Summary: Mrs X complained the Council failed to take appropriate action over the poor state of her property. She also complained the Council failed to award her medical priority points when she made a housing application. There was no fault in the action the Council took in relation to the state of Mrs X’s property. There was some fault in how the Council dealt with Mrs X’s housing application but this did not cause her a significant injustice.

The complaint

1. Mrs X complained the Council:
• failed to take appropriate action against her landlord over the poor state of her property; and
• wrongly informed her she was not eligible to be included on its housing register.
2. Mrs X says this has caused her and her family distress and also contributed to the failing health of one of her children.

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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. 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)
5. 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

6. I spoke to Mrs X and considered the information she provided.
7. I made enquiries of the Council and reviewed the information it provided. This included Mrs X’s housing application forms and supporting evidence, the comments of the medical adviser, the Environmental Protection inspector’s report, photographs of Mrs X’s property and correspondence between Mrs X’s local councillor and MP and the Council.
8. I considered the Environmental Protection Act 1990 and the Housing Act 2004.
9. I have written to Mrs X and the Council with my draft decision and considered their comments before I made my final decision.

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What I found

10. For something to count as a 'statutory nuisance' it must:
• unreasonably and substantially interfere with the use or enjoyment of a home or other premises
• injure health or be likely to injure health
11. Where the state of the premises causes a well person to become ill or the health of a sick person to deteriorate, the courts will normally be satisfied that it is prejudicial to health.
12. Case law has held that the test of whether premises are prejudicial to health is an objective test, and a person's individual circumstances or needs cannot be taken into account.
13. Case law also holds that dampness, condensation or mould growth are all examples of defects in premises that are considered prejudicial to health. However, the landlord will not be liable if these occur because the tenant has failed to use the heating system properly.
14. If a council receives a complaint about something which may be a statutory nuisance, the Council must take such steps as are ‘reasonably practicable’ to investigate the complaint.
15. The statutory nuisance must be witnessed by a suitably qualified officer and they will come to an independent judgement. The process of deciding what level of nuisance constitutes a statutory nuisance can be subjective. The level of nuisance, its length, timing and location may be considered in deciding whether a statutory nuisance has occurred. If an officer decides a statutory nuisance is happening, or will happen in the future, councils must serve an abatement notice. This requires whoever is responsible to stop or restrict the nuisance.
16. Under section 82 of the Environmental Protection Act 1990, both local authorities and members of the public can take action with the Magistrates’ Court.
17. Private tenants may complain to their council about a failure by the landlord to keep a property in good repair.

Housing Act 2004

18. The Housing Act 2004 gives councils powers to inspect residential premises in their area and to take enforcement action against private landlords where the council has identified a serious hazard which puts the health and safety of the tenant at risk.
19. The Housing Health and Safety Rating System (HHSRS) provides a risk assessment framework for scoring hazards in a property. Rather than setting a minimum standard of fitness, the system assesses the property for Category 1 hazards (where the Council must take action) or Category 2 hazards where it may decide to take action.
20. A hazard does not need to be a statutory nuisance for a council to take action under the Housing Act.

The Council’s Housing Allocations Policy

21. Part 6 of the Housing Act 1996 covers allocations of local authority housing. Section 167(2) sets out the circumstances of applicants to whom a local authority must give reasonable preference when deciding who will be offered a property. These include:
• applicants occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
• applicants who need to move on medical or welfare grounds (including grounds relating to a disability).
22. This Council operates a banding system where applicants with the highest priority are placed in Band 1. This includes applicants who need to move urgently because of severe medical problems or are living in unsanitary or unsatisfactory accommodation which poses an ongoing and serious threat to health.
23. Applicants who need to move because they have been assessed as living in unsanitary or unsatisfactory accommodation which does not pose an immediate or serious threat to their health are placed in Band 3.

