Summary: Mr F complains the Council has not done enough to support him with problems of disrepair in a flat he rents from a housing association. We find the Council at fault for how it responded to Mr F’s contacts. This has caused him injustice as distress. The Council has agreed action to remedy Mr F’s injustice that we consider provides a fair outcome to the complaint.

The complaint

1. I have called the complainant ‘Mr F’. Since February 2016 Mr F has lived in a flat rented via a Housing Association (it is a privately owned leasehold property). Mr F complains the Council has failed to help him resolve problems of disrepair.
2. Mr F says this has a negative impact on his physical and mental health.

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The Ombudsman’s role and powers

3. 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)
4. 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

5. Before issuing this decision statement I considered:

• Mr F’s written complaint to the Ombudsman and supporting information he provided, including multiple photographs.
• Information provided by the Council in reply to written enquiries.
• Relevant law and guidance as referred to in the text below.
• Comments and further information provided by Mr F and the Council in response to a draft decision statement where I set out my thinking about the complaint. I made changes to the wording of the final statement after taking account of these.

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What I found

Background to the complaint

6. Mr F moved to his current flat in February 2016. The flat occupies the ground floor of a two-storey terraced house. Mr F has an assured shorthold tenancy agreement with a housing association for its rental. I understand however, the housing association is not the leasehold owner of the flat. A different leaseholder owns the flat above. A separate freeholder owns the building.
7. Mr F says he moved into the flat under a bond scheme. He provides evidence showing that in 2015 he was homeless. He has provided a letter from the independent Housing Ombudsman Services (HOS) which said the housing association describes his flat as “leased from a private owner to be used as temporary accommodation for homeless applicants”. However, the Council disputes this. It says it does not use the flat for temporary accommodation. It says it has no record of how Mr F gained his tenancy. It has no record of Mr F approaching it for advice before November 2016, after he moved into the flat.
8. The Council’s record of the advice it gave Mr F in November 2016 concerned his housing benefit entitlement. That record described Mr F as gaining his tenancy as part of a ‘move on bond scheme’.
9. The Council next has a record of contact from Mr F in January 2018. He contacted its Private Housing and Environmental Health service to say his flat had not been “fit for human habitation” since letting. He said it had “a number of significant outstanding repairs”. He said it had a “health and safety issue” and he wanted the Council to inspect this. Mr F has provided me with copies of emails indicating the flat had many disrepair issues going back to 2016, soon after he rented it. Those emails were mainly with the housing association, not the Council. Mr F alerted me to separate contact he had with the Council’s revenues service in 2016 where he mentioned disrepair, but these were not directly to pursue repairs.
10. In response to his January 2018 contact, the Council asked Mr F in an email if he had tried to resolve the disrepair issue with his landlord. He said he had, but to no effect. The Council advised Mr F to therefore contact the HOS which investigates some complaints about disrepair in properties let from registered housing associations. I have seen no record the Council asked Mr F about the detail of the disrepair in his flat he alleged. Nor have I seen any record that Mr F gave that information to the Council.
11. Mr F then got back in touch with the Council’s Private Housing and Environmental Health service again in April 2018. This time it recorded him raising a specific disrepair issue, saying a waste pipe from the upstairs flat leaked waste on to the ground outside his flat. The Council inspected the next day. Its Environmental Health Officer found evidence the pipe leaked as described because of a missing cap. Their emails refer to human excrement found underneath the leak.
12. The Council went on to serve an enforcement notice on the freeholder of the property requiring them to repair the pipe. Over the next two months the Council contacted the housing association and freeholder to check the progress of repairs. It also contacted Mr F to check. At the end of May 2018, the Council closed the case understanding from the freeholder and housing association the repair had completed. This also followed Mr F not replying to emails asking him to confirm this.
13. Throughout these two months I saw no mention of Mr F referring to any other disrepair affecting his flat. However, in an email exchange sent at the end of April 2018 between the Council and the housing association there is reference to Mr F’s flat needing “other internal works”. There is no description of what these works were.
14. Mr F got back in touch with the Council again in a letter sent early June 2018, saying the disrepair issue remained outstanding. In August 2018, the Council got back in touch with the housing association and asked again about progress of repairs. Now the housing association implied work on Mr F’s property would not complete until September 2018. In its reply, they referred to ‘repairs’ in the plural and that Mr F had engaged solicitors. In November 2018, the housing association advised the Council it had attended a visit at Mr F’s property with its surveyor and a surveyor instructed by Mr F’s solicitors. It said, “all the works were completed”. Although a later email sent at the beginning of January 2019 said the surveyor acting for Mr F “reported several issues should be addressed which are structural and not part of the disrepair claim”. The housing association suggested they had no responsibility to fix these, as their agreement with the leaseholder does not cover structural repairs. So, it was the responsibility of the leaseholder or freeholder to ensure such repairs completed.
15. Around a week later the Council closed the case a second time. It said, “all issues of original disrepair dealt with”. It noted the outstanding structural repairs but implied it did not need to keep the case open. This was because Mr F had solicitors acting for him, his property was let via a housing association and there were no ‘category 1’ hazards (for explanation see below).
16. By this time Mr F had progressed his complaint about disrepair to HOS. It said it could not investigate, because it understood the housing association provided Mr F’s housing for the Council as temporary accommodation. As part of my investigation I have contacted Mr F’s landlord seeking clarification of the advice it gave HOS. It did not co-operate with my enquiries. While the HOS said it did not receive any documentation from the housing association confirming what it said to it.
17. When we made first enquiries of the Council about Mr F’s case it told us that in July 2018 he had also approached it for advice about a ‘section 21 notice’. This is a legal notice served by a landlord as the first stage when seeking repossession. The Council said it invited Mr F to provide more details by completing an online homelessness form, but he did not do so. Later, when I asked the Council for more details of this contact it said it had no record of Mr F’s contacting it in July 2018.
18. Mr F has since given me a record indicating he uploaded a copy of the Section 21 notice as part of an application to join the Council’s housing register in early August 2018. The housing register is a list of all households in the Borough who want or need re-housing and are eligible for consideration for re-housing by the Council. The Council will then prioritise applicants on the register in line with its housing allocation policy. Mr F also confirmed this month he is not facing any imminent threat of eviction from his flat. Although he has not said if the housing association has withdrawn the Section 21 notice.
19. During my investigation Mr F has provided me with multiple photographs of his flat. He appears from the attached emails to have taken these in July and August 2018. Among the matters they show are a sagging ceiling in his bathroom and evidence of past water damage. There is black mould in the bathroom and possible water damage from above. There are also multiple cracked and missing tiles and damage to the sink unit. A light fitting hangs loose with exposed wires, while another light fitting in the kitchen has cracks to the plastic casing. There are photos of removed floor coverings showing possible damp stains underneath. There are cracks to various skirtings, door fittings and a window sill. There are gaps where floorboards have been replaced or damaged. Door frames and window frames appear rotten in places.
20. After I issued my draft decision in June 2019, the Council agreed to inspect Mr F’s flat. It did so earlier this month. It has identified a further ‘Category 1’ hazard and three ‘Category 2’ hazards (explanation below). It has served a notice to the leaseholder to repair these. Mr F contests the extent of the defects identified and has been in further correspondence with the Council about this.

My findings

21. I have begun my investigation by considering the details of Mr F’s tenancy. On balance, it would appear this is not temporary accommodation provided by the Council on the understanding Mr F is homeless. The best evidence for this is that Mr F describes securing the property on a bond scheme, something repeated in the note of his contact with the Council in November 2016. A bond scheme usually involves a third party giving a landlord a rent deposit to help secure a tenancy. So, this suggests Mr F received help either via the Council or the housing association to obtain his tenancy and thereby prevent his homelessness.
22. No evidence has emerged during my investigation for a contrary view. The Council cannot prove a negative; i.e. that this is not a property let as temporary accommodation. So, I accept its comments on this matter in good faith. While the housing association failed to give me information about his tenancy despite having ample time to do so.
23. In which case I have gone on to consider next what the Council’s duties are if approached by a tenant of a housing association who alleges disrepair in their property. The Council has the same duty to investigate such reports as if approached by a private tenant. It has powers to enforce against landlords where it identifies a hazard which puts the health and safety of the tenant at risk. These powers involve use of the Housing Health and Safety Rating System (HHSRS).
24. In practice, the arrangements between councils and housing associations may differ from those between councils and many private landlords. Housing associations provide social housing and will co-operate with councils on matters such as allocating housing to meet needs. Relations maybe closer therefore and government guidance on HHSRS specifically states that “informal working with [housing associations] is seen as preferable to resorting to formal enforcement measures”. But that does not change the Council’s fundamental legal duty to address serious disrepair if alerted to it.
25. The HHSRS applies a risk based approach to different hazards associated with poor quality housing. It includes consideration of matters such as damp and mould, personal hygiene sanitation and drainage, electrical hazards and structural safety. A qualified Environmental Health officer should inspect the premises and rate any identified hazard as category 1 or 2. Category 1 hazards are the most serious. Councils have legal powers to require landlords or property owners take immediate action to remedy these. Category 2 hazards may also require action by landlords, but councils can reasonably allow longer for their remedy.
26. Government guidance says that if a council receives a complaint about housing conditions it can reasonably prioritise inspections. But “it is good practice to carry out as full an inspection of the premises as possible” and that it “must” arrange an inspection if alerted to potential category 1 or category 2 hazards.
27. When I apply this guidance to the facts of this case, I consider the Council was at fault for how it responded to Mr F’s contact in January 2018. Mr F suggested his home was unfit for human habitation and posed a health and safety hazard. He did not explain why this was. I accept therefore Mr F’s contact did not put the Council on notice that it must inspect. But it should have roused the Council’s curiosity. I do not consider it acceptable the Council simply encouraged Mr F to take up his complaint with the housing association and HOS. It should have asked Mr F about the nature of the disrepair which caused him to make such a contact. Had it done so then it may have realised the need to act before Mr F contacted it again in April 2018. Although I accept it is unclear whether Mr F’s contacts in January concerned the waste pipe or other disrepair. It is further unclear if any other disrepair was a category1 or category 2 hazard which the Council might prevent.
28. I am satisfied that when Mr F raised the specific problem of the waste pipe in April 2018 the Council responded suitably. The case records show its officers worked to understand the complex relationship between housing association, flat leaseholders and the freeholder. They served notice on the freeholder to repair the waste pipe and made suitable enquiries to check the repair took place, including with Mr F. I consider the Council could reasonably decide at the end of May 2018 the waste pipe repair had completed.
29. However, I consider there was further fault when Mr F belatedly contacted the Council again to say the repair had not completed. First, it appears to have taken the Council nearly two months to check again the status of the repairs. This was too long given the seriousness of the hazard identified in April. But second, there was again no enquiries made about other disrepair reported by Mr F which the Council learnt in September 2018 had led him to instruct solicitors.
30. The Council notes show it knew by this time Mr F’s concerns went beyond the waste pipe issue. But there is no evidence to show the Council considered the nature and extent of any other disrepair alleged by Mr F. I consider the Council at fault therefore for deciding to close Mr F’s case in January 2019. Because I find there is no evidence for the statement that at this point Mr F faced no category 1 hazards. This in turn because there is no evidence the Council made the enquiries that could have led it to find that as fact.
31. The injustice caused to Mr F by the faults identified in paragraphs 27 and 30 is that of uncertainty, which we regard as a form of distress. Because of the Council’s lack of curiosity or enquiry into the nature and extent of disrepair I cannot say if it could or should have done more to support Mr F. For example, whether it could have noted the disrepair to the waste pipe sooner. Or whether it would regard some of the defects in Mr F’s photographs as being potential category 1 or category 2 hazards.
32. I find that uncertainty lasted until June 2019. Then in July 2019 the Council inspected Mr F’s flat and decided it has one Category 1 hazard and three Category 2 hazards. This resolves the uncertainty from July 2019. But I will not take a view on whether the Council should provide further remedy. This is because I consider that would have to be the subject of further investigation taking account of:

