Summary: Mr X complained on behalf of Ms B and Mr C that the Council failed to take action to ensure their landlord completed remedial works to their private rented property within a reasonable time. We found the Council took appropriate action to ensure the landlord completed the required works within a reasonable time given the difficulties caused by COVID-19. We found the Council was at fault in failing to respond to Mr X’s correspondence, but this did not cause a significant injustice. The Council also delayed in responding to Mr X’s complaint, but the delay was justified given the complexity of the case.

The complaint

1. Mr X complains on behalf of Ms B and Mr C that the Council failed to take action to ensure their landlord completed remedial works to rectify defects in their private rented property within a reasonable time.
2. Mr X also complains that the Council’s environmental health team failed to respond to his correspondence dated 25 March and 9 April 2020 and that the Council delayed in responding to his complaint at stage 1 of its complaints procedure.

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The Ombudsman’s role and powers

3. 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)
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)

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How I considered this complaint

5. I have considered all the information provided by Mr X, made enquiries of the Council and considered its comments and the documents it provided.
6. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Legal and administrative background

The Housing Health and Safety Rating System (HHSRS)

7. Councils have powers under the Housing Health and Safety Rating System (England) Regulations 2005 (‘the Regulations’) to take enforcement action against private landlords where it has identified a hazard which puts the health and safety of the tenant at risk.
8. The Government has issued HHSRS operating guidance and enforcement guidance (‘the guidance’). Councils must inspect properties to determine whether there are any serious (category 1) or less serious (category 2) hazards. Using the method prescribed by the Regulations and having regard to the guidance, they assess the severity of the risks associated with any hazards in or at the premises.
9. The purpose of the HHSRS is to assess how a hazard affects the health of an individual and aims to remove hazards that are serious enough to cause harm. However, the assessment is a matter for the officer’s professional judgement.
10. Where a category 1 hazard is identified, councils must take appropriate enforcement action. This may include serving an improvement notice setting out what the landlord must do to stop the hazard. Councils can also choose to take action with regard to less serious category 2 hazards if they think it is necessary. But they are under no duty to do so.
11. The guidance says that, if the landlord agrees to do the work within a reasonable time, a council can wait before serving a Notice.
12. The Regulator’s Code 2014 states that anyone likely to be subject to enforcement action must be given a clear explanation of what they need to do to comply and an opportunity to resolve matters before formal enforcement action starts (unless immediate enforcement action is required).

Key facts

13. Mr X represents Ms B and Mr C who live in a privately rented property with their young children. Social services were involved with the family and reported disrepair at the property to the Council’s Environmental Health team on 13 February 2020. After some discussion with the social worker, an environmental health officer (EHO) arranged to visit the property. He wrote to Ms B and Mr C explaining this on 18 February 2020.
14. The EHO and the social worker visited the property on 26 February 2020. The EHO assessed the conditions in the property using the HHSRS. His inspection record shows he found various defects including: the boiler was not working so there was no hot water or heating; there was no working smoke detector; mould; the bathroom sink was blocked, the toilet was leaking, the oven was not working; a leaking radiator and defective windows.
15. The landlord had not provided a current gas safety certificate for the property, the EHO referred this to the Health and Safety Executive (HSE) who are the enforcement authority for this issue.
16. On 25 March 2020 Mr X wrote to the director of Adults, Housing and Communities asking what action had been taken regarding the disrepair at Ms B and Mr C’s property.
17. On 26 March the EHO served a schedule of remedial works on the landlord setting out the defects and the remedial action required. He also served a notice under the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 because there was only one working smoke alarm in the two-storey property. The EHO sent copies of the documents to Ms B and Mr C.
18. The landlord confirmed he would carry out the required works. The EHO asked him to prioritise the heating, hot water and plumbing issues because there was a young family in the property.
19. On 6 April 2020 the EHO sent an email to the landlord asking for a progress report. The landlord said he had asked Ms B and Mr C to telephone his plumber to arrange a convenient time to carry out the boiler and leak repairs.
20. On 9 April 2020 Mr X wrote to the EHO referring to his previous letter and complaining about the informal tone of the officer’s emails to the landlord.
21. On 17 April 2020 the EHO wrote to the landlord requesting an update. He said he understood the boiler and plumbing issues had not been resolved and said it was vital that the items set out on the schedule of works and smoke alarm notice were remedied as a matter of urgency. The landlord explained he was struggling to find tradespeople to enter the property because of COVID-19.
22. A few days later the EHO requested a further update. The landlord confirmed the leaking radiator had been fixed and minor plumbing repairs completed. He said a boiler would be fitted as soon as possible but he was having difficulty obtaining one because of COVID-19.
23. On 30 April 2020 the Council received a subject access request from Mr X on behalf of Ms B and Mr C requesting copies of all information held about them by the Council.
24. On 6 May 2020 the landlord confirmed that smoke and carbon dioxide alarms had been fitted and provided a copy of the gas safety certificate. He confirmed the boiler was due to be fitted the following week.
25. The EHO contacted the landlord again on 14 May 2020. The landlord confirmed a new boiler had been fitted the previous day.
26. On 27 May 2020 the Council responded to Mr X’s subject access request.
27. The case was reallocated to another officer when the EHO was on leave. On 1 July 2020 the officer sent an email to the landlord requesting an update on each of the outstanding issues. The landlord provided an update.
28. The officer also contacted Ms B saying he would telephone on 9 July 2020 to check whether she had been visited by any contractors or her landlord. He said he planned to visit in the week commencing 13 July to look at the work which had been done and establish which works remained outstanding. He visited on 15 July and then sent an email to the landlord.
29. There were regular emails between the officer and the landlord between July and September 2020.
30. On 23 September 2020 the officer visited the property. He was satisfied the landlord had completed all the items on the schedule of works.

Analysis

Remedial works

31. The environmental health team acted promptly when the social worker raised disrepair issues. Officers visited within nine working days to complete an inspection.
32. Although the defects found were listed in the inspection document, there is no written record of the officer’s assessment of which were category 1 and category 2 hazards. That should have been recorded in case the Council later needed to start formal enforcement action in the event of non-compliance. The poor record-keeping is fault. But it did not ultimately cause an injustice because all the works were completed.
33. Following the inspection, there was a delay in serving the schedule of remedial action on the landlord because the EHO was absent from work due to ill-health. However, the Council acted appropriately by transferring the case to another officer who served the schedule of works on 26 March.
34. The schedule of works stated that remedial action was required to avoid the service of an Improvement Notice. This is in line with the HHSRS enforcement guidance which says that, 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”.
35. The landlord agreed to complete the works and officers contacted him and Ms B and Mr C regularly to check on progress and ensure the most urgent works were prioritised. The EHO also regularly liaised with the social worker who visited the family weekly providing updates on which works had been carried out.
36. The guidance says that, when the landlord is willing to take the required action, a council can wait before serving a notice unless the landlord fails to start work within a reasonable time. It is for the council to decide what is a reasonable time based on the particular facts in each case.
37. The HHSRS says “local authorities and landlords are encouraged to work together to maintain property in good repair, and enforcement is seen as a last resort”. “Sometimes a programme of works is the best approach and the local authority has the power to make a judgement about priorities, i.e., dealing with the most serious problems first, and with less serious ones over a longer timeframe”.
38. The Council’s private housing enforcement policy 2009 details how it regulates standards in private housing in its area. It says, “informal action will normally be the preferred first stage approach, unless there is a known history of poor management or compliance on the part of the owner or agent. This will normally be the case even where emergency action is required. The service prefers to work with owners and agents in order to achieve improvements, prior to considering statutory action”.
39. I am satisfied the Council acted in accordance with the guidance and its own policy. Although it took several months for all the required works to be completed, officers took action to ensure progress was being made and urgent works were prioritised. The Council has explained that, because of issues arising early in the COVID-19 pandemic, there was a limited number of available trades people who could go into properties as well as a considerable drop in available supplies.
40. Government guidance to local authorities during the COVID-19 restrictions, was that they should aim to work with landlords informally to get works completed unless the landlord was not responding or cooperating. Officers were satisfied the landlord was progressing the works appropriately given the difficulties caused by COVID-19. This was a matter for their professional judgement.

Response to Mr X’s correspondence

41. On 25 March 2020 Mr X wrote to the Service Director of Adults, Housing and Communities asking what action had been taken about disrepair at Ms B and Mr C’s property. The Council did not respond to this letter. This was fault but the EHO served a schedule of works on the landlord the following day and provided Ms B and Mr C with a copy. So, they were aware that action was being taken to address the disrepair issues.
42. On 9 April 2020 Mr X sent a letter to the EHO referring to “the informal tone” of the emails sent to the landlord. He said there was a “lack of professional distance” on the EHO’s part. The Council did not respond to this letter. But it did respond to Mr X’s subject access request in May 2020 and provided information.
43. I do not consider any injustice was caused to Ms B and Mr C by the Council’s failure to respond to Mr X’s letters. The EHO was in regular touch with them and with their social worker so they were aware of what action was being taken.
44. Mr X says the Council did not respond to his complaint about the email exchanges between the EHO and the landlord. The EHO confirmed to the officer dealing with the subject access request that “this is the first and only property I have been involved with that the landlord owns and have had no involvement with the landlord prior to this in any capacity”. I have seen no evidence to suggest any impropriety in the EHO’s dealings with the landlord and I do not consider the correspondence between the EHO and the landlord was in any way inappropriate.

Mr X’s complaint

45. Mr X says the Council delayed in responding to his complaint at stage 1 of its complaints procedure.
46. The Council’s complaints procedure states that a stage 1 response should be issued within 20 working days.
47. Mr X complained to the Council on 16 September 2020. A response should have been issued by 14 October 2020 but the Council did not respond until 3 December 2020. This was a significant delay. However, this was a complex complaint. Mr X raised numerous issues regarding both Children’s Services and the Environmental Health team and it would have taken the complaints officer some time to investigate them. She responses from officers from seven different departments within the Council and provided a very lengthy and detailed response. I find the complexity of the investigation justifies the delay in providing a substantive response.
48. In any event, I do not consider the delay caused any injustice to Ms B and Mr C as the works were completed before the end of September 2020.

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Final decision

49. I find the Council took appropriate action to ensure the landlord completed the required remedial works within a reasonable time given the difficulties caused by COVID-19.
50. I find the Council failed to respond to Mr X’s letters, but this did not cause a significant injustice.
51. I find the delay in responding to Mr X’s complaint at stage 1 was justified given the complexity of the case.
52. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman