject to review; and
• all applicants will be assessed regularly and may be deemed to have a reduced priority for reasons including a change in housing circumstances. All decisions to remove priority status are subject to review.

What happened

35. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

36. Mr X and his wife live in private rented accommodation with their young children. His application to join the Council’s housing register was accepted in 2020 and he was placed in Band D.
37. In May 2020 Mr X complained to the Council’s private housing standards team about damp and disrepair at his accommodation. The Council could not carry out an inspection of the property initially because of Covid-19 restrictions but says it contacted Mr X’s landlord about the issues.
38. The Council completed an inspection of the property in September 2020 and served Mr X's landlord with an improvement notice. The notice specified a number of category 1 and 2 hazards and the remedial work required by the end of November 2020.
39. The Council carried out a re-inspection in September 2021.

April 2022: further re-inspection

40. The improvement notice specified the following hazards:
1. Category 1 hazards

• excess cold
• damp and mould
• electrical hazards
• fire
• food safety
2. Category 2 hazards
• falls on level surfaces
• falls associated with baths etc
• structural collapse and falling elements

41. A Council officer re-inspected the property to check whether the landlord had completed the remedial work.
42. They recorded that some work had been done, but a number of category 1 and 2 hazards had still not been remedied. The outstanding issues included:

• wall vents fitted to alleviate damp were ineffective and allowed heat loss and draughts;
• no evidence of work to remedy leaks to radiators;
• no evidence of checks or work regarding insulation for external walls;
• no evidence of checks to windows;
• no evidence of repairs to the external doors;
• continued staining to internal areas indicated water ingress was still occurring;
• chimneys still had vegetation and undesirable porosity;
• no evidence of work to repair uneven floors upstairs; and
• no evidence of remedial work to the outbuilding.

Mr X’s housing register application

43. In April 2022 Mr X contacted the about his housing register application. He was concerned he was still in Band D, despite now having two young children. He provided medical evidence about the disrepair at the property and the effect of the damp on his wife’s health.
44. The Council told him he was in the correct priority band. Mr X asked if there was any way he could challenge his banding.
45. Housing standards confirmed to the housing register team some work at the property had been completed but the damp issues were still unresolved.
46. In June 2022, the Council told Mr X his priority band had been correctly assessed in line with its allocations policy. It said housing standards were working with his landlord to get the work done.

June 2022: Mr X’s complaint to the Council

47. Mr X complained to the Council about its response to his concerns about the condition of his accommodation and his priority banding.
48. In its response the Council said:

• Mr X’s landlord had been working on the repairs. They had replaced the kitchen, repaired the bathroom and external paving and provided satisfactory gas and electrical safety certificates;
• Mr X had asked for the work to be suspended on two occasions because of family circumstances; and
• The damp and mould had not yet been resolved. It was now instructing a damp specialist to determine the issues and the remedial work required.

July 2022: damp specialist’s report

49. The Council obtained a damp specialist’s report. It sent this to the landlord’s agent and asked the landlord to carry out the recommended work.
50. The Council was told Mr X would not allow access for the work until his complaint about his priority banding had been resolved.

July 2022: Council’s further complaint response

51. The Council told Mr X it was satisfied:

• his priority banding had been reviewed and was correct;
• it had responded to his request for help with the disrepair. This had taken longer because of initial access issues due to Covid-19 restrictions and suspension of works because of family matters; and
• his property was currently safe to occupy although the damp and mould issues would need to be resolved.

November 2022: re-inspection following remedial work

52. The landlord completed repair work in September. The Council carried out a further inspection in November. The inspection notes said:

• some work had been carried out to the living room chimney/ fireplace but it was not clear what had been done;
• there was evidence of progression with water ingress in several locations, including a chimney in a bedroom;
• damp proofing work had been carried out. But the roof repairs had not been done and there were damp stains in first floor rooms;
• fans had not been fitted to the kitchen and bathroom; and
• there was still no evidence of checks or works to the radiators, insulation to external walls, windows, front/rear doors, uneven floorboards on the first floor or the outbuilding.

January 2023: change of priority band

53. In January, Mr X’s family’s health visitor told the Council the children’s health was being affected by the damp and mould and the family really needed to be re-housed urgently.
54. The Council placed Mr X in Band C (medical priority).

February 2023: review of the inspection report

55. The Council’s building surveyor reviewed the November 2022 inspection notes. They told housing standards damp and mould was the most pressing issue. The problem was being caused by roofing issues which had not been looked at yet. The landlord would need to carry out roof repairs to address the water ingress causing damp in the bedroom.

April 2023: Council’s contact with Mr X

56. Mr X had contacted the Council again about his concerns. He told the Council there was still damp and mould at the property. This was affecting both children’s health and he was concerned for his wife’s health as she was expecting a new baby.
57. In reply the Council said:

• it would arrange a further visit to look at the damp and mould issues and decide the roofing work needed;
• it would then ask the landlord to carry out this work; and
• it had reviewed his priority banding. It would now place him in Band B due to the unsuitable condition of the property, the category 1 hazard damp and mould with a vulnerable age group living at the property.

58. Mr X was placed in Band B on 4 April 2023.

May 2023: Council’s visit to Mr X’s home

59. A housing standards manager visited Mr X at his home in May 2023 to check the repairs and discuss the issues with Mr X.
60. The Council’s record of the visit says:

• the damp proofing work to the living room chimney breast had been completed;
• the damp stains and mould in the bedrooms had been treated but there was evidence of leaking;
• it had instructed the landlord to carry out the roof repairs. Mr X would need to allow the contractors access to do the work; and
• it would chase up any outstanding work.

June to August 2023: access for the roofing works

61. The Council and the landlord contacted Mr X a number of times about access to the property to carry out the roofing repairs. They were unable to arrange access with Mr X.

October 2023: completion of the roofing repairs and other outstanding work

62. In October, the landlord’s letting agent provided the Council with evidence – details, invoices and photos – of all the work which had now been completed.
63. Housing standards reviewed the evidence. They decided they were satisfied all the remedial work in the improvement notice had now been completed.

My view – was there fault by the Council causing injustice?

Mr X’s complaint about delays in dealing with the disrepair

64. I consider there were the following delays by the Council in its action to ensure completion of the remedial work set out in the improvement notice:
1. The April 2022 re-inspection confirmed a number of category 1 and 2 hazards had not yet been remedied. But no further action was taken until it obtained a specialist damp report in June 2022;
2. Work to remedy the damp was completed in September 2022. But the Council did not carry out a re-inspection until November 2022; and
3. The November 2022 inspection report, which confirmed roof repairs were required to stop water ingress, was not reviewed until February 2023. And the landlord was not asked to carry out the roof repairs until April 2023.
65. There were further delays between July and September 2022 and June and October 2023, but I consider these were due to access issues outside of the Council’s control.

Were these delays fault by the Council?

66. The Council has explained the delays between April and June 2022, and September 2022 and April 2023 were because of a severe shortage of case officers in the private housing standards team, and a significant increase in its workload from November 2022 following the Secretary of State’s letter. It says it has now increased the number of case officers in the team.
67. I understand the difficulties the Council faced during the period from April 2022 to April 2023 and the impact these had on the level of service it was able to provide.
68. Our view is that ‘service failure’ is an objective, factual question about what happened. A finding of service failure does not imply blame, intent or bad faith on the part of the council involved. There may be circumstances where we conclude service failure has occurred and caused an injustice to the complainant despite the best efforts of the council. This still amounts to fault.
69. In my view, the delays in paragraph 64, which total some nine months, were a failure by the Council to provide Mr X with an adequate service in this case and are fault.

Impact of this service failure

70. I consider, because of the failure in the Council’s service, Mr X and his family continued to live in a property with category 1 and 2 hazards which had not been remedied for longer than they should have done.
71. The disrepair of the property is the responsibility of the landlord, not the Council. But we may recommend a financial remedy in cases where a council’s fault has caused the complainant to live in unsuitable accommodation. Our guidance on remedies suggests such payments should be in the range of £150 to £350 a month.
72. The Council told me a lot of the damp and mould had been in the kitchen, and the work to remedy this was completed soon after the service of the improvement notice. The landlord also carried out work to clean and treat mould and although there was evidence continued water ingress causing damp, it had not developed into mould at that stage.
73. But I note the medical evidence Mr X provided to the Council and the health visitor’s contact showed the damp and mould was affecting his wife and children’s health.
74. Having considered the information available about the impact on the family, I propose a remedy of £200 a month for the nine months of delay caused by the Council’s service failure.
75. The delays also caused Mr X additional worry about the impact on the family’s health and when the repairs would be completed.

Mr X’s complaint about his priority banding

76. We cannot tell a council which priority band an applicant should be placed in. This is a decision for a council to make in accordance with its allocations policy.
77. But I have considered whether the Council dealt with Mr X’s requests for a change in his priority banding properly in accordance with its policy and procedures.
78. Based on the information seen, my view is, that in response to the following requests, the Council failed to:
1. Mr X’s request in April 2022:

• properly consider the medical evidence Mr X provided about the effect of damp and mould on his wife’s health and make any enquiries with housing standards about the condition of his privately rented property before deciding not to change his priority banding; and
• tell him about his right to ask for a review of this decision.
2. Mr X’s question about how to challenge this decision:
• properly consider or record the reasons for its decision his priority banding had been correctly assessed before telling him this; and
• tell him about his right to request a review of its decision.
3. Mr X’s complaint in July 2022:
• properly consider the information available or make enquiries of the housing standards team before deciding, and telling Mr X, his property was safe to occupy although the damp and mould issues had not yet been resolved.

79. In my view, all of these failures were fault.
80. I have also looked at the way the Council made its decision in January 2023 to increase Mr X’s priority from Band D to Band C. I note it hasn’t provided any records to show how it:

• considered the information from the health visitor about the impact of the damp and mould on the children; and
• decided to place Mr X in Band C, rather than Band B.

81. Based on the evidence seen, my view is the Council failed to properly assess Mr X’s priority before deciding to place him in Band C. It also failed to tell him about his right to request a review of this decision. These failures were fault.

Impact of these faults

82. I can’t say whether, had the Council properly considered Mr X’s requests for a change in his priority banding and told him about his review rights, he would have been placed in Band B before April 2023.
83. And the Council has told us that even if he had been in Band B, Mr X would not have been successful on any of the bids he made for properties after April 2022.
84. But I consider the Council’s faults in the way it considered his requests caused Mr X additional upset and uncertainty about his housing situation.

The Council’s action to improve its service

85. The Council has told us it will carry out the improvements to the way it deals with requests for changes in priority bands set out in paragraph 88.
86. It has also told us about the changes it is making to the way its private housing disrepair team works. As well as an increase in personnel, it is reviewing its case handling process, establishing an effective works in default programme, and enhanced integration with the housing allocations team.

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Agreed action

87. To remedy the injustice caused by the above faults and, within four weeks from the date of our final decision, the Council has agreed to:
1. apologise to Mr X for its delays in dealing with the disrepair at his property and failing to properly consider his requests for a change in his priority banding. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings;
2. pay Mr X £400 to reflect the upset, worry and uncertainty these failures caused him. This is a symbolic amount based on our guidance on remedies; and
3. pay Mr X £1,800 to recognise the impact on him and his family of continuing to live in unsuitable accommodation for longer than they should have done.
88. And within three months from the date of our final decision, the Council has agreed to:
1. review its procedures for:

• responding to, and recording decisions on, requests for a change in priority banding; and
• notifying applicants of the outcome of their requests and their right to ask for a review.
2. review its procedures for:
• assessing criteria for Band B in cases of unsuitable conditions in privately rented properties; and
• information sharing between its housing standards and housing standards teams in these cases.

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

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Final decision

90. I have completed my investigation and found fault by the Council causing injustice. The Council has agreed to take the above action as a suitable way to remedy the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman