Summary: The Council failed to take appropriate action when Mr B and his family complained that they were being harassed by their landlord, when they were threatened with homelessness, and when they told the Council about disrepair in the property. The Council also failed to comply with its legal duty to review its decision that the family did not qualify to join its housing register. The Council has agreed to apologise and make a payment to the family and to take action to prevent similar failings in future.

The complaint

1. Mr B complains that the Council failed to:
• take appropriate action when he notified the Council that he was being harassed by his landlord;
• take appropriate action when he notified the Council that his landlord was not dealing with disrepair in his home;
• properly deal with his complaints about an officer’s conduct;
• investigate and deal with his statutory nuisance complaints;
• provide proper advice and support when he was threatened with homelessness; and
• review its decision that he does not qualify to join the Council’s housing register.
2. Mr B says that as a result of failings by the Council, his family had no alternative but to continue living in a property with significant disrepair and smoke pollution. He says the Council’s failings caused his family significant anxiety and distress, avoidable expense, and affected their health.

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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 consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. We have limited resources and must investigate complaints in a proportionate manner, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
7. 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

8. I have:
• considered the complaint and the documents provided by the complainant;
• discussed the issues with the complainant;
• considered relevant law;
• made enquiries of the Council and considered the comments and documents the Council has provided; and
• given the Council and the complainant the opportunity to comment on my draft decision.

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What I found

Background and summary of relevant events

9. In January 2021, Mr B moved into a privately rented property with his mother, Mrs C and brother, Mr D.
10. Mr B contacted the Council about disrepair in the property in April. He was told that if he invoked the formal inspection process, the disrepair would be remedied and they would be protected from eviction. Mr B decided not to request an inspection at that time.
11. In August and September, Mr B contacted the Council for advice and support in relation to harassment they were receiving from their landlord. The following month, Mr B told the Council that their landlord had served them with a section 21 notice seeking possession of the property.
12. Mr B then took legal action against his landlord in relation to the harassment. He obtained a court injunction which prevented the landlord from entering the property, or instructing, encouraging or permitting anyone else to enter the property. It also prevented the landlord from communicating with Mr B, Mrs C or Mr D.
13. In November 2021, Mr B contacted the Council about the disrepair again. The Council inspected and decided that works were needed, but that it could not require the landlord to take action which would breach the injunction. It issued an improvement notice which was suspended until vacant possession had been obtained or the injunction was lifted.
14. The family applied to the Council for housing but it decided they did not qualify to join the housing register due to rent arrears.
15. Mr B made a formal complaint to the Council in February 2022. In particular, he said that it had failed to properly deal with his complaints about landlord harassment, disrepair and statutory nuisance and had not helped them to find alternative accommodation or allowed them to join the housing register.
16. Mr B made further complaints in April about an officer’s conduct and the Council’s failure to take urgent action to deal with the disrepair. He then complained in May that Housing Standards had completely withdrawn its services because he had complained.
17. The Council responded to Mr B’s complaints in June. It accepted the following failings:
• It took seven and a half weeks to respond to Mr B’s first call back request. Its published response time is 10 working days.
• It took four weeks to respond to Mr B’s second call back request.
• It had not reviewed its decision that Mr B did not qualify to join the Council’s housing register following his request for a review on 16 December 2021. Reviews should be carried out within eight weeks.
• It did not take a homelessness application from Mr B until 14 December 2021. It should have taken one on 20 October 2021.
• It had not taken any preventative work since it accepted that it owed Mr B and his family the homeless prevention duty on 15 December 2021.
18. The Council did not accept any failings in relation to Mr B’s complaints about landlord harassment, disrepair or statutory nuisance.
19. Mr B remained dissatisfied and complained to the Ombudsman. He considers the Council failed to acknowledge all of its failings, failed to appreciate the impact of its failings and failed to take action to improve his family’s situation.
20. After making his complaint to the Ombudsman, Mr B found alternative accommodation. The family moved in July 2022.

Analysis

Landlord harassment

21. Mr B considers the Council failed to take appropriate action when he notified the Council that he was being harassed by his landlord. He says that it would not have been necessary to apply for an injunction if the Council had taken appropriate action.
22. The Council’s records show that both Mr B and Mr D contacted the Council on 31 August 2021 about landlord harassment. Mr B says that he told the officer that his landlord had sent him nine aggressive communications that day and was threatening to visit the next day. Mr B was told that a housing officer would call him back.
23. When Mr D called later that day, he explained how worried they were about the landlord’s intended visit the next day. The officer offered some advice over the phone but stated that she was not a housing officer and would send a record of their conversation to the Council’s housing team.
24. I have seen no evidence to show that the Council returned Mr B’s or Mr D’s calls. This was fault.
25. Mr B next contacted the Council on 27 September 2021. He said that the landlord had tried to force entry on 24 September and was threatening to change the locks later that day. The officer said that she would ask a housing officer to call him back urgently.
26. The Council says it tried to contact Mr B on 30 September. Mr B disputes this. In any event, the Council should have returned Mr B’s call sooner. This was fault.
27. Mr B contacted the Council again on 1 October asking for a call back regarding the harassment they were experiencing. He said that they had been served with a section 21 notice. Mr B also directly emailed a housing officer asking to speak to him that day.
28. The Council did not attempt to contact Mr B or Mr D until 15 October, by which time they had taken their own legal action and obtained the injunction. The Council had failed to provide prompt advice or assistance. This was fault.
29. A housing officer from the housing options team spoke to Mr D on 20 October. She told him that a different team, housing standards, was responsible for dealing with complaints about landlord harassment. The Council should have arranged for an officer from housing standards to contact them when they were calling asking for help regarding landlord harassment. It did not do so; this was fault.
30. Mr B then contacted housing standards about the harassment and disrepair. A housing standards officer inspected the property in November. He told Mr B that his claim of harassment would be investigated. Mr B provided the officer with witness statements in relation to the harassment. However, the Council did not carry out an investigation and did not take any action against the landlord.
31. The Council says it did not investigate the harassment because it considered it had been addressed by the injunction.
32. Landlord harassment is a criminal offence. The Council should have properly considered whether to prosecute Mr B’s landlord. It did not do so; this was fault.

Disrepair

33. The Council carried out an inspection of the property on 26 November 2021 and then issued a suspended improvement notice on Mr B’s landlord. It noted two category one hazards, a defective boiler and no lighting to external stairs, along with several category two hazards. The notice required the landlord to carry out the repairs within 21 days of the date the injunction was lifted, or vacant possession was obtained.
34. The Council decided the notice should be suspended because the injunction prevented the landlord from instructing anyone to enter the property. It does not consider it would be appropriate to require the landlord to do something which he would be obstructed by law from achieving. I have found no evidence of fault in the way the Council decided to issue a suspended improvement notice.
35. The Council did arrange for the landlord to carry out some works which the injunction did not prevent him from doing, including a temporary repair to the boiler.
36. However, Mr B told the Council that the boiler had stopped working again on 15 March 2022. The Council did not contact the landlord about it until 8 April. This delay was fault. Another temporary repair was then carried out on 11 April. Mr B told the Council on 1 May that it had stopped working again but it failed to take any action. This was fault. The evidence suggests the boiler was not repaired before they moved out in July 2022.
37. On 21 February 2022, Mr B told the Council that wastewater was leaking from his bath into his kitchen again. Mr B said that it was a serious health risk and immediate action was needed to address the problem, either by the Council taking emergency remedial action to fix the leak, or by rehousing them immediately.
38. The Council did not contact Mr B about the leak until 7 April. This delay was fault. The housing standards officer spoke to Mr B about the leak and said that he would need to carry out another inspection of the property before deciding on the appropriate course of action. Mr B disagreed. He said that a further inspection was not necessary because all of the defects had been present when the officer carried out the previous inspection.
39. Emergency remedial action can only be taken where a council is satisfied that there is an imminent risk of serious harm to the health and safety of the occupiers. The Council says it was not satisfied that such a risk existed. I have found no evidence of fault in the way the Council decided not to take emergency remedial action. However, it should have explained its reasons to Mr B at the time.

Statutory nuisance

40. When the property was inspected in November 2021, Mr B told the housing standards officer about a draughty trapdoor between his home and the basement flat. He said that the tenant of the basement flat was a heavy smoker and the smell was entering their home and affecting their sleep.
41. The officer arranged for the landlord to have the vertical boarding to the rear of the basement improved to seal any gaps to the ceiling of the basement. This was carried out in December 2021.
42. When Mr B complained in February 2022, he said that the Council had failed to issue an abatement notice in relation to his statutory nuisance complaint about the smell.
43. The housing standards officer contacted Mr B about the matter in April 2022. Mr B said that the works to seal the gaps had been ineffective. He then sent the officer evidence relating to the nuisance. It included diary entries, videos showing works that Mr B had carried out to try and stop the smell from getting into their home and receipts for hotel stays when they had found the smell unbearable.
44. The officer referred the evidence to the Council’s environmental protection team, which deals with statutory nuisance complaints. An environmental health officer told the housing standards officer that according to the statutory nuisance legislation, smell can only be considered to be a statutory nuisance when it arises from commercial premises.
45. This information was not given to Mr B; this was fault. Instead, the Council inferred that the housing standards officer had assessed whether the smell amounted to a statutory nuisance when he visited the property and it incorrectly stated that Mr B had not provided any evidence of the frequency of the alleged nuisance. This was fault.

Officer conduct

46. On 12 April 2022, Mr B complained about the housing standards officer’s conduct. In particular, he complained that the officer had attempted to mislead him about the law during a telephone conversation. Mr B provided the Council with his notes of the conversation.
47. In the Council’s response to Mr B’s complaint, it said that it considered there had been a communication issue because it was satisfied that the officer understood the law. It said that it had found no evidence to suggest that the officer had acted or spoken unprofessionally during his interactions with Mr B.
48. I have listened to an audio recording of the call, which was not provided to the Council. I cannot conclude that the officer deliberately misled Mr B about the law. It was clearly a difficult conversation and the officer gave some incorrect information which he corrected when challenged by Mr B.
49. I am satisfied that the Council considered the evidence provided by Mr B as well as its own records of contact between the officer and Mr B. The Council was entitled to reach its own view about the officer’s conduct after consideration of that evidence. I have found no evidence of fault here.
50. Mr B considers the housing standards officer also misled him when he said that he would investigate the harassment but then did not do so. I cannot conclude that the officer attempted to deliberately mislead Mr B. I consider it is more likely that he originally intended to investigate but then did not do so.
51. When Mr B complained about the officer’s conduct, he said that he needed his case to be assigned to a new officer. In the Council’s response on 10 June, it said that a new officer could be arranged and explained how he could request this. Mr B had already requested a change of officer on 12 April, and so another request should not have been necessary. The Council should have decided whether to allocate another officer to Mr B’s case shortly after his initial request. It did not do so; this was fault.

