Westminster City Council (20 005 034)

Category : Housing > Private housing

Decision : Upheld

Decision date : 28 May 2021

The Ombudsman's final decision:

Summary: Ms D complained the Council ignored evidence of, and failed to report, multiple civil and criminal violations relating to the condition of her privately rented property. She also complained the Council failed to advise her that handing in the keys before the property manager was forced to join a redress scheme would impact her ability to seek redress. We find the Council delayed dealing with the expired gas safety certificate. However, this did not cause Ms D a significant injustice. We also find the Council delayed following up on Ms D's concern that the property manager was not part of a redress scheme. The Council has agreed to our recommendations to address the injustice caused by fault.

The complaint

  1. Ms D complained the Council ignored evidence of, and failed to report, multiple civil and criminal violations relating to the condition of her privately rented property. She also complained the Council failed to advise her that handing in the keys before the property manager was forced to join a redress scheme would impact her ability to seek redress.
  2. She says living at the property caused her significant respiratory and other health issues. She also says she was put to time and trouble pursuing the matter and it has been a deeply distressing and traumatic experience.

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, 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

  1. I considered information Ms D submitted with her complaint. I made written enquiries of the Council and considered information it provided in response.
  2. Ms D 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

Housing health and safety rating system

  1. Private landlords are responsible for ensuring that rented accommodation is maintained to a certain standard. This includes carrying out repairs and making sure appliances are safe to use.
  2. Councils have powers to deal with disrepair to privately rented properties. The law says when a council has reason to believe there is serious risk to the health and safety of an occupier it must inspect the property.
  3. The housing health and safety rating system (HHSRS) is a tool used to help councils identify and protect against potential risks and hazards to health and safety.
  4. The HHSRS assesses 29 categories of housing hazard. Each hazard has a weighting system which will help determine whether the property is rated as having category one (serious) or category two (other) hazards.
  5. If the assessment finds a category one hazard, councils have a duty to serve a notice to the landlord to address the hazard. If the assessment finds a category two hazard, councils have discretion about whether to take formal action.
  6. The government has produced the guidance ‘Housing health and safety rating system operating guidance: housing inspection and assessment of hazards’. Chapter four, paragraph 4.03 of the guidance says that for local authority officers, inspections generally will be restricted to visual and surface inspections.

Redress schemes

  1. The Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc) (England) Order 2014 says that a person who engages in lettings agency or property management work must be a member of a redress scheme for dealing with complaints.
  2. The Order says it is the duty of every enforcement authority to enforce the requirement. Where the authority is satisfied, on the balance of probabilities, that a person has failed to comply, it may issue a penalty of up to £5,000.

