Summary: The complaint is about the Council’s lack of action about private sector housing disrepair and serving a Notice to a wrong address. The complainant says this meant he was not protected by rules against eviction. The Ombudsman upholds the complaint because of poor record keeping. But we do not agree with the analysis of the injustice this led to.

The complaint

1. The complainant, whom I shall refer to as Mr U, complains about the way the Council’s Environmental Health team dealt with complaints he made about disrepair in his private sector accommodation. The key parts of Mr U’s complaint are:

• An Environmental Health Officer did not keep a record and delayed taking action following his first inspection.
• After a second inspection, the Officer sent an Improvement Notice to the wrong address, so the landlord did not receive it.

2. Mr U says that had neither of these alleged faults occurred, the landlord’s second notice for him to quit the property would not have been valid, because of the Deregulation Act. So the landlord would not have been able to evict him.

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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. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr U;
• made enquiries of the Council and considered its response;
• spoken to Mr U;
• sent my draft decision to Mr U and the Council and invited their comments.

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What I found

6. Private sector tenancies are usually assured shorthold tenancies ((AST) - introduced by the Housing Act 1988). AST offer limited security of tenure, after the end of a fixed term. Landlords can serve a tenant with a notice to quit, giving then two months’ notice to leave. The landlord does not need to give reasons for serving the notice.

Private rented disrepair

7. Private tenants may 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 ((HHSRS), introduced by the Housing Act 2004, Part 1) to take enforcement action against private landlords. A council can act when it has identified a hazard which puts the health and safety of the tenant at risk.
8. The HHSRS Guidance say it is good practice for the authority to carry out as full an inspection of the premises as possible, as it is important for enforcement action to be supported by all the relevant evidence. The regulations require an accurate record to be prepared and kept of the inspection.
9. An assessment is against 29 hazards. It uses a point scoring system to decide whether a hazard exists. If the assessment finds category one hazard, a council has a duty to serve a notice to the landlord to address the hazard. If an assessment finds a category two hazard, officers have discretion about whether to take formal action.
10. For tenancies granted after 1 October 2015, service by a council to a landlord of a relevant notice, such as an Improvement Notice or a Notice of Emergency Remedial Action for disrepair, may protect the tenant from retaliatory eviction for six months. (Deregulation Act 2015 section 33)

What happened

11. Mr U had lived in a privately rented flat since 2005. In December 2017 he says he reported repair issues to his landlord and letting agent. In January 2018, his landlord served him with a notice to quit.
12. In February 2018 Mr U contacted the Council advising it of disrepair in his flat. The Council’s records have an email from a Team Leader in its Environmental Health Team to an Environmental Health Officer (Officer W) asking about Mr U’s complaint. She asked Officer W about an email that was not on the file and commented there were no case notes. It is unclear who Officer W sent this email to.
13. The Council says Officer W visited Mr U’s flat on 27 March. There are no case notes, or report of that inspection. The following day Mr U emailed Officer W advising his landlord had decided to take him to court and asking if Officer W had contacted the landlord. On 9 April Officer W replied, advising he had not contacted the landlord. Later in April Mr U emailed Officer W, giving him his landlord’s address.
14. I have seen no further contact between Mr U or Officer W after this. But in June, a court discharged the landlord’s warrant for possession, because of an issue unrelated to the disrepair. In August the landlord served Mr U with a new notice to quit the property.
15. In August Mr U complained to the Council that Officer W had not contacted him or sent him a copy of a report.
16. Officer W emailed Mr U on 20 August. He advised he had not completed an inspection report and his only note was that the flat needed plastering. He said he recalled he had advised Mr U it was better for him to try first to negotiate with his landlord about the eviction.
17. On 22 August Officer W emailed Mr U asking him to remind him of his landlord’s address. Mr U’s response gave the wrong house number.
18. Officer W and a Senior Environmental Health Officer inspected the property on 28 August. I have not seen a copy of any report or case note of this inspection.
19. On 25 September, Officer W wrote to the landlord at the address Mr U had given him in August. He also wrote to the freeholder of the property. He sent an Improvement Notice and advised he had found a hazard, as defined by the 2004 Housing Act. He instructed the landlord to ask a surveyor or damp specialist to attend.
20. The landlord did not get the Notice, as it was served to the wrong address. But for reasons that are unclear, in late October the letting agents did pass a copy to the landlord (Officer W advised Mr U he had not sent the letting agent a copy). The landlord contacted the Council in early November. He advised of the work he had done to the flat. He also listed damage to the flat he alleged Mr U had caused. He advised he had served Mr U notice to quit the property.
21. Internal discussions between a Senior Environmental Health Officer and Officer W noted the Council was not under a duty to enforce the Notice it had served. After these discussions, the Council’s view was it would need the landlord to carry out the repairs and in December 2018 it contacted him about this. It noted these were not related to the possession action.
22. The Council responded to complaints from Mr U in October 2018 and January 2019. Mr U was not satisfied with the responses, so he complained to the Ombudsman. He advised me a court has now granted his landlord possession of the flat and he has left it.
23. I made enquiries to the Council. Its response advised:
• “The council is aware that the record keeping on this case has not been ideal. The file concerning the first visit in particular is not to a standard that we would expect. The council would expect that notes of visits and phone calls would be placed on the system to ensure that a full picture can be seen of the situation for future reference, even if no action is taken.”
• It was confident Officer W took the correct action. As the landlord had served a warrant for possession, it would not normally take action.
• “The Officer did not need to make a report of the visit, or contact the landlord as a formal HHSRS inspection had not been carried out, and the notice to quit was already in place.”

Was there fault by the Council?

24. I find fault with the Council’s poor record keeping. It may be that a formal report was not needed, as there was not a category one hazard. But good administrative practice demanded some record of actions Officer W took, including the inspections and communications with Mr U, the landlord and others. Better record keeping may have alerted Officer W to Mr U’s error in providing a wrong address for his landlord.
25. But my view is this fault did not lead to Mr U’s claimed injustice. The landlord’s first notice for Mr U to quit the property pre-dated the Council’s involvement. The unfortunate fact is that private rented sector tenants have limited security of tenure. Landlords do not need to provide reasons for asking tenants to leave. Given this, the advice Officer W says he gave – about informal negotiation being Mr U’s best options – was appropriate.
26. It is for officers to determine whether category one or two hazards exist and whether there are grounds to take action. They consider the condition of the property and assess the significance and risks posed by any hazards. They must reach these decisions having regard to national guidance and using their professional judgement. And the evidence we do have – in terms of the action the Council took – show there were no category one hazards at the property in August. On the balance of probabilities, that was likely also the case in March.
27. I do not agree with Mr U that, if Officer W had served the Notice to the correct address, he would have been protected by the provisions offered by the 2015 Deregulation Act. That Act did not (at the time the complaint relates to) protect tenancies that began before the Act came into force. So, even without the error of where the Council served the Improvement Notice, Mr U’s landlord could still have continued with the possession action.

Recommended action

28. I recommended the Council apologise to Mr U for the uncertainty caused by the poor record keeping. The Council has agreed.
29. The Council has advised it will address the poor record keeping with the officer concerned. It says it does not have an enforcement policy, but it is working on one. So I see no need for a further recommendation.

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Investigator's decision on behalf of the Ombudsman