The Ombudsman's final decision:
Summary: Miss X complained the Council failed to take appropriate action when she reported damp and mould in her privately rented accommodation. The Council was at fault for not ensuring the landlord carried out repairs and not considering enforcement action when a category 1 hazard was identified. It was also at fault for not making enquiries when Miss X said she was homeless because it was not reasonable for her to continue living there. It should apologise and make a payment to her to reflect the distress caused as a result of living in unsuitable accommodation.
- Miss X complained the Council failed to take appropriate action against her landlord after she reported problems with damp and mould in her privately rented accommodation, and failed to provide alternative housing for her and her children. She also complained the Council took no action when she made a homelessness application in February 2019 on the grounds it was not reasonable for her to continue to live there, and failed to respond to her formal complaints.
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 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)
- In this case, Miss X has complained about events from early 2015. I have exercised discretion to investigate the complaint because I am satisfied Miss X has been pursuing the Council and her landlord across this period. I have limited my findings to events from 2017 because I am satisfied I can reach robust conclusions from that point onwards.
- When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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 Miss X and the Council;
- relevant law and guidance, as set out below; and
- our guidance on remedies.
What I found
Relevant law and guidance
Private rented housing
- Councils can deal with private sector housing issues, such as reports of damp or disrepair.
- Where the complaint is about disrepair the council can consider taking formal action under the Housing Act 2004, for example, serving an Improvement Notice. The council can also consider carrying out an inspection under the housing health and safety rating system (HHSRS). Where the council identifies a serious hazard to health, called a category 1 hazard, it must take action. It will usually issue an improvement notice to the landlord requiring them to carry out repairs to at least remove the category 1 hazard. Where the landlord fails to carry out the required works within the specified time frame in the notice this is a criminal offence and the council should take enforcement action.
Private sector leasing scheme
- This Council has a scheme through which landlords can rent property. The property must satisfy certain criteria and the landlord must produce relevant documents, include gas and electric safety certificates and an energy performance certificate (EPC).
- A person can be viewed as homeless if it is not reasonable for them to continue to occupy the accommodation, for example, because it is not fit for habitation. In such cases, councils should take a homeless application and consider whether it has a duty to provide alternative accommodation. The council can discharge its housing duties by assisting the person to find private rented accommodation.
- Miss X lives in a private rented flat with her two children. She has lived there since 2014 and reported problems with the accommodation from late 2014. Officer 1 inspected the flat in early 2015 and gave her advice about managing the damp and mould. Officer 1 did say he would refer her case to the Council’s Housing Needs team to see if it could “help with more suitable accommodation”. I have seen no record he did so but accept that records going back to 2015 may be incomplete.
- Miss X contacted the Council again on July 2017. Officer 2 visited the flat and wrote to the landlord setting out the repairs required. Officer 2 said she had not carried out a formal inspection under HHSRS but she considered there were category 1 hazards, including damp and mould, and issues relating to the faulty boiler. She asked the landlord to respond within 14 days. It appears the landlord did not respond. The Council accepts it should have followed up but did not do so.
- Miss X contacted the Council again in May 2018 and in early June 2018 made a formal complaint. In July 2018 Officer 3 visited the flat and carry out an HHSRS inspection. He identified a category 1 hazard. He found that all rooms were affected by damp and mould. He did not consider there were immediate risks to health and safety and therefore decided emergency action was not needed.
- Since Miss X said she did not want to stay in the flat, Officer 3 contacted
Officer 4, in another team, to confirm there was a category 1 hazard and ask if it could find Miss X alternative accommodation. Officer 3 understood Officer 4 would identify alternative accommodation for Miss X.
- The Council says Officer 4 did identify alternative accommodation for Miss X in early August 2018, which Miss X viewed. It says Miss X refused this. It was not able to provide us with any record of the offer or its refusal. It says this was because the offer was not a formal offer under a statutory duty. Miss X says she did view a property around this time but there was another family living there and she was not told they were due to move out.
- The Council says the existence of a category 1 hazard did not make the flat uninhabitable. Remedial work could have been done whilst Miss X was living there, although it would be easier to carry out the repairs if the flat was empty. In the event Miss X wanted to move so this was considered to be the best solution.
- In February 2019 Miss X told the Council the property “remains uninhabitable” and the landlord had served a section 21 notice requiring her to leave. She provided a copy of the notice and relevant documents to support a homelessness application. The Council says, due to an oversight, the case was not allocated to a housing officer and no enquiries were made. It says Miss X did not contact it again for 10 months and therefore it was reasonable for it to assume it was reasonable for her to remain occupying the property. The section 21 notice expired and the landlord did not pursue the matter.
- Miss X says the boiler was recently inspected and found to be very dangerous. The landlord replaced it but then issued a further section 21 notice requiring her to leave the property. There is a court hearing about this in January 2020.
- In early December 2019 Officer 5 inspected the property and identified category 1 and 2 hazards. Officer 5 served a Hazard Awareness Notice on the landlord. The Notice states the Council considered this level of enforcement was appropriate because the landlord indicated he intended to sell the property. Officer 5 did not send Miss X a copy of the HHSRS report and I have not seen it.
- Miss X paid for a private assessment of the property, which found a high level of fungal contamination. The reported stated the “property in its current state is not fit for human habitation and there is a significant risk to health”. In light of this report, Miss X has vacated the property and is currently paying for hotel accommodation for her family. She says her belongings have been destroyed by the mould.
- Miss X made a formal complaint in June 2018. As a result of this, Officer 3 did inspect the flat and carried out a HHSRS inspection.
- Miss X made a further complaint in March 2019. When we asked the Council about this in June 2019 it told us this was a stage 1 complaint that it had not responded to. We decided it had had sufficient time to respond so we would consider the complaint. In response to my enquiries, the Council said it had no record of this complaint.
- In July 2017 Officer 2 identified a number of repairs were needed and wrote to the landlord. She said there were possible category 1 hazards. The landlord did not reply and officer 2 did not follow this up. This was fault.
- The Council could have taken formal action to ensure the repairs were carried out. It could have carried out a formal inspection to confirm there were category 1 hazards. Given Officer 2’s assessment, and the similarity to the reports of mould and damp Officer 3 found in 2018 that they deemed to be a category 2 hazard, I am persuaded it is more likely than not that category 1 hazards were present in July 2017. In that situation, the Council had a duty to consider enforcement action and it failed to do so.
- In July 2018 Officer 3 established there was a category 1 hazard, concerning mould and damp. Again, no enforcement action was taken. This was a repeat of the fault.
- There is a dispute about what happened when Miss X viewed alternative accommodation in August 2018. The Council says it offered Miss X alternative accommodation but she refused this. Miss X said she was not offered the property. The Council has no record of offering her the property and did not confirm it in writing. The Council was at fault for not properly communicating its offer and not following up when Miss X did not accept it. If it had done so, any confusion about it could have been clarified.
- The Council accepted a homelessness application February 2019 but did not allocate it to an officer and made no enquiries. This was further fault.
- In December 2019 Officer 5 carried out a further inspection, identified category 1 and 2 hazards and issued a Hazard Awareness Notice on the basis the landlord intended to sell the property. The Council was clearly aware of the condition of the property and the fact Miss X was threatened with homelessness but took no action. In its replies to my further enquiries in mid January 2020 it said it had tried to call Miss X on Christmas Eve and would now try writing to her or emailing her.
- As a result of the Council’s failure to act, Miss X has lived in accommodation that was, on balance, unsuitable for her and her family by July 2017 when Officer 2 identified damp and mould that probably amounted to a category 1 hazard.
- For some of that time Mrs X says she was without hot water or heating. She says she could not use the kitchen to store or prepare food. She had to take her children to fast food restaurants, which was expensive and meant they could not eat healthily. She says the family stayed in the fast food restaurant as long as possible to keep warm and the children had to do their homework there. She says they all had to sleep in one room because that was the only room that was habitable. Miss X was sleeping on a blow-up mattress because her bed frame and mattress had rotted due to the damp. She says a neighbour let them use their shower occasionally but this meant going out into the cold to do so.
- Miss X has provided medical evidence to show one of the children suffered recurrent coughs, wheezing, nasal problems and at one point developed an abscess on her neck that required draining in hospital. The GP considers these were linked to damp conditions in the flat. In addition, one child has also suffered from recurrent nose bleeds, stomach aches and vomiting, which may be symptoms of carbon monoxide poisoning. I cannot conclude with certainty these health problems were as a result of poor conditions in the flat but on balance I consider that they were made worse by those conditions.
- I have noted there were periods of time where Miss X did not contact the Council to check what action, if any, it was carrying out. If she had done so this would have alerted the Council to the oversights described and it would have had an opportunity to put matters right sooner. I have taken this into account when calculating the remedy. I have also taken into account the fact that it would have taken a few months to address the damp and mould with the landlord so Miss X and her family would not have been re-housed immediately after identifying a category 1 hazard in July 2017.
- The Council did respond to the complaint in June 2018, although not through its complaints process. It did not respond to the further complaint in March 2019. This was fault. It says it responded to complaints made between those dates which it treated as enquiries. Because it did not respond to the complaint in 2019 the Council missed the opportunity to check with the service that appropriate action had been taken to address Miss X’s concerns. It also meant Miss X had to keep pursuing it and was put to the time and trouble of complaining to us.
- The Council will, within one month of the date of the final decision:
- Apologise to Miss X for its failure to take action to ensure the landlord carried out repairs from July 2017 onwards, the failure to make enquiries after Miss X made a homelessness application in February 2019 and its failure to respond to her complaint;
- Pay her £6,500 to remedy the injustice caused because she lived in accommodation that was unsuitable for her and her children. This recognises she suffered an injustice for a long period of time after the inspection in
July 2017 and is in line with our guidance on remedies; and
- Pay her £500 for her time and trouble pursuing the Council when it failed to act on the homelessness application, despite her providing supporting documents, and her formal complaints of 2019.
Miss X and is making enquiries about whether it owes her a housing duty. It should consider offering temporary accommodation whilst it makes those enquiries.
- when it identifies category 1 or 2 hazards it has a suitable system to ensure it follows up to check whether the landlord has made appropriate repairs and, if not, considers enforcement action;
- homelessness applications are allocated to an officer without delay and appropriate enquires made in accordance with statutory requirements.
- I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent recurrence of the fault.
Investigator's decision on behalf of the Ombudsman