The Ombudsman's final decision:
Summary: The Ombudsman found no corroborating evidence to make a finding of fault on Mr B’s complaint about the Council misleading him about refunding the £600 fee he paid when it issued an improvement notice for various works needed to a property he owns. The only evidence is the word of Mr B and that of the officer. It was not fault for the officer to issue the notice. This is because of the severity of the hazards found, Mr B’s attempts to negotiate about heaters, and the tenant family’s vulnerability.
- Mr B complains an officer misled him by saying if he carried out works set out in an improvement notice, the Council would refund the £600 charge: as a result, he did not appeal the notice, carried out the works, but still had to pay the charge.
The Ombudsman’s role and powers
- 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)
- 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)
Housing Health and Safety Rating System (Enforcement Guidance)
- The Housing Health and Safety Rating System (HHSRS) is a risk based evaluation tool which helps councils identify and protect against possible risks and hazards to health and safety from deficiencies found in dwellings. It was introduced by the Housing Act 2004. Hazards that are a serious and immediate risk to a person’s health and safety are category 1, and those less serious or urgent are category 2.
- This guidance helps councils decide what is the appropriate enforcement action to take under section 5 of the Housing Act 2004. (paragraph 1.1)
- Councils must consider the housing conditions in their district with a view to deciding what action to take. (paragraph 2.1)
- It can decide whether to take formal or inform action. It inspects properties to see if there are category 1 or 2 hazards. (paragraph 3.2)
- It should provide a statement of reasons for its decision which it sends with notices. (paragraph 4.7) When deciding what action to take, it also needs to take account of the current occupant. (paragraph 4.9) The severest risks from the hazards identified are likely to trigger enforcement action to avoid exposure to unacceptable levels of risk. (paragraph 4.10) For category 1 hazards, an improvement notice is appropriate to mitigate a hazard where works are practicable and the occupants are vulnerable. (paragraph 4.12)
Council Enforcement Policy (Private Sector Housing Team)
- All staff in the private sector housing team who take enforcement decisions need to follow the expectations of the policy (paragraph 3)
- Regulatory activity should be done in a way that is transparent, accountable, proportionate, and consistent. They are targeted only at cases where action is needed. (paragraph 4)
- Enforcement action needs to be proportionate to any risks to health and safety and the welfare of the residents, guests, and visitors or to the seriousness of any breach. Risk involves the source of possible harm, its severity, and the likelihood of it occurring. (paragraph 4).
- The enforcement options are (paragraph 5):
- Informal: Verbal advice; advisory/warning letter; consultation before formal action seeking views on the scale/type of works required before service of formal notice (a discretionary option where category 1 hazards are found);
- Formal (low level): Legal or formal notice or order (includes improvement notice); penalty application; caution;
- Formal (high level): prohibition order; prosecution; works in default; and
- Formal (highest level): compulsory purchase; interim/final management orders.
How I considered this complaint
- I considered all the information Mr B sent, including the comments the Council sent in response to my enquiries, a copy of which I sent him. I sent a copy of my draft decision to Mr B and the Council.
What I found
- Mr B is the landlord of a property which he rented to the Council. The Council served him with an improvement notice (the notice) which required him to carry out action within a set period to remove or reduce hazards found in the property. He claimed an officer agreed to refund the notice charge of £600 upon completion of the works. When they were completed, the officer refused to make the refund. He also complained about the need for the notice in the first place as he was arranging and carrying out the repairs.
- The Council found evidence of three category 1 hazards in the property (Excess Cold, Fire, and Entry by Intruders) and three category 2 hazards (Damp/Mould Growth, Domestic Hygiene/Pests/Refuse, and Electrical Hazard).
- The following are relevant dates:
- 26 February 2018: The Council sent a consultation notice to Mr B to do urgent works. The covering letter said an officer visited the property and found hazards under the HHSRS. It warned it would take statutory enforcement action, set out the works needed, and the timeframe within which he must do them. If it received no representations from him within 21 days, it was likely the Council would serve a statutory notice which is also served with a £600 charge. Mr B sent a document about the electrical installation the same day.
- 7 March: Mr B emailed the officer wanting to discuss the works.
- 12 March: The officer responded saying he had not sent the required certificate for the electrics. She noted he accepted all works apart from the replacement of the heaters which were required as the current ones were inadequate. She told him she could continue with the Council’s enforcement procedure.
- 18 March: Mr B emailed the officer saying he would follow the guidelines about heating and will arrange the works. He said he hoped to complete the works within 45 days.
- 19 March: The officer sent him an email saying she needed a time frame for works set out in the schedule. She wanted an update by 2 April.
- 20 March: He sent the officer another email showing the time frame for the works.
- 22 March: Mr B’s electrician emailed the officer asking if it was possible to install a different type of heater than the one specified. The officer replied saying they had to be the kind set out in the schedule sent.
- 29 March: A file note stated Mr B wanted to comply on an informal basis and noted receiving a call the day before from the electrician arguing about different panel heaters. The officer said the works were not for negotiation.
- 4 April: The officer emailed Mr B saying any delays with the works could lead to further action.
- 12 April: The officer served him with a notice because of several category 1 hazards outstanding. Although Mr B claimed to have called the officer the same day, there is no evidence showing this. The Council confirmed it has no recording of any call. Mr B claimed it was because of what the officer said during this call that he did not appeal the notice. He claimed the officer said she would refund the £600 when he carried out the works.
- 16 April: Mr B called the officer about the notice.
- 17 April: Mr B emailed the officer saying he agreed with all the works and had provided completion dates. He would now have to appeal unless she agreed to withdraw it. He had bought the required heaters. The officer replied stating he had information about the appeal process if he wished to pursue it.
- 29 April: He emailed the officer confirming the completion of most of the works apart from roof insulation.
- 22 May: The officer asked for an update on the outstanding works by 29 May. He contacted her the following day to confirm works were complete.
- 12 June: The officer decided the works were completed and satisfactory after receiving documents from Mr B and inspecting the property.
- When Mr B later began to complain about not getting a refund, the Council told him the officer, during one telephone call, referred to the ‘land charge, which is placed on a property but removed once the works required by the notice are done. There is nothing in the records showing this was discussed in a telephone call. Mr B disputed this saying this was not discussed. He also noted the officer failed to address his point about their conversation in her responses.
- In response to my enquiries, the officer stated she does not recall telling Mr B that she would refund the charge. She recalled a telephone conversation with him which he referred to, but said she had to end it when it became heated.
- There is nothing in the evidence showing a conversation between Mr B and this officer where she agreed to refund him the £600 charge. I note there was no mention of this agreement in Mr B’s emails until after the Council closed the case. I also note the officer did not address his claim directly in her responses.
- I am not satisfied there is evidence to support a finding of fault against the Council. The officer does not recall telling Mr B about any refund and there are no records referring to any agreement. In these circumstances, I consider it unlikely that any further investigation of this complaint is justified. This is because this is a situation of Mr B’s word against that of the officer.
- The officer explained why, despite efforts by Mr B to carry out the works, she abandoned informal action and took formal action by issuing the notice. In response to my enquiries, she explained the reasons for this were:
- The property had three category 1 hazards which were still present;
- The tenant had children in a vulnerable age group living there in inadequate living conditions;
- Informal arrangements could have left the Council with no control over the works;
- English was not the tenant’s first language: and
- Mr B disputed the need to replace the electric heaters and his electrician emailed to ask if an alternative heater would be suitable.
- In addition, the Council explained there was a risk of reduced standards of works through informal handling which would leave it unable to enforce.
- The statement of reasons sent with the notice said the hazards identified were significant and posed a serious risk to occupiers and visitors. It explained why other options were not considered appropriate.
- While I acknowledge Mr B’s attempts to arrange and carry out the works, I am not satisfied it was fault for the officer to issue the notice. I reached this conclusion for the following reasons:
- I note the officer sent a warning to Mr B in February about the Council proposing to take formal action about necessary works to the property. I also note informal action lasted from February to April;
- During the early part of this period, temperatures in London regularly fell below freezing the week following service of the notice. On one occasion, it was as low as -6 degrees during the night and reached only 2 degrees during the day. In addition, on 27 and 28 February, and 1 March, for example, London had snow from what was named ‘the beast from the east’. There were amber weather warnings about snow and ice on 17 March for London as well.
- It was also during this period that the electrician, on Mr B’s behalf, attempted to negotiate, on 2 separate occasions, about the type of electrical heaters needed;
- The officer had concerns about category 1 hazards still in the property, the tenant living there with young children, and English not being the tenant’s first language;
- The schedule of works noted insufficient heating throughout the property, and none in the kitchen and bathroom. There was inadequate insulation and a roof leak. There were inadequate locks to secure the main door and fire risks; and
- The officer’s decision to take formal action was in line with paragraph 4.12 of the HHSRS and paragraphs 4 and 5 of the Council’s enforcement policy.
- The Ombudsman found no fault on Mr B’s complaint against the Council.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman