Summary: The Council was at fault for not communicating clearly with Mrs X about a complaint it had received about a property she managed and about a proposed inspection of that property, including its approach to safety in light of the COVID-19 pandemic. It should apologise. It was not at fault for deciding to carry out the inspection nor for initially proposing to issue a licence for the property for 12 months only.

The complaint

1. Mrs X complained about the Council’s handling of her application for a licence for a house in multiple occupation (HMO) and about an inspection at the property in November 2020, during the second national lockdown in response to the COVID-19 pandemic. In particular that:
1. the Council proposed to issue an HMO licence for only 12 months, based on failures of management that had not occurred;
2. the Council carried out an inspection of the property during a national lockdown in response to the COVID-19 pandemic when there was no urgent need to do so;
3. its officers failed to carry out a risk assessment prior to the inspection and failed to adhere to safe working practices when carrying out the inspection; and
4. its officers lied in communications with her and in complaint responses.
2. Mrs X considers the Council’s actions amounted to discrimination against the disabled landlord, on whose behalf she acted as managing agent, which caused the landlord avoidable stress. In addition, she said its actions caused her personally avoidable stress, as well as time and trouble pursuing the Council.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
6. Mrs X’s company, as licensee, and the landlord of the property had a right of appeal if they were unhappy with the terms of the licence issued, and we would not usually consider complaints in those circumstances. However, Mrs X’s complaint is about the process leading to the issue of the HMO licence, rather than about the terms of the licence that was eventually issued. Therefore, I have exercised discretion to consider her concerns.
7. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
8. 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)

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How I considered this complaint

9. I considered:
• the information provided by Mrs X and the Council;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
10. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

Houses in multiple occupation (HMO)

11. An HMO is a property rented to at least three people who are not from one household but share facilities such as a kitchen or bathroom. If the property is rented to five or more people, the landlord or their managing agent, must apply for a licence, which is valid for up to five years.
12. Applicants must satisfy certain conditions before a licence can be granted. Local councils may impose their own conditions. If the applicant disagrees with the conditions a council sets, they can appeal to the First Tier Tribunal (Property Chamber – Residential Property).
13. This Council will issue a licence for less than five years where:
• a property has been unlicensed for any period when it should have been licensed;
• it has recent evidence that the property has been poorly managed;
• the applicant has not responded to notices or requests for information.

Housing Act 2004

14. The Housing Act 2004 gives councils powers to inspect residential premises in their area and to take enforcement action against private landlords where the council has identified a serious hazard which puts the health and safety of the tenant at risk.
15. The Housing Health and Safety Rating System (HHSRS) provides a risk assessment framework for scoring hazards in a property. Rather than setting a minimum standard of fitness, the system assesses the property for Category 1 hazards (where the Council must take action) or Category 2 hazards where it may decide to take action.

Guidance during the COVID-19 pandemic

16. The Government issued guidance, COVID-19 and renting: guidance for landlords, tenants and local authorities. This said councils could carry out inspections in people’s homes, provided they were carried out in accordance with guidance for professionals on working safely in people’s homes. That guidance advised employers to take steps to protect their staff, including carrying out a risk assessment, maintaining social distancing, using face coverings and increasing ventilation. It also suggested businesses providing services in people’s homes should explain safety measures to their customers before entering their home and make sure they know they should maintain social distancing.

Equality Act 2010

17. The Equality Act 2010 protects the rights of individuals and suports equality of opportunity for all. It offers protection, in employment, education, the provision of goods and services, housing, transport and the carrying out of public functions.
18. The Equality Act makes it unlawful for organisations carrying out public functions to discriminate on any of the nine listed protected characteristics. The Public Sector Equality Duty also sets out duties for such organisations to follow to stop discrimination. The ‘protected characteristics’ include age and disability.
19. Direct discrimination occurs when a person or service provider treats another less favourably than they treat or would treat others because of a protected characteristic. Direct discrimination is generally unlawful.
20. Indirect discrimination may occur when a person or service provider takes the same approach to decision making or service provision for everyone. This may then put people sharing a protected characteristic at a particular disadvantage.

