The Ombudsman's final decision:
Summary: The Council was at fault for the way it handled Mr X’s concerns about the condition of his property. Mr X spent a considerable amount of time pursuing this with the Council and has been living in a property with repair issues. The Council has agreed to the actions at the end of this statement to remedy the injustice caused.
- Mr X complains the Council:
- Has not effectively responded to his reports of repairs since June 2020.
- Has disregarded his concerns about a valid Energy Performance Certificate.
- Did not assist him when his landlord issued a section 21 notice after he reported repairs.
- Has not addressed the repairs carried out to the outside wall, namely cementing over brick and timber which was against listed building consent.
Mr X says as a result he is living in a property which is in poor condition.
The Ombudsman’s role and powers
- 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)
- 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)
- 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)
How I considered this complaint
- As part of this investigation I considered the information provide by Mr X and the Council. I discussed the complaint over the telephone with Mr X. I made enquiries with the Council and considered the information received in response. I sent a draft of this decision to Mr X and the Council and considered comments received in response.
What I found
Law and guidance
- Councils can deal with private sector housing issues, such as reports of damp or disrepair. The Housing Act 2004 requires councils to keep the housing conditions in their area under review.
- 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.
- 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. If it is less serious or urgent, it is a Category 2 hazard.
- A council can serve a Hazard Awareness 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.
- 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.
- As of 1st April 2018, it is required by law than any properties which are let within the private rented sector must usually have a minimum energy performance rating of E or above on their Energy Performance Certificate (EPC). Known as the Minimum Energy Efficiency Standards (MEES) the law will apply to all new tenancies granted after the implantation date.
The Council’s enforcement policy
- It is for the Council to decide the circumstances in which they feel it is appropriate to inspect a property.
- When deciding on what action to take following a report of housing conditions the Council will consider whether the situation can be remedied without the need for formal action.
- There has been extensive correspondence between Mr X and the Council since June 2020. In this section of the statement I have summarised key events, but have not referred to every single contact and communication.
Background to the housing issues
- Mr X moved into a property in December 2019. The property is Grade II listed. In December 2019 an inventory was completed for the property which showed the alarms had been replaced. At the time of moving into the property, the property had an Energy Performance Certificate (EPC) from 2012 with a rating of E. Mr X said upon moving into the property, he reported to the landlord a list of issues which were wrong with the property.
- In June 2020 Mr X sent the landlord a pre-action protocol letter complaining about repairs to the property. Ms X also commissioned another EPC. This concluded the property was brick built and had a rating of F.
- On 19 June 2020 Mr X contacted the Council about the condition of his property. This included issues about damp and inefficient heating causing excessive cold. Mr X also mentioned issues with the chimney and water flooding into the living room through an external wall when it rains.
- On receiving Mr X’s concerns the Council and Mr X’s landlord discussed the repairs. The landlord said it was seeking to arrange a contractor to assess the heating and cost of replacing this. The landlord also told the Council it was planning to repair the damp issues at the rear of the property caused by water penetration to an external wall. In relation to the EPC the landlord applied for an exemption as the property is a listed building.
- On 29 June 2020 the Council contacted Mr X and told him what the landlord was doing to carry out repairs. The Council said it did not think it necessary to visit Mr X’s property and the landlord applied for an exemption for the EPC.
- On 20 July 2020 Mr X complained to the Council via his solicitor. He complained about how the Council responded to his concerns about the EPC, heating system and damp penetration. Mr X said the Council did not properly investigate his concerns.
- In August 2020 Mr X’s landlord cemented the side of the property where water was leaking through the walls. The landlord also sent Mr X a section 21 notice to vacate the property on 19 August 2020.
- On 20 August 2020 the Council responded to Mr X’s complaint. The Council said:
- When Mr X moved into the property there was a valid EPC showing Band E. The Council said this certificate is still valid as it lasts for 10 years.
- It did not visit Mr X’s property due to Covid 19 and only sought to carry out essential visits. The Council said the landlord agreed to repair all issues.
- It considered whether to take formal action against Mr X’s landlord but decided not to as the landlord had agreed to carry out repairs.
- The Council said the landlord reports Mr X is obstructive in allowing access for repairs.
- His landlord had not carried out repair works and the Council has not followed this up.
- It was unacceptable the Council just spoke with the landlord and trusted he would carry out the repairs.
- The landlord has threatened him with eviction in response to his complaints about the condition of the property and the Council has not helped Mr X.
- He disputes not allowing the landlord to carry out repairs.
- Mr X is seeking the Council to issue an improvement notice to the landlord so he carried out repairs.
- It has asked Trading Standards to contact the EPC assessor to see why there was a difference between EPCs.
- Its decision not to visit Mr X’s property was reasonable. The Council offered to arrange a meeting with Mr X and the landlord at the property.
- It contacted the landlord about the repair issues and told the landlord to correct these. The Council believes the landlord is willing to repair but has been unable to gain access to the property. The Council said it will visit the property to look at the issues. The Council also said it will pass this onto its planning team as some repairs need listed building consent.
- Mr X refused to allow the landlord to carry out works to the heating system. The Council could not justify giving the landlord an improvement notice.
- Mr X only reported repairs after the landlord told him he wanted to sell the property.
- The landlord carried out repairs to ensure the property was weather tight. When inspecting the property the Council said there was evidence of water penetration but this was not serious enough to make the property uninhabitable.
- Trading Standards said it was reasonable to let the property based on the 2012 EPC. The Council said once it knew the property was thermally inefficient it asked the landlord to install extra heating and Mr X declined this. The Council said the property is listed as exempt from EPC rules because of its historic nature.
- It’s private sector housing team look at housing conditions and cannot decide whether repairs are in line with listed building consent. When the Council visited Mr X’s property in October 2020 it did not find the property uninhabitable.
- It only carried out visits when essential, particularly during the Covid 19 lockdown. The Council said it addressed the issues Mr X raised with his landlord without a need for a visit.
- Mr X only raised repair issues after his landlord told him he would sell the property and his complaints about repairs were in retaliation to this. The Council said it would only serve an improvement notice if the landlord had refused to carry out repairs.
Background to the planning issues
- Mr X lives in a listed building. In April 2020 his landlord obtained listed building consent to carry out works to the exterior of the property and the chimney.
- In August 2020 the planning team received Mr X’s pre-action protocol letter about housing repairs. The planning team sent this onto planning enforcement who raised an enforcement case.
- Around the same time Mr X’s landlord cemented the exterior wall of the property where Mr X reported water penetration coming into the inside of the property. Mr X said his landlord placed cement over the brickwork and timbers and this was in breach of listed building consent.
- Mr X reported this to the Council’s planning team in October 2020. Since this time the Council’s planning enforcement team and Mr X have been in correspondence, however it is not clear what has happened.
- The Council in response to my enquiries said Mr X’s landlord provided a sample mortar panel to the Council’s Conservation Officer on 21 June 2021 for the exterior of the building. The Council’s Conservation Officer assessed this but decided the sample mortar mix was not acceptable.
Complaint a) The Council has not effectively responded to his reports of repairs since June 2020
- When Mr X first reported repairs in June 2020 the Council did not visit his property to assess the condition. I have not found the Council at fault for not visiting Mr X’s property initially in June 2020. Its enforcement policy allows the Council to exercise discretion as to whether to carry out a home visit. In this case the Council assessed whether or not to visit Mr X’s property. It explained why it did not visit Mr X’s property to assess the repairs. Given the COVID19 restrictions and the correspondence it had with Mr X’s landlord this was a decision the Council was entitled to make.
- After this Mr X continued to report repairs to the Council and raised a formal complaint. This mainly related to the heating system and water penetration at the property. It is clear there was a disagreement between Mr X and his landlord and the relationship had broken down, however the Council did not take any further action to investigate Mr X’s concerns until it visited Mr X in October 2020. This is fault.
- Although the Council has not produced a report under the HHSRS, the notes from the visit indicate the Council found a category 1 hazard for excess cold and a category 2 hazard relating to damp and water penetration. As a result of this visit the Council told the landlord the appliance of heating was uneconomical to run as it does not have a thermostat and is not programmable and made some recommendations to fix the heating system.
- Had the Council carried out a visit earlier it would have likely identified the hazard of excess cold at the property and could have considered what action to take to get the landlord to remedy this sooner.
- Since Mr X’s landlord installed a new heating system in late October 2020, Mr X raised further issues about the heating system, its efficiency and cost to run as well as leaks from water penetration. The Council has not provided evidence it has investigated Mr X’s allegations.
Complaint b) The Council has disregarded Mr X’s concerns about a valid Energy Performance Certificate
- I have not found the Council at fault for its initial decision concerning Mr X’s EPC. The Council decided the original EPC provided at the start of Mr X’s tenancy was valid and compliant with minimum standards and his landlord had applied for an exemption.
- The Council also sought advice from Trading Standards about the EPC in October 2020 which helped frame its view. I accept it would have been appropriate for the Council to have contacted Trading Standards sooner but I do not consider this delay impacted on the Council’s decision. The Council has considered whether the EPC was valid and taken advice from Trading Standards. I cannot criticise its decision making.
- In July 2021 the Court decided Mr X’s EPC was invalid. Since this time another EPC was obtained and the property has a rating of F. I am unclear what the Council has done to ensure the landlord has done to improve the energy efficiency of the property given the Court’s decision. This is fault.
- The resulting injustice is Mr X continues to live in a property which does not have an energy efficiency rating which is compliant with MEES.
Complaint c) The Council did not assist him when his landlord issued a section 21 notice after he reported repairs
- The Council was at fault for not providing help to Mr X after he reported his landlord had served him with a section 21 notice and asked for help. While the Council’s view is Mr X reported repairs after the landlord told him he wanted to sell the property, the landlord did not serve notice until after Mr X raised repair issues. In addition Mr X is still living at the property.
- It would have been appropriate for the Council to provide advice to Mr X when he asked for help after receiving a section 21 notice. While this is fault I do not consider Mr X has suffered any injustice. Mr X had legal representation at the time and could discuss the section 21 notice and his rights with his legal representative.
Complaint d) The Council has not addressed the repairs carried out to the outside wall, namely cementing over brick and timber which was against listed building consent
- The Council looked at the damp and water penetration in October 2020 when it visited Mr X’s property but decided this did not make the property uninhabitable. The Council also passed this matter to its planning enforcement team to consider as the landlord needed to comply with listed building consent when carrying out repairs to the external walls to fix this issue.
- The Council’s planning enforcement team were aware of this issue since August 2020. Mr X also reported the landlord had cemented the side of the building using inappropriate materials over the timber and brick work of the listed building.
- In response to my enquiries the Council said it has been working with Mr X’s landlord to get him to carry out repairs, however this still is not resolved. Since being made aware of the issue the Council has inspected a further mortar panel supplied by the landlord but found this unsuitable.
- Given the time which has passed since the planning enforcement team have been involved the Council is at fault in how it has pursued this with Mr X’s landlord. It is reasonable to conclude the Council should have done more to get the landlord to carry out the repairs given the planning enforcement team have been involved for the best part of a year. All that has happened in this time is that the Council assessed a mortar panel and decided it was not suitable.
- Mr X has suffered injustice because of the time taken to agree the necessary repairs with the landlord. During this time Mr X sent correspondence to the Council complaining about his issue. In July 2021 he reported his property had flooded. In addition, the water penetration issues inside his property are linked to the repair to the exterior which needs to be carried out in accordance with listed building consent. Until the exterior of the building is repaired the water penetration will not stop.
- Within four weeks of my final decision, the Council agreed to carry out the following and provide evidence to the Ombudsman it has done so:
- Apologise to Mr X for the faults identified.
- Pay Mr X £400 to recognise the distress, time and trouble he has spent pursuing this matter.
- Arrange to inspect Mr X’s property to carry out a HHSRS assessment with a report to identify the current issues in Mr X’s property. Once the Council has the results of the HHSRS report it should decide what, if any, enforcement action to take and write to Mr X explaining its position.
- In light if the length of time which has passed, consider whether to take enforcement action against Mr X’s landlord as the repair to the external wall of the property has not been carried out. Once the Council has made a decision it should write to Mr X explaining what it is doing setting out any action it proposes to take.
- In light of the Court judgement concerning Mr X’s landlord’s claim for possession and the Court’s view of the EPC, consider what action the Council will take to ensure the landlord makes the property compliant with the energy efficiency regulations. The Council should write to Mr X saying what it proposes to do.
- I have completed my investigation and found the Council was at fault for the way it handled Mr X’s concerns about the condition of his property. This caused Mr X injustice. The Council has agreed to the above actions to remedy the injustice caused.
Investigator's decision on behalf of the Ombudsman