Homelessness case

52. Mr B told the Council on 1 October 2021 that they had been served a section 21 notice and needed support. Mr D also emailed the Council the following day asking to update Mrs C’s housing application because they had been served a section 21 notice.
53. The Council tried to call Mr D on 15 and 18 October. On both occasions, Mr D immediately telephoned the Council to say that he had missed a call.
54. The Council made contact with Mr D on 20 October. A housing officer advised Mr D that the section 21 notice was not valid because the landlord had not given them a copy of the gas safety certificate before giving notice. She advised Mr D to tell his landlord.
55. The landlord issued another section 21 notice on 8 December, after providing a copy of the gas safety certificate. The Council then took a homelessness application from Mr B and accepted the prevention duty to the family on 15 December.
56. Where a person applies to a council for accommodation, or for assistance in obtaining accommodation, and it has reason to believe that they are or may be homeless or threatened with homelessness, the Council must make enquiries to see whether they owe them any duty under Part 7 of the 1996 Housing Act. The Council failed to comply with this duty when it arose on 1 October 2021. This was fault. However, the Council’s prevention duty did not arise until it was notified on 9 December that a valid section 21 notice had been served.
57. When a council owes the prevention duty, it must take reasonable steps to help prevent the person from becoming homeless. This means either helping them to stay in their current accommodation or helping them to find a new place to live before they become homeless. The Council has accepted that it did not carry out any preventative work. This was fault.
58. The Council also failed to consider whether it owed the relief duty to the family when the section 21 notice expired in 2022. This was fault.

Housing application

59. Mr D asked to update Mrs C’s housing application in October 2021 after they were served with the first section 21 notice.
60. The Council assessed the application and decided that Mrs C did not qualify to join the housing register because she had intentionally accrued rent arrears in excess of £500. This decision was in accordance with the Housing Allocations Scheme.
61. Mr B requested a review of the decision on 15 December 2021. He explained that they had an active claim against their landlord, and they were entitled to off-set the rent against the damages claim. Mr B provided evidence to support his view.
62. The Council failed to comply with its legal duty to carry out a review of its decision. This was fault.

Injustice

63. I have considered how the family have been affected by the failings in this case.
64. Mr B and his family would have been suffering significant distress when they were experiencing landlord harassment. They were understandably concerned that they would be illegally evicted and then homeless. Their distress will have been compounded by the Council’s failure to provide them with any proper advice and support.
65. If the Council had properly dealt with the complaints the family made about landlord harassment between 31 August 2021 and 1 October 2021, I consider it unlikely that Mr B would have considered it necessary to obtain an injunction. The Council would then have been able to serve an improvement notice, the repairs would have been carried out and the family would have been protected from eviction. The Council’s subsequent failure to consider taking action against the landlord meant that Mr B did not feel confident to lift the injunction, which would have meant the repairs could be carried out. I consider the Council’s failings resulted in the family living in a property with significant disrepair for around seven months longer than necessary.
66. The Council’s failure to take prompt action when it was notified that the boiler was not working resulted in the family being left without heating or hot water for several months.
67. The Council missed the opportunity to improve the family’s housing situation when it failed to take any preventative action when they were threatened with homelessness. This will have added to their distress. I do not consider it likely that the family would have been offered accommodation by the Council if it had properly reviewed its decision to exclude the family from the housing register, but its failure to carry out the review will have caused them significant frustration.

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Agreed action

68. Within four weeks, the Council will take the following action:
• Apologise to the family for the failings identified in this case.
• Make a payment of £1400 to the family to acknowledge the seven months they were living in a property with significant disrepair.
• Make a payment of £2250 to the family to acknowledge the distress and frustration they suffered as a result of the Council’s actions.
69. Within eight weeks, the Council will take the following action:
• Properly consider whether to prosecute Mr B’s former landlord, and write to Mr B with the reasons for its decision.
• Review its procedures for dealing with telephone calls. It should deal with urgent calls promptly, and it should ensure that when a member of the public calls to say they have missed a call from the Council, they are able to speak to someone from the relevant department in a timely manner.
• Develop procedures for dealing with complaints about landlord harassment, and then provide training/guidance to Housing Options and Housing Standards officers.
• Take action to ensure its officers carry out preventative work after the Council has accepted the prevention duty to a person threatened with homelessness.
• Develop a process to track housing review requests to ensure they are carried out within the required timescales.
• Provide a copy of this decision to all officers involved in the case so that they are aware of the failings we have identified.

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Final decision

70. I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused injustice. The action the Council has agreed to take is sufficient to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman