The Ombudsman's final decision:
Summary: Mr X complained the Council failed to take action to investigate, or carry out an inspection, in response to his report about his landlord’s failure to undertake repairs at his home. The Ombudsman has not found fault by the Council.
- Mr X complained the Council failed, from December 2019 to November 2020, to take action to investigate, or carry out an inspection, in response to his concerns about his landlord’s failure to undertake repairs to his home. He says the Council failed to fulfil its statutory duty under Section 79 of the Environmental Protection Act 1990.
- Mr X told us this failure by the Council affected his family’s health, caused financial losses and led to the landlord proposing action to require them to leave the property.
The Ombudsman’s role and powers
- 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)
- 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)
How I considered this complaint
- I made enquiries of the Council and read the information Mr X and the Council have provided about the complaint.
- I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.
What I found
Housing Act 2004
- Local authorities have powers under the Housing Act 2004 to calculate the seriousness of certain hazards in private rented accommodation and, based on their assessment, take enforcement action against landlords.
- Under Chapter 1 section 4 of the Housing Act, if a local authority considers it would be appropriate for any residential premises in their district to be inspected with a view to determining whether any category 1 or 2 hazard exists on those premises, the authority must arrange for an inspection to be carried out.
Council’s Private Sector Housing Enforcement Policy Supplement 2017
- The policy says:
- Enforcement is an action carried out in exercise of or against the background of statutory enforcement powers. It includes inspections and investigations where the purpose is checking compliance with the law. And also providing advice to help those responsible persons and businesses to comply with statute, and more formal enforcement action such as the service of statutory notices.
- Enforcement action will be carried out to ensure tenants of private landlords live in homes free of significant hazards which affect their health and safety.
- In most cases it will first seek to work with service users to meet its objectives before escalating to use other forms of enforcement action.
- It also explains the Housing, Health and Safety Rating Scheme (HHSRS) and says:
- HHSRS is a risk based assessment scheme for defining the risk to health and safety of occupants from defined hazards in residential property.
- Category 1 hazards are those assessed as representing a serious risk to health or safety.
- Category 2 hazards are those assessed as representing a significant risk to health and safety. Officers will exercise their professional judgement when proposing enforcement action against category 2 hazards.
- In most cases officers will seek resolution of issues by initially working on an informal basis with those involved, through verbal requests, letters or emails or schedules of work. It will be made clear formal action could follow where there is a failure to respond to informal requests to carry out works to meet legal requirements.
- There are several options for formal action. The decision as to which is the most appropriate depends on the circumstances of each case, the relevant legislation and the risk to health and safety.
Council’s Residential Procedures Manual – HHSRS Enforcement Procedure
- This sets out the procedures its officers should follow when using HHSRS, and says:
- …Assessing hazards is only the first part of the process leading to action. The action to remove a hazard is based on (1) the hazard score, (2) whether the Council has a duty or power to act and (3) the Council’s judgement as to the most appropriate means of dealing with the hazard…..
- The most appropriate of the available enforcement actions must be considered. These include, but are not limited to, notices under the Housing Act 2004, and the Environmental Protection Act 1990.
December 2019 to June 2020
- On 3 January 2020 Mr X submitted the following online complaint to the Council:
“… The complaint about dampness, absence of hot water and landlord’s non reaction was initially reported over the phone on 13.12.2019 at 14:19 (to Mr ..) and at 14.53 to Ms ..who said I will hear back within 5 working days (never happened)”
- Mr X has told us his reference to 13.12.2019 was a typing mistake and his calls to the Council were made on 12 December 2019.
- The Council replied to Mr X by email on 9 January. It said:
- It did not have a record of him having raised his enquiry about disrepairs in the past and offered the following advice.
- If he was a private tenant, disrepairs in his home were a matter between him and his landlord in accordance with his tenancy agreement. He should raise issues with disrepair with his landlord ….preferably in writing, as this provides documentary evidence and protection from retaliatory eviction …
- If he had already raised the matter with the landlord and remained dissatisfied, he should contact the team by email or telephone (using the email address and phone number provided). He should also provide documentary evidence of having raised the matter with the landlord demonstrating a reasonable period had elapsed without resolution. It would also appreciate a copy of the tenancy agreement to assist in its enquiries.
- Mr X responded by email on 12 January. He said he had made a formal complaint to the Council, not an enquiry, and it should treat it as such in accordance with its complaints policy. He did not need the Council’s advice but needed it to fulfil its statutory duty. He had already raised the matter with the landlord and remained dissatisfied.
- In its email reply of 13 January, the Council said:
- According to its records the matter relating to housing disrepairs had not been raised with the Council in the past. It had provided advice on how he could take this forward to assist both himself and the Council in any investigation.
- It reiterated its previous advice and contact details for the residential services team. If he did not have success with his landlord and the disrepairs, he should contact the team with the supporting documents requested.
- There was no further contact between the Council and Mr X about the disrepair issues from 13 January until after Mr X contacted us about his complaint in June 2020. He has told us he was unable to access his emails for some months. He found the Council’s email of 13 January in his spam folder once his access had been restored.
- On 29 June Mr X complained to us about the Council. He said:
- He had reported the disrepair issues to his landlord before complaining to the Council in December 2019.
- He had not sought the Council’s advice. The Council had taken no action, contrary to its duties, and as a result he and his family had suffered respiratory illness, financial losses and the landlord was now taking retaliatory action and threatening to evict them.
- We should start our investigation of his complaint immediately because the Council had already had seven months to address his issues.
- We sent Mr X’s complaint to the Council. It told us it had not treated his contact in January as a service complaint but had provided initial advice. It had not received a reply from him and had not had the opportunity to investigate his concerns about the disrepair. We decided Mr X’s complaint had not been through the Council’s complaints process and he should come back to us once it had completed its investigation if he was unhappy with the outcome.
July 2020 – December 2020
- The Council contacted Mr X on 1 July about his complaint to us. It said it would like to arrange an inspection of his home to assess the defects and the landlord’s response to the issues.
- The Environmental Health Officer assigned to the case sent an email to Mr X on 3 July saying he had tried several times, but been unable, to speak to him by phone. He asked for details of the complaint, the landlord’s contact details and a date when he could complete a “virtual house inspection”. The officer also sent a letter asking Mr X to contact him in order to progress the complaint.
- The records I have seen of the contact between the Council and Mr X show:
- Mr X replied on 15 July. He referred to his contact with the Council earlier in the year and asked for a response to his complaints and request for compensation.
- On 22 July the officer confirmed his role was to complete a health and safety check of Mr X’s rented home and enforce a remedy by the landlord of defects identified. He asked for the landlord’s contact details and a contact number for Mr X so he could complete a risk assessment for a home visit (the Council’s required procedure). The officer proposed a home visit for 14 August.
- Mr X replied on 31 July. In addition to a number of other points, he said he had provided the landlord’s details in December 2019 and the date of 14 August was not convenient.
- On 3 August the officer asked Mr X to provide him with convenient dates for the home visit.
- On 21 August, Mr X called the officer in response to his contact of 3 August. Mr X raised a number of issues concerning the way the Council had dealt with his complaint. A date for an inspection was discussed. The officer asked Mr X to email him with convenient dates. Mr X said he was unable to do this as he did not have regular access to emails at present. Mr X suggested the following Tuesday. The officer said he was not sure as he was not in the office. He offered to call Mr X when he was back in the office. Mr X told him this was not possible. He had not given the officer his phone number as he was a full time student and could not answer phone calls randomly. The officer asked Mr X to call again in about 20 minutes.
- Mr X called back and left a voicemail for the officer suggesting a home visit the following Tuesday and asked the officer to confirm this by post.
- I have not seen any records of contact between the officer and Mr X from 21 August to September 2020.
- Mr X’s solicitor contacted the officer on 16 September. He asked whether the Council planned to inspect Mr X’s property and take any action regarding the potential hazards. The officer provided details of his correspondence about an inspection with Mr X. He asked for three convenient dates. He said the landlord should be invited to the inspection and asked for the landlord’s contact details.
- Mr X’s solicitor replied on 23 September with details of convenient times but asked whether it would be possible for the landlord to attend separately from Mr X. The officer explained the Council was required to notify both the landlord and the tenant of an inspection but suggested the landlord could wait outside the property during the inspection. An inspection was arranged for 2 October.
- Mr X’s solicitor told the officer on 1 October, Mr X was not happy about the proposed inspection on 2 October and suggested this be put on hold.
- Mr X told his solicitor on 21 October, the home visit could take place on 30 October. But the officer was unable to attend on this date. He told Mr X’s solicitor he was then on leave and would be available from 9 November. On 19 November Mr X’s solicitor told the officer the virtual house inspection could be carried out on 23 November.
- Following the virtual house inspection completed on 23 November, on 25 November, the officer notified the landlord of the hazards identified. These were; (1) damp and mould in the bathroom and (2) structural collapse and failing element, cracked tiles in the bathroom and kitchen areas, and dislodged piece of ceiling over the staircase. The officer set out the action the landlord should take to address the issues. A copy of this notice was provided to Mr X’s solicitor.
- On 7 December the landlord provided details of the remedial work completed together with photos. The officer sent this information to Mr X’s solicitors, confirmed the works carried out met the requirements in the notice and the case would now be closed.
Council’s response to Mr X’s complaint
- We passed Mr X’s complaint to our investigation team on 16 December.
- The Council issued its stage one response to Mr X’s complaint on 21 December 2020 explaining its position and why it did not uphold the complaint. Mr X was not satisfied with its response. The Council then issued its stage two complaint response on 9 April 2021.
Analysis – was there fault by the Council causing injustice?
December 2019 – June 2020
- Mr X has provided a copy of a phone bill showing calls on 12 December 2019 to the Council’s residential services team phone number. Although the Council says it has no record of his calls, I accept Mr X contacted the team about the disrepair issues on 12 December. He did not hear back from the team which prompted his complaint to the Council on 3 January 2020.
- On this basis, I consider there was fault by the Council in failing to respond to Mr X’s initial contact in December 2019. But my view is it put this right when it replied to his further contact of 3 January 2020. It explained it had no record of his contact in December and set out clearly what he should do now if he wanted the Council to investigate his complaint about the disrepair issues.
- I understand Mr X may have felt he should not have to resubmit his complaint information when he had already started the process in December. But I consider the Council made it clear in January it did not have a record of the information it needed to start an investigation into the disrepair issues. It told him what was required, how to provide it, and that its investigation would only start once it had this information.
- Mr X did not resubmit the requested information and he did not contact the Council again after 12 January 2020. My view is the Council was not at fault in not taking action to investigate Mr X’s complaint about the disrepair issues in the period from January to June 2020.
July 2020 – December 2020
- As soon as we told the Council about Mr X’s complaint to us, it contacted Mr X and assigned an Environmental Health officer to investigate the disrepair issue. The officer explained to Mr X the information he required to progress the investigation. I consider the records of the officer’s contact with Mr X and his solicitor during this period show he tried to arrange an early date for an inspection of Mr X’s home. In my view it was not the Council’s fault this did not take place until November 2020.
- Following the virtual inspection in November, the officer promptly issued a notice to the landlord setting details of the hazards identified and the remedial work required. He informed Mr X’s solicitor of the action he had taken. The officer considered the evidence from the landlord of the work carried out. He decided he was satisfied the remedial work had been completed, advised Mr X’s solicitor of the position and closed the case.
- In my view the Council was not required to take action under the Environmental Protection Act 1990 if it considered other options were appropriate.
- My view is the Council properly caried out its investigation of Mr X’s complaint about the disrepair issues in accordance with its private sector housing enforcement policy and procedures.
- I do not consider there was fault by the Council in the way it carried out and completed its investigation of Mr X’s complaint about his landlord’s failure to complete repairs in the period from July 2020 to December 2020.
Investigator's decision on behalf of the Ombudsman