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Nottingham City Council (20 008 860)

Category : Housing > Private housing

Decision : Upheld

Decision date : 04 Nov 2021

The Ombudsman's final decision:

Summary: The Council’s failure to act following a Housing Health and Safety Rating System assessment in December 2019 was fault. As a result, the Council delayed taking action against Ms X’s landlord by 14 months. The Council has agreed to apologise, pay Ms X £2600, and act to improve its services.

The complaint

  1. Ms X complains the Council failed to take proper action against her landlord when she reported serious disrepair in her private tenancy.
  2. As a result, Ms X says she was without any heating for 10 months and has experienced avoidable distress.

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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. 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 spoke to Ms X about the complaint and considered the information she provided.
  2. I made written enquiries of the Council and considered its response along with relevant law and guidance.
  3. I referred to the Ombudsman’s Guidance on Remedies, a copy of which can be found on our website.
  4. Ms X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Housing Standards

  1. Councils use the Housing Health and Safety Rating System (HHSRS) to assess the condition of residential housing. The HHSRS looks at the risks to the health and safety of occupants or visitors to a particular property.
  2. The HHSRS calls these risks ‘hazards’. There are Category 1 and Category 2 hazards. Category 1 hazards are the most serious.
  3. The Housing Act 2004 places a duty on councils to take enforcement action when it identifies a Category 1 hazard. The Council must do one of:
    • Serve an improvement notice
    • Make a prohibition order
    • Serve a hazard awareness notice
    • Take emergency action to reduce or remove the risk
    • Make an emergency prohibition order
    • Make a demolition order
    • Declare the area to be a clearance area.
  4. Improvement notice: requires the person on whom it is served to take the action set out in the notice to address the hazards. The action must be enough to make sure the hazard is no longer Category 1 but can go further. In private rented properties, it is usually served on the landlord.

What happened

  1. Ms X reported disrepair in her private rented property to the Council in October 2019. This included a faulty boiler, poor heating, mould and damp, and excessive draughts.
  2. In November 2019, the Council visited Ms X to inspect the property.
  3. The Council says it completed an HHSRS assessment in December. It says that because its computer system crashed, it only has a “partial account of this”. However, it says the assessment identified two Category 1 hazards.
  4. The Council sent Ms X’s landlord a Schedule of Works in December. However, it sent this to the wrong address. The Council sent this again in late January 2020 by email when it realised the error.
  5. The landlord agreed to complete all the works by the end of February.
  6. The Council says the landlord told it Ms X had refused to allow the tradespeople access to complete the works. Ms X says that tradespeople cancelled or rescheduled at the last minute and she did not refuse access.
  7. The evidence shows that Ms X did not refuse access. She did, however, place limitations on the days and times she would allow the landlord and contractors to visit.
  8. Ms X says that from February, the heating did not work at all. Previously it had worked if she also turned on the hot water.
  9. The Council told Ms X it needed to visit her property again to assess what, if any, of the works it recommended had been completed. The Council arranged to visit Ms X on 1 April 2020.
  10. On 26 March the COVID-19 restrictions came into effect. As a result, the Council cancelled its visit to Ms X. Instead, it asked her to provide photographs of the outstanding repairs.
  11. Ms X asked the Council to do the outstanding works and then charge the landlord. In October, the Council wrote to Ms X. It said that because it had not served an improvement notice, it could not do what is called “works in default”.
  12. The Council arranged a video call with Ms X so it could see the issues in her property. Following this, it sent a second Schedule of Works to the landlord.
  13. In November Ms X told the Council, with video evidence, that her boiler was not working at all, and she therefore had no hot water or heating.
  14. As a result, the Council served an abatement notice on the landlord, requiring the boiler be mended or replaced.
  15. The email evidence provided by the Council shows the contractor the landlord arranged to visit the property was only going to do a gas safety inspection, not repairs.
  16. In December, the Council sent its own contractor to replace Ms X’s boiler.
  17. The Council says it had to visit Ms X’s property to complete a new HHSRS before it could take formal action against the landlord. It says it could not complete this visit due to the COVID-19 restrictions in place between March 2020 and July 2021.
  18. The Council arranged to inspect Ms X’s home in June 2021. It completed the HHSRS and identified two Category 1 hazards. It also found five Category 2 hazards.
  19. The Council served an improvement notice on the landlord in July 2021. The law says an improvement notice cannot require works to start until 28 days after the notice was served. This date is called the operative date. In this case, the operative date was in mid-August. The landlord has two months from the operative date to complete the works.

My findings

Delay

  1. The Council completed an HHSRS in December 2019. In response to my enquiries, the Council said due to its computer system crashing, it only has a partial record of this. However, it confirms that it identified two Category 1 hazards.
  2. The Council wrote to the landlord with a Schedule of Works. It initially sent this to the wrong address. This delayed service by over a month and is fault. The Schedule of Works gave the landlord 14 days to contact the Council and agree to carry out the necessary works. It says if the landlord does not do so, it will issue a notice.
  3. This is in line with the HHSRS Enforcement Guidance which says before taking formal action, the person likely to be subject to enforcement action should “have an opportunity to resolve difficulties before formal action is taken.” Therefore, I do not find fault with the Council’s decision to give the landlord the chance to do the necessary works.
  4. The landlord agreed to complete the necessary works by February 2020. Ms X reported that the works remained outstanding. She provided evidence in the form of photographs and videos.
  5. At this point, the Council had:
    • Identified two Category 1 hazards
    • Given the landlord the opportunity to do the necessary works
    • Reason to believe, and evidence to show, that works were still outstanding
  6. The Council says it needed to visit the property again before it could take formal action. There is no requirement in the Housing Act 2004 or the HHSRS Enforcement Guidance to inspect prior to taking formal action. In this case, the Council had already completed an HHSRS assessment.
  7. Furthermore, when the Council completed a video inspection of the property in October, it issued a new Schedule of Works. This was substantially the same as that issued in January. This means the Council accepted that the hazards present in December 2019 had not been resolved.
  8. Therefore, the Council should have followed the requirement of the Housing Act 2004 and taken formal action. Its failure to do so was fault.
  9. I cannot say which of the available options set out in the Act the Council would have taken. When it did take action in June 2021, it served an improvement notice on the landlord. Fault by the Council delayed it taking action by at least 14 months.
  10. In that time, Ms X continued to live in a property in which there were identified Category 1 hazards. This is a significant injustice to Ms X.

COVID-19

  1. Ms X says she had no heating from February 2020 until the Council replaced the boiler in December. The Council says it was unable to confirm if the property had heating because it was unable to inspect due to the COVID-19 restrictions.
  2. The Government issued guidance to councils in March 2020 about enforcement of housing standards in rented properties during the pandemic. This said councils could continue to conduct inspections if needed. It also said councils could do assessments using video or live broadcasting from the tenant. The Guidance says “[a] decision to inspect a rented property should be based on risk and in line with a local authority’s resource capacity and enforcement policies.”
  3. The Council’s approach during the pandemic was to restrict physical inspections to properties where there was imminent risk or where the tenant was particularly vulnerable. This considered the risks to its Officers and the reduced resources resulting from the impact of the pandemic. It assessed the visit to Ms X’s property as a routine inspection. The Ombudsman cannot question the merits of a decision made without fault. In this case, the Council took into account the relevant information before deciding whether or not to inspect. There is no fault in how it reached the decision not to do so.
  4. Ms X told the Council the heating stopped working following works the landlord contracted on the boiler. In other words, this was a new instance of disrepair in the property, related to but different from those in the original Schedule of Works. The Guidance says councils could use video or live broadcasting to conduct inspections. In this case, however, the hazard reported was about heating. Whether or not the heating worked could not be established remotely. It was therefore not fault for the Council to require an inspection before taking action in regard to the heating in the property. When the boiler stopped working entirely, and Ms X was then without hot water, the Council was able to use the video evidence Ms X provided to issue an abatement notice.
  5. Ms X repeatedly told the Council the heating was not working. This appears to have been confirmed by the Council’s contractor in December. Therefore, on balance I find that Ms X was without heating from February to December 2020. However, the Council is not responsible for the disrepair at Ms X’s property, the landlord is. Therefore, this injustice is not the fault of the Council.

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Agreed action

  1. To remedy the injustice to Ms X from the faults I have identified, the Council has agreed to:
    • Apologise to Ms X in writing
    • Pay Ms X £150 a month for the 14 months it took the Council to take formal action for a total of £2100
    • Pay Ms X £500 in recognition of her avoidable distress, frustration, and time and trouble.
  2. The Council should take this action within four weeks of my final decision.
  3. The Council should also take the following action to improve its services:
    • Remind relevant staff that the law requires the Council to take formal action where it identifies a Category 1 hazard and provide any further training needed.
  4. The Council should take this action within eight weeks of my final decision.

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Final decision

  1. I have completed my investigation. The Council is at fault. The action I have recommended is a suitable remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman

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