Summary: Mr X complains on behalf of his son, Mr Y, that the Council did not inform him of his right to apply for a Rent Repayment Order (RRO), when it found the property he was a tenant in was an unlicensed House in Multiple Occupation (HMO). He says when the Council did tell him it was too late, as the time limit to apply to a tribunal had ended. Mr X also says the Council did not issue notices regarding hazards at the HMO as required by law and did not respond to his complaint despite acknowledging it, which caused uncertainty and distress. We find fault with how the Council handled Mr X’s complaint, its failure to issue the required notices and with some of the information it provided. The Council has agreed to apologise, make a payment for the uncertainty and distress caused, and the time and trouble used pursuing the complaint. It has also agreed to make service improvements.

The complaint

1. Mr X complains on behalf of his son, Mr Y, that the Council;

• Did not inform Mr Y of his right to apply for an RRO when it discovered the property he was a tenant in was an unlicensed HMO. He says when it did inform him it was too late to apply for an RRO,
• Did not communicate with tenants about formal inspections and provide them with copies of any notices served,
• Did not respond to his complaint.

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The Ombudsman’s role and powers

2. 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)
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

4. I read the complaint and made enquiries of the Council. I spoke with Mr X on the telephone.
5. I invited Mr X and the Council to comment on a draft decision and considered any comments made in response.

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What I found

6. An HMO is a property rented out by at least three people who are not from one household but share facilities like the bathroom and kitchen. Private landlords must obtain a license to rent out a large HMO. Some local authorities may also use their discretionary power under the Housing Act to designate certain areas to be subject to additional licensing, which would require smaller HMOs in the designated area to be licensed.
7. Section 72 of the Housing Act 2004 says that a person commits an offence if they control or manage an HMO without a license.

Rent Repayment Orders (RRO’s)

8. A RRO can only be granted by a tribunal. If one is granted, it requires the repayment of rent paid where a landlord or agent commits a certain offence. It is not necessary that the landlord or agent has actually been convicted of the offence, but the tribunal must be satisfied that a relevant offence has been committed.
9. Having control of, or managing, an unlicensed HMO is a relevant offence for which an RRO can be applied for.
10. A RRO must be applied for within 12 months of the offence being committed.

Hazard Awareness Notice (HAN)

11. The Council can inspect private rented properties for any hazards that may be present. Section 239(5) of the Housing Act 2004 says that before entering any premises in exercise of the power conferred by subsection (3) [a person authorised by the local housing authority], the authorised person or proper officer must have given at least 24 hours’ notice of his intention to do so to the owner of the premises (if known) and to the occupier if there is one.
12. The Housing Health and Safety Rating System (HHSRS) assesses 29 housing hazards and the effect that each may have on the health and safety of current or future occupants of the property. The HHSRS provides a way that hazards can be assessed and the best way of dealing with them identified. If a hazard is a serious and immediate risk to a person's health and safety, this is known as a Category 1 hazard. If a hazard is less serious or less urgent, this is known as a Category 2 hazard.
13. If any hazards are found, a HAN can be served on the landlord by the Council to inform them of any category 1 or category 2 hazards in a property they are responsible for. The Notice explains what the hazards are and what the landlord should do to resolve the problem. If the landlord doesn’t resolve the issue, further action may be taken.
14. Section 29 of the Housing Act 2004 relates to the power to serve notice for a HAN for a category 2 hazard; s29(7) states “Part 1 of Schedule 1 (which relates to the service of improvement notices and copies of such notices) applies to a notice under this section as if it were an improvement notice”
15. Schedule 1 Part 1 para’ 5(1)(b) states the local housing authority must serve a copy of the notice on every other person who, to their knowledge is an occupier of any such premises.
16. Section 8 of the Housing Act 2004 also places a duty on the Council to prepare a statement of reasons for their decision to take enforcement action. It says this should be served on those who received a notice under part 1, detailed in the previous paragraph.
17. Section 10 of the Housing Act 2004 states that where the local housing authority are satisfied that a prescribed fire hazard exists in an HMO and intends to take enforcement action under Section 7(2), before taking enforcement action the authority must consult with the fire and rescue authority. Section 7(2) includes the enforcement action of issuing a HAN.

Unlicensed HMO

18. Mr Y moved into an HMO as a tenant in October 2018. Mr X said he was concerned it was an unlicensed HMO as relevant notices were not displayed at the property. Mr X said he contacted the Council about the HMO.
19. Mr X said the Council did not advise Mr Y that he could apply for an RRO when it discovered the property he was a tenant in was an unlicensed HMO. He said he was only advised of this by the Council in an email in March 2021, but this was too late to apply to a tribunal for an RRO to recover rent from the period the HMO was unlicensed.
20. In response to my enquiries, the Council said the complaint was received about the unlicensed HMO on 12 July 2019. It said on the same date it contacted the landlord who attended the Council office and collected an HMO application form.
21. The Council said the law that covered the type of HMO in question being licensed came into place on 1 October 2018. It said its policy at the time was to help and encourage businesses and individuals to understand and comply with the law, and to respond proportionately to breaches of the law.
22. It said because of the landlord’s speedy response and willingness to resolve the problem, it did not proceed further with its investigation. An HMO license was issued on 29 July 2019 but was only for four years instead of the standard five-year license, so that the landlord did not benefit from the time the HMO was unlicensed.

Hazards

23. Mr X said hazards still existed at the property after the HMO was granted. He said these included the lack of a fire detection system. Mr X said an inspection took place in late 2020, but no formal notice of the inspection was provided to the tenants, nor were any copies of a subsequent HAN which was served on the landlord.
24. Mr X said the issues about the condition of the HMO and the way the Council has carried out inspections has had a negative effect on Mr Y’s mental health. Mr Y moved out of the HMO in March 2021.
25. The Council said it inspected the HMO in November 2020. No category 1 hazards were found but category 2 hazards relating to fire safety, furniture and kitchen facilities were discovered. The Council said it issued a HAN in December 2020 which had a six-month timescale for the landlord to resolve the issues. The Council also issued a statement of reasons.
26. In response to my enquiries, the Council said a HAN is a pre-formal action and a copy of the notice is not sent to the tenants of an HMO as a matter of course. It said tenants can be sent a copy on request. It also said the only contact it has ever had with any tenants of the HMO in question was with Mr Y in March 2021.
27. The Council said the hazards were rectified within the required timescale.
28. Mr X said he asked the Council if it had consulted with the local fire authority about the fire hazards in the HMO.
29. An email from the Council to Mr X in March 2021 suggested he contact the fire authority about the issues.
30. In response to the draft decision, the Council said it does liaise with the local fire authority and has agreed protocols in place. It said that it does not consult the local fire authority about all individual cases before taking action, if the circumstances of a case fall within the agreed protocol.
31. The Council also said it was taking the following actions in relation to its officers;

• All officers must undertake and pass the Housing Health and Safety Rating System (HHSRS) training, this provides competency in identifying hazards including fire and the enforcement powers to remove the hazard.
• All new officers must accompany an experienced Enforcement Officer until they are competent enough to inspect properties alone.  This would include liaising with landlords and tenants, inspecting of properties in accordance with the housing health and safety rating system, liaising with other agencies (North Yorkshire Fire and Rescue, planning, building control etc) and serving of the necessary letters/notices.  
• In September 2019 all Enforcement Officers attended training at North Yorkshire Fire and Rescue Training Centre.
• Ongoing Support to officers which includes the service having fortnightly Enforcement officer meetings where problems are discussed, and best practice shared. 
• Where the need for additional training is identified through performance reviews and meetings with staff, the relevant training is provided either through further on the job training (accompanying other officers) or through recognised training courses. There is also a regional HHSRS forum which officers from York attend to discuss complicated cases and share best practice.

Complaint handling

32. Mr X said the Council did not provide a response to his complaint that was made on 7 March 2021.
33. The Council acknowledged Mr X’s complaint and said it would respond under its stage one process by 8 April 2021.
34. Mr X asked the Council for an update on 12 April 2021 as he had not received a response. The Council replied that it was still dealing with the complaint and would issue a response by the end of April 2021.
35. On 10 May 2021, Mr X said he had still not received a response to the complaint. He contacted the Council again asking for an update.
36. In July 2021, Mr X contacted the Ombudsman. The Ombudsman contacted the Council who said it had not issued a stage one complaint response. The Council told the Ombudsman it would escalate the complaint to stage two and provide a response to Mr X by 10 September 2021. The Council never responded to Mr X’s complaint.
37. On 3 August 2021, the Ombudsman decided to proceed with the investigation. The Ombudsman requested documents from the Council and asked for them to be provided by 26 October 2021. The Council did not provide the documents, or any other response, by that date.
38. A further enquiry letter was sent to the Council who did then respond with the requested documents.
39. The Council said different staff have taken the lead on Mr X’s complaint at different times due to staff availability and workload. It said this has resulted in tasks being overlooked. The Council said it has now recruited extra staff and put a process in place to ensure complainants are updated if timescales for a response cannot be met.
40. The Council also said it has now put in a similar process for when it cannot respond to the Ombudsman’s enquiries within the required timescales.
41. The Council acknowledge that it did not meet appropriate standards for responding in time or providing updates to both Mr X and the Ombudsman and would like to apologise.

Analysis

Unlicensed HMO

42. The Council did not have to inform Mr Y, or any of the other tenants, when it discovered that the HMO was unlicensed in July 2019.
43. The Council took appropriate action when it received the report about the HMO being unlicensed. It decided not to investigate further when the landlord applied for an HMO license promptly, which was in line with its policy for the new license requirement at that time.
44. I do not find fault with how the Council handled the situation of the unlicensed HMO in 2019.
45. However, the information provided to Mr X by the Council in March 2021 about applying for an RRO was wrong, as it was outside of the timescale to apply to a tribunal. This was fault by the Council which caused uncertainty.

Hazards

46. The Council should have provided Mr Y, and the other tenants, with a notice that it is going to inspect the HMO for hazards. This is an obligation for the Council to give notice under Section 239(5) of the Housing Act 2004. It was fault not to do so.
47. The Council should have also served Mr Y, and the other occupants, with a copy of the HAN, as required by Section 29(7) and Schedule 1 Part 1 para’ 5(1)(b) of the Housing Act 2004. It was fault not to do so.
48. The Council considers it does not have to serve such notices as it considers the issue of a HAN to be pre-formal action. This is not correct as Section 7 of the Housing Act details the issuing of a HAN as enforcement action.
49. The Council suggested Mr X contact the local fire authority about the issues in the HMO. Section 10 of the Housing Act 2004 details how the Council must consult the local fire authority where it is satisfied a prescribed fire hazard exists in a HMO. The HAN clearly lists fire risks and as such it was the Council’s responsibility to liaise with the local fire authority.
50. The Council said it has a protocol with the local fire authority which means it does not need to liaise with it before acting in certain circumstances. This was not communicated to Mr X and to advise Mr X to contact the fire authority himself was fault.
51. The faults listed caused uncertainty to Mr Y and distress having only found out the extent of the problems in the HMO when the complaint was made.
52. The Council did take action to address the hazards with the Landlord and was satisfied with the improvements.
53. I acknowledge and welcome the comments from the Council in response to the draft decision about the training it is providing to its staff to prevent such issues from happening again in future.

Complaint handling

54. The Council’s complaint handling was very poor, and it has acknowledged this in its response to the Ombudsman. It gave dates to respond to Mr X’s complaint to both Mr X and the Ombudsman but missed these without providing any update on most occasions. Mr X never received a response to his complaint made on behalf of his son Mr Y.
55. This was fault by the Council that caused uncertainty and took up Mr X’s time and trouble pursuing the complaint.
56. I acknowledge and welcome the actions detailed by the Council that it has already taken to respond to the failures in its complaint handling.

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Agreed action

57. To remedy the injustice caused by the Council’s fault detailed in this statement, the Council has agreed to take the following action within one month of a final decision.

• Apologise to Mr Y and Mr X for its poor complaint handling, not serving the required notices relating to the HAN and providing the incorrect information about the application for an RRO.
• Pay Mr X £100 for his time and trouble pursuing the complaint.

58. The Council has also agreed to take the following action within three months of a final decision.

• Provide guidance to relevant staff to ensure they understand an RRO can only be applied for within 12 months of a relevant offence being committed.
• Remind its staff of the requirement to issue occupiers with a copy of a HAN. Additionally, the communication should cover the requirement to provide notice of an inspection at a property and to inform complainants who raise questions about fire safety that it has arrangements in place with the local fire authority, and not to just direct complainants to the fire service in these circumstances.

59. Evidence of completing these remedies should be sent to the Ombudsman.

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Final decision

60. I close this investigation with a finding of fault against the Council for the reasons mentioned in this statement. I have set out recommendations which the Council has agreed to take to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman