Summary: Mr X complained the Council has failed to take appropriate and timely action in relation to plumbing issues at their privately rented property. There is no evidence of fault in the way the Council investigated the plumbing issues at Mr X’s property. But the delays in carrying out a building inspection and in responding to Mr X’s complaints are fault. This fault has caused Mr X an injustice for which the Council has offered an appropriate remedy.

The complaint

1. The complainant, whom I shall refer to as Mr X complained the Council has failed to take appropriate and timely action in relation to plumbing issues at their privately rented property. He complains the Council’s failure to act has contributed to the length of time they have had to live in unhygienic conditions and they now face retaliatory action from their landlord seeking to evict them.
2. Mr X also complains there were significant delays in the Council’s response to his formal complaint, and that the when the Council did respond, it did not address the majority of the concerns he had raised.

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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 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

5. As part of the investigation, I have:
• considered the complaint and the documents provided by Mr X;
• made enquiries of the Council and considered the comments and documents the Council provided;
• discussed the issues with Mr X; and
• 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

6. Private tenants may complain to their council about a failure by the landlord to keep the property in good repair. Councils have powers under the Housing Health and Safety Rating System (HHSRS) to take enforcement action against private landlords where the council has identified a hazard which puts the health and safety of the tenant at risk. If a council considers a Category 1 hazard exists in residential premises they must take appropriate enforcement action. Councils have discretion to take enforcement action if a Category 2 hazard is identified.
7. Mr X privately rents a two bedroom property. One bedroom has an ensuite and there is a separate bathroom. In September 2020 Mr X contacted his landlord as there were problems with the plumbing. The toilets did not drain properly which resulted in waste coming back up the toilet and into the shower and bath. It had also on occasion caused the toilets to become completely blocked. Mr X’s landlord arranged for plumbers to visit but they did not address the issues, rather Mr X says they made them worse.
8. In late March 2021 Mr X contacted the Council for assistance in resolving the issues. An Environmental Health Officer (EHO) visited to inspect the property on 14 April 2021. The EHO considered the issue with the plumbing was a Category 1 hazard. They wrote to the landlords with an Informal Improvement Notice the following day, setting out the works required to reduce the risks from this hazard. The notice required that works start by 19 April 2021 and be completed by 31 May 2021.
9. The documentation shows the landlords identified the problem in Mr X’s flat was due to a blocked drain in the basement of the building and asked the building management to attend to this urgently. The building management’s contractors investigate the drainage and identified a problem with the pipework which required further investigation. As an interim measure in June 2021 the building management agreed to install non-return valves in the shower waste and basin waste.
10. Following further inspections the building management then arranged for further works which Mr X’s landlord paid for. Mr X confirmed to the Council on 12 July 2021 that the works were complete and the issues with the plumbing appeared to have been resolved. The Council then closed the case.
11. In September 2021 Mr X contacted his landlord and building management again as there were further issues with the plumbing. Both the landlords and building management arranged for further inspections to try and identify the problem but were unable to remedy it. The building management did not consider it was a communal issue and passed the matter back to Mr X’s landlords.
12. In December 2021 the landlords advised Mr X they would need to carry out extensive works to attempt to locate the source of the problem. As this would cause considerable disruption they informed Mr X they were terminating his lease.
13. Mr X contacted the Council for assistance. He considered this was a retaliatory eviction and that as the plumbing issues were still a health hazard the Council may be able to help prevent any eviction. Mr X wanted the Council to investigate and serve an improvement notice on his landlords.
14. An EHO and a senior officer visited Mr X’s property and then requested information from the building management regarding the works caried out. In January 2022 the Council issued a Hazard Awareness Notice to Mr X’s landlords in relation to a Category 2 hazard. This identified works required to address the hazard as:

“Thoroughly examine and investigate the sanitation and drainage system to both toilets, bathtub and shower so as to ascertain the cause of blockage and execute all necessary repairs to remedy it.”

