London Borough of Barking & Dagenham (22 001 130)

Category : Housing > Private housing

Decision : Upheld

Decision date : 17 May 2022

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the Council’s actions about a property of which Mr X is landlord. On some points, we are unlikely to achieve significantly more than the Council has already done. The point about the lawfulness of the Council’s actions is properly for the courts. There is not enough evidence of fault or significant injustice on the Council’s alleged bias.

The complaint

  1. Mr X rents out a property. He complains about events related to the Council visiting the property under its powers about the condition of private properties. Mr X complains the Council breached sections 242 and 243 of the Housing Act 2004, acted in an intimidating way and a Council officer showed improper bias in the tenants’ favour for religious reasons. He also says the Council did not investigate his complaint properly. Mr X says this has caused distress.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide there is not enough evidence of fault to justify investigating, or any injustice is not significant enough to justify our involvement, or further investigation would not lead to a different outcome, or we cannot achieve the outcome someone wants. (Local Government Act 1974, section 24A(6))
  2. We may decide not to start or continue with an investigation if we are satisfied with the actions an organisation has taken or proposes to take. (Local Government Act 1974, section 24A(7), as amended)
  3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

  1. I considered information provided by the complainant and copy complaint correspondence from the Council.
  2. I considered the Ombudsman’s Assessment Code.

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My assessment

  1. Mr X’s complaint correspondence with the Council does not appear to cover the alleged breach of section 242 of the Housing Act 2004. That section is about the Council giving notice to property owners if the Council takes certain action about the property. Therefore, this part seems linked to Mr X’s complaint that the Council did not give him at least 24 hours’ notice before visiting the property, as required by section 239 of the same Act. The Council apologised for not giving the correct notice. That was enough remedy for this point.
  2. Section 243 of the Housing Act 2004 says authorisation to visit a property in these circumstances must come from the ‘appropriate officer.’ It defines several ways in which someone might be an ‘appropriate officer.’ The Council says the officer who visited was duly authorised. Mr X says the Council has not explained how the officer was authorised. He believes the visit breached section 243, also breaching the Human Rights Act and the criminal law on trespass.
  3. The underlying point here is whether the visit was lawful. Only the courts, not the Ombudsman, can rule definitively on whether the Council breached those laws. Therefore the restriction in paragraph 4 applies. As the question of lawfulness is central to Mr X’s arguments to the Council and the Ombudsman, it is reasonable to expect him to go to court for a ruling. That is especially so where the points are disputed, which is the case here. The Ombudsman cannot interpret the law. Nor can we say whether a crime occurred. In that context, it would be disproportionate for us to investigate and seek more information about the authorisation process.
  4. Mr X says the Council intimidated him by stating it would seek a magistrates’ court order if he did not give access to the property. The Council accepted that was inappropriate in the context. It apologised for the tone and content of some letters. The Council states it has addressed this with the officer who sent the letters and has changed its standard letter wording. We could not achieve significantly more on this point. Mr X says he felt distress and fear about the possibility of court action. However, no court action happened. It is also reasonable to expect Mr X, as landlord, to know or find out about his rights, which would include being able to put his case in court if necessary. Overall, I consider the Council’s actions a suitable remedy on this point. Investigation by the Ombudsman would be unlikely to achieve significantly more.
  5. Mr X alleges the officer dealing with the case showed bias towards Mr X’s tenants because they had the same religion. I have seen no evidence for the assertions that those people share the same religious beliefs, or that, even if they do, that this improperly motivated the officer. Moreover, any such bias would only significantly impact Mr X in practical terms if the Council had required Mr X to take action on the property that it would not otherwise have required. The Council could only require Mr X as landlord to do works to the property by serving notices. Mr X would have appeal rights against such notices. So I do not believe there is enough evidence of fault, or a significant enough injustice in practical terms, to justify investigating this point.
  6. I note Mr X’s dissatisfaction with how the Council investigated his complaint. However, it is not a good use of public resources to investigate complaints about complaint procedures, if we are unable to deal with the substantive issue.

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Final decision

  1. We will not investigate Mr X’s complaint because on some points we are unlikely to achieve significantly more than the Council has already done, the point about the lawfulness of the Council’s actions is more properly for the courts and there is not enough evidence of fault or significant injustice on the alleged bias.

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Investigator's decision on behalf of the Ombudsman

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