Ashfield District Council (16 018 260)

Category : Housing > Private housing

Decision : Not upheld

Decision date : 20 Mar 2018

The Ombudsman's final decision:

Summary: There is no evidence of fault in how the Council investigated allegations by Mr X’s tenant that he was harassing her.

The complaint

  1. Mr X complains that the Council wrongly accused him of harassing his tenant and visited his property without informing him when investigating his tenant’s complaints of damp at the property

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The Ombudsman’s role and powers

  1. 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’. 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:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement.

(Local Government Act 1974, section 24A(6), as amended)

  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)

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How I considered this complaint

  1. I have:
    • considered the complaint and the information provided by Mr X;
    • made enquiries of the Council and considered the information provided;
    • interviewed a Council officer, officer C;
    • considered relevant legislation;
    • invited Mr X and the Council to comment on the draft decision.

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What I found

  1. Councils have powers under the Protection from Eviction Act 1977 to investigate complaints of harassment by tenants against their landlord and prosecute landlords if there is evidence to substantiate the tenant’s complaints.
  2. Councils also have powers to investigate complaints of disrepair made by tenants of private landlords. Councils can take enforcement action against a landlord under the Housing Health and Safety Rating System (HHSRS) if it identifies hazards to a tenant which could put their health and safety at risk.

What happened

  1. Mr X rents a property to Ms Y. In January 2017 Ms Y contacted the Council to report mould and damp in the property. The Council wrote to Mr X and Ms Y to give notice under section 239 of the Housing Act 2004. This requires the Council to give 24 hours of its intention to inspect the property to determine if there are any hazards. Officer A, an environmental health officer, inspected the property with Mr X and Ms Y. Officer A’s record of the site visit notes some issues with the property and that she gave Ms Y advice on how to heat and ventilate the property. She also advised Mr X that she may need to install a data logger in the property.
  2. The Council’s records show officer A arranged a further inspection of the property with Ms Y on 20 February 2017.
  3. Ms Y contacted the Council on 1 March 2017 to say Mr X was frequently contacting her. Officer B, an Environmental Health Officer, contacted Mr X by telephone to advise of Ms Y’s allegation. Officer B’s record of the telephone call notes Mr X requested the information be put in writing and that he was upset to be accused of harassment. Officer B’s record notes she advised it was an allegation and the Council did not have any evidence but she just wanted to remind him that he should keep the quiet enjoyment of the property.
  4. Following her call with Mr X, officer B sent an email to Mr X explaining why she had telephoned him. This was because Ms Y had alleged he was contacting her on a frequent basis, had contacted her by telephone on two occasions and by text three or four times. Officer B said that she had no evidence in regards to this matter but it was important to remind Mr X that he should not interrupt Ms Y’s quiet enjoyment of the property without reasonable grounds.
  5. Mr X made a complaint to the Council in March 2017. He complained that officer B had made allegations about his conduct towards Ms Y which were untrue and it was inappropriate to do this by telephone. He asked her to put the allegations in writing. Mr X contacted officer B’s manager to make the complaint but did not receive a full response so he made a complaint to the Chief Executive. He advised he would look into the matter but this would take time. Mr X then made a complaint through the Council’s two stage complaints procedure. The Council did not uphold Mr X’s complaint.
  6. Officer C, a manager, contacted Mr X to discuss the repairs. The record of her telephone call notes Mr X was very unhappy about Ms Y’s allegations and that a data logger would be placed into the property. Officer A visited the property to install the data logger the next day.
  7. In May 2017 the Council arranged a further meeting with Mr X to discuss the repairs and data logger results. The Council’s record of the meeting notes that Mr X was unhappy about how it had handled Ms Y’s allegation of harassment. The notes record that Officer C agreed to send Mr X a separate letter regarding the allegations. The Council has said it then advised Mr X it could not do this as the allegations were being investigated and it may compromise the investigation and Ms Y’s privacy.
  8. In making his complaint to the Ombudsman Mr X has said the Council is at fault as it:
    • Visited his property on 20 February 2017 without notifying him;
    • Officer B should not have contacted him by telephone to notify him of Ms Y’s allegations and told him that he was making excessive and criminal phone calls to Ms Y. This caused embarrassment to Mr X as his telephone was on its speaker so the call was audible to others;
    • Accepted the allegations from Ms Y;
    • Failed to provide the evidence of the allegations despite promising to do so after the meeting of May 2017.
  9. The Council’s position is:
    • Officer A was not required to notify Mr X of her intended visit as she had previously served a section 239 notice and Ms Y had invited a further visit.
    • It is the Council’s usual procedure to telephone landlords when they receive an allegation of harassment from a tenant. This is in order to stop any alleged inappropriate behaviour as soon as possible and to diffuse the situation.
    • When interviewed officer C acknowledged that it would have been better for officer B to have asked Mr X if it was convenient to speak when she called.
    • The Council could not provide Mr X with evidence of Ms Y’s allegations due to the sensitivity of the investigation and it may compromise her privacy;
    • Officers have to advise landlords that they could be committing a criminal offence if harassing tenants or if they do not comply with an improvement notice for the repairs;
  10. The Council has not concluded its investigation. This was because the Council would usually keep an investigation open when it was also dealing with complaints of disrepair until those repairs had been completed. Mr X has recently completed the repairs.

My assessment

Visit to Mr X’s property without notifying him

  1. On balance, the Council is not at fault in not notifying Mr X of its second visit to his property on 20 February 2017. The Council had properly served a notice under section 239 of the Housing Act 2004 when visiting his property on the first occasion. Ms Y had agreed the visit and the Council can attend without notifying the landlord if the occupier invites them to do so.

Decision to investigate Ms Y’s allegations

  1. The Council is not at fault for deciding to investigate Ms Y’s allegations. The law has given councils the power to investigate both allegations of harassment and disrepair. So the Council was entitled to investigate Ms Y’s allegations of harassment and disrepair.

Officer B’s telephone call

  1. The Council is not at fault for contacting Mr X about Ms Y’s allegations by telephone. This is in accordance with its usual procedures. But, as the Council has acknowledged it would have been better for officer B to have asked Mr X if it was convenient to speak and this would have been good practice. But this is a minor error and it does not amount to fault.
  2. I cannot know exactly what officer B said to Mr X as the Council does not record its calls. But officer B’s follow up email to Mr X clearly states that these are allegations and that it has no evidence with regards to the matter. So Mr X would have been aware that the Council was not accusing him of harassing Ms Y but that it had received allegations. I have not seen any evidence to show the Council had reached a judgement on whether Mr X was harassing Ms Y, it was simply notifying him of the allegations.

Not providing evidence of the allegations and accusing Mr X of criminal behaviour

  1. The Council did not provide evidence of the allegations as it had undertaken to do at the meeting of May 2017. On balance, this is not fault. Given Ms Y’s circumstances, of which I cannot disclose, it was appropriate to have regard to these. It was also appropriate to consider whether disclosing evidence would affect the investigation. But even if there was evidence of fault here, there is no significant injustice to Mr X. Officer B’s email of 1 March 2017 set out the allegations. Officer C has said the allegations were discussed with Mr X at the meeting of May 2017. So Mr X would have been aware of the nature of Ms Y’s allegations.
  2. I cannot know if officers have accused Mr X of criminal behaviour as I have no means of establishing what officers said during conversations with Mr X. But the Council is not at fault in advising Mr X that harassment could be a criminal matter and it could prosecute if the allegations are proven. This is factual information and it was appropriate for the Council to explain the action it could take.
  3. I have considered if the investigation of Ms Y’s allegations is taking too long as there have not been any recent allegations. On balance, the Council is not at fault as it is its usual procedure to keep investigations open until the disrepair is resolved. The Council also had to have regard to Ms Y’s circumstances. I understand Mr X has recently completed the repairs so the investigation could not have been concluded until he had undertaken that work. But the Council should consider if it can now conclude the investigation and notify Mr X accordingly.

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Final decision

  1. There is no evidence of fault in how the Council investigated allegations by Mr X’s tenant that he was harassing her.

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Investigator's decision on behalf of the Ombudsman

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