Summary: Ms B complained that the Council placed her in accommodation which was damp and its response to her concerns was inadequate. She said the damp and mould was affecting her health and that of her son. The Ombudsman found no fault on the Council’s part.

The complaint

1. Ms B complains that the Council placed her in accommodation which was damp and its response to her concerns has been inadequate. She says the damp and mould is affecting her health and that of her son.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
3. 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

4. I have considered all the information provided by Ms B, made enquiries of the Council and considered its comments and the documents it provided. I have also considered relevant legislation and guidance.
5. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

Homelessness

6. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities set out councils’ powers and duties to people who are homeless or threatened with homelessness.
7. Councils must take reasonable steps to help to secure suitable accommodation for any eligible homeless person. When a council decides this duty has come to an end, it must notify the applicant in writing (Housing Act 1996, section 189B)
8. Councils may end the main housing duty by offering the applicant a suitable assured shorthold tenancy with a private landlord. However, certain conditions must apply:
• the assured shorthold tenancy must be a fixed term tenancy for at least 12 months;
• it must be suitable for the needs of the applicant and household members. The Homelessness (Suitability of Accommodation) (England) Order 2012 prescribes matters the Council must take into account when deciding if the property is suitable. These include location, state of repair, safety of utilities and landlord conduct;
• the Council must inform the applicant in writing of the possible consequences of refusing or accepting the offer and the right to request a review of its suitability.

The Housing Health and Safety Rating System (HHSRS)

9. Councils have powers under the Housing Health and Safety Rating System (England) Regulations 2005 (‘the Regulations’) to take enforcement action against private landlords where it has identified a hazard which puts the health and safety of the tenant at risk.
10. The Government has issued HHSRS operating guidance and enforcement guidance (‘the guidance’). Councils must inspect properties to determine whether there are any serious (category 1) or less serious (category 2) hazards. Using the method prescribed by the Regulations and having regard to the guidance, they assess the severity of the risks associated with any hazards in or at the premises.
11. Where a category 1 hazard is identified, councils must take appropriate enforcement action. This may include serving an improvement notice setting out what the landlord must do to stop the hazard. Councils can also choose to take action with regard to less serious category 2 hazards if they think it is necessary. But they are under no duty to do so.
12. The purpose of the HHSRS is to assess how a hazard affects the health of an individual and aims to remove hazards that are serious enough to cause harm. However, the assessment is a matter for the officer’s professional judgement.

Key facts

13. Ms B approached the Council as homeless in July 2018. The Council decided she was intentionally homeless and the case was closed. Ms B approached the Council again in July 2019. The Council says there was no relevant change in Ms B’s situation but, as her housing problems persisted, it agreed to assist her on a discretionary basis to find accommodation in the private sector through its incentive scheme. The Council wrote to Ms B confirming it had accepted a homelessness relief duty towards her.
14. In August 2019 Ms B submitted evidence of her son’s medical conditions which include eczema and asthma. The evidence was assessed by the district medical officer who made no recommendations in relation to any specific housing needs on medical grounds.
15. Officers continued to work with Ms B to support her finding accommodation but this was unsuccessful. The Council then decided to relieve Ms B’s homelessness on a discretionary basis through a final offer of accommodation.
16. In April 2020 a two bedroom flat became available in the private sector and the Council made Ms B a direct offer. Ms B signed a 12 month assured shorthold tenancy.
17. Ms B says that, when she moved into the property, she noticed a damp patch on the wall at the bottom of the stairs. She says she telephoned the housing officer about this and followed this up with an email. She also notified the agents.
18. In June 2020 the Council wrote to Ms B explaining that its duty to assist her had come to an end because it was satisfied she had suitable accommodation available for her occupation for at least six months and, as such, she was no longer at risk of homelessness/homeless. It notified her of her right to request a review of this decision. Ms B did not do so.
19. The landlord carried out works to the damp patch in September 2020.
20. In December 2020 Ms B complained to the Council about the condition of the property. She said that when she moved in there was a large mould patch at the bottom of the stairs which grew over the next few months. She said her son had been unable to stay with her because he is allergic to damp and mould. He returned to live with her in September after the landlord completed work to the wall, but the damp patch had begun to resurface and the house smelt damp. She also said there were mould spores in the bathroom. She asked the Council to investigate the suitability of the property saying it had not considered the depth and intensity of her son’s medical conditions when offering her the property. She explained that she also suffers with asthma which had worsened since living in the property.
21. The Council responded in January 2021. It confirmed all the medical information she had provided had been considered by the district medical officer who made no recommendations of any specific housing needs. It said Ms B had not reported any issues regarding damp and mould or about the suitability of the accommodation until December 2020. It agreed to refer the disrepair issues to the Private Sector Initiatives Team to investigate and ensure any outstanding repairs were resolved by the landlord.
22. On 6 January 2021 the Private Sector Initiatives Team contacted the property manager who arranged for a damp specialist to inspect the property and prepare a report. The property manager confirmed that, once the report was received, the landlord would consider the recommendations and complete any required works. The Council agreed to monitor the situation.
23. The damp proofing company inspected the property on 29 January 2021 and prepared a report which found “evidence of rising dampness to the ground floor walls” and recommended damp proofing treatment.
24. On 16 March 2021 Ms B contacted the Council with a copy of the report saying the landlord had refused to complete the recommended works. She also informed the Council that there was mould in a cupboard on the landing.
25. On 26 March 2021 two enforcement officers completed an inspection and found there were “very low” category 2 hazards. They found that, although a small area of plasterboard was flaking, it was dry to the touch. They also found that a locked cupboard above the first floor landing area contained a “minimal (tiny) amount of mould” and concluded that, as it was located away from the living area, it had no impact on health. They explained to Ms B that, in these circumstances, they could not take enforcement action to require the landlord to complete remedial works. However, the landlord had agreed to remedy the flaking plasterboard in the entrance hall.
26. On 24 May 2021 Ms B complained to the Council about the inspection. She said the officers had not used tools to properly assess the condition of the property and provided a copy of the damp specialist’s report which contradicted their findings. The Council did not uphold Ms B’s complaint.

Analysis

Suitability of accommodation

27. Ms B says she was unaware of the damp patch on the stairs until she moved into the property because she was unable to physically view the property because of COVID-19 restrictions, and only saw it via video which did not show this part of the property. She says she contacted her housing officer about the damp in an email dated 11 May 2020. But the Council has provided a copy of this email which does not mention damp issues. Ms B says she also notified her housing officer of the problem during a telephone call in May 2020.
28. The Council issued a decision to end the relief duty on 1 June 2020 and informed Ms B that she had a right of appeal against this decision. Ms B could have appealed if she considered the property was not suitable. She says she did not appeal because the Council’s offer of accommodation had been discretionary and she was afraid that, if she appealed against the suitability of the property, she would receive no further assistance.
29. I find no grounds to criticise the Council’s decision that the accommodation was suitable as it met the legal the requirements: Ms B signed an assured shorthold tenancy for a fixed term of 12 months; there were an adequate number of bedrooms for the household; the property was within the Council’s area; there was no suggestion that the landlord was not a fit and proper landlord; and there was no concern about the safety of the utilities in the property. In addition, when determining the suitability of accommodation secured under homelessness legislation, councils should, as a minimum, ensure that all accommodation is free of category 1 hazards. Although Ms B says the property was in a state of disrepair due to damp and mould, given that enforcement officers later assessed the mould as being a low category 2 hazard and found no other hazards in the property, this supports the housing officers’ view that the property was suitable.

HHSRS

30. I am satisfied the Council acted appropriately in response the disrepair issues Ms B raised in December 2020. Officers liaised with the property manager who agreed to investigate the issues and instructed a specialist damp company to complete a report.
31. When Ms B contacted the Council raising further concerns in March 2021 officers completed an inspection within 10 days. The only hazard they identified was damp and mould. However, they considered this would not cause harm to health because there was only a small area of mould and this was located inside a cupboard away from the living area. They were satisfied that the flaking plaster on the wall on the stairs was not damp to the touch. Officers concluded the damp amounted to a minor category 2 hazard. This was a matter for their professional judgement.
32. Ms B says the officers did not carry out a proper inspection because they did not use tools. However, the officers were experienced in completing risk assessments and in surveying techniques to enable them to identify deficiencies in a property and appreciate their potential harmful effects on the health or safety of the occupants. It was a matter for their professional judgement what tools, if any, were required during the assessment.
33. Ms B wants the Council to take stronger action against the landlord. However, as officers found no category 1 hazards, they have no power to take enforcement action requiring the landlord to carry out remedial works. Although the Council has discretion to take action with regard to category two hazards, in this case officers considered that the category 2 hazard was “very low” so it was not appropriate to take formal action.
34. There are no grounds to criticise the officers’ decision. The notes of their visits set out the reasons for the decision which was a matter for their professional judgement. While I understand Ms B’s concern about the damp and the potential effect it is having on her son’s health, in the absence of fault in the way the decision was reached, there are no grounds to question the Council’s decision.

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Final decision

35. I do not uphold Ms B’s complaint.
36. I have completed my investigation the basis that I am satisfied with the Council’s actions.

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Investigator's decision on behalf of the Ombudsman