Summary: We will not investigate Mr B’s complaint that he has been unable to determine whether the Council victimised him because it has failed to provide a protocol showing the procedures it follows. This is because it was not unreasonable to expect Mr B to seek a remedy by using his right of appeal to the First Tier Tribunal.

The complaint

1. The complainant, Mr B, complained that he has been unable to determine whether the Council victimised him because it has failed to provide a protocol showing the procedures it follows when it receives a report from a private tenant about housing disrepair.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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

4. I have considered the information Mr B provided and his comments on my draft decision.

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What I found

5. Mr B told us a council housing enforcement officer was inspecting properties without first getting proof of repair requests from tenants. This would be to check whether the landlord had been put on notice about the repair requests. Mr B said the Council still went ahead with issuing many informal and formal Improvement Notices to him.
6. In its initial response to Mr B’s complaint the Council explained its general procedure for dealing with a housing-related complaint. It said it had recently introduced an improvement to this procedure. It now asks tenants for proof that they have contacted their landlord about the matter. The Council said it always writes to landlords to tell them it has received a complaint and to arrange a date for a joint inspection. The Council told Mr B the purpose of this visit is to try to resolve the matter informally and to agree a date for completion of the work. There is no requirement on the Council to publish the procedure it has described as a standalone document.
7. In its final response to Mr B’s complaint the Council said the protocol it had described in its previous response to his complaint could have been clearer had it been related to its housing enforcement policy. The Council accepted this policy is not available on its website.
8. Mr B told us the whole episode has been very distressing and stressful. He said he received notice after notice from the Council. He said, because the Council had not provided its protocol, he was unsure whether its officers had victimised him due to his ethnicity.
9. In its response to Mr B’s complaint the Council said the complaints its housing team investigates are property specific and it does not record data on ethnicity. So it is not currently possible to consider whether the Council treated Mr B in a different way to other landlords due to his ethnicity. The council officer who investigated Mr B’s complaint told him he had reviewed other cases involving properties not in Mr B’s ownership and found the Council had used the same process in those other cases. The Council told Mr B it would not enter into further correspondence with him about his complaint but it would await any enquiries from us. But, before we pursue a complaint, we must consider whether there is an alternative remedy that was available to the complainant which it was not unreasonable to expect them to use.
10. The Council's housing enforcement team officers have a role to inspect privately rented properties. They consider the standard of properties with reference to the national Housing Health and Safety Rating System Standards. If an officer finds a serious hazard, the Council has a duty to take enforcement action.
11. If a council decides to start formal action, it can issue an Improvement Notice, requiring a landlord to take action to rectify hazards. The First Tier Tribunal (Property Chamber - Residential Property) considers appeals against Improvement Notices. If Mr B felt he was unfairly singled out and the Improvement Notice was not the most appropriate option, he could have used his right of appeal to the First Tier Tribunal. It was not unreasonable to have expected Mr B to use his right of appeal. We expect people to use the right of appeal the law provides because this addresses the end result of the Council’s action. That is the case even though there may be administrative issues which may not be addressed in the appeal process.

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Final decision

12. We will not investigate this complaint. This is because it was not unreasonable to expect Mr B to seek a remedy by using his right of appeal to the First Tier Tribunal.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman