Summary: There was some fault in how the Council handled reports of disrepair in a private rental property, but this did not cause a significant injustice. There was also fault in how the Council handled a homelessness application, which caused a limited injustice. The Council has agreed to provide a remedy for this.

The complaint

1. The complainant, to whom I will refer as Mrs D, says the Council failed to respond appropriately to reports of serious disrepair in the property she was renting. She also complains about the Council’s handling of her homelessness application.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. 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)
3. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

4. I reviewed Mrs D’s correspondence with the Council and the Council’s notes and records.
5. I also sent a draft copy of this decision to each party for their comments.

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What I found

6. Mrs D lives with her husband and their daughter. They were renting a two-bedroom flat in the Council’s area from a private landlord.
7. On 1 March 2018, Mrs D says she made an online report of disrepair in the flat to the Council. She said there was a large amount of mould in one of the bedrooms which meant it was not fit for use.
8. On 23 April, Mrs D emailed the Council because she had not had a response. The next day, she made a second online report of disrepair.
9. On 17 May, the Council’s private housing service (PHS) served a section 239 notice on Mrs D’s landlady, requiring her to allow it to inspect the property.
10. On 23 June, Mrs D paid for an independent environmental health survey of the flat.
11. A PHS officer undertook its inspection on 29 June. On 3 July, the officer wrote to the landlady. She said there were several breaches of the conditions of her licence, which she was required to fix. This included repairs to the wall and ceiling of the mouldy bedroom to prevent leaking, which would necessitate the removal of a disused chimney.
12. The Council also required the landlady to take some steps to improve fire safety – including the removal of a door lock, the installation of a number of some alarms, and a notice displaying the fire evacuation route – and also to display her licence and gas safety certificate in a communal area.
13. The Council gave the landlady one calendar month to complete the repairs, except for the chimney removal and associated work, for which she had five months.
14. On 9 July, the landlady served a section 21 notice on Mrs D. On 19 July, the landlady provided the Council evidence she had complied with the list of compliance requirements, except for the chimney removal
15. On 24 July, Mrs D made a homelessness application to the Council.
16. On 31 July, the Council emailed Mrs D. It said it has assessed her application in line with the allocation policy, and decided she was adequately housed in a two-bedroom property. It said she would remain in Band D with no priority.
17. Mrs D responded on the same day. She explained the landlady had served a section 21 notice and that the Council had found category 1 hazards in the flat. She said the condition of the flat was making her and her family ill. Mrs D complained that the Council had only placed them in Band D, and that she had not had a response to her homelessness application.
18. The Council housing needs service (HNS) responded on 2 August. It said it would liaise with the PHS about its inspection of the flat, and gave Mrs D medical forms to complete.
19. The PHS officer who had inspected the flat replied on 7 August. She confirmed she had not identified any category 1 hazards. She had seen evidence the landlady had made previous efforts to address the leak in the bedroom, but this had not worked, and so her only option was to remove the chimney and carry out extensive works to the building. The flat needed to be vacant for this purpose.
20. The PHS officer also indicated that clutter in the flat, and the way the tenants were drying clothes, may also be responsible for some of the mould growth.
21. The HNS officer wrote to Mrs D on 8 August. He confirmed there was no category 1 hazard in the flat, which would require her to be urgently rehoused. The officer said the Council would assess her medical forms, to determine if the current accommodation was having a negative effect on the family’s health, and inform her of the outcome.
22. On 9 August, the Council decided that Mrs D had no medical need for an increase in priority banding under the allocation policy.
23. On 17 September, Mrs D’s homelessness caseworker contacted her. She confirmed no further notices had been served since the original section 21.
24. On 27 September, Mrs D received a letter from the landlady’s agent. It said the two-month notice period given by the section 21 notice had now expired, but the landlady would not seek to take possession of the flat until the new year, to give Mrs D the chance to find alternative accommodation.
25. On 9 October, Mrs D approached the Ombudsman. We advised her she needed to make a formal complaint to the Council before we could investigate. Mrs D then submitted separate complaints about the PHS and HNS to the Council on 10 October.
