Hartlepool Borough Council (18 010 575)

Category : Housing > Other

Decision : Not upheld

Decision date : 16 May 2019

The Ombudsman's final decision:

Summary: The Ombudsman found no fault by the Council on Mr G’s complaint about the way the Council acted about his long-term empty property which neighbours complained about. The Council warned him about works needed, gave him options, and arranged necessary works which it charged him for. It also followed its complaints procedure.

The complaint

  1. Mr G complains about the Council:
      1. Serving him with a Notice under section 4 of the Prevention of Damage by Pests Act 1949;
      2. Taking proceedings to sell his property because of its condition; and
      3. Discussing the situation with his siblings despite instructions not to do so.
  2. As a result, he was put under a lot of pressure and stress with the enforced sale of his property which has also cost him financially.

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What I have investigated

  1. I have not investigated complaint a) for the reasons set out at the end of this statement.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. 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)
  4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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Council’s Housing Strategy 2015-2020

  1. One of the Council’s 5 main priority outcomes is to bring long-term empty properties back in to use. This can increase housing supply and reduce the need to build new homes. Empty homes are a wasted asset and do not help community well-being.
  2. The responsibility for maintaining private properties rests with the homeowner. The Council recognises intervention and assistance is necessary where areas are in decline, owners are in financial hardship, or the landlords refuse to do essential repairs or improvements.
  3. Good quality housing is important for maintaining quality of life and vibrant local communities.
  4. The strategy aims to reduce the number of long-term empty homes and helped bring back 10% of long-term empty properties each year between 2011-2014. It also bought 100 empty properties as part of the Empty Property Purchase Scheme and refurbished 60 more as part of the Empty Homes Lease Scheme.
  5. The Council will continue to help owners who want to bring empty properties back into use but will use a wide range of enforcement powers where needed. It will continue to engage with owners to provide the right solution through advice and assistance on: finding a contractor/managing repairs; how to sell the property; renting/leasing it, for example.
  6. The Empty Property Purchasing Scheme involves the Council acquiring the property by agreement and refurbishing it to bring it back in to use where necessary. The property is owned and managed by the Council.
  7. The Empty Homes Lease Scheme is a partnership between the Council and housing providers under which owners enter into a lease agreement for several years. The Council provides a grant/loan to do the refurbishment.
  8. The Council also has several enforcement options which includes:
  • Local Government (Miscellaneous Provisions) Act 1982: This power is used to prevent unauthorised entry to stop the property becoming a danger to public health. The Council can carry out works in default where the owner does not give verbal agreement. Those costs are recharged back to the owner.
  • Environmental Protection Act 1990: This power is used to remove rubbish from empty properties and carry out works to remedy the cause of a nuisance. This would include a property causing a nuisance through damp, for example.
  • S215 Town and Country Planning Act 1990: This gives the power to serve a notice on owners who fail to maintain their properties. It deals with the external appearance of the property.
  • S17 Housing Act 1995: This gives the power to compulsory purchase properties which removes ownership from the current owner and transfers it to the Council. The Council must show it took other measures to bring the property back in to use and has a plan for its reuse/management.
  • S103 Law of Property Act 1925: This power allows the Council to force the sale of a property subject to a local land charge following default action it had to take. The sale allows the Council to recover the debt owed and the costs incurred with the sale. This is also known as the ‘enforced sale’ procedure. The Council’s Housing Services Enforcement Policy states this is only used when the debt reaches a minimum level. The policy does not say what that level is.
  • S132 Housing Act 2004: This gives the power for the Council to get an Empty Dwelling Management Order to take over a property and repair it. It can then let and manage it on behalf of the landlord for up to 7 years. Costs are recouped from the rental income. It may mean only properties with relatively low repair costs are financially viable.

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How I considered this complaint

  1. I considered all the information Mr G sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr G and the Council.

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What I found

  1. Mr G owns a house (the Property) he has not lived in since 2007. He does not live in the same city as the Property. During that time, the Council had contact with him about its deteriorating condition. Mr G suffered from mental health problems for which he received treatment which meant he struggled dealing with the Property. He is unhappy with the way the Council dealt with him about its condition, and with officers ignoring his instruction not to discuss his situation with his siblings. He is also unhappy with the way it dealt with his complaint.
  2. The following are key dates:

2017

  • September: The Council received correspondence complaining about the condition of the garden.
  • December: An officer contacted Mr G about accessing the Property to assess its condition.

2018

  • January: The Council sent him a letter which noted his lack of response and explained the next stage in the enforced sale procedure. It said if no progress about access was made within 21 days, it would proceed with enforcement action to acquire it as an unoccupied property. This was because of complaints about its condition.
  • February: Mr G told the Council he would return to the Property to allow access but this was not possible partly because of bad weather. The Council sent him a further letter about the sale procedure and asked him to respond by the following month. When he arrived at the Property, he claimed an officer told him not to bother working on the garden because of snow.

The officer told him the Empty Homes Lease Scheme had now ended. Mr G said this only left the possibility of the Council buying the Property. This scheme was administered by a charitable partnership of housing providers. It aimed to repair and lease empty properties through two elements, a grant and loan. It ran until January 2017. The Council explained it could not pursue this option as access to the Property was only made by Mr G in 2018. To be considered under the scheme, the Property needed to have an inspection, a list of works drawing up, and full consent from the owner.

Mr G claimed he carried out work himself on the front and rear gardens finding waste during another visit.

  • March: The housing team accessed the Property and valued it at £60,000 with repairs estimated at £29,000. A later detailed repairs estimate put the cost at £51,000. The total cost exceeded the £85,000 budget which meant it was not eligible under the Empty Property Purchasing Scheme. Under this scheme, a property was eligible if empty for 6 months and considered suitable in terms of budget and location.
  • April: The Council sent Mr G another letter asking for a response by the following month.
  • May: The Council instructed X Ltd to advise about the enforced sale procedure. X Ltd is a firm that renovates and sells empty properties. It works with empty home owners and local authorities by offering a solution to get the property back in use again. Mr G claimed he felt pressure to sign a contract with this firm to sell the Property.
  • June: Mr G claimed he returned to the Property with a builder to assess what works were needed.
  • August: The Council received a further complaint about the condition of garden. An officer visited to inspect it.
  • September: Solicitors were instructed to carry out the enforced sale on behalf of Council. The Council served Mr G with a notice under section 4 of the Prevention of Damage by Pests Act 1949. This required him, within one month, to cut back all vegetation in the garden, remove material that might house rates/mice, and carry out a survey to ensure the garden was free from them. The Council can serve this notice where it appears steps need taking to destroy rats or mice or otherwise to keep the land free from them. If an owner fails to do the works, the Council can recover the costs it incurred in carrying out the works instead. It set out his right to appeal the notice within 21 days to the magistrates’ court.
  • October: The Council sent him an email with its concerns about his ability to maintain the Property and again raised the suggestion of him selling it through X Limited. The Council agreed to extend the notice period by a further two weeks but wanted to know what he planned on doing about the garden. An officer said she was happy to meet him when he visited the Property again. Another email to him explained its condition had deteriorated over the years and urged him to press ahead with the sale through X ltd or a local estate agent.
  • November: The Council emailed him to say it would arrange the works to the garden as he had failed to do so. It then arranged the works which cost £642 and an administration fee of £128.40. The Council explained it took 4 men a day to do the work. The costs were attached to the property by way of a charge (an order securing a debt against a property), along with the cost of works done under a section 215 notice in 2013. The total value of the charge was almost £2,500.
  • December: The Council asked Mr G about his plans and advised about selling through an estate agent. An officer sent him some photographs taken in August (before it did the works) and November (after it did the works) showing the garden. The officer again suggested he contact local estate agents about selling the Property.
  1. The Council explained it gave X Ltd details about the ownership of the Property. Mr G was shown as title owner but his late mother had a charge on it. X Ltd obtained the contact details for his siblings from publicly available means which included old addresses and probate records. This was because they were identified as the executors of their mother’s estate. Executors are the personal representative responsible for dealing with a deceased’s assets (the estate) where there is a Will.
  2. The Council denies discussing Mr G’s circumstances with his siblings and did not correspond with them. It accepted an officer had a conversation with Mr G’s brother in March 2019 but no information about Mr G was discussed. The officer told the brother he could not discuss details without Mr G’s authority, but he was told about the enforced sale and the need to contact solicitors for legal advice. The Council could not provide a record of this conversation.
  3. The Council took no further action to enforce a sale and the Property remains empty.
  4. The Council acknowledged receipt of Mr G’s complaint on 19 September 2018, sent its stage 1 response on 26 September, and told him twice it needed to extend the amount of time needed to send him its stage 2 response under its complaint’s procedure. It sent him the final response on 30 November.

Analysis

  1. I found no fault on this complaint for the following reasons:
      1. Mr G, as owner of the Property, is responsible for its maintenance and upkeep. He is also responsible for ensuring it does not cause a nuisance to neighbouring properties;
      2. The Property has remained empty for the last 12 years which caused the Council concern about its condition and maintenance;
      3. During this period, the Council received complaints which resulted in it writing to Mr G about the need to carry out repairs and maintenance;
      4. It is fair to say Mr G has sometimes struggled, for various reasons, to maintain the Property in good repair and condition. He has also struggled to arrange for works to be done promptly;
      5. The Council carried out necessary works when Mr G failed to do them;
      6. Mr G is not happy with the works carried out to the garden following service of the notice in September 2018. He had the right to appeal the notice but failed to do so. Had he successfully challenged it, the Council would not have had to arrange and charge him for the works. This means the Council would not have gone on to place a charge against his property. Had he unsuccessfully challenged it, it is likely the Council would have still gone on to arrange the works and apply the charge;
      7. The records show the Council suggested options to Mr G about what he could do with the Property which, understandably given the time it had stood empty, involved selling it either through an estate agent of his choice or X Ltd. Mr G did not pursue either option;
      8. The Council approached X Ltd to explore the option of an enforced sale. This involves visiting the property and contacting the owner. The Council then receives advice from X Ltd about whether this route is viable. Due to the length of time the Property stood empty, its deteriorating condition, the failure by Mr G to sell it or carry out works that would allow it to be sold or rented, I am satisfied it was not fault for the Council to approach X Ltd about an enforced sale. I also note the Council did not start legal proceedings for the enforced sale; and
      9. As executors of their mother’s estate, Mr G’s siblings are responsible for ensuring her assets, which includes her charge on the Property, is taken into account when assessing her estate. This is because they are responsible for ensuring her estate is distributed according to the Will.
  2. I am unable to say the Council was at fault for sharing information with Mr G’s brother as there is no record of the conversation.
  3. I found no fault on Mr G’s complaint about how the Council dealt with his formal complaint. This is because the Council’s complaints procedure consists of:
  • The Pre-Formal (stage 1): This involves an initial attempt to settle a complaint without going to the next stage. Complaints should be responded to within 5 days. The Council sent its response to Mr G within 5 working days; and
  • The Formal stage (stage 2): The complaint investigation is done within 20 working days of receipt of the complaint. It may take longer than this, but complainants will be told. Complainants are told if they are unhappy with the response, they can complain to the Ombudsman. The Council took longer than 20 working days to respond to Mr G’s complaint, but it did tell him on two occasions that it needed more time.

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Final decision

  1. The Ombudsman found no fault on Mr G’s complaint against the Council.

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Parts of the complaint that I did not investigate

  1. I did not investigate any complaint Mr G had about the Council’s actions before December 2017. This is because any complaint before that date is late as Mr G complained to the Ombudsman in December 2018.
  2. Nor did I investigate complaint a). This is because he had the right to appeal the notice to the magistrates’ court. This means the Ombudsman had no jurisdiction to investigate it as the law gave him the right to challenge the decision at court.

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Investigator's decision on behalf of the Ombudsman

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