Summary: Ms X complained on behalf of Mrs Y, a private tenant, about the way the Council used its housing enforcement powers to address poor housing conditions in her flat. She also complained about the Council’s handling of Mrs Y’s landlord’s application for a selective licence. There was fault in the conduct of the housing enforcement investigation but that did not cause the injustice claimed by Ms X. There was no fault in the Council’s consideration of the selective licence application.

The complaint

1. Ms X works for an advice and campaigning organisation which supports private renters. She complained on behalf of her client, Mrs Y, that the Council:
• failed to use its enforcement powers under the Housing Act 2004 to ensure the hazards it identified in Mrs Y’s flat and the common parts of the building were dealt with effectively, to a reasonable standard, and in a timely manner;
• failed to ensure the landlord made a timely application for a licence when it introduced a selective licensing scheme in the area where Mrs Y lives and then took too long to process the application when it was made;
• has not shown that it properly considered whether the landlord was a fit and proper person before it granted the licence.
2. Ms X said Mrs Y is elderly and in poor health. She has not been able to occupy her home for more than two years because of the delay in completing works.
3. Ms X wants the Council to apologise and pay Mrs Y a substantial financial remedy. She also wants the Council to revoke the landlord’s licence and make an Interim Management Order.

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What I have investigated

4. Ms X complained about the Council’s failure to take enforcement action to deal with significant disrepair in Mrs Y’s property. She provided a timeline of events spanning several years.
5. I have investigated what has happened since 23 November 2017. This corresponds to the period covered by the Council in its complaint investigation.

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The Ombudsman’s role and powers

6. We may investigate complaints made on behalf of someone else if they have given their consent. (Local Government Act 1974, section 26A(1), as amended)
7. 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)
8. We cannot question whether a council’s decision is right or wrong simply because the complainant or a representative disagrees with it. We must consider whether there was fault in the way the decision was reached.
9. 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

10. I have spoken to Ms X and considered all the evidence she sent me. I considered the Council’s response to my enquiries and relevant records. I considered the Council’s housing enforcement policy and procedures.
11. I gave Ms X and the Council 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

What should happen – enforcement of housing standards

The Housing Act 2004

12. Private tenants may complain to their council about a landlord’s failure to keep the property in good repair. Councils have powers under Part 1 of the Housing Act 2004 to take enforcement action against private landlords where the council has identified a hazard which puts the health and safety of the tenant at risk.
13. When it receives a report of an alleged hazard, the Council should, as soon as possible, inspect the property to establish the severity of the hazard and what, if anything, to do about it.
14. Councils must decide whether defects identified during the inspection are category 1 or category 2 hazards. Hazards are rated according to a formal scoring system in the Housing Health and Safety Rating System (HHSRS). Hazards are scored to reflect:
1. The class of harm the hazard is likely to cause, should an incident occur;
2. The likelihood of an incident involving a member of a vulnerable group; and
3. The spread of possible harms resulting from an incident.
15. Councils have a legal duty to take action when they identify a Category 1 hazard. They have discretionary powers to deal with Category 2 hazards. The Act provides councils with a range of enforcement tools to address hazards. Statutory guidance on HHSRS enforcement says the service of an Improvement Notice is a possible response to a Category 1 or Category 2 hazard.
16. Remedial works should, as a minimum, reduce Category 1 hazards to a low Category 2 hazard. The Council’s enforcement policy says officers must consider the level of work that is reasonable to reduce the hazard significantly without incurring excessive cost. The aim is to remove, or where that is not possible, mitigate Category 1 hazards which affect the health and safety of the occupier.
17. The statutory guidance says that before taking formal enforcement action, councils should have regard to the Enforcement Concordat. In 2014 this was replaced by a statutory Regulators Code which councils must have regard to when they carry out housing enforcement functions. A key principle in the Code is that anyone likely to be subject to enforcement action must be given a clear explanation of what they need to do to comply and be given an opportunity to resolve matters before formal enforcement action starts (unless immediate enforcement action is required).
18. The statutory guidance says that when the owner or landlord is willing to take the required action, it might be appropriate to wait before serving a notice unless the owner fails to start work within a reasonable time. The council must decide what is a reasonable time based on the particular facts in each case.

