Summary: Mr & Mrs X complained the Council failed to identify health and safety hazards and take appropriate enforcement action against their landlord when it inspected their privately rented home. The Council was not at fault.

The complaint

1. Mr & Mrs X complained the Council failed to identify health and safety hazards and take appropriate action when it inspected their privately rented home. They said the Council:
1. Told the landlord to remove the wood burning stove which they relied on to heat the property therefore causing a hazard.
2. Incorrectly stated the boiler was not repairable when they have confirmation from a qualified engineer it could be fixed.
3. Failed to identify that the fire alarms were not installed in accordance with regulations.
4. Failed to properly assess hazards in the bathroom, including the growth of black mould and defective plumbing which resulted in a leak through the ceiling and caused an unpleasant aroma.
2. Mr and Mrs X say the condition of their property is affecting their physical and mental health and causing them avoidable distress.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
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

• I discussed the complaint with Mr and Mrs X.
• I asked the Council questions and read the case records.
1. Mr and Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

6. Private tenants may complain to their council about a failure by the landlord to keep the property in good repair. The Housing Health and Safety Rating System lists 29 potential hazards against which council officers can assess housing conditions. The assessment will show the presence of any serious (category 1) hazards and other less serious (category 2) hazards.
7. Where a category 1 hazard is identified, the Council must take appropriate enforcement action. This may include serving an improvement notice setting out what the landlord must do to stop the hazard. They can also choose to take action with regard to less serious ‘category 2’ hazards if they think it necessary.
8. Councils are advised to try and deal with the problem informally first. If a landlord agrees to take the action required by a council, it might be appropriate to wait before serving a notice provided the landlord starts the work within a reasonable time.
9. Smoke detectors in rented property are legislated for in the Smoke and Carbon Monoxide Alarm (England) Regulations 2015. These state that landlords must have at least one smoke alarm installed on every floor of their property and a carbon monoxide alarm in any room containing a solid fuel burning appliance. The regulations do not specify where alarms should be placed but states “in general, smoke alarms should be fixed to the ceiling in a circulation space ie a hall or a landing”.

Background

10. Mr and Mrs X have lived in a privately rented property since March 2014. They said that since moving in, they have experienced ongoing difficulties with the property and reported multiple health and safety concerns to the landlord and letting agents (the Agency). In February 2019, the couple contacted the Council about the condition of the property after the landlord served them with an eviction notice.

What happened

11. An Environmental Health Officer (Officer A) visited Mr and Mrs X on 13 February 2019 to inspect the property. Based on their initial observations and feedback from Mr and Mrs X they wrote to the Agency the following day stating:
• Within 14 days, they required a HETAS (Heating Equipment Testing and Approvals Scheme) engineer to inspect the installation of the flue on the wood burner, complete any rectification work and provide relevant certification.
• The boiler was not working, and they understood it needed a replacement part. They ‘strongly recommended’ the part was replaced, and that the agency service the boiler annually.
• Mr and Mrs X had issues with the electrics. They requested the most recent electrical inspection report.
• Mr and Mrs X had complained about a drainage smell. They advised the Agency to arrange for a competent plumber to investigate the smell and take remedial action.
• There were items in the garden including fence panels that had nails sticking out that needed removing.
12. Officer A said they would return and complete a full HHRS assessment on the property on 28 February 2019. They said they would consider taking enforcement action if necessary.
13. Following that letter, the landlord contacted Officer A and asked if she could remove the wood burner from the property. Officer A confirmed she could. In addition, the Agency contacted Officer A to confirm:
• A plumber had inspected the property and said the septic tank needed emptying. They arranged for the that to be emptied.
• The boiler was fixed, they had arranged a service and would provide a copy of the certificate once complete.
• The items in the garden that potentially posed a risk had been removed
14. The Agency provided a copy of the electrical safety test certificate from 2017.
15. Officer A visited Mr and Mrs X and the end of February 2019 and completed the HHRS assessment. That assessment said:
• The lounge ceiling had previously had a leak but there had been an electrical inspection since then.
• There was slight mould growth in the bathroom but that was not assessed as a hazard.
• Smoke detectors were present in the lounge, at the top of the landing and there was an additional heat detector in the kitchen.
16. Officer A assessed the wood burning stove as a category one hazard and issued an improvement notice. They did not identify any additional hazards.
17. The Agency sent the boiler inspection certificate to the Council at the start of March. At the start of April HETAS inspected and condemned the word burner.
18. Mr X contacted Officer A the following week. He was unhappy the landlord had decided to remove the wood burner. He said they relied on it for heat as the radiators in the property did not maintain the temperature and that the boiler was still not working properly. He said the plumbing still smelt strongly.
19. Officer A responded. They said the radiators and heating of the property was considered separately to the wood burner. Officer A contacted the Agency about the boiler. It said it has arranged for an engineer to visit the property later that month, but the boiler may need a part that was no longer available so a new boiler might be needed.
20. Officer A completed a further HHRS inspection of Mr and Mrs X’s property on 9 May 2019. They completed a heating output assessment of the property and found the radiators were suitable for heating the rooms. They identified the valve in the boiler did not work and the heating needed to be manually turned off to get hot water. They assessed that as a category two hazard because the diversion only happened for a short time (whilst the hot water was needed).
21. In that visit Officer A observed the smell of drains in the bathroom. They assessed that as a category 2 hazard.
22. Following that appointment Mr X contacted Officer A to ask what action the Council would take about the defective boiler. Officer A said it was not assessed as a category one hazard, therefore, it had decided not to take further action. They offered to place temperature monitors in the house when the weather got colder to assess whether there was a hazard.
23. Officer A contacted the Agency. They said they were not taking further enforcement action about the boiler but suggested it completed the necessary remedial work. The Agency confirmed that the bathroom fall pipe did not have an adequate flow, and that they were providing the landlord with a quote for the cost of works.
24. Mr and Mrs X contacted the Council in July 2019 about the ongoing smell in the bathroom. They said they had a smoke alarm inspection and were waiting for new alarms to be fitted. Officer A contacted the Agency. It said Mr X had not allowed their engineers access to the property to replace the smoke alarms without having evidence of their qualifications. They said they were collecting the certificates. They said that quotes for the drainage had been given to the landlord, but she had not confirmed if she wanted to replace the fall pipes.
25. There was ongoing communication between Officer A and the Agency during July and August 2019 about works to the property. By September 2019, the Agency confirmed it replaced the heat and smoke detections alarms in the property and had an independent plumber repair a leak in the bathroom and carry out remedial works to the drains. Mr and Mrs X said they did not complete the work previously agreed and the repairs had made the smell in the bathroom worse.
26. Mr and Mrs X complained to the Council in September 2019. In addition to the complaints set out in paragraph 1, they were unhappy the Council had not taken enforcement action against their landlord for other health and safety concerns they had experienced in their five-and half-year tenancy. They said the Agency and landlord had not ensured suitably qualified staff completed works on the property.
27. The Council investigated their concerns but did not find any fault in how Officer A had completed their inspection. It said it could only investigate and take enforcement action on current hazards they identified, not historical problems. It recognised the inconvenience of having to manually switch the boiler from heating to hot-water, and that the smell from the bathroom may not be pleasant, but said these were not assessed as category one hazards, therefore the Council could not enforce remedial work. The Council allocated a new Environmental Health Officer to the case as it said the relationship between Mr and Mrs X and Officer A had broken down.
28. Mr and Mrs X remained unhappy and brought their complaint to the Ombudsman. They provided a letter from a plumbing company which described the mould in the bathroom as hazardous and outlined the remedial works needed to the drains. They also provided confirmation that the part needed to fix the boiler could be purchased.

The Council’s response to enquiries

29. The Council said when Officer A visited the property there was no evidence of a leak in the living room ceiling. Mr and Mrs X had subsequently refused to let the landlord’s handyman repair the leak in the ceiling.
30. It said it had not seen Mr X’s evidence about the boiler part. However, the boiler was not assessed as a hazard needing enforcement action. It said it assessed the boiler as able to maintain a reasonable temperature in the property whilst the heating was on, and that any heat diversion caused by hot water demand, was the same as for a combi-boiler system, except Mr X’s boiler needs manually switching over.

My findings

31. 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.

Complaint a) The Council told the landlord to remove the wood burning stove which Mr and Mrs X relied on to heat the property.

32. The case records show Officer A identified the wood burner posed a category 1 hazard following the HHRS inspection on 28 February 2019. They issued an improvement notice for remedial works. The landlord decided to remove the wood burner after it was condemned instead of fixing the flue. The Council was not responsible for that decision. Its responsibility was to ensure the category 1 hazard was dealt with. The Council was not at fault.
33. Officer A completed a heating output assessment in May 2019. They assessed the radiators provided sufficient warmth for the property. They offered to install temperatures monitors when the weather cooled. The Council was not at fault.

Complaint b) the Council incorrectly stated the boiler was not repairable when Mr and Mrs X have confirmation from a qualified engineer it could be fixed.

34. A gas safe engineer serviced Mr and Mrs X’s boiler and said the part needed to repair it was obsolete. The Council was not at fault for stating this in its complaint response to Mr and Mrs X.
35. Mr X has provided evidence that the part can be purchased. However, that does not mean the Council must enforce boiler repairs. The Council assessed the boiler as a category two hazard and decided not to issue an improvement notice because the faulty part did not affect the temperature output in the property.
36. In its response to enquiries, the Council explained the only difference between the boiler, and a combi- boiler was a manual switch. The Ombudsman cannot question the merits of the Council’s decision if there was no fault in how it was made. The Council has considered all available information and decided not to issue an improvement notice. The Council was not at fault.

Complaint c) The Council failed to identify that the fire alarms were not installed in accordance with regulations.

37. Officer A’s notes demonstrate they recorded the location of the fire alarms in Mr and Mrs X’s property when she completed the HHRS inspection in February 2019. They have a smoke detector on both floors of the property which is in line with the Regulations. The Council was not at fault.
38. In June 2019, Mr X told Officer A he was waiting for the Agency to replace the smoke detectors. Officer A followed that up with the Agency and provided additional guidance. The Agency confirmed the fire detectors were replaced in July, and the smoke detectors replaced by September 2019.

Complaint d) the Council failed to properly assess hazards in the bathroom, including the growth of black mould and defective plumbing which has resulted in a leak through the ceiling causing an unpleasant aroma.

39. In February 2019, Officer A identified black mould in the bathroom. In response to enquiries the Council said the extractor fan was also not working and potentially contributing to the mould. The Council asked the Agency to arrange for the extractor fan to be fixed and the case records confirm that was completed. The Council was not at fault.
40. I am aware Mr and Mrs X arranged for a plumber to visit the property in September 2019, who said the black mould was hazardous. The plumber’s assessment was seven months after the Council completed its inspection. Mr and Mrs X can ask the Council to complete a further HHRS inspection on their property if they feel its condition is hazardous.
41. The Council asked the Agency to investigate the plumbing and drainage after it inspected the property in May 2019. The Agency had a plumber complete some remedial works which Mr and Mrs X state have not fixed the problem.
42. The Council did not assess the smell in the bathroom as a significant enough hazard to require enforcement action, therefore, it made recommendations to the Agency and landlord about remedial work but did not issue an improvement notice. The Council was entitled to make that decision. The Council was not at fault.
43. The case records do not indicate there was a leak in the lounge ceiling when Officer A completed the HHRS assessments in February and May 2019. The Council cannot make recommendations to complete repairs for a problem is has not observed. The Council was not at fault.

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Final decision

44. The Council was not at fault in how it completed an assessment of Mr and Mrs X’s property therefore I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman