Summary: The Ombudsman will not investigate Mr G’s complaint about being treated unfairly and with prejudice when the Council issued an improvement notice for a property he owns. This is because it would have been reasonable for Mr G to use his right to appeal against the notice and any charges to the First Tier Tribunal.

The complaint

1. Mr G says the Council has treated him unfairly and with prejudice by serving him an Improvement Notice.
2. Mr G wants an explanation as to why the Council treats individuals differently.

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The Ombudsman’s role and powers

3. 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
• 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.

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

4. 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

5. I have considered Mr G’s complaint and the Council’s response to it. I have considered Mr G’s comments in his reply to my draft decision.

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What I found

6. Mr G says he is a joint freeholder and rents out a flat in the building. Mr G says his former tenant was obstructive and made a series of complaints about disrepair to the property but proved difficult on occasions where contractors had attempted to rectify issues he had complained about.
7. Mr G says the Council has treated him unfairly and with prejudice particularly when it served him an Improvement Notice to get some work done in the common parts of the building.
8. The Council says it received complaints about housing disrepair from the tenant. The Council inspected and found Mr G and his co-owner the appropriate persons to carry out works on the identified hazard. This resulted in the Council serving an Improvement Notice.
9. The Council says Mr G agreed to undertake the work and requested additional completion time. It says if Mr G disagreed with the service of the Improvement Notice, he had a right of appeal which he could have exercised, but he did not. The Council says it undertook a further review of the matter at Stage 2 of the complaint, the Council still found Mr G and co-owner the appropriate persons to fix the identified hazard.
10. Mr G did not carry out the required work. The Council says according to its policy, a charge has been made for the costs of the required enforcement action in default by the PA and the co-owner.
11. The Council has powers under the Housing Health and Safety Rating System 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. This is a Council’s statutory right and if Mr G remained dissatisfied with the notice, we would expect him to have exercised his right of appeal at the First-tier Tribunal (Property Chamber).
12. Mr G says the Council pursued him rather than his co-owner because it could charge him more and the action was therefore motivated by money. The Housing Act 2004 under which the Council served the improvement notice provides for the Council to recover the cost of enforcement action if a person does not comply with an improvement notice under the Act. The costs would be the same for both Mr G and his co-owner. If the Council imposed a penalty for non-compliance as an alternative to prosecution, the Act would give Mr G and his co-owner a right of appeal against the fact and the amount of the penalty which it would be reasonable for him to use.
13. The Ombudsman cannot consider allegations of others who appear to have been treated differently by the Council. We can consider if the Council did something wrong in the way it investigated a complaint of disrepair from tenants and whether the landlord(s) was caused an injustice as a result. In this case, there is no evidence of fault by the Council acting more favourably towards the tenant nor the co-owner and treating Mr G unfairly or with prejudice by serving him the Improvement Notice. The Council based its decision on the condition of the property, not on the people involved. If Mr G disputed the need for any work, it would have been reasonable for him to appeal against these at the Tribunal.

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Final decision

14. The Ombudsman will not investigate this complaint because it was reasonable for Mr G to appeal against the Council’s improvement notice and any charges imposed.

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Investigator's decision on behalf of the Ombudsman