The Council’s enforcement policy

19. The Council’s Private Housing Services enforcement policy says it aims to risk assess, provide a reasonable timescale for repairs or improvements to be completed and then take robust enforcement action in the event of non-compliance.
20. Paragraph 2.4 of the Council’s policy says:
• “An Improvement Notice must be served where there are Category 1 hazards present. High Cat(egory) 2 hazards (D&E) can also be included in the Notice”.
21. Paragraphs 7.62 to 7.65 of the policy explains the purpose of a Pre-Notice and the procedure officers must follow. The Pre-Notice is essentially a consultation document which sets out the inspection findings and invites the landlord/agent to make representations. The Council then considers the landlord or agent’s views on the required works and timescales before the Notice and schedules are completed and served.

What happened

22. Mrs Y is the tenant of a converted flat in a house. The Council has prosecuted Mrs Y’s landlord in the past for a housing-related offence relating to another property.
23. In mid-October 2017 Mrs Y informed the Private Housing Service that water had penetrated into her flat and caused extensive damage. She said she had reported this to the landlord’s agent but nothing had been done. Officer A, an Environmental Health Officer in the Council’s Private Housing Service, inspected her flat and the common parts of the building on 25 November 2017. He gave prior notice to the landlord’s agent who also attended. The agent agreed to investigate the cause of the leak and start remedial works.
24. Officer A says at the time of this visit he saw evidence of previous attempts to fix the leak. He noted several other defects in Mrs Y’s flat and the common parts of the building. Two days later he sent the landlord’s agent a Schedule of Works in the form of a Pre-Notice. I shall not list every defect here. Many were in the common parts of the building which Mrs Y used to get access to her flat. The Pre-Notice required the agent to rectify the following defects in Mrs Y’s flat:
• Investigate and remedy damp staining on the wall between the bathroom and the lounge;
• Investigate and remedy perished and damp ceiling plaster in the corridor;

(the likely cause of these defects was a leak from the flat above)

• remove and replace a fusebox;
• fix a loose banister rail on the stairs to the kitchen;
• replace split and damaged vinyl floor covering in the kitchen and lobby;
• provide an adequate work surface next to the cooker and hob;
• replace a damaged kitchen sink unit;
• fill cracks in kitchen walls and repaint;
• remove peeling wallpaper from bathroom walls and repaint;
• remove polystyrene ceiling tiles (a fire hazard) from living room ceiling and skim and repaint;
• fix a collapsed floorboard by threshold to bathroom;
• repair a broken double glazed window unit in the living room;
• test and certify the electrical installations and give the tenant a gas safety certificate.
3. The Pre-Notice did not identify which defects were Category 1 or Category 2 hazards. The Council says Officer A found one Category 1 hazard in the property: the damp and mould growth caused by the leak. But there is no written record of Officer A’s hazard assessment.
4. The Pre-Notice gave a deadline of 18 December 2017 to complete the works. It warned that the Council would issue an enforcement notice in the event of non-compliance.
5. When Officer A wrote to Mrs Y to give her notice of the inspection, he said he would inform her of any further action. But he did not write to Mrs Y to confirm the remedial works and the timescale for completion. Mrs Y’s adviser, Ms X, contacted the Head of the Private Housing Service in mid-December 2017 to ask what steps the Council had taken following the inspection. She was then told that a Pre-Notice had been served on the landlord. Ms X wrote to the landlord around the same time to give notice that she intended to pursue a legal claim for damages for breach of his repairing obligations.
6. Officer A contacted the landlord’s agent to check on progress in December. The agent told him he had met contractors on site. The Council says the agent also told Officer A the cause of the leak had been identified and stopped.  The agent asked for more time to complete the works because the contractors’ staff would be away over the Christmas holiday period. Officer A agreed an extension until mid-January.
7. In response to our enquiries, the manager of the Private Housing Service said works to rectify the Category 1 hazard were satisfactorily completed before the Pre-Notice expired. The Council did not ask the agent for written confirmation that these works had been completed. Officer A relied on information the agent gave him over the telephone and then reduced the damp and mould hazard rating from category 1 to category 2. He did not visit the property first to check the works were satisfactory before downgrading the hazard rating.
8. Mrs Y contacted Ms X in January 2018 to ask for further advice and support. The landlord’s agent told Officer A work would start on 16 January. Ms X then asked the agent to pause works at the property so she could meet him to discuss the Pre-Notice. Officer A was not invited to this meeting. The landlord’s agent met Ms X in late January and then informed Officer A he had agreed to carry out additional works to those specified in the Pre-Notice. This included:
• installing new kitchen units, worktops and a cooker;
• replacing the bath, toilet and washbasin in the bathroom;
• additional redecoration and flooring replacement;
• improving sound insulation between Mrs Y’s flat and the top floor flat;
• installing a door entry system;
• works to a bedroom window.
9. The landlord’s agent informed Officer A these works started in mid-February.
10. The Council says there were some difficulties in arranging access for the contractors. In early March Ms X asked the landlord to sign a legal agreement to enable Mrs Y to move out temporarily while works were underway. The agreement said the landlord would pay compensation for the weeks when Mrs Y could not occupy the property. It said Mrs Y would return when the Council’s Private Sector Housing Officer had certified the works had been satisfactorily completed. After taking legal advice, the landlord signed an amended version of the agreement in mid-March. The Council was not consulted on the terms of this agreement.
11. Mrs Y then left the flat and went to stay with her daughter.
12. On 5 April the agent contacted Officer A to tell him all the major works had been completed. This included:
• New kitchen (tiling, flooring, units, worktop, hob and oven)    
• New bathroom (tiling, flooring, sink, bath, shower and toilet)       
• New hallway flooring
• Complete redecoration.
13. The agent told Officer A he had done a snagging inspection with Mrs Y and her daughter on 4 April which picked up some minor issues. These works would be completed on 5 April.
14. The Council’s evidence includes this note by Officer A:

“5th April 2018 Case file closed as no possibility of further enforcement action by Brent”;

37. When it replied to Ms X’s complaint, the Council said Officer A closed the case on 9 April after inspecting the works. It said Officer A decided works had been completed to mitigate the Category 1 hazard (the water leak causing damage in Mrs Y’s flat). There is no written record of Officer A’s inspection and the only record from this time is a brief note about closure of the case.
38. In May 2018 Ms X contacted the Council to raise concerns about the quality and standard of the completed work. She asked for an officer to meet her and inspect the property. Officer A met Ms X at the property in early June 2018. In his notes he described the works as 99% complete. He noted the fire alarm was due to be replaced shortly. He asked for certificates for the alarms and electrical installations and a gas safety certificate. Later email correspondence between officers in the Private Housing Service says Officer A was satisfied when he visited in June that the property was suitable for Mrs Y to occupy.
39. The electrical installations in Mrs Y’s flat and the building were tested in late June 2018 and found to be in satisfactory condition. The landlord’s agent sent a copy of these certificates to Ms X.
40. Mrs Y has not yet returned to the flat. She is still in dispute with the landlord about whether all the extra works specified in the schedule to the temporary rehousing agreement were completed to a satisfactory standard. Ms X has reported some new and recurring defects. Officers from the Private Sector Housing team attended further meetings to try and resolve these issues.
41. When it replied to Ms X’s complaint, the Council said it had made some changes to procedures following its review of the case. It would now only serve a pre-notice in cases where there is no evidence the landlord/agent had previously been made aware of the disrepair. But where it has evidence that a tenant reported a serious disrepair to the landlord, and no action was taken, the Council will inspect and consider serving a notice without the need to consult. It now sends a letter to all interested parties to inform them of the decision to close the case.
42. At the final stage of its complaints process, the Council acknowledged that officers had sometimes been too generous in setting timescales for the landlord to complete the works. It also accepted there had been poor communication and a failure to update Mrs Y following the inspection in November 2017. It apologised for these failings and made a payment of £500.

Analysis

43. It is not compulsory for councils to serve an Improvement Notice when they find a Category 1 hazard in a rented property. The legal duty is to take action to ensure the removal or mitigation of the hazard. The statutory guidance and the Regulators Code encourage informal action, where appropriate, before starting enforcement action.
44. Officer A decided the damp and mould growth caused by water penetration was a Category 1 hazard. He served a Pre-Notice on the landlord’s agent listing all the defects found during his inspection.
45. Officer A did not update Mrs Y when he sent the Pre-Notice to the agent. The letter sent before the inspection in November 2017 promised he would keep her informed about further action. It was therefore fault not to give an update until Ms X made enquiries.
46. Although the defects were listed in the Pre-Notice, there is no written record of Officer A’s assessment of which were Category 1 and Category 2 hazards. That should have been recorded in case the Council later needed to start formal enforcement action later in the event of non-compliance. And there is no record of the inspection in April 2018 before Officer A decided to close the case. The poor record-keeping is fault.
47. It was fault to downgrade the hazard rating for damp and mould from Category 1 to Category 2 on the basis of a telephone call from the landlord’s agent. The agent told Officer A in December that works to stop water penetration had been satisfactorily completed. As Mrs Y is an elderly and vulnerable occupier, and Officer A found a Category 1 hazard in her flat, there should have been a further inspection to check housing conditions before making the decision to reduce the hazard rating.
48. The Council made the point that a later inspection confirmed the landlord had provided accurate information and the leak had stopped. It also asked us to consider the resource implications for the service of arranging another inspection. I have considered these points but it has not changed my view that a further inspection should have been made in this case.
49. Ms X says Mrs Y has been deprived of the use of her home for more than two years due to the Council’s faults. But Officer A considered it was fit for occupation when he inspected the flat in June 2018. Mrs Y’s separate dispute with the landlord about the additional improvement works contributed significantly to the delay. Mrs Y would not return to the property until all the additional works had been satisfactorily completed. The Council was not consulted on, or a party to, the agreement about those works. It did not agree to act as an arbitrator if there was a dispute between Mrs Y and the landlord about the quality or standard of these works. This dispute was the principal cause of Mrs Y’s extended absence from her home.
50. We must consider the duties the Council owed Mrs Y. It had to ensure the landlord took specified action to remove or mitigate the hazards Officer A found in November 2017 which were a risk to Mrs Y’s health and safety. The Council did not agree to monitor the quality and standard of the improvement works Ms X negotiated with the landlord’s agent. The legal agreement had the effect of merging works in the Council’s schedule with the extra works and improvements Ms X had negotiated. This caused practical difficulties for the Council and blurred the boundaries.
51. I have found fault. There was inadequate record keeping, Mrs Y was not kept properly informed at the outset and the property was not re-inspected before the decision was made to downgrade the Category 1 damp and mould hazard to Category 2. But I found no causal link between these faults and Mrs Y’s extended absence from her home. And the Council has already provided a remedy for its poor communication with Mrs Y by apologising to her and making a payment of £500.

What should happen – selective licensing

52. Part 3 of the Housing Act 2004 gave councils powers to introduce a selective licensing scheme for private landlords with properties in their area. It also sets out the process for considering licence applications and the criteria which must be considered when deciding whether to grant or refuse a licence.
53. One of the matters a council must consider is whether the proposed licence holder is a “fit and proper person”. Section 89 of the Act specifies the factors to be considered when making this decision. Among other things, a council must consider whether the person has contravened any housing or landlord and tenant law. Councils may consider any conduct underlying spent convictions.
54. If a council decides to grant a licence, it can be for a maximum period of five years, or a shorter period if a council considers that necessary.

Brent’s selective licensing scheme

55. In June 2018 the Council introduced a selective licensing scheme in three wards. Mrs Y’s flat is in one of these wards. Landlords who let any residential properties in these areas had to apply for a licence. When the scheme came into force, Mrs Y’s flat was unoccupied because she was staying with her daughter under the temporary housing agreement.
56. The Council’s enforcement policy says the purpose of the selective licensing scheme is to:
• Ensure landlords are “fit and proper persons”, or employ agents who are;
• Establish adequate management is in place;
• Ensure the accommodation is adequate for the number of occupiers;
• Safeguard the health, safety and welfare of tenants and ensure landlords of high risk properties are identified and, where necessary, action can be taken to enforce standards.

What happened – the landlord’s licence application

57. Mrs Y’s landlord was successfully prosecuted by the Council in the past for failing to fully comply with an Improvement Notice on another rented property.
58. Ms X had alerted the Council in 2019 to the fact that Mrs Y’s property was not licensed.
59. Officers from the Private Housing Service met the landlord’s representatives in June 2019 to plan a programme of inspections of all the unlicensed properties in his portfolio and properties where a licence application was pending.
60. The landlord’s agent submitted a selective licence application in mid- October 2019 for Mrs Y’s property following a reminder from the Private Housing Service. It seems the reminder was prompted by further contact from Ms X. Mrs Y’s landlord applied to be the licence holder.
61. On 13 December the Council gave the landlord notice of its intention to grant a licence. It enclosed a copy of the draft licence and asked him to make any representations by 6 January 2020.
62. On 13 January the Council granted a licence to the landlord for a period of 12 months. The Council says this was for a shorter period than usual.
63. Once the application was made, the Council took two months to process it. There was no undue delay at that stage.

Analysis

64. The landlord’s agent did not apply for a licence promptly when the scheme came into force in 2018. Ms X says the Council should have pursued the landlord or his agent more vigorously in view of what it knew about the poor housing conditions in Mrs Y’s property. She made the point that the Council already had concerns about the landlord’s management record, he had been convicted of a housing related offence and she had alerted the Private Housing Service to his failure to apply for a licence.
65. I understand Ms X’s concern about the landlord’s delay in making the application. But I must consider whether the Council’s failure to pursue the application sooner had an adverse impact on Mrs Y. The Council had already inspected her flat and taken action requiring remedial works to remove hazards. Officer A was satisfied in June 2018 that the property was fit for occupation. And Mrs Y was not occupying the property between June 2018 and October 2019. For these reasons, I do not consider any failure on the Council’s part to chase up the application exposed Mrs Y to any risks or had any other significant impact on her.
66. Ms X says the Council failed to consider whether the landlord met the “fit and proper person” test before granting the licence. The Ombudsman cannot question the merits of a Council’s decision to grant a licence if it has considered all the relevant matters. The Council took into account the landlord’s previous conviction for a housing related offence. The conduct underlying this conviction was certainly relevant to its decision about whether to grant a licence. However the law does not say councils cannot grant a licence in these circumstances. It is only if a landlord is subject to a banning order that it must refuse the licence application. The Council had to weigh all the relevant matters, including changes to management practices since 2018, and the evidence from its inspection of properties in the landlord’s portfolio in 2019. Due to its concerns about standards in Mrs Y’s property, it decided to grant a licence for a shorter period. I find no fault in the way the Council made that decision.
67. Although Ms X strongly disagrees with the decision to grant a licence we cannot criticise the merits of the decision if there is no fault in the way it was made.

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Final decision

68. I found fault in the way the Council carried out the housing enforcement investigation but that did not cause injustice to Mrs Y.
69. There was no fault in the way the Council dealt with the landlord’s application for a selective licence.

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Investigator's decision on behalf of the Ombudsman