Summary: Mrs X complained the Council failed to give notice of visiting her property, issued a notice under Section 76 of the Building Act 1984 which contained incorrect information, requested unnecessary repairs following an inspection of the property and failed to respond to her complaints about this. There is no fault in respect of the visits, inspections and issuing of the notice but there is fault in how the Council dealt with Mrs X’s complaints. A suitable remedy is proposed.

The complaint

1. Mrs X complained the Council failed to give notice of visiting her property, issued a notice under Section 76 of the Building Act 1984 which contained incorrect information, requested unnecessary repairs following an inspection of the property and failed to respond to her complaints about this.
2. Mrs X says the actions of the Council caused frustration and caused her to sell the rental property.

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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. 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)
5. 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

6. As part of the investigation, I have:
• considered the complaint and the documents provided by the complainant;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with the complainant;
• sent my draft decision to both the Council and the complainant and taken account of their comments in reaching my final decision.

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What I found

7. Mrs X and her husband own a house which they have rented since 2018. They have an agent who manages the property on their behalf. Mrs X says the tenants have reported various issues via the agent and she has always carried out any required works.
8. On 27 October 2020, Mrs X received a notice from the Council. This was a notice under Section 79 of the Building Act 1984. The notice stated a wall mounted combination boiler located in the ground floor rear kitchen and had been reported to the managing agent on several occasions without remedial action being taken. The notice said that after nine days from the service of the notice, it may execute such works to remedy the issue and recover the costs from Mr and Mrs X. The notice said that within seven days Mr and Mrs X could sign a counter notice saying they intended to remedy the issue and if so the Council would not take any further action.
9. Mrs X says she had no idea the boiler wasn’t working as the tenants had not reported it to the managing agent. She says the tenants previously reported problems in December 2019 and on 4 October 2020 and each time they took action to repair the boiler.
10. Mrs X believed the notice was factually incorrect because she did not know the boiler wasn’t working. She contacted the Council about the notice who refused to withdraw it. Mrs X says she forced into signing the notice even though it was incorrect. Mrs X then instructed her managing agent to repair the boiler. The information provided indicates the boiler was repaired on 20 November.
11. Mrs X says the Council then insisted on completing a full inspection of the property. Mr X and the managing agent met a council officer at the property on 16 November. They went around the property identifying matters that required attention.
12. The Council wrote to Mr and Mrs X on 18 November with an “informal” request to carry out the identified works. Mrs X felt some of the requested works were unnecessary and that it was unreasonable for the Council to request they carry them out. Mrs X says that she tried to get tradespeople to carry out some of the works but was unsuccessful. She says the managing agent presented three dates to the tenants so Mr and Mrs X could attend the property to complete some of the works. She says the tenants refused to vacate the property to enable access on all three occasions.
13. In January 2021, Mrs X contacted her local MP to seek assistance with the situation. The Council treated this as a formal complaint. It is my understanding that around this same time, Mrs X served notice on the tenants to end the tenancy.
14. The Council response was dated 7 July 2021. The response indicated some contact between it and Mrs X since January 2021 but it is unclear the nature of this. The Council did apologise for the delay in providing the response.
15. The Council said it had a duty to investigate the complaint made by the tenants in October 2020. It said it also had a duty to inspect the property further and this included looking at preventative measures. The Council noted that Mrs X had commissioned her own assessment of the property and this came to different conclusions than the Council’s inspection. The Council said the officer was experienced and it supported his conclusions as he is the independent person in the scenario.
16. The Council said it had reviewed the correspondence and found no evidence it treated her without respect or courtesy. It did agree the officer could have used a better term in one instance. The Council recognised Mrs X had taken action to tackle boiler issues before the Council’s involvement but that it was found the boiler required further repairs.
17. Mrs X was dissatisfied with this response saying it had not answered her queries and so she made a further complaint to the Council in August 2021. Mrs X did not receive any further response and so contacted the Ombudsman in January 2022.

Analysis

18. Mrs X says the Council did not give her notice before it entered the property in October 2020. The information provided shows the Council visited the property after being contacted by the tenants. They invited the Council officer into the property in order to inspect the boiler. I am not persuaded there was any requirement for the Council to give notice to Mrs X when it entered the property at the invitation of the legal tenants. There is no fault by the Council on this point.
19. Mrs X says the section 76 notice was incorrect. She says she was not aware the boiler was faulty and so the Council was wrong to say on the notice that it had been reported to the managing agent on several occasions without remedial action being taken.
20. It is my understanding the tenant had reported problems with the boiler earlier in October 2020. Mrs X says work was carried out and the boiler was repaired. I have no reason to doubt her account. I do not know what works were carried out and whether the problems found later in October were the same or a new problem. However, what is known is that the boiler was not working correctly and further repairs were required.
21. I cannot say with certainty that incorrect information was included in the notice. But it if was, I would have to consider what injustice this caused to Mrs X. As the landlord, Mrs X was responsible for ensuring the boiler worked and so she would have had to complete the works whether or not the Council served the section 76 notice. While I acknowledge Mrs X was upset a notice had been served and she would have preferred the Council to have made an informal approach, I do not find that she suffered a significant enough injustice to warrant further investigation of the wording of the section 76 notice.
22. Mrs X also complains that following a further inspection, the Council requested further repairs which she considers are unnecessary. I am satisfied the further inspection was carried out with the agreement and involvement of Mr and Mrs X. Following the inspection, the Council wrote to Mrs X setting out the works it considered were required. This was an informal letter and was not part of any formal enforcement process. Mrs X says she attempted to carry out some repairs and so I can only assume she agreed they were necessary. When I spoke with Mrs X she advised me that a further inspection was due to take place in January but this never happened.
23. I am satisfied the Council was entitled to carry out this further inspection and that it did so using powers it has under the Housing Health and Safety Rating System which is part of the Housing Act 2004. This is a risk-based evaluation tool used to identify and protect against potential risks and hazards to health and safety from any deficient identified in dwellings. As the inspection took place, it was not fault to identify all hazards or potential hazards and notify Mrs X. Mrs X was aware this was informal action.
24. While I acknowledge Mrs X’s frustration that the Council did not respond to her concerns about the requested works, no further enforcement action was taken. I am not persuaded it was fault for the Council to complete the inspection notify Mrs X of its findings. I am not persuaded any failure to follow this up caused Mrs X a significant enough injustice to justify further investigation.
25. I note that Mrs X made formal complaints about the Council’s actions. While a response was sent via her MP in July 2021, this was several months after Mrs X initially complained and there is no clear explanation why it was so delayed. Mrs X then made a further complaint and never received a response. This is fault. While there may be reasons why the same manager was unable to respond, this does not mean the Council should let the matter drift and the Council’s procedures should mean other officers are aware a complaint is outstanding to enable a response to be sent.

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Agreed action

26. To remedy the injustice caused to Mrs X as a result of the failure identified in paragraph 25 above the Council will, within one month of my final decision, take the following action:

• Apologise to Mrs X for its failure to respond to her complaint and recognize her frustration; and
• Review its complaints process to ensure that all complaints are properly recorded and responded to in a timely manner.

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Final decision

27. I have completed my investigation with a finding of fault for the reasons explained in this statement. The Council has agreed to implement the actions I have recommended. These appropriately remedy any injustice caused by fault.

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Investigator's decision on behalf of the Ombudsman