Thurrock Council (19 004 985)

Category : Housing > Private housing

Decision : Not upheld

Decision date : 17 Mar 2020

The Ombudsman's final decision:

Summary: Mr C complains about the Council’s enforcement action about repairs needed to a property he rents out. The Ombudsman’s view is Mr C had opportunities to ask for a late appeal of a Notice he says he did not receive. A dispute about damage by the Council’s tree is for the courts, not the Ombudsman.

The complaint

  1. The complainant, whom I shall refer to as Mr C, complains:
    • The Council issued him a Notice for repairs to his property, for damage he was not aware of. He then had trouble carrying out the repairs, as his tenant was blocking access.
    • The Council issued a draft Improvement Notice. But he did not receive the final version.
    • The Council advised and aided his tenant to not pay her rent.
    • The tenant was using the property for commercial purposes, which created disrepair. The Environmental Health Officer and social worker knew about the commercial activity.
    • He has no doubt that the Environment Health Officer, a social worker and other officers within the Council were customers of his tenant’s hair dressing business. That was why they failed to advise the tenant of the breach in her tenancy agreement and instead harassed him to carry out the repairs.
    • A tree in a public area has damaged his garage. The Council has refused to cut the tree.
  2. Mr C says the alleged fault has had an enormous impact on his finances, in the cost of repairs and lost rent. He asks the Council to:
    • refund him the £9686.02 he has lost.
    • Not enforce the Notice the Council is threatening court action about.
    • Ensure the tree that is damaging his garage is removed. It should also cover the cost of repairs to his garage.

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The Ombudsman’s role and powers

  1. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
  • it is unlikely we would find fault, or
  • the fault has not caused injustice to the person who complained, or
  • the injustice is not significant enough to justify our involvement, or
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint, or
  • it would be reasonable for the person to ask for a council review or appeal.

(Local Government Act 1974, section 24A(6), as amended)

  1. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. It says we cannot normally investigate a complaint when someone can appeal to a tribunal, or take a matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal or go to court. (Local Government Act 1974, section 26(6), as amended)

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How I considered this complaint

  1. As part of the investigation, I have:
    • considered the complaint and the documents provided by Mr C;
    • made enquiries of the Council and considered its response;
    • spoken to Mr C and considered later emails from him;
    • issued a draft decision and considered Mr C’s comments, leading to a revised draft decision which I sent to him and the Council for comments.

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What I found

Legal and administrative background

  1. The Council’s private sector housing team has a role to inspect privately rented properties. They consider the standard of properties with reference to the national Housing Health and Safety Rating System Standards (HHSRS). These lists 29 “hazards” that are risks to the health and safety of the occupiers. If the officer finds a serious hazard, the Council has a duty to take enforcement action.
  2. Councils can take an informal approach to enforcement. If a council decides to start formal action, it can issue an Improvement Notice, requiring a landlord to take action to rectify hazards.
  3. The First-Tier Tribunal – Property Chamber (Residential Property) – considers appeals against Improvement Notices. The time limit for appealing a Notice is 21 days from the date of service. But the Tribunal can allow a late appeal where its view is it was not reasonably practical for the appeal to be made within the time limit.

What happened

  1. Mr C is a landlord. In June 2018 the Council contacted him telling him it had received a complaint about the conditions of his rental property. It advised him it was intending to inspect the property.

The HHSRS enforcement action

  1. On 29 June, after an Environmental Health Officer (EHO) had visited, the Council wrote to Mr C listing hazards the Officer had found. It advised Mr C he could make representations about its view. It advised him if it needed to serve a Notice, there would be a fee.
  2. Mr C says that after that progress was slow, as his tenant was denying access. I have seen emails, for example from August, where the EHO advised Mr C she could not intervene in a dispute about rent. That was a matter between him and his tenant.
  3. After further communications with the EHO, in September Mr C advised most of the works had been completed. The EHO visited and advised her opinion was that most of the works were either not completed, or unsatisfactory. So she served Mr C with a draft Improvement Notice.
  4. Mr C emailed the EHO on 15 October advising he had now accessed the property and finished the works. The Council posted Mr C a copy of an Improvement Notice on that day. Mr C says he did not receive it.
  5. The EHO visited the property with Mr C on 16 November. She wrote to him as a follow up, providing a list of the outstanding work. The letter advised him the Notice required he completed the works by 14 December 2018.
  6. In later December 2018 the EHO advised Mr C the works were not of a satisfactory standard. She advised he had not complied with a legal Notice.
  7. In January 2019 Mr C advised he had not received the Improvement Notice. The Council sent him a copy.
  8. Mr C advises me he evicted his tenant in April. He says he now has a new tenant in place.
  9. In June, after completing the Council’s complaints process, Mr C complained to the Ombudsman. He told me:
    • About his dispute with his tenant, which pre-dated the Council’s involvement.
    • The reason he believed officers had told his tenant not to pay her rent is because that is what the tenant had told him.
    • The Environmental Health Officer refused to intervene on his behalf about the rent.
    • He accepted he was speculating that Council officers were clients of his tenant’s hairdressing business. But he did see the tenant doing a social worker’s hair.
    • The tenant’s business activities in his property caused some of the damage.
    • His view was the Council should not have served the Notice, as his contractors had problems accessing the property to carry out the works, because of the tenant’s obstruction.
  10. In response to my enquiries, the Council’s officer denied that she had told the tenant to withhold her rent.
  11. After I began my investigation, Mr C advised me he had appealed to the First-Tier Tribunal about continuing enforcement action. This Notice is dated 5 September 2019. It has a different set of hazards from the October 2018 one, although it says it took effect on that date.

The complaint about the tree

  1. When the EHO visited Mr C’s property in August 2018, one of the issues she noticed was that the door of a garage Mr C owned, near the property, was not secure. She advised Mr C she wanted it secured shut to prevent unauthorised access.
  2. Mr C said damage to the garage was due to a tree on Council land. The EHO advised him he needed to contact the Council’s environment team about the tree, or raise a complaint. But the issue with the tree did not prevent Mr C securing the door.
  3. The Council’s records note it was contacted in September 2018 about a tree in a park that was growing onto Mr C’s garage, that needed cutting back.
  4. The Council’s Tree Officer says her team’s only record is from 5 December 2019. That was a day before the Council provided its response to my enquiries. The note says officers had inspected the tree twice. It noted a tree might be damaging the garage, as the trees had been there for many years. But the officers expected that the roof of the garage was asbestos. So, if the Council removed its vegetation, it was likely to cause more damage and there was also the asbestos issue.

Analysis

  1. Mr C has appealed an Improvement Notice the Council issued in September 2019. He says this is about issues that post-date the Notice that is the subject of this complaint. I note the hazards listed on the later Notice are different to those on the original one. But the Notice says it is operative from October 2018. And the Council does not seem to have taken court action in the time before Mr C appealed.
  2. The fact Mr C has appealed raises the possibility the enforcement issues are outside the Ombudsman’s jurisdiction (with no discretion). But I do not think I need to clarify this. Whatever the status of the second Notice, Mr C had the option to appeal the Notice earlier than he did so. And the Ombudsman will not usually make a decision on a matter where a complainant has an appeal right.
  3. Mr C says he did not receive a copy of the October 2018 Improvement Notice. But I note he did send us a copy of the draft, with his complaint. And the Council’s officer mentioned the Notice in emails in November and December 2018. She sent Mr C a copy in January 2019.
  4. That means that, even if Mr C did not receive the Notice, the Council did make him aware of it both before and after the date of service. So he had the opportunity to ask the Tribunal to consider a late appeal. My view it is reasonable to have expected him to have done so. So I have not discontinued my investigation into this issue.
  5. I can still look at Mr C’s allegations the EHO advised Mr C’s tenant not to pay her rent. And that the EHO and a social worker were clients of his tenant. The Council denies these allegations. And the basis for Mr C’s assertion is what his tenant told him. In the absence of any documentary evidence to support Mr C’s allegation, my view is I do not have the evidence, on the balance of probabilities, to uphold this part of the complaint.
  6. The Council is correct that it has no role to intervene in a dispute between Mr C and his tenant about any problems he had with his tenant not paying her rent. Or any breach of her tenancy agreement – such as, for example, using the property to run a business. These are private matters between Mr C and the tenant. They could have no bearing on the Council’s view about whether there were hazards in the property.
  7. That leaves the matter of the tree which Mr C says is damaging his garage. If the Council’s dates are correct, there does seem to have been a delay in it inspecting the tree. But my view is I do not need to investigate this further. The Council has now inspected and provided its view. It is not the Ombudsman’s role to determine if any damage was the result of negligence by the Council. The Ombudsman takes the view that negligence claims are generally best decided by the courts. I have considered all the information Mr C has provided. And I think that it would be reasonable to expect him to take legal action, perhaps in the small claims court, if he is seeking compensation for damages to his garage.

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Final decision

  1. I have discontinued my investigation. Most of the complaint is outside the Ombudsman’s jurisdiction. And none of the elements of the complaint I can consider are likely to warrant the public expense of further investigation.

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Investigator's decision on behalf of the Ombudsman

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