Summary: The Authority, which was Mr X’s landlord, was not at fault for delaying energy efficiency improvements to his property. Although this meant it did not meet the regulatory minimum efficiency standard when it came into force in April 2020, the delay was in line with government coronavirus guidance.

The complaint

1. The complainant, whom I refer to as Mr X, complains that the Authority (which was his landlord in private-rented accommodation) refused to take steps to improve the energy efficiency of his property. He says its refusal was in defiance of Regulations.
2. Mr X also says this matter caused him a significant financial injustice over the nine years he lived in the property, as he had to spend much more on utilities bills than he would have had to if it was more energy efficient. He says he wants the Authority to pay him £9,000 to recognise this injustice.

Back to top

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’. 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)
4. We cannot question whether an authority’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)
5. If we are satisfied with an authority’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)

Back to top

How I considered this complaint

6. I considered information from Mr X and the Authority. Both parties had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

What should have happened?

The Government’s domestic Minimum Energy Efficiency Standard (MEES) Regulations

7. These Regulations set a minimum energy efficiency level for domestic private-rented properties.
8. The Regulations apply to all domestic private-rented properties that are:
• let on specific types of tenancy agreement, and
• legally required to have an Energy Performance Certificate (EPC).
9. If a property is let on an assured tenancy and is legally required to have an EPC, and if the EPC has a rating of F or G (the two lowest ratings), the landlord must take steps to improve the energy efficiency of the property.
10. From 1 April 2018, private landlords were not allowed to let domestic properties on new tenancies if the EPC rating was F or G (unless an exemption applied). From 1 April 2020, this rule was extended to all relevant properties, even where there has been no change in tenancy.
11. If a landlord is currently letting a property with an EPC rating of F or G, and they have not already taken action, they must immediately improve the property’s rating to at least E, or register an exemption.

The Government’s coronavirus guidance for landlords and tenants
(March 2020)

12. This document gave non-statutory guidance to landlords on, among other things, property access in the context of coronavirus restrictions.
13. The guidance encouraged tenants and landlords to take “a pragmatic, common-sense approach” to non-urgent issues affected by the restrictions. However, it said essential or urgent work – such as repairs to broken boilers, washing machines or refrigerators – should still be completed.

What happened?

14. Mr X lived – for nine years, up to May 2020 – in a domestic private property rented from the Authority. The EPC of the property was rated G.
15. In January 2020, the Authority sent an assessor to the property to identify how improvements could be made to the EPC rating. He made recommendations, which were to replace the heating system, electricity meter and light bulbs, and to improve the loft insulation. He predicted that these changes would improve the EPC rating to D.
16. The Authority says it began its procurement process to implement these recommendations in late January. However, in March the national lockdown began in response to the coronavirus pandemic. The Authority says it acted in line with government guidance by only carrying out essential repairs during the lockdown period.
17. The Authority wrote to Mr X shortly before he moved out of the property and told him its intended improvements had been delayed by coronavirus restrictions.
18. In August, following a further complaint from Mr X, the Authority told him that it did not, in fact, have to comply with the MEES Regulations, as his tenancy had pre-dated them.

My findings

19. Mr X’s claim – that the Authority’s failure to meet the regulatory minimum efficiency standard caused him nine years’ worth of financial injustice – is undermined by the fact that the Authority only had a legal duty to meet the standard for the final two months of his tenancy. This is because landlords only had to improve F and G-rated EPCs for existing tenancies from April 2020.
20. Mr X is correct, however, to say that the Authority did fail to do what the MEES Regulations require: it failed to improve the energy efficiency of the property he lived in, which meant he lived in a G-rated property in April and May 2020. The Regulations say landlords should not let properties with such low ratings.
21. However, the Authority’s ability to do the required works to the property were unquestionably affected by the national coronavirus restrictions and, as the Authority itself points out, during April and May 2020 the government had advised landlords to only do essential or urgent repair works to properties.
22. The examples given in the coronavirus guidance do not include energy efficiency improvements, so I cannot say the Authority was wrong for deciding the works to Mr X’s property were neither essential nor urgent. Because of this, I do not consider the Authority to have been at fault for delaying the works.
23. The Authority’s later complaint response, in August 2020, said it did not have to meet the minimum efficiency standard in Mr X’s case because of the age of his tenancy. This was wrong. However, the other evidence suggests that the Authority was, in fact, aware of its duties. In my view, the error in the complaint response – which was not representative of the actions the Authority had already taken – does not amount to maladministration.
24. Because of the above, I have found no fault with the Authority.

Back to top

Final decision

25. The Authority was not at fault for delaying energy efficiency improvements to
    Mr X’s property. The delay was in line with government coronavirus guidance.

Back to top

Investigator's decision on behalf of the Ombudsman