What happened

  1. Ms D was living in a privately rented property in the Council’s area. She paid for an indoor air quality report to investigate the mould in the property. The report found there were significant levels of mould spores in the property. It found the landlord’s efforts to address the structural issues leading to the damp conditions had been ineffective in addressing the mould issues in the property. It also said the property had been uninhabitable for some time and large numbers of hazardous fungi had accumulated in the property.
  2. Ms D contacted the Council on 3 April 2019 and said the property was uninhabitable. She had moved out of the property because she had serious concerns about her health. The environmental health officer (EHO) emailed Ms D on 5 April and asked if she was still a resident. She also asked whether Ms D had any pictures of mould in the property.
  3. The EHO inspected the property on the same day and compiled an inspection report. This said that:
  • The extractor fan in the bathroom required a full service or renewal.
  • There was a boiler with exposed wires in the bathroom.
  • There was no significant reading of damp in the bathroom and bedroom.
  • The issue regarding penetrative damp caused by a leaking pipe on the external wall was resolved on the day of the inspection as there was no significant reading on the damp meter.
  1. Ms D sent the EHO a text message on 8 April. She provided her with pictures of mould in the property, an expired gas certificate and the boiler in the bathroom without any waterproof casing. She also sent the EHO the results from the indoor air quality report on 10 April.
  2. Ms D forwarded the EHO a message from the property manager which said that once she returned her keys to the property, her tenancy would be surrendered, and she would receive her deposit in full. She asked the EHO whether she needed further access to the property. The EHO responded on the following day and said she did not require further access.
  3. Ms D emailed the Council’s housing solutions team on 11 April and asked if the property manager was part of a redress scheme. The team responded on the following day and said it looked as if the property manager was not part of a redress scheme.
  4. Ms D sent a text message to the EHO on 12 April and asked who would pursue that the property manager was not part of a redress scheme. The EHO did not respond.
  5. On 16 April, Ms D emailed the EHO and asked if the property manager had received any legal notices. The EHO responded the following day and said she had to give the property manager time to respond. On the same day, the EHO sent the property manager a copy of her initial inspection report and the indoor air quality report. She asked to book a joint inspection to discuss the initial findings and formulate an action plan.
  6. The EHO could not meet the property manager on the scheduled day. She asked him for an update on what he had done to resolve the issues with the boiler, damp, and mould. He confirmed he had replaced the extractor fan, cleaned the property, and removed the cupboard with mould in it.
  7. Ms D emailed the EHO on 13 May and asked for the list of repairs the property manager had been asked to carry out. The EHO responded the following day and explained the property manager had completed the necessary works and she was awaiting a report. She said she would update Ms D with her findings.
  8. The EHO completed a further inspection on 24 May. She found:
  • The boiler with exposed wires in the bathroom had been repaired.
  • The extractor fan had been replaced.
  • There was no evidence of significant poor air quality.
  • Ms D had handed in her keys to the property since her complaint. Therefore, the case was closed, and no further action was required.
  1. Ms D complained the Council on the same day. She said:
  • The EHO failed to take pictures.
  • There was visible mould in the property and condensation stains on the wall.
  • The gas safety certificate had expired, and this was a criminal offence that had been overlooked.
  • The EHO marked the health hazards as resolved on the day of her visit, and therefore she disregarded the findings of the indoor air quality report.
  • The matter remained unresolved, and the property was a serious health threat to new tenants.
  1. The Council emailed Ms D on 17 June and said it was discussing the matter with the EHO.
  2. Ms D chased the Council for a response to her complaint on 2 August. She said the toxicology report showed her body was saturated with toxins, and this was a direct result of the mould and water damage in the property. The Council apologised for the delay in responding and said it had referred the indoor air quality report to its environmental health department.
  3. The property manager emailed the Council on 17 August and provided it with a renewed gas safety certificate (17 April 2019) and electrical test certificates (7 and 14 June 2019).
  4. Ms D chased the Council again for a response to her complaint on 27 August. She said the matter was causing her a great deal of distress and reiterated the property manager was in breach of the law by not renewing the gas safety certificate when it expired. She also said the constriction of the wet room was in violation of the Housing and Planning Act 2016.
  5. The Council made a duty of care visit to the new tenant at the end of August. It inspected the property again for any damp issues.
  6. The Council also emailed the Health and Safety Executive (HSE) on 3 September and made it aware of the expired gas safety certificate.
  7. The Council issued its stage one response to Ms D’s complaint on 11 September. It said:
  • It visited the property after the new tenant had moved in. It checked the property for hazards and took damp meter readings. No hazards were found.
  • The expired gas certificate was renewed in April 2019. Expired gas safety certificates are a matter for the HSE. The EHO contacted the HSE.
  • It does not take air samples. The EHO took surface damp meter readings, and the results were satisfactory.
  • The EHO carries out an “as seen” inspection. The EHO cannot serve a notice for something that cannot be seen or is historical.
  • While it understood her concerns about her linked health condition, the EHO did not witness, or find during her inspections, any significant areas of damp or condensation that would be recorded as a hazard.
  • It would check whether the property manager was part of a redress scheme.
  1. Ms D escalated her complaint to stage two of the Council’s complaints procedure. She said:
  • She was confused why it did another inspection with a damp meter, knowing that neither the damp meter nor eyesight would identify the high level of toxic mould spores in the property.
  • She did not understand why it ignored the findings of the indoor air quality report and her extensive medical tests.
  • Unless the wet room had been disabled or the boiler moved to another room in the property, it was still in violation of electrical safety standards.
  1. The Council’s trading standards department emailed Ms D on 17 September and said it was concerned the property manager was not part of a redress scheme. It wrote to the property manager the following week and said there was no record of him being a member of an approved redress scheme. It said it intended to issue him with a final notice imposing a penalty of £5,000.
  2. The property manager emailed the Council the following month and provided it with evidence he had now joined an approved redress scheme. The Council sent a final notice to the property manager and reduced the fine he had to pay to £4,500.
  3. Ms D provided further evidence of her health issues and medical costs to the Council.
  4. The Council issued its final response to Ms D’s complaint on 18 December. It said:
  • The EHO took damp meter readings on the walls where she had raised concerns.
  • It does not use equipment to take air quality checks and they are not required under inspections.
  • It contacted the property manager and asked him to provide an electrical certificate. He could not produce one covering the period when she resided at the property, but he provided one dated 14 June 2019. Therefore, the boiler passed the safety tests.
  1. The Council’s trading standards department confirmed to Ms D that the property manager had been added to the rogue landlord database.
  2. Ms D remained unhappy with the Council’s response and referred her complaint to the Ombudsman.

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Analysis

  1. The Ombudsman cannot investigate late complaints unless there are good reasons to do so. A late complaint is when someone takes 12 months to complaint to us about something a council has done. Ms D became aware of some of the issues in her complaint in May 2019. The Ombudsman did not receive Ms C’s complaint until September 2020. I will exercise discretion to investigate Ms D’s complaint from April 2019. This is because she originally submitted her complaint to the Ombudsman at the end of December 2019 after she received the Council’s final response to her complaint, but we did not receive it. Ms D then chased the matter in March 2020, but the Ombudsman was not accepting new complaints because of the COVID-19 pandemic. When Ms D became aware the Ombudsman had re-opened, she submitted her complaint again.

The Council delayed following up on Ms D’s concern about whether the property manager was part of a redress scheme.

  1. The EHO failed to respond to Ms D’s query on 12 April 2019 about who would pursue that the property manager was not part of a redress scheme. This is fault. The Council only followed it up several months later after it responded to Ms D’s complaint. As a result of the Council’s delay, the property manager was operating illegally for several months longer than necessary.
  2. The Council’s delay in following up on Ms D’s concern caused her frustration. However, even if the Council’s acted sooner, it is unlikely that she would have been able to seek redress about the issues in the indoor air quality report from April 2019. I contacted the redress scheme the property manager eventually joined. It said it cannot investigate complaints about issues that have happened before a property manager becomes part of its scheme, unless the property manager agrees to it. However, it cannot force a property manager to agree. Therefore, even if the Council had acted sooner, it unlikely that Ms D would have been able to complain to it about events in April 2019.

The Council failed to advise Ms D handing in her keys before the property manager was forced to join a redress scheme would impact her ability to seek redress.

  1. Ms D asked the EHO on 11 April 2019 whether she needed any further access to the property. She did not ask for any advice on whether she should return the keys or not. Therefore, the Council was not at fault.
  2. A tenant handing in their keys does not prevent them from seeking redress. The redress scheme that the property manager joined investigates issues that have happened within the last 12 months, regardless of whether a tenancy has ended.
  3. Even if Ms D had kept her keys, and then the property manager joined the redress scheme, it is still unlikely she would have been able to seek redress for the reasons explained in paragraph 45 of this decision statement.

The Council ignored the findings from the indoor air quality report.

  1. The government guidance on the HHSRS says that inspections generally will be restricted to visual and surface inspection. The guidance does not say that councils must take air samples. Therefore, the Council was not at fault for taking damp meter readings to assess the level of damp and mould in the property. This is the standard method.
  2. After Ms D complained in May 2019, the EHO referred the indoor air quality report to the Council’s environmental science department for a further view. It agreed that the EHO’s approach was correct. The Council explained to Ms D in detail in response to her complaint why it did not take air samples to assess the level of mould spores in a property.
  3. I appreciate Ms D strongly disagrees with the Council. However, the Ombudsman can only question a decision or process if it was carried out with fault. There is no evidence of fault in how the Council reached its decision in this case and so I am satisfied it acted properly.

The Council allowed the property to be advertised to be rented without first ensuring it was no longer toxic and despite that there was no electrical certificate for the preceding five years.

  1. The Council did not find the property was toxic in its inspections. Therefore, it was not fault for it to allow the property manager to rent the property out to new tenants. The Council also carried out a duty of care visit after the new tenant had moved in. It took further damp meter readings and did not find any evidence of damp or hazards.
  2. When the EHO first inspected the property, she found that part of the boiler cover plate was defective, but it was not significant enough to be a category one hazard. Therefore, there was no requirement for her to request an electrical certificate at the time.
  3. The Council explained to Ms D in response to her complaint that an electrical certificate was not legally required but was recommended as good practice. I agree with the Council on this point. Therefore, there was no fault in the Council not ensuring there was an electrical certificate before the property was rented out to new tenants.
  4. The government has since introduced the Electrical Safety in the Private Rented Section (England) Regulations 2020. This applies to new tenancies granted after 1 June 2020, and existing tenancies from 1 April 2021. This says that landlords must ensure electrical installations in their rented properties are inspected and tested by a qualified and competent person at least every five years. However, this did not apply at the time Ms D made her complaint.

The Council failed to deal with the expired gas safety certificate and electrical violations.

  1. Ms D provided the EHO with the expired gas safety certificate on 8 April 2019. At this point, it had been expired for three months. Although the property manager renewed the gas safety certificate on 17 April 2019, the EHO should have forwarded the expired gas safety certificate to HSE. She did not do so until September 2019. This is fault. While I appreciate it is a matter for the HSE whether to take further action or not, the Council should have been more proactive in contacting the HSE as soon at it was aware the property manager was in breach of the law.
  2. This fault has not caused Ms D a significant injustice because she was not living in the property when she referred the expired gas safety certificate to the Council. The issue was resolved by the time the new tenant moved in.
  3. Ms D says the boiler should not have been in the wet room because it had no waterproof casing and the distance between the fixed water source and boiler was not in keeping with the mandatory distance under government regulations. She also says the EHO told her on the day of the inspection the boiler should not have been in the wet room.
  4. The EHO did not find any issues with the boiler being in the wet room during her inspection. The only issue with the boiler was that cover plate was defective. The property manager resolved this. The boiler was inspected as part of the electrical installation test on 14 June 2019, and it passed the required safety tests. It would not have done so if it was in a hazardous location. The Council was not at fault.

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Agreed action

  1. To remedy the injustice caused by fault, by 28 June 2021 the Council has agreed to:
  • Apologise to Ms D for the frustration caused by its delaying in following up on her concern about whether the property manager was part of a redress scheme.
  • Using this case as an example, issue written reminders to relevant staff to ensure they are aware they should not unreasonably delay dealing with customers queries about whether letting agents/property managers are part of a redress scheme.

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Final decision

  1. I have found fault by the Council, causing an injustice to Ms D. The Council has agreed to my recommendations and so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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