Reasonable adjustments for people with disabilities

21. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any body that carries out a public function. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
22. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.
23. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services but must think in advance about what disabled people with a range of impairments might reasonably need.

What happened

24. Mrs X’s company, a letting agency, manages a property on behalf of the landlord, Ms Y, and is the HMO licence holder for that property. She applied for a renewal of the HMO licence in October 2020.
25. The Council carried out its standard checks, which revealed it had received two complaints from tenants in the previous 12 months. When it last inspected, in January 2020, it had identified a number of issues needing action, including defects with the oven and an issue with damp on the top floor. The complaint received in April 2020 stated the oven had not been replaced, there was a problem with rats and various issues with damp, including a leak on the top floor that was causing mould on the middle floor. A further complaint, received on 2 November 2020, complained about damp and anti-social behaviour by other tenants.
26. The Council wrote to her on 6 November 2020 to say it proposed to issue the licence for 12 months only. This was in line with its policy, which says it will issue a licence for 12 months if there were multiple complaints or issues with the property. Mrs X’s company was given 21 days to comment on the proposal.
27. Mrs X emailed to ask the reasons for proposing this. She made a formal complaint on 10 November 2020 because the Council had not replied. She said the property was professionally managed and there had been no problems. She considered the Council was discriminating against the landlord, who she said was elderly and infirm.
28. On 23 November 2020, the Council wrote to Mrs X to give her notice it intended to inspect the property on 26 November 2020. The notice said if the date and time were not convenient, she should contact officer 1 to arrange an alternative date or time. Mrs X asked officer 1 to postpone the inspection by one week so it occurred after the end of the second national lockdown. She said:
• in her view there was no good reason for the inspection and no reasons had been given;
• the landlord was shielding and not able to attend;
• no risk assessment had been provided and there was no mention of COVID-19 safety procedures.

She also said that although it was 10 working days since her complaint, she had not received a response. She considered the Council was discriminating against the disabled landlord

29. Mrs X sent multiple further emails on 24 and 25 November asking questions about the inspections and what had prompted it. The Council confirmed the tenants had been informed about the inspection but did not answer the other questions. Mrs X said she considered the inspection was unlawful and discriminatory. Officer 1 said he would attend the property on 26 November and could arrange a further meeting with Mrs X at a later date.
30. Officer 1 attend the property on 26 November 2020 with officer 2. Mrs X attended with her husband, Mr X. Mr X filmed the inspection and I have seen the recording. The recording shows Mrs X repeatedly said she believed the inspection was illegal and carried out in response to the discrimination complaint she had made. In addition, the recording shows she raised concerns about:
• the lack of a risk assessment in advance of the inspection. Officer 1 said he would carry out a dynamic risk assessment, which involved speaking to tenants to check they were happy for him to enter the room;
• the lack of personal protective equipment (PPE) and safe practices. Both officers wore face coverings. They did not wear gloves and surfaces such as door handles were not wiped down before or after touching them. It was not possible to maintain 2 metres social distance throughout;
• officer 1 offering her the opportunity to check the measurement shown on a piece of equipment, which Mrs X declined, saying she was not willing to touch the equipment in view of the COVID-19 pandemic. Officer 1 said she could see the measurement without touching it;
• the Council’s refusal to postpone the inspection until after the lockdown ended. Officer 1 said he had not refused. Mrs X said she had asthma and her husband was shielding. She said the landlord was put at a disadvantage as she could not attend an inspection during the national lockdown;
• the lack of information about what had prompted the inspection. Officers confirmed there had been a complaint about anti-social behaviour and damp but could not give more specific details. They could not confirm when the complaint was received;
• a lack of paperwork provided following a previous inspection in January 2020 and whether the inspection was a fishing expedition to further harass the disabled landlord.
31. The Council responded to multiple complaints by Mrs X on 26 November 2020. It said the complaint in April 2020 raised some issues that had been identified in its inspection in 2020 and apparently not resolved. When a further complaint was received in early November it decided an inspection was needed as this was the second complaint in a relatively short time. The Council strongly rejected the claim it was discriminating against the disabled landlord.
32. Also, on 26 November, Mrs X was copied into an officer email string in which officer 2 commented “Clearly doesn’t want us in there!”. Mrs X complained this was unprofessional and said she was unhappy with the complaint response, which she felt did not adequately address the disability discrimination issue. She also raised further complaints about the inspection itself.
33. The Council wrote to confirm the issues it was investigating at stage 2 of its complaints process on 7 December 2020. Mrs X raised further complaints, including concerns about the HMO licensing process, which was still ongoing. In early January, she also asked the Council to consider her recording of the inspection.
34. There were further communications between Mrs X and the Council during January and February 2021. The Council responded to the complaint at stage 2 on 22 February 2021. The response:
• set out the complaints it had received that led to the inspection;
• confirmed 24 hours’ notice had been given to all relevant people, including Mrs X as licence-holder, the landlord and the tenants;
• said officer 1 explained on arrival he would carry out a risk assessment by asking occupiers whether they had symptoms of COVID-19, were self isolating or were vulnerable, which he did and decided it was safe to continue;
• set out the safety precautions taken including that the officers did not have symptoms nor were self isolating, face masks were used, and kept 2 metres apart where possible. It said Mr and Mrs X did not need to be present, nor to follow officers into rooms. The tenant who was present agreed the officers could enter her room;
• acknowledged officer 2’s email comments were inappropriate, and repeated the apology already given at stage 1 of the complaints process.
35. The Council wrote to Mrs X on 23 December 2020 to say it would not take into account the second complaint (made in November 2020) when deciding the HMO licence application since that complaint was still ongoing. After considering various issues raised during the application process, including an issue about the number of occupants and the absence of planning permission to operate as an HMO for 7 persons, the Council issued an HMO licence for 3 years on 2 March 2021.
36. In response to our enquiries, the Council provided copies of relevant records, referred to in its complaints responses. This included:
• a record of the property inspection in January 2020
• a record of the complaint received in April 2020 and communication to the lettings company about this in May and August 2020;
• a record of the complaint received in early November 2020;
• the risk assessment tool used by the officers carrying out the inspection; and
• communications between it and Mrs X.
37. It explained its reasons for deciding an inspection was needed in November 2020, including:
• there were two complaints in a relatively short time suggesting defects with the property that the landlord was not addressing;
• the second complaint suggested a leaking soil waste pipe, which was potentially a public health concern, and which the complainant said had been reported to the landlord but not addressed;
• the information provided by the second complainant suggested there may be more occupants than was permitted by the licence.
38. It did not consider it was appropriate to postpone the inspection because:
• of the serious nature of the issues raised;
• its statutory duty to enforce housing standards was not affected by the pandemic; and
• it considered it was taking appropriate action to manage any health concerns.
39. It accepted it could have given Mrs X clearer information about the second complaint, the reasons for the inspection and its on-site dynamic assessment process before the inspection took place. It said it did not issue a written report following inspections unless it was considering enforcement action.

Complaint about officer’s lying

40. When I ask Mrs X why she felt officer’s had lied to her, rather than just making errors in communications, she said:
• the number of errors went beyond incompetence;
• the issues of alleged poor management did not exists when the Council first cited them;
• the Council had not sent a written report after the January 2020 inspection, nor did it do so in November 2020, despite the officer promising to do so;
• although the officer said there was a complaint about a leak, he could not say where the leak was;
• she felt the inspection was a fishing expedition to justify its initial decision to issue an HMO licence for only 12 months; and
• the Council’s approach to the property was the result of her making a complaint about disability discrimination. She remained very angry about the way the Council treated the disabled landlord.

My findings

HMO application process

41. The Council followed its own policy and processes when it proposed to issue an HMO licence for 12 months because it had received two complaints in the previous 12 months, which was the term of the previous licence.
42. Although Mrs X said she had not been told about the complaint in April 2020, I have seen records to show the Council notified the lettings company and spoke to another director about the complaint in May and August 2020.
43. It informed Mrs X about the second complaint at the inspection. However, I accept she was not aware of it when the Council proposed the 12 month term and it had not received it at the point she made the application. The Council later agreed it would not take the second complaint into account because it was “ongoing”.
44. The Council considered the comments Mrs X made throughout the process and made appropriate enquiries, following which it issued a licence for three years. There is no evidence of fault in its process.

November 2020 inspection

45. Despite the pandemic, the Council still had a statutory duty to consider enforcement action where a category 1 hazard was identified and needed to inspect properties to determine this. It had to balance that duty with the risks posed by COVID-19 and the need to ensure inspections were carried out safely. The Council has explained its reasons for deciding an inspection was necessary in November 2020. It considered relevant factors and I have identified no fault in the way it decided this.
46. The Council accepts it could have communicated more clearly with Mrs X. I consider its failure to respond to her reasonable requests for information about the second complaint, the reasons for the inspection and the measures the Council was taking in response to COVID-19 amounts to fault. This fault caused Mrs X considerable frustration, as is evidenced in the video of the inspection.
47. In respect of the inspection itself, the officers carried out a risk assessment during the inspection, including speaking to the tenant present and she consented to him entering her room. The video shows both officers wore face coverings and maintained a social distance where possible in the property. Although the officers did not wear gloves or wipe down surfaces they touched, which would have been preferable, I do not consider this is sufficient to warrant a finding of fault.

Disability discrimination

48. Mrs X believes the Council discriminated against a disabled landlord by initially proposing to issue an HMO licence for only 12 months and when deciding to carry out the inspection in November 2020. She also considers it did not properly address that part of her complaint.
49. I have not found fault with the Council’s decision to initially propose renewing the licence for 12 months, which was in line with its policy. The process allowed Mrs X an opportunity to comment, and the Council considered her comments, as well as other relevant information, before issuing a licence for three years. There is no evidence the Council acted in a discriminatory way nor that it knew the landlord was disabled when it proposed a licence of only 12 months.
50. I have also not found fault with the way the Council decided to carry out an inspection. Whilst I understand Mrs X and her husband did not want to attend the property during the lockdown, I have not seen any evidence to suggest the Council acted inappropriately in deciding to carry out an inspection, nor that it took into account any personal information about the landlord in making that decision.
51. In its complaint response, the Council explained its reasons for proposing the 12 month licence and for deciding to inspect the property. It strongly refuted her claim that it had discriminated against the disabled landlord. There was no fault in its complaints handling.

Officers lied in communications

52. I have found fault with the way the Council communicated with Mrs X, particularly in relation its unwillingness to respond appropriately to her questions in November 2020. I note that when the Council said two complaints had been made Mrs X was not aware of either of them, although the first had been raised with her company. I also note Mrs X also believes the Council discriminated against the disabled landlord in its approach to the property in question and tried to justify its actions after the event. I have carefully considered the communications between Mrs X and the Council, including the discussions during the inspection, but these do not, in my view, show that officers were dishonest.

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Agreed action

53. The Council will, within one month of the date of the final decision, apologise to Mrs X for its failure to communicate appropriately about the complaint it had received, its reasons for carrying out an inspection and its approach to ensuring the inspection was carried out in a safe way.
54. The Council will, within three months of the date of the final decision:
• remind relevant staff of the importance of providing appropriate information about complaints received and the reasons for carrying out property inspections; and
• consider preparing a Frequently Asked Questions leaflet that could be given to landlords and their agents to provide standard information about the inspection process, including whether a written report will be sent afterwards.

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Final decision

55. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.

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Parts of the complaint that I did not investigate

56. Mrs X was also unhappy with the Council’s response to a freedom of information (FOI) request she made in November 2020. The Information Commissioner's Office considers complaints about freedom of information. It is reasonable for Mrs X to refer any outstanding concerns about the FOI to the Information Commissioner.

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Investigator's decision on behalf of the Ombudsman