26. On 25 October, the PHS undertook a second inspection of the flat. It decided again there was no category 1 hazard.
27. On 26 October, the Council replied to Mrs D’s complaint about the PHS. It accepted Mrs D had made her original report on 1 March, but for some reason it had not received it, and apologised for this.
28. Mrs D had complained the Council had not informed her directly of the upcoming inspection of 29 June, but had discovered it when she opened a letter sent to the flat but addressed to the landlady. The Council confirmed it would not normally write to tenants to advise of inspection visits, as it would expect the landlord or landlady to inform them, but it would consider whether it should do so in future.
29. The Council confirmed it was appropriate for the inspection to be undertaken by a PHS compliance officer, not an environmental health officer. The PHS officer had found some improvements could be made to the flat, but these were not category 1 hazards.
30. The Council said that, during the second inspection the previous day, it had decided there was historic staining, but not ongoing damp, in the bedroom around the chimney. It accepted there was mould growth but considered this was because of condensation, and gave Mrs D advice on how to prevent this.
31. The Council responded to Mrs D’s complaint about the HNS on 6 November.
32. It confirmed there had been a lack of communication with Mrs D. The Council said it should have given information on how to prevent homelessness, Mrs D’s rights having been served with a section 21 notice, and its own duties to her. It also confirmed it had not issued a personal housing plan to Mrs D, which it was obliged to do once it had confirmed she was threatened with homelessness and eligible for assistance.
33. The Council said Mrs D now had a new caseworker, and believed this should help resolve her dissatisfaction with the service.
34. However, the Council said there had been no delay in dealing with Mrs D’s application. It said, upon the application, the Council had a prevention duty for 56 days, which expired on 18 September, or until the landlady issued possession order. The caseworker had contacted Mrs D on 17 September, and confirmed no further notices or possession order had been issued.
35. The Council said it had been informed the landlady did not intend to proceed to a possession hearing, and so Mrs D was no longer under threat of homelessness. The Council confirmed it would conclude its enquiries and make a decision, and that its decision letter would indicate how she could request a review.
36. Mrs D submitted stage two complaints about the PHS and HNS on 7 and 15 November respectively. The Council replied to both complaints together on 17 December.
37. Mrs D had questioned why it had taken from 24 April to 29 June for the Council to inspect the flat, and suggested this was to give the landlady time to prepare for the inspection. The Council refuted this allegation, but said it would usually encourage landlords and landladies to comply without enforcement action anyway.
38. Mrs D had complained the Council’s inspection had not been undertaken by an environmental health officer. The Council said it was for it to decide which type of officer was appropriate to undertake an inspection.
39. Mrs D had also complained the second inspection of the flat, on 25 October, was inadequate because the officer had not used a damp meter. The Council said it was satisfied the officer’s visual inspection was sufficient to conclude whether there was a category 1 or 2 hazard in the flat. The Council confirmed it had considered the independent surveyor’s report of his visit on 23 June, but this had not changed its overall assessment, in part because it had visited twice since then and the landlady had carried out work to the flat.
40. The Council again accepted that errors which had been made in handling Mrs D’s homelessness application. It said no notes had been kept of her original approach on 24 July, and it would ensure the HNS raised both issues with the caseworker.
41. Mrs D had also complained that HNS had failed to account for the disrepair issues in its consideration of her application. The Council confirmed the new caseworker would consider these issues in his decision.
42. The Council apologised again for its errors in Mrs D’s case. It said it had now resolved the technical issue which had prevented the PHS from receiving her initial report of 1 March. It also said it would review whether it should send copies of section 239 notices, and inspection reports, direct to tenants in future.
43. The Council also noted that Mrs D had not been informed of the outcome of the medical assessment. It confirmed its decision was that Band D was correct for them, but said it would consider any new evidence Mrs D could provide if their medical situation were to change.
44. On 20 December, Mrs D referred her complaint to the Ombudsman, at which point we accepted it.
45. The Council made a decision on Mrs D’s homelessness application on 8 January. It accepted a Relief duty for her, and said it would provide interim accommodation.
46. Mrs D has since confirmed she turned down the Council’s offer of interim accommodation, and has moved to a different privately rented property.

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Legislative background

47. As a local housing authority, the Council may send an authorised officer to inspect residential premises at any reasonable time to assess whether there are any Category 1 or Category 2 hazards in a property. The authorised officer must notify the owner, the occupier and any person with a legal interest in the property of the inspection. The officer has a legal right to enter premises for the purposes of an inspection and does not require the owner’s consent.
48. A council must review the condition of housing in its area to identify any action it needs to take. If a council receives an official complaint about the condition of any residential property, or for any other reason considers there might be a category one or category two hazard, it must inspect the property.
49. A council has a duty to take enforcement action where it finds a category one hazard exists. It has discretionary powers to act where a category two hazard exists. One action a council can take is serving an improvement notice. A council can make a reasonable charge for serving an improvement notice.

Homelessness

50. If councils are satisfied applicants are threatened with homelessness and eligible for assistance, they must help them to secure that accommodation does not stop being available for their occupation. In deciding what steps they are to take, councils must have regard to their assessments of the applicants’ case. This is called the Prevention duty. (Housing Act 1996, section 195)
51. Councils must take reasonable steps to secure accommodation for any eligible homeless person. This is called the Relief duty. The council is required to take reasonable steps to help the applicant secure suitable accommodation with a reasonable prospect that it will be available for their occupation for at least six months. The reasonable steps to be taken by both the council and the applicant to help secure accommodation must include those set out in the personal housing plan (PHP), which should be reviewed once the Relief duty is accepted. 
52. When a council decides the Relief duty has come to an end, it must notify the applicant in writing. (Housing Act 1996, section 189B)
53. A council may decide the Relief duty has come to an end when it has complied with the Relief duty and 56 days have passed since the duty was accepted.
54. Assessments and PHPs must be kept under review throughout the Prevention and Relief stages, and any amendments notified to the applicant.
55. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need the council has a duty to secure that accommodation is available for their occupation (unless it refers the application to another housing authority under section 198). This is called the main housing duty. But councils will not owe the main housing duty to applicants who have turned down a suitable final accommodation offer or a Housing Act Part 6 offer made during the Relief stage, or if a council has given them notice under section 193B(2) due to their deliberate and unreasonable refusal to co-operate. (Housing Act 1996, section 193 and Homelessness Code of Guidance 15.39)

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Analysis

56. There are two elements to Mrs D’s complaint – the Council’s handling of her reports of disrepair, and of her homelessness application. Although linked, they are distinct matters administered by different parts of the Council. For this reason, I will address each element separately.

Private housing disrepair

57. Mrs D says she first reported the disrepair in the flat on 1 March, using the Council’s online reporting tool.
58. The Council says it did not receive this form. It does note, however, dispute that Mrs D sent it, and so this appears to have been because of a technical fault in the system. The Council has apologised, and says its technical service has now identified and fixed the problem.
59. This is unfortunate, and meant there was a delay of approximately seven weeks before the Council registered Mrs D’s concerns about the flat. However, I do not consider this represents a significant fault, or that the delay was a significant injustice, and so I am satisfied the apology and technical fix are sufficient remedy.
60. The Council registered Mrs D’s report, on the second attempt, on 24 April. On 17 May, the Council served a s239 notice on the landlady, requiring her to allow an inspection of the property.
61. Mrs D complains the Council did not inform her directly of its intention to inspect the property. The Council says it has not been its normal practice to write direct to a tenant in these circumstances, as it would expect the landlord or landlady to inform them of the inspection. It says, however, it is considering whether the change its practice on this basis.
62. The Housing Act 2004 says, when using its powers under section 239 to enter and inspect a property, an authority must give at least 24 hours’ notice to both the owner (if known) and the occupier (if there is one). This does not mean the authority could not ask, for example, a landlord or -lady to inform the occupiers, but I do not consider it appropriate to simply assume this will happen. This is especially so when, as in this case, it was the occupier who made the report to the Council in the first place.
63. It is clear Mrs D was aware of the inspection in advance anyway, and so I again do not consider this to be a significant injustice to her. However, I am concerned the Council believes it has discretion in this matter, when the 2004 Act makes clear it does not. So rather than simply reviewing its processes, it should ensure that it makes reasonable effort to contact occupiers before an inspection in future. I make a recommendation to this effect.
64. After serving the s239 notice, the Council arranged a date to visit the property. It has not specified what date this was, but says it postponed it to 29 June at the landlady’s request.
65. I do have concerns about the delay in undertaking the inspection. Although I accept the Council’s explanation for why it did not receive Mrs D’s initial report, the fact remains she had been waiting since 1 March for the Council to inspect the property. And even working from the date of her second report, Mrs D still had to wait more than two months for the inspection.
66. In isolation, I would not criticise the Council for offering a degree of flexibility in arranging inspections. It is generally better for the Council and landlords or -ladies to have a co-operative relationship. I also do not know what reason the landlady gave for postponing here, so I cannot make any judgement about it myself.
67. But I find it difficult to escape the conclusion the Council should have acted more quickly here, perhaps by being firmer with the landlady about the date of its inspection. The Council has the power to enter properties to inspect them, with or without the owner’s consent. And so, while I do not consider it bad practice to gain their co-operation, this should not be at the expense of unreasonably delaying an inspection. It is important to remember, at that point, the Council was unaware of what it would find in the property, and what, if any, hazard it represented to Mrs D and her family.
68. There is, as I understand it, no set timescale for when a council should inspect a property after receiving a disrepair report. I cannot, therefore, make a formal finding of fault in this respect. However, there is reason to see this as a shortcoming, and I would ask the Council to reflect on this.
69. Having completed its inspection, the Council gave a list of required works to the landlady. It asked her to complete all but one – the removal of the chimney and associated work – within one month. The landlady complied with this and gave the Council evidence. The Council decided, however, there was no category 1 hazard in the flat, a position it maintained after the second inspection.
70. The Ombudsman’s role is to review authorities’ adherence to procedure when making a decision. If the authority in question has followed the correct procedure, taken all relevant evidence into account, and given logical reasons for its decision, the Ombudsman will not generally be able to criticise. It is not for the Ombudsman to replace an authority’s decision with his own.
71. In this case, I cannot see any reason to criticise the outcome of the Council’s inspection. It established that some work was necessary, but did not consider these to be category 1 hazards. It was then satisfied with the landlady’s compliance. These were decisions it was entitled to take.
72. Mrs D says the Council established there was a fire hazard in the flat. However, I consider this is a misreading of the outcome of its inspection. The Council required the landlady to take some fire safety measures, such as installing new alarms and removing a lock from the door, which she did. This did not mean, however, there was a greater risk of fire breaking out than in any other similar property.
73. I note Mrs D arranged for a private survey of the property on 23 June. The private surveyor highlighted some points which the Council also raised during its own inspection, but also disagreed with the Council’s assessment to some degree. In particular, he believed there was still moisture in the walls near the chimney, while the Council decided this was an ‘historic’ issue only.
74. But I do not consider the private surveyor’s report changes anything. First, as the Council has pointed out, it occurred before either of its own inspections. Second, the Council gave the landlady a list of requirements to bring the property up to standard, which resolved many of the problems the surveyor had noted.
75. And while the Council disagrees with the surveyor’s view about the moisture in the wall, the fact remains the landlady was preparing to undertake extensive works to fix this problem once and for all. So I cannot see what difference this disagreement could, ultimately, have made to the outcome.
76. Mrs D has complained the Council did not give her a copy of its inspection report. I understand she has since received a copy, having made a Subject Access Request to the Council.
77. I do not consider the Council was under any obligation to automatically provide her with a copy of this document. It was not, strictly speaking, a ‘report’, but a list of remedial works with a target date for completion.
78. There is no obvious reason why this document could not be shared with Mrs D, a fact which is borne out by its eventual disclosure to her. But I do not find fault it did not do so as a matter of course, after the inspection.
79. In summary, there was fault by the Council for the failure to register Mrs D’s initial report, but I am satisfied with its response to this. It was also fault the Council did not inform Mrs D of the inspection date, and it should ensure it does so in future. I do not consider either issue caused Mrs D an injustice.
80. I am concerned about the delay before the Council inspected the property. I have not made a formal finding of fault on this, but the Council should reflect on this point. I do not find fault in the outcome of its inspection.

Homelessness

81. Mrs D’s landlady served a s21 notice on her on 9 July, after the Council had issued its list of works. This, it appears, was because the flat needed to be vacant for the work on the chimney. On 24 July, Mrs D approached the Council to report she was threatened with homelessness.
82. Mrs D says she attended the Council’s office and provided a range of documents, including information about the disrepair. She says the officer to whom she spoke said the Council could not help her, that she needed to seek accommodation privately, and that she needed to use the Council’s housing register system if she wished to secure social housing. She also says the officer said she would book a follow-up appointment in two weeks’ time, but did not.
83. Mrs D says she then sent a letter of complaint on 30 July to the Council, but says she never received a response to this. However, I can see the Council responded, on 31 July, to an online ‘change of circumstances’ form she had completed in connection with her housing application. The Council said Mrs D was adequately housed, and her housing band – Band D – would not change.
84. Mrs D questioned this decision. She said the Council had assessed the flat as having category 1 hazards, including risk of fire, and that she could not use one bedroom because of the disrepair. She said she and the family had been suffering health problems because of the condition of the flat and were threatened with homelessness.
85. The Council responded by making enquiries with the PHS, which established there was no category 1 hazard in the flat. It also provided Mrs D with medical forms to complete.
86. I am confused about this. It all seems to relate to the Council’s housing register. Mrs D says she has been on the register since 2012, with the aim of eventually securing social housing.
87. In itself, I do not question that the Council decided not to change Mrs D’s priority on the housing register. It is clear the PHS had not identified any category 1 hazards in the flat, nor any fire risk, and so there was no urgent need for her to be rehoused on that basis. The Council also agreed to assess her medical situation, and decided this should also not make a difference to her housing priority.
88. But Mrs D’s approach to the Council on 24 July was about imminent homelessness, not her place on the housing register. Homelessness is a different matter, with its own procedures and legislation.
89. I cannot conclude, on the evidence, why this happened. The Council has confirmed its caseworker did not keep any notes of the initial appointment on 24 July. This is fault, in itself, but unfortunately it means I cannot make any kind of judgement on the advice she was given on this date.
90. The Council has confirmed that, not only were no notes kept of the appointment of 24 July, it also offered Mrs D no advice on her situation, its own duties, nor provided her with a personal housing plan. In fact, it does not appear the Council did anything about her homelessness application until 17 September.
91. At this point, the caseworker contacted Mrs D to enquire whether there had been any developments with the flat. Mrs D confirmed the landlady had not yet begun to pursue a possession order. The Council then continued to make enquiries pending a decision on Mrs D’s application, which it eventually made on 8 January 2019. The Council accepted a Relief duty and said it would provide interim accommodation to Mrs D while trying to find suitable accommodation for her.
92. I have not investigated the Council’s decision on the application itself. The Ombudsman can only investigate matters which have been addressed by the Council under its complaint procedure, and as its decision came after the final response to Mrs D’s complaint, it cannot form part of my investigation.
93. Further to this, Mrs D had the right to request a review on the decision, which I understand she has done.
94. In either case, the Council has accepted there was fault in how it handled the homelessness application.
95. I cannot overlook the fact that, ultimately, there were no substantive consequences to this. Mrs D and her family were accommodated throughout, and although some work needed to be done to the original flat, it was not uninhabitable or unsafe. So I cannot find she has suffered a significant injustice in this respect.
96. However, I do consider Mrs D has been put to time and trouble pursuing this through the complaints process, which would have been unnecessary had the Council handled it properly. I consider the Council should offer a financial remedy to reflect this.
97. I note the Council says it has spoken to the caseworker who made the errors. There is no mechanism by which I can judge the effectiveness of this, nor can I say there is evidence of any wider problems at the Council in administering homelessness applications.
98. But I consider it would be beneficial for the Council to highlight the errors in this case to all relevant staff, to help avoid similar errors in future.

Agreed action

99. Within one month of the date of my final decision, the Council has agreed to:

• offer to pay Mrs D £150, to recognise her unnecessary time and trouble pursuing her complaint about her homelessness application;
• circulate a copy of my decision, and its own final response to Mrs D’s complaint, with all relevant staff in its housing needs service, to highlight the errors made in this case; and
• remind all relevant staff in the private housing service of their duty to make reasonable efforts to notify occupiers of properties they intend to inspect, giving at least 24 hours’ notice.

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Final decision

100. I have completed my investigation with a finding of fault causing injustice.

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Investigator's decision on behalf of the Ombudsman