15. Mr X asked the Council to confirm what steps it would take to ensure the landlord carried out the specified work and what would happen if they did not. Mr X felt his landlords would not carry out the works unless legally required to and was concerned the notice did not appear to suggest they were. He considered the issues were causing a more significant health hazard than outlined in the notice and reminded the Council it had previously deemed the issues to be a Category 1 health hazard.
16. The Council confirmed the purpose of the hazard awareness notice was to make the landlord aware of the hazard in order to take steps to mitigate it. The notice was not legally binding so failure to comply would not result in further enforcement action. The Council confirmed it was aware of the history of the issue and how it was rated in April 2021. It was also aware of the many visits by plumbers to rectify the issue so that the hazard was reduced to an acceptable level. The inspection in December 2021 had confirmed the hazard had reduced to Category 2 as no visible issue was identified when tests were carried out.
17. Mr X acknowledged there had been many visits by plumbers but questioned why the Council considered the issue sufficiently rectified. He said the problem remained and caused them significant stress on a daily basis. Mr X asserted that the EHOs had seen and smelt the waste in the ensuite toilet during their visit. He remained concerned the landlord had not taken any action to address the issue and was seeking to terminate their tenancy. Mr X asked the Council to reconsider the impact and severity of the issue and to serve a formal improvement notice to the landlords.
18. In March 2022 Mr X’s landlords served a formal notice requiring Mr X to leave the property. Mr X considered this was an attempt to bully them into leaving, rather than rectify the issues. He asked the Council to assist them by issuing a formal improvement notice to prevent any further retaliatory action from the landlord.
19. The Council explained the inspection and assessment using the HHSRS calculates the probability of harm and/or injury occurring to someone at the property within the next 12 months. As the numerical calculation from the property inspection resulted in a low numerical outcome, the Council considered the hazard awareness notice it had served was the most appropriate action. It advised there needed to be a Category 1 improvement notice to suspend any possession proceedings (retaliatory evictions). 
20. Mr X remained dissatisfied and made a formal complaint. He questioned how the Council could issue an improvement notice in April 2021 yet the landlord could avoid completing the necessary works and the Council then decline to take any action. Mr X considered the Council had been neglectful in its duty to address these issues. He asked the Council to reinspect the property to assess the true nature of the hazard.
21. Although the Council acknowledged Mr X’s complaint it did not respond. Mr X then submitted a further complaint in May 2022. He also complained his case had been passed between EHOs without a thorough handover which resulted in miscommunication and Mr X having to repeat the issues again and again. As Mr X again did not receive a response, he asked the Ombudsman to investigate his complaint. We referred this back to the Council to respond under its complaints procedure.
22. Officers inspected Mr X’s property again in July 2022, and the Council responded to his complaint in August 2022. It summarised the Council’s involvement and noted an EHO had inspected and initially found some minor category 2 hazards. These were put to the landlords and building management and swiftly remedied. The case was closed following a compliance check.
23. EHOs inspected the property again following a further complaint and issued a Hazard Awareness Notice in January 2022 as the toilet was not functioning efficiently due to a previous blockage. The case was again closed. The Council said that at the most recent inspection the EHOs had examined both toilets for interconnectivity and backflow and found they were fully functional and in good working order. The Council was unable to take any further action due to the lack of evidence and the case was closed.
24. The Council concluded the matter had been properly considered and assessed and appropriate actions were taken.
25. Mr X did not consider the Council had addressed his concerns and was unhappy with factual inaccuracies in the complaint response. He asked the Council to escalate his complaint to stage two of the complaints procedure. Mr X stated the issues were ongoing and prevalent and he questioned why the Council had made three different assessments of the situation.
26. Mr X noted that two further EHOs had visited Mr X’s property in August 2022 and confirmed there was a hazard present, but that it did not constitute a Category 1 hazard. He asked the Council to explain the difference in opinion between these visits. In addition, Mr X raised concerns about failings and delays in the Council’s complaints process
27. The Council responded to the stage two complaint in January 2023, and apologised for the delay in responding. It also apologised for the delays in the progression of the case. The Council explained that in order to tackle the issues at Mr X’s property it would need to carry out a block inspection to establish how many properties are affected by similar issues. The Council considered it likely the issues were related to the general construction of the building rather than being isolated to Mr X’s flat. This is a resource intensive process but the Council told Mr X it was a priority action for the first quarter of 2023.
28. In relation to Mr X’s specific concerns the Council confirmed:
• No action was taken following the service of the Improvement Notice as works had been carried out
• When a Notice is served officers are obliged to visit to confirm whether the work remains outstanding. In this case the sufficient work had been completed to reduce the severity of the hazard. The Council apologised Mr X was not kept informed of this.
• The Council witnesses hazards first hand so that it has original evidence and statements which can be used in court if necessary.
• In relation to the visit in July 2022, there is no assertion that no hazard was present during the inspection, but rather that it was not evidenced during the inspection. The current status of the investigation is that a hazard is present.
29. The Council also acknowledged the delays in the complaint process and apologised. It also apologised for the factual errors in the stage one response.
30. Mr X remains dissatisfied and has asked the ombudsman to investigate his complaint. In response to my enquiries the Council says the current situation is that there is a Category 2 hazard for Personal hygiene, Sanitation and Drainage as defined under the HHSRS. The Housing Act 2004 imposes different duties on a council for Category 1 and Category 2 hazards. Where a council identifies a category 1 hazard, they must take action as there is a duty to take enforcement action. Where there are category 2 hazards, as in this case, the council has discretion to exercise a power to take enforcement action.
31. It says officers are expected to exercise their professional judgement when deciding the course of action where category 2 hazards have been identified. The Council’s Private Sector Housing Enforcement policy provides guidance on how judgement should be applied in such cases. This states that if the category 2 hazard is rated at band E or above, this may add weight to justify enforcement. The category 2 hazard in Mr X’s property was scored as band F and has not been progressed to formal enforcement action. Instead the Council served a Hazard Awareness Notice.
32. The Council notes it told Mr X a further investigation would commence in the first quarter of 2023, but due to unavoidable delays in recruitment of staff it did not meet this timeframe. The Council arranged an inspection in April 2023, following which it will decide what, if any, enforcement action is appropriate.
33. The Council says there is a recognised national shortage of EHOs and this has impacted on its ability to respond as it would like in certain cases. It has prioritised Category 1 hazards to ensure it meets its statutory duties. The Council refers to its stage two response letter which acknowledges and apologises for not responding to Mr X in a timely manner. In addition to this apology and in recognition of the delay in completing the inspection in the first quarter of 2023, the Council has offered to pay Mr X £300.

Analysis

34. The Ombudsman does not act as an appeal body. It is not the Ombudsman’s role to decide whether there are Category 1 or a Category 2 hazards at Mr X’s property; that is the Council’s job. We can only consider whether the Council assessed the situation correctly. We cannot criticise a council where officers have followed the correct procedures and reached a reasoned decision.
35. EHOs have visited Mr X’s property on several occasions and have made differing decisions. Mr X questions how this is possible when the problem has been consistent throughout, but I am satisfied the Council has explained its reasoning.
36. The Council initially identified a Category 1 hazard and issued an Informal Improvement Notice. In response Mr X’s landlords and the building management inspected the property several times and carried out remedial works. Mr X confirmed to the Council in July 2021 that this had resolved the issue. When Mr X reported further problems in December 2021, the Council returned to inspect the property. The Council considered the works done had mitigated the hazard, so that it was now a Category 2 hazard and issued a Hazard Awareness Notice. Mr X disagrees with this decision but it is one the Council is entitled to make.
37. The Council may decide to take enforcement action in relation to a Category 2 hazard, but it is not under a duty to. The Council has considered this matter in line with its Private Sector Housing Enforcement policy and determined it is not appropriate to take enforcement action in this instance. Mr X is clearly frustrated and disappointed by this decision, but there is no evidence of fault in the way it was made.
38. I do however consider the Council’s delay in carrying out a block inspection to establish whether other properties are affected by similar issues is fault. The Council told Mr X this was a priority action and committed to an inspection within the first three months of 2023 but failed to meet this time frame. We would expect the Council to complete this inspection and determine whether the issues are particular to Mr X’s flat or related to the general construction of the building, without further delay.
39. The delays in responding to Mr X’s complaints, at both stages of the complaints process, are also fault. The Council’s complaints process says it will respond to complaints at stage one within 15 working days and at stage two within 20 working days. Yet in this instance the Council took several months to respond at each stage. This is clearly unacceptable. We would expect the Council to respond to complaints within its published timeframes.
40. The Council has apologised for these delays and offered to pay Mr X £300. I consider this to be an appropriate remedy.

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Agreed action

41. The Council has agreed to apologise to Mr X and pay him £300 in recognition of the distress and frustration he has experienced as a result of the Council’s delays.
42. The Council should take this action within one month of the final decision in this matter and should provide us with evidence it has complied with the above actions.

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Final decision

43. There is no evidence of fault in the way the Council investigated the plumbing issues at Mr X’s property. But the delays in carrying out a building inspection and in responding to Mr X’s complaints are fault. This fault has caused Mr X an injustice for which the Council has offered an appropriate remedy.

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Investigator's decision on behalf of the Ombudsman