Elmbridge Borough Council (18 007 902)

Category : Housing > Private housing

Decision : Upheld

Decision date : 26 Jun 2019

The Ombudsman's final decision:

Summary: There was some fault in the way the Council responded to Ms B’s complaints about disrepair in her property. The Council has agreed to apologise to Ms B and to pay her £300.

The complaint

  1. Ms B lives in a privately rented property and says the Council has failed to take appropriate action against her landlord for damp and disrepair at the flat. She says the problem has been going on for seven years.

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What I have investigated

  1. I have investigated the complaint from August 2017 onwards as this was the most recent time period where Ms B complained about the problems in the flat.

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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’. 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)
  2. 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)
  3. 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 discussed the complaint with Ms B. I have considered the information that she and the Council have sent and the relevant law, guidance and policies and both sides’ comments on the draft decision.

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What I found

Law and guidance

Housing Act 2004

  1. Private tenants can complain to their council about a failure by the landlord to keep the property in good repair. Local authorities have powers under the Housing Health and Safety Rating System (introduced by the Housing Act 2004, Part 1) to take enforcement action against private landlords where the council has identified a hazard which puts the health and safety of the tenant at risk.
  2. Councils must take action for the most serious (category 1) hazards and can choose to take action in regard to less serious (category 2) hazards.
  3. Private tenants seeking repairs may be at risk of retaliatory eviction. This is where a landlord serves a section 21 eviction notice in response to the tenant’s request for repairs.
  4. Section 33 of the Deregulation Act 2015 prevents landlords from issuing a section 21 eviction notice within 6 months of having been issued an improvement notice in relation to Category 1 or Category 2 hazards. These measures came into force on 1 October 2015 and only apply to new tenancies started on or after this date.

Council’s private sector housing enforcement policy

  1. This says:
    • Officers will inspect a property. They will calculate the hazards found and consider what actions to take. The actions can be broken down into ‘informal’ and ‘formal’ action.
    • Informal action. The Council will attempt to resolve matters informally where possible. This includes verbal advice and advisory letters given by officers. The team aims to write to the landlord or managing agent within 10 days of the inspection outlining the nature of the problems identified and requesting confirmation of the remedial action be taken to remedy the hazard and when this will happen.
    • Action taken by the landlord will be monitored and if necessary, letters, emails and telephone calls will be used in an effort to ensure the remedial works are carried out informally.
    • Formal action will always be taken in the case of a category 1 hazard.

What happened

  1. I have investigated Ms B’s complaint from August 2017 onwards. However, it is necessary to refer to some of the background to the complaint as Ms B had raised similar issues with the Council in the past.

Background

  1. Ms B rents her flat from a private landlord, Mr C, who uses an agent to manage the flat. Her flat is on the top floor of a low-rise block of flats. Ms B had contacted her landlord and the Council in previous years about problems with her flat including damp and leaking.
  2. The Council found category 2 hazards and served a section 12 improvement notice on 2 February 2015. This related to:
    • Water penetration about the kitchen window causing cracking and damp. This was caused by either a defect in the gutter or fascia above the window or by a defect in the roof.
    • Fallen and cracked plaster in the bathroom ceiling.
    • Excess cold caused by single glazed metal framed window.
  3. The Council served a section 29 hazard awareness noticed on 25 August 2015. It served this on the residents’ company as it was the Council’s understanding that it was the leaseholders/owners of the flats’ joint responsibility to repair the structure of the building.
  4. Ms B made a further complaint about water coming through her ceiling in March 2016. The Council visited in April 2016 and said the area was dry, but there was historic evidence of damp penetration. The Council said it could not serve a notice regarding the roof as it had to witness the water leaking through the ceiling. It could not serve a notice on the windows as they were not beyond repair.
  5. The Council wrote to the landlord and said it still expected him to fix the roof.
  6. Ms B spoke to the Council in June 2016. She said there had been no further leaks when it rained but the water found other ways to get in. The Council said she should contact them if there was a leak.

Events from August 2017

  1. Ms B contacted the Council on 15 August 2017 and said there was water coming through her ceiling which had affected the lights and she had spent the weekend in darkness.

Visit on 18 August 2017

  1. Two Council officers visited Ms B’s apartment on 18 August 2017. The purpose of the visit was to assess whether there were any hazards in the flat using the Housing Health and Safety Rating System and then to consider action to remedy any category 1 or 2 hazards.
  2. There is a limited record of the Council’s visit. This says: ‘Visit made and deficiencies noted. Fire hazards identified in common parts.’ The Council’s plan was to consult the Fire Service.
  3. The agent emailed the Council on 18 August 2017 and included a copy of the lease for the flat. She said she had commissioned a roofing company to fix the roof in March 2017 following a report of a leak by Ms B, but clearly the fix had not worked. She said the landlord had involved surveyors to propose a solution to the roof problem as he was keen to resolve the issue. She said she would let the Council know when she had further information.
  4. The Council officer sent an email to the agent on 7 September 2017. He noted that the responsibility for the roof of Ms B’s flat lay with the owner (leaseholder) of the flat. He asked the agent to provide an update on the leaking roof.
  5. The officer said he had carried out an inspection and there was a problem with the fire separation so he would visit again on 20 September 2017 to carry out a further inspection along with the Fire Service.
  6. The agent proposed to do the works to the communal parts relating to compliance with fire regulations. The Council officer said the agent should wait until the next visit when he was planning to visit with the fire officer.

Visit on 22 September 2017

  1. The Council officer and the fire officer carried out a visit on 22 September 2017. They concluded there was insufficient fire separation from the flats and the protected route and there needed to be emergency lighting in the community area. They agreed the fire officer would pursue this through the fire safety legislation.
  2. Ms B contacted the agent on 6 October 2017. She said:
    • She had been away for a week and found fresh water in the entrance hall, kitchen and living room. She said the stench of damp was intolerable.
    • She wanted to keep doors and windows open but could not do so as the tenant downstairs smoked and his smoke would fill her flat.
    • The windows had been declared illegal years ago.
    • Her fridge, cooker and washing machine were broken.
    • Her heating timer was declared illegal years ago.
    • The kitchen needed to be replaced.
  3. The agent replied on 12 October 2017. She copied the Council into the reply and said:
    • The main issue was the roof. This was contributing to the damp and internal decorating which could not be tackled until the roof was made water right.
    • They had hired a roofer to fix only Ms B’s roof earlier that year. Their fix had not worked. Therefore, the only way forward was to fix the entire roof which covered the four top floor flats.
    • The problem was that the responsibility for the roof did not lie with the freeholder, which was normally the case in flats, but with each individual owner/leaseholder of the four top floor flats.
    • Therefore, the agent needed to get the approval and the funding for the works from the four owners of the flats which was difficult. The agent could take enforcement action against the owners but they had to go through a process before they could do so.
    • The windows were Crittall style and single glazed. They needed decorating but were serviceable. The agent had offered to redecorate and service them but Ms B had rejected this.
    • The agent had no control over Ms B’s neighbour.
    • A gas safety certificate was issued in February 2017 and the agent had not been made aware of any problems with the central heating. She would send out a contractor to investigate the heating controller and replace or repair it as advised.
    • She had no reports of a broken fridge, cooker or washing machine. She would send a contractor to investigate.
  4. A contractor contacted Ms B on 16 October 2017 to arrange a visit so he could check her heating controller. It is my understanding the visit took place on 19 October 2017.
  5. Ms B contacted the Council on 22 October 2017 as she said she could hear squirrels in the attic. The Council said she should contact her landlord or their agent first.
  6. There appears to be no further correspondence between the Council and Ms B until April 2018.
  7. Ms B contacted the Council on 5 April 2018 regarding a leak through her ceiling. The agent replied on 10 April 2018 and said:
    • She visited the property on 30 March 2018 and saw a drip from the bathroom ceiling. She hired a roofer for the following day who replaced a broken roof tile.
    • The agents had sent the required notices to the other flats to contribute to the major roof works and the fire regulations works. These works would cost over £6,000 per flat. They were going through the statutory process which took time.
    • The landlord had suggested offering Ms B alternative accommodation but Ms B was not interested in this.
    • The landlord provided Ms B with a new fridge/freezer, dishwasher and washer/dryer.
  8. Ms B contacted the Council on 21 June 2018 and said there was water running down her walls. She attached photos of the roof showing daylight coming through. The Council contacted the agent on 22 June 2018 and said she should make the roof a priority.
  9. Mr D’s agent replied on 28 June 2018. She said the clients (presumably the owners of the top floor flats) had agreed to pay for the works to the roof but needed an up to date estimate. The plan was for the agent to appoint a contractor by the end of next week and the works to the roof to start in July.
  10. I understand Ms B contacted a solicitor who pursued her landlord, Mr D, directly about the damp/water problem.
  11. Ms B contacted the agent in June 2018 to complain about running water. This came from an overflow pipe above her kitchen window which was connected to a water tank in Ms B’s loft.
  12. Ms B complained to the Council on 17 July 2018. She said:
    • She had water running across her ceilings and down her walls for seven years.
    • Mr D had served her with a section 21 eviction order. This was in response to her solicitor putting an enforcement order on Mr D relating to the disrepair.
  13. The Council replied to Ms B’s complaint on 27 July 2018 at stage 2 of its complaints procedure. It said:
    • It was not clear what the root cause was of the damp.
    • There was an issue with water coming from an overflow pipe above the kitchen window. This was coming from a water tank in the loft but Ms B would have to give access to her loft so that this could be fixed.
    • Staining of wall and ceilings could be caused by water penetration or condensation or a combination of both. As it was summer and dry weather, there was little value in carrying out an inspection as the officer would not be able to see the water coming in. However, Ms B should contact the Council next time she saw any water coming into the flat.
    • The agent had obtained funding for major roof repairs and was obtaining estimates. These works would start soon.
    • The Council’s Housing Options Team would help Ms B to prevent homelessness. This would be by either persuading Mr C to rescind the eviction notice or by helping Ms B to find different accommodation.
  14. Ms B told the Council on 1 August 2018 that the water was coming through her kitchen window recess. She wanted the Council to serve a notice to stop Mr C from evicting her.
  15. The Council officer wrote to the agent on 2 August 2018. He said:
    • He had received an email from Ms B about leaks in the kitchen ceiling.
    • Ms B was pressing the Council for an enforcement notice but unless the Council could witness the water coming through the roof and had evidence, the Council was reluctant to do this.
    • The Council had sent a letter to the agent six weeks ago relating to possible holes in the roof. This could be linked to the problem in the kitchen. The Council had not received a reply to this letter.
    • The Council needed to do a further inspection after the next significant rainfall.
    • He reminded the agent of the landlord’s legal duties in terms of the repairs.
  16. The agent responded on the same days and said:
    • Ms B contacted them on 30 March 2018 about a drip in the bathroom ceiling. The agent witnessed the drip and said this happened after heavy rainfall. She hired a roofing firm which attended on the next day and they found a loose tile on the pitched roof and fixed this the following week.
    • There was evidence of damp penetration on the internal partition wall and above the kitchen window. Surveyors advised them this was linked to the flat roof, not the pitched roof.
    • They obtained funding for replacing the flat roof and the works would start within two weeks.
  17. On 6 August 2018, the Council wrote to Ms B and said:
    • The roof works were starting very soon.
    • It was not appropriate to serve an enforcement notice retrospectively and, if it did, this was likely to be challenged by Mr C.
    • The Council had to diagnose the cause of the problem first before it could be remedied.
    • It would always try to engage with the landlord before taking any enforcement action. If that failed, then it would take formal action.
  18. The agent wrote to Ms B pm 7 August 2018 and said the roof repairs would start on 15 August 2018.
  19. Ms B emailed the Council on 10 August 2018 and said:
    • Her taps were too stiff and she had a disability in her hands and fingers which made it difficult to open or close the taps.
    • The Council should have put an enforcement order on the windows years ago.
    • The fire brigade said the back doors were a fire hazard and this had not been resolved.
    • She was being evicted for hiring a solicitor for trying to sort out the problems.

Visit on 10 August 2018

  1. Two Council officers visited Ms B’s flat on 10 August 2018. There had been heavy rain in the area and the officers felt this would be a good time to try and diagnose the problem. They said:
    • They observed a drip of water in the communal hallway. The location lined up with the edge of some fibreglass patches covering the roof.
    • There was water penetration in the arch between the hallway and the living room.
    • There was a small area of bulging in the kitchen ceiling and mould growth to the ceiling coving suggesting there was damp in the kitchen.
  2. The agent started the works on the roof on 14 August 2018. The Council wrote to Ms B on the following day and said it hoped that these works would solve the damp problem. It said Ms B should contact them again if, after the works, she still had water penetration.
  3. Ms B contacted the Council on 11 September 2018 as she was still being evicted. She blamed the Council for not serving a notice on her landlord.
  4. The Council sent its stage 3 reply to her complaint on 15 August 2018 and said:
    • The Council had been liaising with the agent and the roof works were underway. This should hopefully solve any leaks, but Ms B should contact the Council if it did not.
    • The Council’s Housing Options Team could help Ms B to find a new tenancy.

Visit on 13 September 2018

  1. The Council carried out another visit on 13 September 2018. The works to the roof had been completed and Ms B said that water penetration into the property had stopped. She was concerned with the thermal efficiency of the windows. Ms B did not allow the officer to open the window as she was worried about not being able to close it again. The officer said there was mould growth on the window reveals from condensation as there was no other ventilation in the flat. The officer said there were no grounds to serve a notice on Ms B’s landlord.
  2. The Council emailed Ms B on 4 October 2018 after the inspection. It said there were no category 1 hazards, only category 2 hazards. The Council spoke to the agent who agreed to carry out further works relating to the guttering and fascias which may be the cause of damp penetration.
  3. Ms B’s landlord was awarded a possession order on 9 October 2018.
  4. Ms B contacted the Council on 17 October 2018 and said there was still a leak in the kitchen ceiling even though the flat roof had been replaced. She said there were mice/rats/squirrels in the attic.

Visit on 22 October 2018

  1. The Council carried out a further visit on 22 October 2018. The officer said he did not witness any water leak, but could see stains from a historic leak. The officer agreed further works with the agent while the roofer was present. This included a stop end to the gutter, clean the gutters, fascias and so on. He said photos and damp readings were taken.
  2. Ms B moved out on 12 December 2018 to a different privately rented flat.

Analysis

  1. Ms B says the Council’s failure to take the appropriate action in relation to the disrepair in her flat meant that she was forced to hire a solicitor to do so. This then led to her eviction. She says the Council should have taken enforcement action a long time ago.
  2. I have considered whether the Council has acted in line with the legislation, guidance and its own policies.
  3. The Council acted quickly after Ms B contacted them on 15 August 2017. The officers attended within 3 days to carry out an inspection.
  4. Unfortunately, the record of this visit is poor and does not explain how the officer reached his conclusions or what the conclusion was and this is fault. Ms B complained about a roof leak and damp. The officer should have assessed the flat and calculated the hazards, in line with its policy. I cannot say how the officer assessed the damp or what the conclusion was in relation to the damp. The only comment the officer made related to the fire risk.
  5. The officer did not send a letter to the agent following the visit. He mentioned the roof in his email to the agent on 7 September 2017 which suggests the officer had some concerns about the roof. I presume he was pursuing this under the informal route, in line with the policy, but it is not clear. The officer’s next visit on 22 September 2017 related to the fire risks. The fire officer was going to pursue this, although there is no record of whether this happened.
  6. I note the agent acknowledged there was a problem with the roof in her letter to Ms B in October 2017.
  7. I find no evidence of any correspondence from the Council to the agent after October 2017 to chase progress with the damp and the roof which is further fault.
  8. Ms B contacted the Council again in April 2018 because of a leak through her ceiling and again in June 2018. There is no evidence the Council carried out a further visit which I would have expected.
  9. The landlord served Ms B with the eviction notice in July 2018 after her solicitor threatened the landlord with legal action for the disrepair.
  10. Ms B contacted the Council on 1 August 2018 because of water coming through the kitchen window recess. The Council visited on 10 August 2018. There were detailed notes of this visit, in contrast with the visit a year earlier. The officer identified clear issues with damp and water penetration in the communal hallway, the arch between the hallway and the living room and Ms B’s kitchen.
  11. The Council visited again in September and October 2018. There were detailed notes of these visits. The officer took photos and damp readings. The Council officer said there were no category 1 hazards, but there were category 2 hazards. The agent agreed a list of works to the guttering and fascias to remedy the problem.
  12. Therefore, I find no evidence of fault from August 2018. The Council officer carried out visits in line with the Council’s policy, carried out the assessments and provided detailed reasons of the assessments and explained why there was no category 1 hazard. I cannot question the merit of the Council’s decision if there is no fault in the way the decision was reached.
  13. I have considered the injustice Ms B has suffered by the Council’s fault. I cannot say, of course, whether there was a category 1 or 2 hazard in Ms B’s flat at the time of her complaint. That is a decision only the Council can make based on an assessment.
  14. I accept that it is the Council’s policy is to take informal action and work with the landlord in the first instance rather than take formal action. I also accept that, in this particular case, the landlord appeared to be cooperating and a lot of the delay in fixing the roof may have been caused by the unusual lease/freehold.
  15. Therefore, it is impossible to say if the landlord would have acted any sooner to fix the roof if the Council had been more proactive in chasing the matter between August 2017 and August 2018.
  16. Therefore, the injustice is the distress caused by the uncertainty that the problem could have been resolved earlier if the Council had taken more action. The Ombudsman normally pays between £100 and £300 for distress although it can recommend a higher payment in certain circumstances. I am of the view that a payment of £300 is a suitable remedy.

Agreed action

  1. The Council has agreed to take the following actions within one month of the final decision. It will:
    • Apologise to Ms B in writing.
    • Pay Ms B £300 to reflect the distress she suffered from the uncertainty.

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Final decision

  1. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Parts of the complaints that I did not investigate

  1. I have not investigated Ms B’s complaint that the problems have been ongoing for seven years. These complaints are well in excess of the Ombudsman’s usual time limit of 1 year. Ms B could have made a complaint at the time and it would be difficult to investigate a complaint about matters that happened so long ago.

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Investigator's decision on behalf of the Ombudsman

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