London Borough of Richmond upon Thames (22 004 181)
The Ombudsman's final decision:
Summary: The Council was not at fault in how it decided not take enforcement action against Mr X’s landlord in January 2022.
The complaint
- Mr X complained that the Council failed to take enforcement action against his landlord following an inspection at his property in January 2022. Mr X says the Council took enforcement action for the same issues in April.
- As a result, Mr X says he had to live with the hazards in his property for an extra three months, which caused him distress and affected his health.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. 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)
- 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)
How I considered this complaint
- I spoke to Mr X about the complaint.
- I made written enquiries of the Council and considered its response along with relevant law and guidance.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
HHSRS
- Councils use the Housing Health and Safety Rating System (HHSRS) to assess the condition of residential housing. 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 hazards.
- The Housing Act 2004 places a duty on councils to take enforcement action when it identifies a Category 1 hazard. The Council must do one of:
- Serve an Improvement Notice
- Make a prohibition order
- Serve a hazard awareness notice
- Take emergency action to reduce or remove the risk
- Make an emergency prohibition order
- Make a demolition order
- Declare the area to be a clearance area.
- 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.
- Where the Council identifies a Category 2 hazard, it can take enforcement action but does not have to.
What happened
- Mr X contacted the Council in November 2021 about issues in his privately rented flat. In particular, he said there was a significant leak causing damp and mould.
- The Council inspected the property in January 2022. It found a minor leak, which was a category 2 hazard.
- Before leaving Mr X’s flat, the officer told Mr X the Council would issue a Preliminary Improvement Notice. However, after a discussion with the managing agent acting for the landlord, the Council decided not to take enforcement action. This was because the landlord had issued Mr X a notice seeking possession of the property.
- Mr X complained to the Council. In March, the Council responded to his complaint at stage 1 of the Council’s process. It partially upheld Mr X’s complaint because the officer should not have told Mr X the Council would issue a notice before gathering all the information. It apologised, which is a suitable remedy for the injustice caused.
- Mr X asked the Council to escalate his complaint to stage 2. The Council responded in April. It said the Council would arrange a further visit because:
- the notice seeking possession was invalid;
- Mr X provided a video showing the leak had previously been much worse; and
- the landlord had not taken any action to address the problems.
- The Council carried out a second HHSRS inspection later that month. It found two hazards:
- Damp and mould – staining suggested water ingress
- Falls between levels – because there was no handrail on part of the stairs
- In June, the Council wrote to the managing agents with a Preliminary Improvement Notice. It said there were two Category 1 hazards and told the landlord to begin works by July. Failure to act would mean the Council would issue a formal improvement notice.
- In response to my enquiries, the Council said the letter wrongly described the hazards as Category 1. The Officer actually found Category 2 hazards but didn’t change the letter template before sending the notice.
- In July, the landlord told the Council a handrail had been fitted. It had also told a specialist to report on damp and mould and recommend action.
My findings
- The Ombudsman cannot question the merits of decisions based on a matter of professional judgement unless there was fault in the decision-making.
- The Council has a power, not a duty, to take enforcement action to address Category 2 hazards. It therefore has discretion about whether to act, considering the circumstances of a particular case.
- In January 2022, when it first inspected, the Council decided not to act because the landlord had issued a notice requiring Mr X to leave the property.
- In April, the Council decided to require the landlord to address the hazards. This was because the notice was invalid and so Mr X remained in occupation and the landlord had not taken any remedial action following advice in January.
- There was no fault in how the Council reached these decisions. Although the hazards were the same, the other relevant factors were different.
- The Council’s error in its letter describing the Category of the hazard created avoidable confusion since there is no discretion, and the Council must take action, about Category 1 hazards. However, since the letter required action of the landlord, there is no significant injustice to Mr X from this error.
Final decision
- I have completed my investigation. There was no fault by the Council.
Investigator's decision on behalf of the Ombudsman