London Borough of Sutton (19 016 327)

Category : Housing > Private housing

Decision : Closed after initial enquiries

Decision date : 20 Mar 2020

The Ombudsman's final decision:

Summary: The complaint is about the Council’s actions under its private housing health and safety powers. The Ombudsman will not investigate this complaint because it would have been reasonable to use the right to appeal to a tribunal.

The complaint

  1. Mr X complains the Council wrongly used its private housing health and safety powers in respect of a property his parents Mr and Mrs Y rented out. Mr X says this obstructed Mr and Mrs Y’s efforts to evict their tenants, causing stress and inconvenience. Mr X also argues his father, Mr Y, would still be alive but for the Council’s alleged faults.

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The Ombudsman’s role and powers

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

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How I considered this complaint

  1. I considered the information Mr X provided and copies of the complaint correspondence the Council sent me. I also considered the relevant law. I shared my draft decision with Mr X and considered his comments on it.

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What I found

  1. Mr X complains on behalf of his parents, Mr and Mrs Y. Sadly, Mr Y has died.
  2. The events leading to the complaint about the Council mainly happened in 2018. At that time Mr and Mrs Y were renting out a residential property they owned. They had started court action seeking to evict their tenants for breaching the tenancy agreement.
  3. The Council became involved under its powers to deal with some matters concerning disrepair in private housing. The Council inspected the property and said some hazards existed. In October 2018 the Council served an improvement notice identifying certain hazards it said still existed and stating what it wanted to happen to resolve them.
  4. Mr X says the Council was selective and inaccurate in its reporting of hazards it said existed. An improvement notice has the effect of stopping eviction proceedings in some circumstances. So Mr X argues the Council’s action prevented Mr and Mrs Y being able to remove their tenants. Mr X also says later, in March 2019, the Council said it had received no written communications from the tenants or any occupant complaining of disrepair. He believes the Council was wrong to serve an improvement notice without such written communications.
  5. Without an improvement notice, the Council could not require any works to the property, neither could the eviction proceedings be stopped. So the claimed injustice to Mr and Mrs Y – thwarting the eviction proceedings and requiring them to do works to the property – stems from the serving of the improvement notice. Anyone dissatisfied at receiving an improvement notice can appeal within 21 days to an independent tribunal, which can quash or change the notice if it sees fit. So the restriction at paragraph 3 applies.
  6. Mr X says his parents did not appeal because:
      1. At the time, Mr Y believed the tenants had complained to the Council about property’s state of repair though Mr X now doubts that happened;
      2. In June 2018 Mr and Mrs Y were subject to a serious crime, which caused significant stress afterwards; and
      3. Mr Y was poorly advised by his solicitor.
  7. Being a landlord brings some responsibilities with it, including the reasonable expectation that a landlord will find out about and use their rights as appropriate. The tribunal is better placed than the Ombudsman to make judgements about the justification for and contents of the notice. So we would normally expect a recipient of an improvement notice to use their appeal right if dissatisfied.
  8. On point a), the question of who or what prompted the Council’s involvement is not key to whether Mr Y should reasonably have appealed. The important point is that Mr Y knew in October 2018 that the Council had served notice, which could require him to do works and could affect his ability to evict the tenants. If he thought the Council should not have done that, he could have appealed, regardless of who might have contacted the Council and what had led to the Council stating there were hazards in the property.
  9. On point b), I appreciate the ordeal would have been very unpleasant and dealing with the practical and emotional aftermath would have been difficult. However, the Council served notice over three months later. I acknowledge Mr and Mrs Y’s circumstances were difficult after the armed robbery but I am not persuaded that made it unreasonable to expect Mr Y to have used his appeal right if he was concerned about the notice.
  10. On point c), I cannot comment on any legal advice Mr Y received. However, the notice should explain how to appeal. It is not necessarily a complicated process. I do not consider this point makes it unreasonable to expect Mr Y to have appealed.
  11. Responding to a draft of this decision, Mr X stated Mr Y did not have time to appeal because he was working long hours. I appreciate Mr Y had a busy job. However, Mr Y was also a landlord renting out a property, with the responsibilities that involved. As paragraph 11 explained, there is a reasonable expectation that landlords will deal with matters affecting their property. That includes using the appropriate appeal route if they are concerned about receiving a notice. So the argument that Mr Y was busy does not persuade me it was not reasonable to expect him to appeal when he had the right.
  12. Mr X also told me his parents did not know what to do or how to appeal. Again, landlords have a responsibility to understand their position or to take appropriate advice. The improvement notice would have included information about appealing. So this point does not persuade me.
  13. Also, anyone receiving a notice who does not appeal within 21 days can ask the tribunal for a late appeal and the tribunal can consider the reasons. So although Mr and Mrs Y did not appeal in the normal timescale, they could have sought a late appeal if they were aggrieved either by the improvement notice itself or by its impact on their ability to end the tenancy and take back the property. They did not do that.
  14. In his response to my draft decision Mr X said he looked into requesting a late appeal in December 2019 and January 2020 but understood his ability to do so was restricted by some alleged faults of the Council:
    • Mr X says the Council altered its records then claimed the notice had been complied with February 2019. Mr X states the Council was still inspecting after then and Mr X believes a hazard remains so the notice is outstanding. Mr X says he was advised if the notice has been complied with it would be harder to secure a late appeal.
    • Mr X says the notice did not include everything it should have as it omitted mentioning a fire hazard that remains in the property. I understand Mr X argues that if this had been included, the matter would have escalated, which could have helped Mr X’s argument for a late appeal or enabled him to challenge the Council if it sought to issue a fine for non-compliance.
  15. Those points relate to Mr X’s ability to request a late appeal over a year after the appeal period ended. There is anyway no guarantee the tribunal would agree to consider such a late appeal. Mr X’s interest in appealing so long after the notice was served is not central to the claimed injustice to his parents, which chiefly happened earlier. Indeed, Mr Y had sadly died before Mr X enquired about a late appeal. Also, Mr X could have requested a late appeal, giving his reasons for being late and anticipating any counter-argument that the notice had been complied with by explaining why he disagreed with the Council on that point. The tribunal could then decide whether to hear a late appeal.
  16. Overall, I consider it reasonable in the circumstances to have used the appeal right. So, while I acknowledge the difficulties Mr X and his family have experienced, I shall not investigate the complaint.

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Investigator's decision on behalf of the Ombudsman

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