Background

24. Mrs X and her partner and three children live in a three-bedroomed property. They are private housing tenants.
25. In 2014, the Council carried out works to rectify damp and condensation issues at the property. This included treating some of the walls and ceilings in the flat with anti-fungicidal wash and anti-condensation paint. The Council also carried out other works.
26. In 2016 the Council was involved again when Mrs X complained about an infestation of mice. The Council took enforcement action and the issue was remedied by the landlord.
27. In February 2017, Mrs X complained to the Council about damp and mould at the property. She included a letter from the family GP which stated the conditions were affecting the health of one of her daughters who had asthma.
28. The Council’s Environmental Services Officer carried out an inspection later that month. Mrs X was present. The report concluded there was some, mostly minor, mould growth to external walls. The Officer also stated that in his opinion “the tenant was contributing towards this by not keeping the area clear to allow good air flow to these areas and by not clearing away the spores at regular intervals and by not managing moisture removal, especially in the bathroom”. The reported recorded there were no other significant disrepair issues relating to damp or mould and there was no indication of rising damp.
29. The inspector also stated “It is possible that the loft insulation was not installed correctly...above landing flank wall which may be contributing towards the mould growth in that area. In extreme situations we could recommend dry lining internal surfaces to external walls, however… I would question whether this a reasonable request in this case, bearing in mind all the other factors”.
30. The report noted Mrs X informed the inspector the boiler had broken that day and the inspector recommended she raise this with the landlord. The report noted no further comments from Mrs X about the heating.
31. Towards the end of February 2017, Environmental Services issued the landlord with a Hazard Awareness Notice stating Category 2 hazards existed in relation to mould growth in the bedrooms, on the landing ceiling, in the bathroom and in the kitchen and units. The accompanying schedule of works stated the landlord should:
• address the mould growth within the property and treat the walls and ceiling with anti-fungal paint; and
• ensure the loft insulation was adequate, particularly above the first floor landing and bathroom areas.
32. The Council said it did not consider it appropriate to issue a Category 1 Hazard Improvement Notice because some of the mould growth was due to the amount of possessions in the property and the need for the areas to be wiped dry.
33. In March 2017, Mrs X wrote to the Council’s Housing Department and asked to be rehoused. She included a number of medical documents including the letter from her GP and also a letter from a specialist asthma nurse. Both stated the conditions at the property were making Mrs X’s daughter’s asthma worse.
34. The Housing Department replied on 11 April. It said it had passed Mrs X’s case to Environmental Health which would carry out a site visit and report back to the Housing Department. The Housing Department said that depending on the report from Environmental Services, it may pass Mrs X’s case to the Housing Medical Adviser.
35. Later that month, the Council passed Mrs X’s application and her supporting medical evidence to the Housing Medical Adviser for consultation, assessment and recommendation. The Council did not give the Medical Adviser a copy of the February 2017 inspection report from Environmental Services.
36. Mrs X replied on 19 April. She asked the Housing Department to carry out a review of its decision.
37. Mrs X heard nothing further from the Council. Therefore, she contacted her councillor in May 2017 complaining about the state of her property. The councillor passed the letter to Environmental Services which responded to Mrs X later that month. This referred to the inspection in February 2017 and gave advice about keeping areas clear to allow good air circulation.
38. Also in May the Council responded to letter written by Mrs X’s MP. The Council said it would expedite Mrs X’s housing application.
39. The Medical Adviser considered Mrs X’s case in November 2017 and recommended no medical priority (Band D). The Council’s letter advised Mrs X of her right to a review of the decision.
40. In March 2018, Mrs X brought a private case in court against the landlord for an order to abate or prohibit statutory nuisance under s82 of the Environment Protection Act 1990. The court found the landlord guilty on 13 March 2018.
41. In May 2018, Mrs X’s MP emailed the Council and informed it that Mrs X had successfully brought a case against the landlord. The MP said the landlord was required to carry out certain works by 11 May but did not specify what these were.
42. On 30 May 2018, the Council passed Mrs X’s file to the Medical Adviser. This included the medical information Mrs X submitted and a copy of the inspection report from February 2017.
43. The Medical Adviser recorded the issues were not medical matters but were matters for Environmental Services to consider. The Medical Officer did not recommend any priority medical points should be awarded to Mrs X and her family.
44. The Council wrote to Mrs X on 14 June 2018. It asked her whether the landlord had completed the schedule of works ordered by the court. Mrs X said the landlord had failed to carry out any works.
45. On 8 August 2018, the Council passed all the documentation again to the Medical Adviser. The Adviser said there was no new medical information and so no change in medical priority.
46. In October 2018, the Council served the landlord with an informal improvement notice. This stated the property had category 1 hazards which related to excess cold. It also listed a number of Category 2 hazards.
47. Since October, the Council has been in contact with the landlord in order to ascertain what works have been carried out and what remains. In February 2019, it emailed the landlord to state the Council would issue a formal improvement notice if the landlord failed to provide details of works that had been completed.

My findings

Consideration of statutory nuisance by the Council

48. When Mrs X complained of statutory nuisance in February 2017, the Council carried out an inspection of the premises. The inspector’s report considered the mould and condensation, ventilation and the heating system. He did not consider it appropriate to serve either a Category 1 improvement notice or determine there was statutory nuisance. This is because he concluded that although there were some problems with mould and condensation, these were caused in part by the actions of Mrs X and her family. The inspector gave Mrs X advice to reduce the issues and recommended the landlord was served a notice informing them there were Category 2 hazards.
49. We are not an appeal body, so we cannot comment on the merits of judgements and decisions made by councils in the absence of fault in the process. There was no fault in the way the Council made the decision that there was no statutory nuisance. Therefore, I cannot criticise that decision.
50. Mrs X successfully took private action in court against her landlord in 2018. She believes this means the Council’s decision in February 2017 which found no statutory nuisance was fault. I disagree. The Council made a decision in 2017 based on the facts as they were at that point in time. As I have explained above, there was no fault in the way that decision was made.
51. Since the Council became aware of the Court order in May 2018, it has served the landlord with an informal notice of improvement and kept a regular oversight of the situation. Its actions have been proportionate and appropriate. In addition, if the landlord fails to meet the requirements of the Court order, Mrs X can return to Court.

Consideration of Mrs X’s housing application under the Council’s Housing Allocations Policy

52. In March 2017, Mrs X submitted an application requesting her family was given medical priority under the Council’s Housing Allocations Scheme. She provided comprehensive medical evidence with her application.
53. Later in March, the Council informed Mrs X it had passed her application to Environmental Services to carry out an inspection. It said the outcome of this would determine whether Mrs X’s application should be passed to the medical adviser for consideration. However, by this stage, Environmental Services had already carried out an inspection. This failure to communicate effectively between departments is fault.
54. The Council took no further action until May 2017 when Mrs X’s MP complained on her behalf to the Council. It responded and said it would expedite its consideration of Mrs X’s housing application. However, it then delayed until the end of the year to pass the application to the medical adviser. This delay is fault.
55. In addition, when the Council did pass Mrs X’s application to the medical adviser, it failed to include the report from the Environmental Services inspector. This was contrary to what it had told Mrs X it would do in March 2017. The medical adviser, therefore, did not have complete information when they made their decision not to award Mrs X’s family medical priority. This is fault.
56. However, I cannot say Mrs X and her family experienced a significant personal injustice. This is because the medical adviser did not award the family medical priority when Mrs X submitted a further application in May 2018. The medical adviser made their decision based on a copy of the inspector’s report together with the medical evidence submitted by Mrs X.

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Final decision

57. I have completed my investigation. There was no fault in the actions the Council took in relation to the state of Mrs X’s property. There was some fault in how the Council dealt with Mrs X’s housing application but this did not cause her a significant injustice.

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Investigator's decision on behalf of the Ombudsman