Summary: The Ombudsman found no fault by the Council on Ms S’s complaint of it failing to act against her landlord for not carrying out works set out in a Hazard Awareness Notice. The Council inspected her property and liaised with her and the landlord/agent about her reports. Nor was there fault with its decision on her report of the landlord harassing her. There was no evidence to support the claim. Officers were aware of outstanding issues with the property but decided Ms S and the landlord/agent need to liaise to resolve them.

The complaint

1. Ms S complains the Council failed to:
1. act against her landlord who refused to carry out works it required him to do following the service of a hazard awareness notice;
2. act against her landlord who harassed her; and
3. identify hazards still existing during a recent visit even though they are the ones officers originally identified when serving the notice.
2. As a result, she suffered a great deal frustration, stress, and inconvenience and remains living in a hazardous property in need of repairing.

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What I have investigated

3. I have not investigated any complaint Ms S has about the Council’s actions before January 2019. The paragraph at the end of this statement explains why. Any references to events before this date are for background purposes only.

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The Ombudsman’s role and powers

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)
5. 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)
6. 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)

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Housing Health and Safety Rating System (section 8 Housing Act 2004)

7. Councils can deal with private sector housing issues, such as reports of damp or disrepair.
8. The Housing Health and Safety Rating System (HHSRS) allows a council to assess 29 housing hazards and the impact each may have on the health and safety of the current, or future, occupants of the property. It is a risk assessment approach. The Ministry of Housing, Communities and Local Government issued guidance in August 2006 about the HHSRS.
9. The assessment involves an officer inspecting the property. A council then considers the best way of dealing with the hazards found. If a hazard is serious, and an immediate risk to a person’s health and safety, it is classed as a Category 1 hazard. Category 1 is for the most serious hazards where the harm might be death, permanent paralysis, loss of a limb, or serious fractures, for example. If it is less serious or urgent, it is a Category 2 hazard.
10. A council can serve a Hazard Awareness Notice (the Notice) on a landlord which identifies the hazards and tells the landlord how to fix them. It does not give a timescale for the repairs. It is often used for category 2 hazards.
11. A council can also serve an Improvement Notice, which is usually used for category 1 hazards. It will identify the hazards, tell the landlord how to fix them, and give start and finish dates for the works.

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How I considered this complaint

12. I considered all the information Ms S sent, the notes I made of our telephone conversation, and the Council’s response to my enquiries, a copy of which I sent her. I sent a copy of my draft decision to Ms S and the Council. I considered their responses.

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What I found

13. Ms S rents her flat from a private landlord. The flat is in a building owned by the Council. She says problems with the flat’s condition started more than 10 years ago. Ms S claims despite increasing her rent, the landlord refuses to carry out repairs. The problem of mould in the flat remains and she rejects the Council’s view this is caused by condensation. She also claims the landlord harasses her and threatened her with eviction.
14. While the Council issued a Notice against the landlord in 2018, she claims hazard category 2 works were never completed. She believes the Council failed to take further enforcement action against the landlord. Ms S says works still need doing include: the washing machine, which drains in to the sink; a leaking toilet; the replacement of kitchen cupboards as the wall they are attached to needs replastering. She denies the claim she refused access to the landlord’s contractors sent to carry out repairs.

Complaint a): Landlord’s failure to do works

15. In June 2018, the Council issued the Notice against the Council for the following category 2 hazards: damp and mould; electrical; and personal hygiene.
16. Ms S argues the Council should have acted against the landlord when he failed to carry out required works and gone on to issue an Improvement Notice.
17. The Council explained its powers to deal with privately rented properties include assessing whether any category of hazard is present under the HHSRS. The Council must act on category 1 hazards, which involves serving an Improvement Notice or a Hazard Awareness Notice. It has discretion to act on category 2 hazards. It explained it issued the Notice to deal with category 2 hazards and believed there was a breakdown of communication between her and the landlord which might have impacted on some of the repairs.
18. The Council also explained as the landlord engaged with them, it gave him the chance to deal with the hazards. Since 2018, it received frequent communication from Ms S about disrepairs and from the landlord and his agent about the problems they had gaining access to carry out works. It spent much time trying to deal with access and addressing her concerns about repairs and harassment.
19. The Council decided not to take any further enforcement action because of the HHSRS score. In reaching this decision, it considered the most appropriate way of dealing with the hazards taking account of both the potential and actual risk as well as the fact the landlord was engaging with it. It concluded the landlord and agent were taking reasonable steps to deal with the repairs.
20. The evidence the Council sent shows:

2019

• January: The Council asked Ms S about availability for access as the landlord wanted contractors to look at her claimed repairs. The agent wrote to the Council about the need to serve a notice seeking possession to repossess the property because of rent arrears of £3,310 and how Ms S denied access. The court documents referred, but did not evidence, problems with her allowing access to carry out a schedule of works required by the Council.

Ms S told the Council the landlord tried to do works connected to damp and mould she thought were unnecessary. She referred to receiving letters from the landlord’s solicitors about her refusing access. Ms S thought this communication abusive.

• February: Ms S emailed the Council about mould in the flat, denying it was because of condensation. The Council said the landlord had a damp specialist who needs access which she needed to arrange. Ms D denied she caused access delays.
• March: The Council replied to her saying the agent wants access to do remedial works set out in the Notice. A plumber attended about the blocked main pipe which caused the washing machine to drain in to the kitchen sink. She later emailed back saying she had heard nothing about the mould specialist visiting. The Council told her it fulfilled its obligation under the Housing Act 2004 and would not agree a second opinion or another inspection of the remedial works in her home. It would close her case.
• May: A senior housing enforcement officer and environmental health officer visited to inspect the property and found:
1. minor condensation mould growth around the windows/front door and mould growth behind radiators. The landlord arranged for 2 damp and mould specialists to carry out an inspection and propose appropriate remedial works but, this was not acceptable to Ms S. She refused ventilation works;
2. small leak from toilet cistern; mould on bathroom tiles; washing machine backing in to sink. The Council contacted the agent and wrote to Ms S about allowing access. The washing machine works were arranged.

The Council noted the works identified in the Notice were recommendations only. It agreed to contact the agent about minor condensation mould growth and removing the radiators to allow her to clean behind them. They would investigate the cistern toilet leak and odour and do any necessary repair and will create a new run for the kitchen waste. The officer reviewed the evidence she provided of harassment but decided it did not support her claim. The officer noted frustration by both parties with the situation. The Council wrote to Ms S about the need to co-operate with the agent and allow access. It decided there was no reason for further enforcement work.

The officer received a call from the agent saying Ms S would not allow access for an inspection unless she had a schedule of works she approved.

• June: The Council told the agent the enforcement team will not take any further action as she refused access for the works. The agent told the Council she refused to allow access or provide suitable dates. It warned it might serve a section 21 notice to get the repairs done which it went on to do. A section 21 notice is a notice of seeking possession which starts the legal process to end a certain type of tenancy agreement.
• July: A visit at the start of the month took place about which Ms S complained because of the behaviour of the agent. She also complained the contractor decided to repair the leak and washing machine pipe the following day. The Council received information Ms S was subletting the rooms and refused the landlord and agent access. Ms S wrote to the Council about disrepair and denied subletting the flat but did refer to 2 households living in the property. She also complained about the competency of the electrician the landlord sent.
• September: Ms S wrote to the Council about the failure to do the repairs.
• November: The Council wanted to meet Ms S to discuss her case. Ms S gave some dates. The agent contacted Ms S about the need to renew the gas certificate and wanted to arrange an inspection and gave a date. A second email was sent to her shortly afterwards.
• December: The Council contacted the agent wanting to know when Ms S started refusing access, when the agent knew about the change of locks, and when the last electrical inspection was done.

Ms S told the Council there were other problems in the property such as cracks in the ceilings. The agent contacted the Council saying Ms S refused access to carry out gas safety inspection and sent proof of access attempts. She was told not to use all gas related appliances, not electric appliances as claimed. She also failed to provide the landlord with keys to the new door locks she fitted. It said she refused access to allow any works and when contacted accused the landlord of harassment. The agent provided copies of letters sent to her about the need for access and evidence of secure posting of these letters.

2020

• January: The records show Ms S could not keep a visit appointment as she felt unwell. Ms S asked the Council about the inspection of the ceiling. The Council asked her to provide 3 suitable dates when an officer could visit with the agent.
• March: Ms S contacted the Council to say she was ill and self-isolating because of Covid-19. Shortly after, the country went in to lockdown because of Covid-19 restrictions.
• April: Ms S asked the Council for an update about her reports.
• May: The Council asked her for an update about repairs. Ms S replied referring to the ceiling and none of the works required by the Council were done by the landlord. A Council officer suggested visiting her the following month.
• June: Ms S she would only agree an inspection when she received a response to her previous reports and complaint.
• July: The Council sent its response to her complaint and apologised for the delay in responding. It agreed to arrange a further inspection to assess what repairs needed doing. It had no evidence of the landlord or agents harassing her. An enforcement officer emailed her to arrange an inspection.
• October: An officer inspected the property and took photographs. The record of the visit notes the kitchen ceiling was not damp, had no staining, and was not blistering. The officer found no mould in the kitchen, just some staining. There was staining from a leak 2 years ago to the hall ceiling. The ceiling marks in the living room were like those in the kitchen. The officer found no mould or damp. There was no odour of the ground floor toilet. The toilet in the main bathroom had a small leak from the main pipe. The electrical hazard previously identified was gone.

The officer agreed to ask the agent about the extractor fan in the bathroom which needed replacing; the need to repair seals to both toilets; to check the connections from the washing machine to the foul water pipe and to check from blockages. I saw an email from the officer to the agent about these issues. The agent replied saying none of these were brought to its attention and Ms S will only contact it through the post and refuses access. The officer asked Ms S for 3 dates convenient for her that he could visit with the agent and contractor to agree a plan of action for the works. Ms S refused.

The same month, the Council sent its final stage complaint response to her.

• November: The Council wrote to Ms S saying she was not willing to engage with it and the agent to rectify the issues. What the officer found during his visit the month before were not category 1 or 2 hazards. She was reminded to provide 3 dates again for a joint inspection with the agent. Instead, Ms S replied questioning the accuracy of the photos the officer took. The agent told the Council it was still waiting for access. The Council was still waiting for dates from Ms S.

2021

• February: The Council emailed the agent again after further contact from Ms S. The agent sent an email to her about reporting repairs and asking for suitable dates for an inspection.
• March: Ms S emailed the Council saying the agent is already aware of the works needed and did not want any further visits. The landlord served a section 8 notice on Ms S for repossession of the flat because rent arrears were now more than £8,000. A section 8 notice is a Notice to Quit, served when a tenant has breached their tenancy agreement.
• April: The agent confirmed Ms S restricted all communication to postal only; refused access by way of keys and has changed the property lock; failed to respond or provide dates to arrange a visit.

Analysis

21. I found no fault on this complaint. In reaching this conclusion, I consider it important to firstly explain the Hazard Awareness Notice which will help keep the Council’s actions in perspective.
22. As noted, the Council has discretionary powers to deal with Category 2 hazards which it exercised by issuing the Notice.
23. It is worth noting the Notice:

• is simply advice to a landlord. It makes them aware of the existence of minor hazards;
• does not require the landlord to do anything but, while it is not enforceable, the Council should monitor the situation; and
• means the Council is unlikely to take further formal action unless conditions worsen or further hazards arise.

24. Put simply, the Council had a limited role once it served the Notice. Having examined what actions the Council took, I am satisfied it monitored the situation, mediated between Ms S, the landlord, and the agent. Officers inspected her property and assessed the problems reported. There was clearly some resistance from Ms S about further visits from the landlord and, as one officer noted, the relationship between her and the landlord/agent was one where each party was frustrated.
25. Throughout, the Council was clear about its position. It would not, in these circumstances, take any further formal action against the landlord. Essentially, this was, and remains, a situation for the landlord/agent and Ms S to resolve.

Complaint b): Landlord’s harassment

26. Ms S claims she was harassed by the landlord/agent who wanted to remove her from her property.
27. In response to my enquiries, the Council explained it has powers under The Protection from Eviction At 1977 to prosecute landlords or agents who commit acts of harassment against their tenants or who carry out illegal evictions. The Council told Ms S there was no evidence to support her claims against the landlord/agent. An officer told her the text message exchange she sent was evidence of frustration rather than harassment. Housing enforcement officers suggested she view the Council’s website about advice for private tenants.
28. In February 2020, another officer explained to her what powers the Council had and asked her to send evidence in support of her claims about the landlord.

Analysis

29. I found no fault on this complaint. The evidence does not support Ms S’s claim of the landlord/agent harassing her or being abusive towards. Nor am I satisfied the landlord/agent issuing the section 8 and section 21 notices amounts to evidence of harassment. The evidence in support of both show the reason for issuing them was not because of her reporting repairs to the Council but because Ms S was in arrears of about £3,300 and later more than £8,000. In the absence of fault, I cannot criticise the Council’s decision.

Complaint c): Failing to identify current hazards

30. Ms S claims the Council continued to fail to recognise the hazards identified in the Notice were not addressed by the landlord/agent and still needed doing.

Analysis

31. I am satisfied the evidence shows the Council monitored the situation and officers inspected Ms S’s property. Officers mediated between her and the landlord/agent and alerted the agent as late as October 2020, for example, about the need for it to arrange an inspection of its own. The evidence satisfies me, therefore, that the Council was aware of the issues Ms S remains unhappy about. It also explained to her it would not take any further action on her case.

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Final decision

32. I found no fault on Ms S’s complaint against the Council.

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Parts of the complaint that I did not investigate

33. I did not investigate any part of Ms S’s complaint about the Council’s actions taking took place before 1 January 2019. This is because 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.
34. Normally, we would only investigate as far back as November 2019 because Ms S complained to us in November 2020. Due to the time taken by the Council to respond to her complaint through the complaints process, and the Covid-19 restrictions we had last year, I exercised discretion to investigate her complaint from January 2019.

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Investigator's decision on behalf of the Ombudsman