• The nature and extent of the hazards and to what extent these may have been present had an inspection been undertaken sooner.
• Mr F’s concerns the most recent inspection has failed to identify further hazards.
• What action may follow the inspection in terms of communications the Council will have with both Mr F and the leaseholder or housing association.

33. The Council has agreed action to remedy the injustice identified in paragraph 31. In deciding what is fair to remedy this complaint, I have also taken account that Mr F could have done more to alert the Council to the specific disrepair in his flat. His email communications with the Council were generally short on detail and as I noted, he did not respond to communications sent to him by the Council in May 2018. He has also not provided us with any detail of the impact of disrepair on his health. Nor, whether the actions taken by his solicitor led to improvements.
34. Both Mr F and the Council should also note my findings would not be fundamentally different had my investigation found Mr F living in temporary accommodation. Because Government guidance on such accommodation makes clear it should, as a minimum, be free of category 1 hazards. So, I would have again expected the Council find out the nature and extent of any reported disrepair and make a properly reasoned decision on whether or how it should act in response.
35. Finally, I have noted the contradictory statements I have received from the Council about whether Mr F contacted it in July 2018 having received a ‘section 21’ notice. I am satisfied Mr F did contact the Council. But did so by attempting to join its housing register and not by completing a homeless application. While I understand Mr F does not currently anticipate eviction, I consider there may still be a need for the Council to advise Mr F on his housing position if the Section 21 notice has not been withdrawn. The Council has sought to assure us it can give advice to Mr F and signposted accordingly. I do not consider I need conduct further investigation or enquiry into this matter therefore as I could not add to that.

Agreed action

36. In paragraph 31 I identified injustice caused to Mr F because of fault by the Council. The Council has agreed that within 20 working days of this decision it will undertake the following to remedy that injustice. It will:
1. Apologise to Mr F accepting the findings of this investigation.
2. Pay Mr F £150 in recognition of his distress.
3. Review its existing policies and procedures for responding to reports of disrepair from housing association tenants to ensure that it takes proper steps to investigate the nature and extent of any disrepair caused.
37. I also understand the Council will continue with its investigation into disrepair and defects in Mr F’s home. If, at the end of that investigation, matters remain unresolved to Mr F’s satisfaction he will be able to make a fresh complaint to the Council about the matters summarised in paragraph 32. This would also give Mr F the right to make a further complaint to this office.

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Final decision

38. For reasons explained above I have upheld Mr F’s complaint finding fault by the Council causing him an injustice. I have completed my investigation as I am satisfied the Council has agreed action that will provide for a fair remedy for Mr F’s injustice.

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Investigator's decision on behalf of the Ombudsman