Summary: Miss X complains about the Council’s handling of her concerns about disrepair in her privately rented property from December 2021 to May 2023, when she moved out. The Council was at fault for not taking formal enforcement action against the landlord when it identified category 1 hazards in the property, which caused injustice. The Council’s determination the landlord’s eviction attempt was not retaliatory was unclear but did not cause Miss X significant injustice. The Council has agreed to apologise and make a payment to Miss X. It will also share this decision statement with relevant staff to reinforce the recent training it has already completed.

The complaint

1. Miss X complains about the Council’s handling of her concerns about disrepair issues with her privately rented property since December 2021. Miss X says the Council has acted with bias against her in favour of her landlord. She is concerned that it has failed to provide meaningful details of the two inspections it completed of her rental property. She was also extremely worried when the Council told her there were no significant hazards at her rental property, when she can clearly see black mould caused by water leaks affecting all the rooms upstairs. Miss X is also unhappy the Council has not done more to assist her when her landlord issued an eviction notice. She feels was in retaliation of her complaints about disrepair. Miss X says she has no confidence the Council deals robustly with rogue private landlords. She would like an apology and a refund of the costs she incurred in obtaining her own inspection of the property.

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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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. If we are satisfied with an organisation’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 have spoken to Miss X and considered the information she has provided in support of her concerns.
5. I have considered the information the Council has provided in response to my enquiries. Since issuing my first draft decision, the Council has provided further evidence and comments. These have been considered and included in this draft decision where appropriate.
6. Miss X and the Council now have an opportunity to comment on my draft decision. I will consider their comments before making a final decision.

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What I found

Relevant legislation and guidance

Private housing disrepair

7. Private tenants may complain to their council about a landlord’s failure to keep their property in good repair. Councils have powers under the Housing Health and Safety Rating System (HHSRS) introduced by the Housing Act 2004 to assess the condition of residential housing and take enforcement action where appropriate.
8. The HHSRS looks at the risks to the health and safety of occupants or visitors to a particular property. The HHSRS calls these risks hazards. There are Category 1 and Category 2 hazards. Category 1 hazards are the most serious.
9. The Housing Act 2004 places a duty on councils to take enforcement action when it identifies a Category 1 hazard. The action a council must take includes:

• serving an Improvement Notice;
• making a prohibition order;
• serving a hazard awareness notice; or,
• taking emergency action to reduce or remove the risk.

10. An Improvement Notice requires the person on whom it is served to take the action set out in the notice to address the hazards. The action must be enough to make sure the hazard is no longer Category 1 but can go further. In private rented properties, it is usually served on the landlord.
11. Where the council identifies a Category 2 hazard, it can take enforcement action but does not have to.

The Council’s policy

12. The Council’s website says it can help private tenants experiencing problems with their landlords, including disrepair, damp, mould and condensation and harassment or illegal eviction.
13. The Council says it will provide private tenants with advice, and where needed will ensure landlords complete any necessary repair work within a reasonable timescale. The Council says it can, if necessary, take legal action against a landlord to ensure repairs are completed. It also commits to keeping the private tenant informed throughout the process.

Harassment or illegal eviction by a private landlord

14. Councils have powers under the Protection from Eviction Act 1977 (the Act) to investigate complaints of harassment and illegal eviction, and to prosecute a landlord where they try to remove someone from a property where the Act applies and they have failed to follow due process.
15. Councils do not have the power to force a landlord to reinstate an illegally evicted tenant or to convict the landlord of an offence as only the courts can do this. Tenants can take their landlord to court themselves to claim for damages for an illegal eviction.
16. Retaliatory eviction is where a tenant makes a genuine complaint about the condition of their property that has not been addressed by their landlord. When this complaint has then been verified by a council inspection and it has served either an improvement notice or a notice of emergency remedial action, a landlord cannot evict that tenant for 6 months using the ‘no fault’ eviction procedure.

What happened

17. This is a timeline of key events and does not cover everything that has happened.
18. Miss X moved into private rented accommodation in 2017. Since then, she has been corresponding with the landlord and managing agent about the condition of her accommodation, including issues with the boiler and damp.
19. In late November 2021, Miss X reported the disrepair issues with her private rented accommodation to the Council. She reported issues with the boiler, leaking roof, uneven floors, damp, mould and difficulties with keeping the property warm. Miss X sent the Council photographs of the issues in the property and copies of her contact with the landlord’s managing agent to show she had been reporting her concerns to it since 2017.
20. Miss X contacted the Council again in early December 2021 following its advice that she tried to resolve the issues with the landlord’s managing agent. Miss X told the Council the managing agent had continued to ignore her concerns.
21. Miss X continued to correspond with the Council about the disrepair into late January 2022. The Council completed a HHSRS inspection of Miss X’s accommodation on 9 February 2022.
22. The HHSRS Inspector identified three category 1 hazards relating to excess cold, fire and falls on level surfaces, and three category 2 hazards relating to damp and mould, structural collapse and falling elements and falls between levels.
23. The HHSRS Inspector highlighted seven essential works items needed to address the category 1 hazards and 11 recommended works items to bring the condition of the accommodation back into the ‘average’ range. Essential works included the installation of smoke alarms to all habitable floors, gas supply safety checks, insulation and draught excluder installation.
24. The Council emailed Miss X on 22 April 2022 to advise her of the following actions it had asked the managing agent to complete to address the issues in the property:

• obtain a valid Gas Safety Certificate as the last one had expired in January 2022;
• service the boiler due to the intermittent fault when using hot water;
• install a smoke alarm to the ground floor;
• investigate cavity wall insulation and whether this has or can be installed;
• install loft insulation with a depth of 270mm;
• fit effective insulation to bay window and roof;
• install an external light to the rear of the property; and,
• install window restrictors to first floor windows.

The Council also explained the damp and mould in the property would be cleaned and the managing agent would supply Miss X with cleaning solutions to use to keep on top of the problem.

25. Miss X replied to the Council and explained the managing agent had promised to complete some of the actions above months ago. Miss X told the Council the underlying cause of the damp and mould needed to be addressed and she felt it was unreasonable to expect her to use industrial strength chemicals to mask the issue.
26. Miss X continued to correspond with the Council and her landlord/managing agent about the disrepair issues. In early October 2022, the Council undertook a HHSRS reinspection to check whether the issues identified in the February 2022 inspection had been addressed.
27. The Council Inspector noted all the category 1 and 2 hazards originally identified in the property were still present at reinspection. The Inspector noted only one of the essential works items had been satisfactorily completed. While some cosmetic work had been undertaken to treat the damp and mould present, this appeared to have only masked the underlying cause of the problem. The Inspector noted visible progression of damp in the property and understood no investigations into the root cause of the damp and mould meant effective remedial works had not been undertaken. Shortly after this, the Council received further evidence from the landlord which the Inspector considered. The Inspector concluded the issues with the property no longer met the threshold to constitute category 1 hazards.
28. In January 2023, Miss X complained about the Council’s failure to properly address her landlord’s illegal eviction, the current disrepair and the poor quality of its HHSRS inspections. On 19 January 2023, the Council emailed Miss X and explained it now no longer considered her accommodation to have any category 1 hazards.
29. The Council responded to Miss X’s stage two complaint at the end of March 2023. It explained that it had seen no evidence of an illegal eviction. The Council said that as no enforcement notice had been served on the landlord, there could not have been a retaliatory eviction in legal terms. The Council explained it could not determine whether enforcement action was warranted now because Miss X had refused permission for the Council to complete a further HHSRS inspection of the property. The Council also advised Miss X it considered its two previous HHSRS inspections had been completed in line with standard practice.
30. In separate correspondence, the Council also suggested to Miss X that she might find it helpful to explain to her landlord that she intended to move out of the property soon, as this may result in her landlord taking a different approach to eviction.
31. Miss X brought her complaint back to us to consider after she received the Council’s final complaint response at stage three of its process on 12 May 2023. The Council’s final complaint response maintained it had acted in line with its policies and procedures in Miss X’s case.
32. Miss X moved out of this accommodation a few days after the Council’s final complaint response.

