Cheshire East Council (15 011 146)

Category : Housing > Private housing

Decision : Not upheld

Decision date : 01 Mar 2016

The Ombudsman's final decision:

Summary: There was no fault in the way the Council dealt with a complaint of disrepair in a private rented property.

The complaint

  1. Ms X complains the Council failed to act on a Hazard Awareness Notice served on her landlord, meaning he did not take action to improve the disrepair in the property.

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The Ombudsman’s role and powers

  1. The Ombudsman cannot investigate late complaints unless she decides there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsman about something a council has done. (Local Government Act 1974, sections 26B and 34D)
  2. The Ombudsman investigates complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3))
  3. If the Ombudsman is satisfied with a council’s actions or proposed actions, she can complete her investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i))
  4. I have exercised the Ombudsman’s discretion to look at Ms X’s complaint because there are good reasons she did not bring her complaint earlier.

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How I considered this complaint

  1. I have considered the following:
    • Ms X’s complaint to the Local Government Ombudsman
    • Ms X’s correspondence with the Council
    • The Council’s correspondence with Ms X
    • Ms X’s conversation with an Assessment investigator
    • The Council’s response to my enquiries.
  2. I have written to Ms X and the Council with my draft decision and given them an opportunity to comment.

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What I found

  1. The Council has a statutory duty to ensure landlords maintain their properties so they remain habitable. The Housing Act 2004 says councils may carry out a Housing Health and Safety Rating System (HHSRS) inspection. Government guidance aids councils in those inspections.
  2. The HHSRS aims to ensure that privately rented properties do not have any serious hazards. A hazard is any risk of harm to the health or safety of a resident arising from a deficiency in the property. The HHSRS allows Councils to carry out hazard surveys. A HHSRS inspection is intended to evaluate the potential risks to health and safety from any deficiencies identified in a property. An inspection record has to show enough information to support the findings and provide the evidence to support the judgements and decisions in it.
  3. The system has a formula which allows officers to assess risks within a dwelling. An officer assesses and scores deficiencies and the “range of probable harm” to a resident. Scores range from A to J. A is the most severe.
  4. Assessments which are A to C are classed as category one cases. If there is a category 1 hazard the council must take action and serve a hazard awareness notice on the property owner.
  5. Assessments which are D to J fall into category two. The council does not have to issue a hazard awareness notice. Councils can take action if they think it necessary.
  6. The government issued the HHSRS Operating Guidance in February 2006. The guidance says for local authorities’ inspections will ‘generally be restricted to visual inspections’.
  7. The guidance also refers to vulnerable groups. It restricts vulnerability to “age groups. It does not extend to vulnerability for other reasons”. As an example, the vulnerable age group (VAG) for damp and mould growth is all persons aged 14 years or under. This is because it has been determined this age group spends much time in their bedrooms.
  8. Unless enforcement action is taken vulnerability and disability of individuals living in a property cannot be considered under the HHSRS.
  9. The Council considers the list of hazards and the likelihood of a hazard occurring over the following 12 month period to decide the potential risks to health and safety from any hazards identified in the home. That means unless there is someone within the property who falls within the VAG such as children below the age of 14 years vulnerability is not a valid criteria to use.

Ms X’s complaint and the Council’s responses

  1. Ms X complained to the Ombudsman about disrepair to a property she left in March 2015.
  2. Ms X says she had complained to the Council about the disrepair. She says an officer visited and assessed the property and the Council served a Hazard Awareness Notice (HAN) on the landlord in July 2012.
  3. Ms X says the HAN identified three hazards, damp and mould, an unhygienic kitchen and excessive cold. Ms X says despite this the landlord did nothing and the Council did not follow the HAN up.
  4. Ms X says she was forced to live in the property until March 2015.
  5. Ms X says the HAN identified hazards that were not going to improve unless the landlord took action. She says the Council had a duty to act on the HAN.
  6. Ms X formally complained to the Council in July 2015.
  7. The Council responded to Ms X’s complaint on 11 August. It told Ms X:
    • The Council’s powers were discretionary
    • The Council had agreed with Ms X’s landlord the remedial work necessary should take place when the property was unoccupied
    • The landlord had served Ms X with notice to quit the property
    • The Council had no reason to suspect circumstances had worsened otherwise it may have taken further action.
  8. Ms X was unhappy with the Council’s response because she felt the Council had ignored her disability and health problems. She complained the Council had offered her no support. Ms X said the landlord had not continued the possession order and the Council should have realised conditions would worsen.
  9. The Council responded on 11 September. An officer explained:
    • The Council’s powers were discretionary and it had to take account of not just the effect of the disrepair on the tenant but also the landlord’s stated intents
    • Formal enforcement action was not considered fitting because the landlord had a plan to make the repairs once Ms X quit the property
    • Ms X was not considered to be in a vulnerable group according to Government guidance
    • The assessing officer did not consider there were extenuating factors needing adjustment to the formula for assessing the likelihood of harm from the damp and mould
    • Even if the officer had adjusted the likelihood of harm the damp and mould would have remained a low category 2 hazard
    • The hygiene hazard was assessed in the same way, as not needing the officer to adjust assessing the likelihood of harm, and anyway would have remained a low category 2 hazard
    • The officer when assessing the cold considered the proper factors when deciding whether to adjust the hazard rating, again finding the likelihood of harm a category 2 hazard
    • The Council would not be aware Ms X’s landlord had chosen not to enforce the possession order
    • The Council had received no reports of worsening conditions in the property and could not take action if it did not know.
  10. Ms X remained unhappy with the Council’s response to her complaint and complained to the Ombudsman.

The Council’s response to my enquiries

  1. The Council provided a copy of its records of contacts in 2012 between its officers, Ms X and her landlord. It also provided a copy of the hazard score calculator for the cold.
  2. Finally, the Council provided a copy of the Notice of Possession and a signed agreement between Ms X and her landlord. This stated Ms X asked the landlord to serve the notice because she wanted to move.
  3. The Council explained to me a Housing Standards officer had assessed the condition of Ms X’s property. That assessment found disrepair but judged the effect of the disrepair was not significant enough to cause a category 1 hazard. The officer served a HAN to make the landlord aware of the disrepair.
  4. The Council told me a HAN did not require works to be carried out and was not enforceable. It said it uses a HAN to open communication with a landlord.
  5. The Council explained its decision not to step up this case to enforcement action. It said:
    • The hazards caused by the disrepair were not significant enough to warrant enforcement action because they were not considered to present a significant risk to Ms X either then or soon
    • Ms X and her landlord had agreed to end the tenancy
    • The landlord, in negotiation with the Housing Standards officer, had agreed the proposed remedial works would be best carried out when the property was vacant
    • The landlord had stated their intent to sell the property.
  6. The Council told me it was not aware conditions in the property had worsened. It said it closed its Housing Standards case on 20 June 2013 when the possession notice was still being continued.
  7. The Council explained that unless it had evidence the conditions in the property had worsened to a point where a category 1 hazard existed, it would not serve an enforcement notice. It says this would remain the case, even if was aware Ms X continued to occupy the property past 20 June 2013.
  8. The Council detailed its approach to enforcement. It adopts a stepped approach involving:
    • General advice and information
    • Tailored advice and information for tenants, owners and agents
    • Informal action to resolve the issues including information on how to put right the issue, such as serving a HAN
    • Formal action through the service of a legal Notice
    • Prosecution and/or carrying out of the works in default and billing the owner.
  9. The Council says it started its approach with informal action. It did this because it felt the landlord‘s proposal to carry out the repairs when the property was vacant was acceptable.
  10. The Council says its Homechoice team was supporting Ms X to clear her rent arrears and providing support to enable her to move to another property. It says this intervention prevented Ms X being made homeless.
  11. The Council says there are no entries on Ms X’s case record to show she told the Homechoice team the property had worsened. It says if the Homechoice team had known it would have told the Housing Standards team. The Housing Standards team would have reviewed the position.
  12. The Council explained if the severity of the hazards had increased it would have reviewed its action. If it found category 1 hazards, and they related to the HAN issues, it would have considered whether to move to an Improvement Notice or a Suspended Improvement Notice.
  13. The Council says it became aware of Ms X’s health problems in November 2014. It says there was no mention on her housing register application, nor any mention in the case records. It referred Ms X for help and provided support from 2 December.

Analysis

  1. The guidance says for local authorities’ inspections will ‘generally be restricted to visual inspections’. The Council carried out a visual inspection. Having visited the property and reflected on the evidence the officer found category 2 hazards.
  2. It is not the Ombudsman’s role to decide if category 1 or 2 hazards exist or to direct a council on what it should do if there are. The Ombudsman’s role is to decide if the Council conducted the inspection in line with government guidance and officers’ decided the issues by exercising their professional judgement without fault. I have seen no evidence of fault by the Council in its application of the HHSRS.
  3. The guidance shows that vulnerability and disability criteria are only applicable in limited circumstances. Ms X does not meet the criteria. The Council could not consider those issues when inspecting the property. There is no fault by the Council in its application of the Operating guidance.
  4. The Council took action with the landlord in line with its stepped enforcement approach. There is no fault in the way the Council employed its approach to enforcement.
  5. Ms X has said the Council paid no heed to her disability and health problems. I have seen no evidence the Council could have known about her health problems before 2014. I consider the Council could not take account of these problems in 2013 in Ms X’s complaint.
  6. The Issue for the Ombudsman is whether the Council considered its duties under the legislation and took proper steps to deal with the complaint highlighted. I have found no evidence of fault in any of the actions the Council has taken in dealing with Ms X’s complaint.
  7. The Ombudsman cannot question decisions properly made by a Council, no matter how strongly a person disagrees with those decisions

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Final decision

  1. I have completed my investigation. The complaint is not upheld.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman

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