The Ombudsman's final decision:
Summary: The Council was not at fault in how it acted on Mr B’s concerns about the condition and occupancy of his neighbour’s property. It conducted an inspection visit in line with its statutory responsibilities, but decided not to enforce formal remedial action against the landlord. This was the Council’s decision to make. I have not found fault with how it made the decision, so I cannot question the decision itself.
- The complainant, whom I refer to as Mr B, complains that the Council failed to take enforcement action against the owner or tenants of the next-door property, despite the property being in poor condition and overcrowded.
- Mr B says:
- there is no gas safety certificate or working smoke detectors;
- the tenant has ‘possibly’ made alterations to the gas central heating system;
- the property is overcrowded, with between eight and 10 people living there;
- there is a car parked in the front garden;
- the owners converted the property from a 2-bedroom to a 3-bedroom without building regulations approval; and
- the tenants have been putting household waste in the recycling bin.
- I have investigated Mr B’s complaints about the gas safety certificate, smoke alarms, central heating system and overcrowding.
- The final paragraph of this decision statement sets out why I have not investigated other matters.
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 provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe the fault has not caused injustice to the person who complained. (Local Government Act 1974, section 24A(6), 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 considered the information provided by Mr B and the Council. I wrote to Mr B and the Council with my draft decision and considered their comments.
What I found
- Mr B complained to the Council on 14 February 2018, and set out his complaint (as described in paragraph 2 of this decision statement).
- The Council responded on 26 February. It said it had visited Mr B’s neighbour’s property on 27 July 2017 and found that the house was not overcrowded, was not being sublet, and was not in a state of disrepair. It said it had not identified any hazards which would justify a full housing health and safety rating system (HHSRS) inspection.
- On 28 February Mr B complained again, and said he had witnessed additional tenants leaving the property each morning, which proved there were more people living there than the Council thought. He said he did not think the house was in disrepair, he thought it was not compliant with gas safety certification, and he thought there had been alterations to the central heating by the tenant.
- On 12 March the Council responded and told Mr B it had conducted an inspection of his neighbour’s property on 9 March. It said there was only one family living in the property (parents and children), and was not overcrowded under the space standard set out in the Housing Act 1985.
- The Council said it had identified that smoke alarms had been removed, and it had spoken to the landlord, who was intending to reinstall them. It also said the landlord had booked an engineer to conduct a gas safety inspection, and there was no obvious signs that the boiler had been tampered with.
- The Council later received a copy of a gas safety certificate dated 21 April 2018, and said it did not intend to take further action.
Law and guidance
The Housing Act 1985
- The Act sets out that a property’s room standard is contravened if two people of the opposite sex who are not living together as partners must share a room. Children under 10 years old are disregarded from this standard.
- The Act says a property’s space standard is contravened if the number of people living in a property exceeds the permitted number. For a three-bedroom property this number is 5; however, no account is taken of children aged under 1, and children aged between 1 and 9 count as half-units.
The Housing Act 2004
- Part 1 of the Act says a council has the power, under HHSRS, to take enforcement action against a landlord when the council has identified a hazard which puts a tenant’s health and safety at risk.
The HHSRS enforcement guidance (2006)
- Paragraph 2.6 of the guidance says if, following a complaint, a council considers it appropriate to inspect a premises to determine if there is a hazard, it must arrange an inspection, or have a good reason not to do so.
- Paragraph 2.18 says, where a landlord agrees to take action required and a council is confident it will be done, the council can use the hazard awareness notice procedure, which provides a way of recording the action. Paragraph 5.41 says this procedure does not require further action by the person served with the notice, although councils should consider monitoring any notices they serve.
- Paragraph 4.2 says councils are under a general duty to take action in relation to a category 1 (more serious) hazard.
- Paragraph 4.4 says councils have powers to take action in relation to category 2 (less serious) hazards, although they cannot take emergency measures in the same way as they can for category 1 hazards.
- Paragraph 4.5 says it is for councils to decide which course of action is best in all circumstances.
- When a council, having received a complaint, identifies a less serious hazard (not category 1), it has the power (not the duty) to act. The actions it may take are at the council’s discretion, and it is for the council to decide what is the best thing to do.
- I cannot question a council’s decision simply because a complainant disagrees with it. I must establish whether a council has complied with its statutory duties, and whether there was any fault in how it made its decision.
- In Mr B’s case, the Council conducted an inspection of his neighbour’s property after receiving his complaint. This was in line with the HHSRS enforcement guidance.
- During the visit, the Council did not identify any hazards associated with the gas central heating system, as Mr B had alleged. However, a month later an engineer inspected the boiler and issued a gas safety certificate. The landlord provided a copy of this certificate to the Council. It decided to take no further action. There was no fault in this decision.
- The Council also identified that smoke alarms had been removed. It spoke to the landlord, who said she would reinstall them. The Council decided this issue was not serious enough to require a hazard awareness notice or checks for compliance. This was the Council’s decision to make, so it was entitled to decide not to take further action, and it was not at fault for doing so.
- The Council conducted two visits (in July 2017 and March 2018) to check how many people were living in the property, because it was trying to establish whether the property was a house in multiple occupation (HMO).
- If a property is an HMO, councils have more enforcement duties than they do with other private housing. However, on both occasions the Council decided there was only one family living there, and they were not statutorily overcrowded.
- Mr B clearly disagrees with this decision, and has said he has witnessed other people leaving the property each morning. While he may be right, and there may be more people living there, I consider that the Council has taken proportionate action to try and establish the occupancy of the property, and I have not found fault with its response to Mr B’s complaint.
- The Council was not at fault in how it acted on Mr B’s concerns about the condition and occupancy of his neighbour’s property. It conducted an inspection visit in line with its statutory responsibilities, but decided not to enforce formal remedial action against the landlord. This was the Council’s decision to make. I have not found fault with how it made the decision, so I cannot question the decision itself.
Parts of the complaint that I did not investigate
- I did not investigate Mr B’s complaints about a car in his neighbour’s garden, the conversion of the property from a 2-bedroom to a 3-bedroom, or a recycling bin being used for household waste. These issues have not caused Mr B an injustice.
Investigator's decision on behalf of the Ombudsman