Analysis

Disrepair

33. The Council was alerted to disrepair issues in Miss X’s accommodation in late November 2021. I asked the Council to provide evidence of the action it had taken with the landlord and managing agent to address the issues Miss X had reported.
34. Following receipt of my draft decision, the Council provided me with copies of its correspondence with the landlord and the managing agent. This shows the Council gave the list of works specified in paragraph 24 above to the managing agent following the February HHSRS inspection. While there appears no correspondence to demonstrate the Council has notified the landlord (or the managing agent) of the specific category 1 and 2 hazards identified in the property, there are records which suggest the Council’s HHSRS Inspector discussed these issues with the managing agent.
35. The disrepair of the property is the responsibility of the landlord not the Council. However, Council appears at fault for not taking formal enforcement action against the landlord for the category 1 hazards it identified in Miss X’s accommodation. The legislation and Council’s own procedure are clear that it must take one of the enforcement actions described in paragraph 9 of this statement. This fault caused Miss X and her family significant injustice while they continued to live with these issues for longer than they should have.
36. In determining a suitable remedy for this injustice, it is important to consider how long it might have taken if the Council had acted without fault and taken appropriate enforcement action following the HHSRS inspection in February 2022. Considering the hazards identified, it appears most likely the Council would have issued the landlord with an improvement notice to complete the works identified. It seems reasonable to assume such works should have been completed within approximately three months of an improvement notice. On balance, I believe the period of injustice Miss X and her family experienced should span from the end of May 2022 to mid-January 2023, when the Council confirmed to Miss X that it considered her accommodation no longer had category 1 hazards.
37. We may recommend a financial remedy in cases where a council’s fault has caused the complainant to live in unsuitable accommodation, which includes properties with category 1 hazards. Our Guidance on Remedies suggests such payments should be in the range of £150 to £350 per month. Given the number and type of hazards identified in Miss X’s accommodation, I propose to recommend a remedy of £250 per month to reflect the impact of the Council’s fault on Miss X and her family.

Retaliatory eviction

38. Miss X says her landlord attempted to issue an eviction notice while she was on a fixed term lease. She believes her landlord cannot do this unless there is a break clause in her contract.
39. While I have limited information about this matter, it is clear Miss X reported this issue to the Council at the beginning of 2023. She asked the Council for help as she believed her landlord’s action amounted to a retaliatory eviction because she had reported disrepair issues to the Council.
40. The Council’s stage two complaint response to Miss X that the landlord’s action did not amount retaliatory eviction seems to be based on a flawed rationale. The Council should have taken formal enforcement action against Miss X’s landlord for the category 1 hazards it had identified.
41. We cannot legally determine whether the eviction was retaliatory in Miss X’s case. The other contact the Council had with Miss X about this issue shows it tried to assist her by suggesting she informed her landlord she was moving out to persuade them to take a different approach to eviction. Because of this, I do not consider the Council’s unclear complaint response caused sufficient injustice to warrant a remedy to Miss X.

The Council’s response to my earlier draft decision

42. Since receiving my first draft decision, the Council has provided further evidence and comments which have been reflected in this revised decision statement.
43. The Council has said it is common practice for it and other councils to take an informal and mediatory approach to private housing disrepair even in cases where category 1 hazards are found. This is to help manage the limited resources and staffing required to take formal enforcement action. While I acknowledge the Council’s difficulties in respect of the lack of flexibility given the wording of current legislation, where a council’s practice deviates from what the law requires, we must find fault.
44. The Council also told us how it has worked to improve its procedures since the period covered by Miss X’s complaint. It has used Miss X’s case in recent training with relevant staff and has worked to ensure it takes swift and appropriate action required by law when it identifies category 1 hazards in private rented accommodation.
45. I welcome the Council’s efforts to improve its services and handling to avoid the faults identified in this case. As a result, I have decided some of my earlier service improvement recommendations are no longer necessary.

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Agreed action

46. Within one month of my final decision, the Council has agreed to:

• make a written apology to Miss X for the injustice caused by the faults identified in this decision statement; and,
• make a payment of £2,000 to Miss X to acknowledge the period from the end of May 2022 to mid-January 2023 when the Council should have taken formal enforcement action against her landlord to address the significant disrepair.

47. Within three months of my final decision, the Council has agreed to share this decision statement with relevant staff in its Private Sector Housing Team to reinforce the learning exercise the Council has already completed.
48. The Council should provide us with evidence it has complied with the above actions.

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Final decision

49. I have completed my investigation and uphold Miss X’s complaint. Miss X was caused an injustice by the actions of the Council. The Council has agreed to take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman