Summary: Mr X complained about the Council’s actions in response to a report of disrepair at one of his rental properties, and to his complaint about this. We have not found fault with the Council’s actions.

The complaint

1. The complainant, who I am calling Mr X, complains about the way the Council handled a report of disrepair at one of his rental properties and its contact with him about this. He is also unhappy about the way the Council dealt with his complaint about its actions.
2. Mr X says the Council:
1. refused, in its initial phone call with him, to provide details of the repairs it said he had not carried out;
2. threatened legal action when he declined to attend a meeting without being told what repairs were outstanding and given the opportunity to deal with them;
3. sent him a document containing inaccurate information, referring only to unspecified “general disrepair” and requiring documents it had no right to request;
4. wrongly told his tenant he had issued an invalid Section 21 notice;
5. prevented its tenant liaison officer from completing repairs as agreed with him;
6. delayed responding to his complaint of 16 February 2023; and
7. stopped him contacting it about his concerns by issuing a cease and desist letter on 21 March 2023.
3. Mr X says the Council unfairly and wrongly targeted him as a landlord, without good reason. He always responds promptly to his tenant’s requests for repairs. There were no outstanding requests when the Council contacted him.
4. The way the Council conducted its investigation caused him distress and inconvenience. He wants the Council to review its procedures and make changes to prevent this happening again.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these.
6. 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)
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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What I have and have not investigated

8. The courts have said that where someone has used their right of appeal, reference, review or remedy by way of proceedings in any court of law, the Ombudsman has no jurisdiction to investigate. This is the case even if the appeal did not or could not provide a complete remedy for all the injustice claimed. (R v The Commissioner for Local Administration ex parte PH (1999) EHCA Civ 916)
9. I have not investigated Mr X’s complaint the Council went back on an agreement it would pay for the repairs if he withdrew the Section 21 notice issued to his tenant. This is because Mr X has taken court action against the Council for breach of contract regarding the agreement.
10. I have investigated the other parts of the complaint - about the Council's investigation of disrepair at the property and the restriction on his contact – as these are separate from the issues in the court action.

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How I considered this complaint

11. I spoke to Mr X, made enquiries of the Council and read the information Mr X and the Council provided about the complaint.
12. I invited Mr X and the Council to comment on a draft version of this decision. I considered their responses before making my final decision.

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What I found

What should have happened

The duty to inspect and assess the condition of residential properties

13. Councils have duties and powers to address risks to the health and safety of occupants or visitors to residential properties in its area (Housing Act 2004). This includes private rented properties.
14. The Housing Health and Safety Rating System (HHSRS) is used to assess the main housing related risks. The HHSRS calls these risks hazards.
15. Hazards assessed under the HHSRS fall into two categories. The most serious hazards are classed category 1, with less serious hazards being category 2.
16. A council must arrange an inspection of residential property if it considers this is appropriate to determine whether a category 1 or category 2 hazard exists at the property, as a result of any matters of which it becomes aware in carrying out its duties under the Act, or for any other reason (Sections 3 & 4 of the Housing Act).
17. A council must give at least 24 hours notice to owners and occupiers of its intention to carry out an inspection to assess a property for hazards under the HHSRS (Section 239 notice).

Powers and duties to take enforcement action where a hazard is identified

18. Councils have powers under the HHSRS to take enforcement action against private landlords where they have identified a hazard which puts the health and safety of the tenant at risk.
19. A council must take enforcement action when it identifies a category 1 hazard. (Housing Act 2004. HHSRS enforcement guidance (Part 1: housing conditions)).
20. It has the power (but not a duty) to take action in relation to category 2 hazards, although it cannot take emergency measures in the same way as it can for category 1 hazards.
21. The action a council can take to address a category 1 hazard includes:

• serving an Improvement Notice;
• making a Prohibition Order;
• serving a Hazard Awareness Notice; or
• taking emergency action to reduce or remove the risk

22. An Improvement Notice requires the person on whom it is served to take the action set out in the notice to address the hazards. This must be enough to make sure the hazard is no longer a category 1. In private rented properties, it is usually served on the landlord.
23. A Hazard Awareness Notice gives formal notice that a hazard exists. It does not have to be acted on, but a council can take further formal action should an unacceptable hazard remain. This notice is most commonly used for category 2 hazards.
24. The Guidance says it might be appropriate to wait before serving a notice if the landlord agrees to take the required action and starts this within a reasonable time.
25. It is for the council to decide which course of action is the best in all the circumstances.

Production of documents

26. A council may require a landlord to produce documents it might need to carry out its duties under Parts 1 to 4 of the Housing Act and investigate whether an offence has been committed under the Act.
27. It must service a notice (Section 235 notice) specifying the documents, when and where they must be provided and the consequences of not complying with the notice.

Retaliatory Eviction

28. This is where a tenant makes a legitimate complaint about the condition of their rented property, and in response, instead of making the repair, the landlord serves them with an eviction notice.
29. The law says (the Deregulation Act 2015) a landlord cannot evict a tenant using the Section 21 notice procedure (the notice a landlord must give a tenant to end a tenancy without providing a reason) for six months where:

• The tenant has made a complaint about the condition of their property, which has not been addressed by the landlord;
• The complaint has been verified by a council inspection; and
• the council has served either an Improvement Notice or notice of emergency remedial action.

The Council’s Private Sector Housing Enforcement Policy

30. This sets out the Council’s procedures for carrying out its duties under the Housing Act and HHSRS system. It says:

• In most cases the Council will consider taking informal action prior to formal enforcement. All remedial action required must be sufficient to remove any risk but not so excessive as to be burdensome;
• It is expected officers in the first instance will make contact with the person responsible for the property containing the hazard with a view to taking informal action;
• Informal action may take a variety of forms including verbal requests, letters, emails and schedules of work;
• Circumstances where it might be appropriate to take formal action include where a person refuses to carry out the work informally, there is a history of failure to meet requests to carry our legally required works or manage property in line with legal requirements; and
• There is no exhaustive list of circumstances. Each case will be considered on its individual merits.

31. And regarding inspections and further action, it says:

• If an inspection identifies hazards, consideration will then be given to the appropriate course of action to reduce the hazards to an acceptable level;
• An Improvement Notice should be used where reasonable remedial works can be carried out to reduce the hazard sufficiently;
• Officers should give 24 hours written notice to those with an interest in a property when exercising their formal enforcement powers;
• Officers must prepare a statement detailing which notice provisions are being considered and why other options have been discounted (statement of reasons); and
• Once the decision is made, a covering letter and the statement of reasons must be sent to the landlord with the notice and schedule of work.

32. The policy also says the Council is committed to a proactive approach in cases of harassment and illegal eviction. It will do this through the provision of advice and assistance to landlords and tenants and the use of informal warnings and mediation where appropriate.

Council’s policy on unreasonable customer behaviour

33. This says:

• The Council can apply several considerations and actions in the management of a customer and their complaint where a customer’s contact is persistent and unreasonable;
• Behaving in an abusive, offensive or threatening manner towards Council employees or their families is one of the actions it considers unreasonable and unreasonably persistent under the policy;
• When the Council identifies unreasonable behaviour, it will explain the unacceptable behaviour to the customer, usually by letter. The customer will be asked to modify (change or stop) their behaviour. The Council will explain the action it is likely to take if the behaviour is not modified; and
• Letters should be written in consultation with legal services and the action approved by the relevant Service Director and Executive Director.

34. The options the Council may consider if the customer does not modify their behaviour include:

• Refusing to accept a complaint or to amend the terms of a complaint;
• Requesting contact in a certain format, such as letters only;
• Requiring contact with one named member of staff only;
• Restricting telephone calls to specified/times/days/duration; and
• Letting the customer know that no reply or acknowledgement will be provided to any further contact on the specific topic of that complaint.

35. These options are not exhaustive. Other factors individual to the case or service may be relevant in deciding on an appropriate course of action. The customer’s personal circumstances should always be considered.
36. The process will not affect an individual’s rights to contact other Council services unless this has been identified. It will notify the customer should this be the case.

What happened

37. I have set out a summary of the key events below. It is not meant to show everything that happened. It is based on my review of all the evidence provided about this complaint.

Complaint background

38. Mr X is the landlord of a number of residential properties. T has been a tenant of one of his properties for some years.
39. The Council’s Housing and Environment team set up a pop-up stall in T’s local area to provide information to private sector tenants. T approached one of the team’s officers (Officer Y) with some concerns about the property they rented from Mr X. The officer arranged an informal inspection of T’s home.

February 2023: Officer Y’s informal inspection

40. The Council’s records show the officer identified the following risks at T’s home:

• No handrail on the stairs to the loft;
• Steep stairs to the rear garden;
• Indication of damp on the internal loft wall;
• No working smoke alarms;
• Loose front step and no handrail;
• Loose back door handle; and
• Crack in the kitchen ceiling.

Officer Y’s contact with Mr X following the inspection

41. The Council’s records show the officer:

• obtained confirmation Mr X owned the property from the Land Registry. His phone number was recorded on the Council’s system;
• called Mr X to ask if he was T’s landlord. He declined to confirm this and used language the Council considered offensive;
• sent Mr X a text message with their details asking him to contact them if he was T’s landlord; and
• spoke to again to Mr X by phone, who then confirmed he was T’s landlord. They asked him to attend the property informally to address the disrepair issues identified. Mr X refused and asked what the disrepair items were. The officer said they would follow the formal process if he was not willing to attend the property. Mr X said he would evict T.

42. Mr X asked the officer, by text, for details of the disrepair. In the text he referred to the officer using language the Council considered insulting and offensive.
43. The officer told Mr X they would communicate with him by letter from now on.

Mr X’s contact with T

44. Following the communication with Officer Y, Mr X told T by text, he was concerned the number of people now living at the property might be contributing to damage to its condition. He said it might be best for T to find a more suitable property.
45. He sent T a Section 21 notice to end the tenancy by text.

Notice of an HHSRS inspection

46. The Council delivered a Section 239 notice to Mr X’s home address of its proposed HHSRS inspection of the property. This notice:

• said general disrepair had been alleged; and
• gave notice an appointment had been made with T to carry out a full HHSRS assessment on the specified date. If Mr X wanted to be present during the inspection, he should contact T directly to arrange access.

47. At the same time, the Council delivered a Section 235 notice requiring Mr X to produce the following documents for the property:

• Tenancy agreement;
• Gas safety certificate;
• Electrical Installation Condition Report (EICR);
• Current Energy Performance Certificate (EPC);
• Details of works completed within the tenancy period; and
• Complete list of outstanding works reported by T.

Mr X’s response to the notice of inspection

48. Mr X:

• told Officer Y, by text, the notice did not give any information about defects at the property. Any general disrepair was due to T not maintaining the property;
• posted comments on Officer Y’s private social media account;
• complained to the Council about Officer Y. He referred to the officer using language the Council considered insulting and offensive; and
• served T with a Section 21 notice.

Council’s consideration of the Section 21 notice

49. The Council’s records show its housing team considered what advice to give T about the notice. Their view was the notice was invalid because it did not specify a date by which T had to leave. They also considered whether any further Section 21 notice issued after the service of an Improvement Notice would be a retaliatory eviction.

HHSRS inspection

50. The Council’s inspection identified a number of hazards. It served Mr X with an Improvement Notice. This detailed the Category 1 hazard as falling on stairs due to a lack of handrails or suitable handrails or lack of required guarding to the property’s front steps, staircases, balustrade and rear staircase.
51. The notice also detailed the remedial work required and the dates by which this should be started and completed. It included a statement of the Council’s view the service of the Improvement Notice was the most appropriate enforcement action for the hazards.

Mr X’s complaint to the Council

52. Mr X complained to the Council about Officer Y’s contact with him about the issues with the property. He said:

• The officer had harassed him, phoning out of the blue asking for personal information he was not comfortable giving without being told what the call was about. He was not aware of any issues with the property at this stage as T had not raised any concerns with him;
• The officer refused to give him details of the issues over the phone but insisted he attend the property. When he said he wouldn’t attend, but would repair any defects, they threatened legal action;
• He had received a hand-delivered letter which referred only to general disrepair without any detail; and
• The officer had wrongly advised T the Section 21 notice was not valid.

53. Mr X included comments about the officer in his complaint using language the Council considered insulting and offensive.

The Council’s response to Mr X’s complaint.

54. The Council acknowledged Mr X’s complaint on 22 February. It said:

• It believed the words and phrases he had used were insulting and offensive and designed to cause alarm and distress. It would not tolerate this kind of intimidation directed towards, or in regard to, its officers;
• Due to the offensive language used, it was not prepared to give further consideration to his complaint;
• It would look at the complaint if he reframed it without the offensive references; and
• He should have no further contact with Officer Y. He should contact only the specific officer it had named regarding the issues about his property and role as landlord.

March 2023: The Council’s notice to cease and desist

55. On 21 March the Council’s legal services team issued Mr X with notice to cease and desist. It said this was because:

• of its concerns about the content and nature of his communication and behaviour towards the Council and its employees;
• he had made derogatory comments about one officer and threats in his communication to another officer;
• It had warned him about his behaviour on 21 February; and
• He had continued with this behaviour, in particular in a communication of 12 March where he had again used language it considered offensive and threatening about an officer.

56. The notice told Mr X he must cease and desist from communicating with:

• any of its staff referring to the Council or its employees in a derogatory, insulting, abusive, threatening or intimidating manner; and
• directly with Officer Y and the other officer it named.

57. The notice told Mr X he could contact the Council to discuss the letter or any other legitimate issues through the email address it provided for its legal services team.

The involvement of the Council’s tenant liaison officer (TLO)

58. The TLO’s role involves contacting landlords of tenants served with notice to leave a private rented property to discuss whether they would agree to allow the tenant to stay.
59. The TLO spoke to Mr X about T’s situation. Mr X has told us he agreed with the TLO that he would withdraw the Section 21 notice served on T if the Council carried out the repairs.
60. The TLO told the housing team they had agreed with Mr X the Council would carry out the repairs.
61. A senior housing team manager told the TLO they were concerned about this arrangement. This was because the housing team had been clear with Mr X he should carry out the repairs and he had served the Section 21 notice in response to this.
62. Mr X says the TLO informed him they had been told not to go ahead with the repairs.

Completion of the works in the Improvement Notice

63. Mr X completed the works required in the Improvement Notice.
64. T provided the housing team with photos of the completed work.
65. The housing team recorded the works as being completed and the property compliant. It closed its case.

The Council’s response to Mr X’s complaint

66. In May 2023 the Council decided it was now able to respond to Mr X’s complaint because he had resubmitted it without the derogatory comments about its staff.
67. In its complaint response to Mr X it said:

• It had a duty under the Housing Act 2004 to investigate all reports of housing disrepair. The matter was reported to it directly and it acted appropriately by making an appointment to visit the property and carrying out an inspection;
• Mr X’s refusal to co-operate with its informal action led to a more formal process being followed;
• It obtained his details from Land Registry and council tax records. It is allowed (under Section 237 of the Housing Act) to use information obtained for housing benefit or council tax purposes to carry out its functions under the Housing Act; and
• It accepted there was a typing error, the Section 235 notice, in the date for providing the requested documents. It apologised for this.

My view – was there fault causing injustice?

Complaints a, b & c: the Council’s contact with Mr X about disrepair

68. I do not propose finding fault by the Council in the conduct of its initial contact with Mr X about disrepair at the property. This is because:

• The Council had a duty under the Housing Act to identify whether it needed to take any action under HHSRS because it had been made aware, from T’s contact with its officer, of possible disrepair at the property;
• The Council’s officers are expected, under its enforcement policy, to contact the landlord as a first step, with a view to taking informal action. After their informal inspection which identified possible hazards, the officer followed the policy by asking Mr X to attend the property with them to address the disrepair issues;
• Mr X was unhappy the officer did not give him details over the phone. But my view is the officer was entitled, under the policy, to use their professional judgement to decide how to conduct their informal contact with Mr X. I don’t consider I can say the officer was wrong to decide to invite Mr X to attend the property to discuss the issues rather than doing so over the phone; and
• I consider the officer properly considered the enforcement policy, which allows officers to take formal action in appropriate circumstances. The officer decided, following Mr X’s response to their informal contact, to take formal action. In my view they then properly followed the formal enforcement process and the Council’s policy, by serving the required notice for the HHSRS inspection.

69. And with regard to the notice, because:

• The initial notice referring to general disrepair did not have to specify the particular issues. That was required (and done) in the Improvement Notice served after the HHSRS inspection. The initial notice gave Mr X notice of the HHSRS inspection, as the Council was required to do;
• The Council had the power (under Section 235) to request from Mr X the documents it considered it might need to carry out its duties under the Housing Act; and
• I don’t consider it was wrong to ask for documents it considered it might need at that stage. Mr X told the Council why some of the documents it had asked for were not required for the property and could not be produced. The Council accepted this.

Complaint d: wrongly telling Mr X’s tenant the Section 21 notice was invalid

70. I don’t propose finding fault by the Council regarding any advice it gave T about the validity of the Section 21 notice. This is because:

• Any dispute about the validity of a Section 21 notice would have to be decided by a court. So I can’t say whether any advice the Council gave T about its validity was right or wrong; and
• The Council’s enforcement policy specifically says it should take a proactive approach in cases of harassment and illegal eviction, through the provision of advice and assistance.

71. In my view, the Council properly considered the Section 21 notice and the circumstances in which it was served. Any advice about this, whether right or wrong, was given in accordance with its policy to provide assistance to tenants in these situations.

Complaint e: preventing its TLO from completing agreed repairs

72. I have not considered whether there was any binding agreement between the Council and Mr X regarding the repairs for the reasons set out at paragraphs 8, 9 and 10.
73. I don’t propose finding fault by the Council in the way it made its decision it should not carry out the repairs for Mr X.
74. The TLO may have spoken to Mr X about the situation, but it was the Council’s decision whether or not to carry out the repairs.
75. In my view, the Council properly considered Mr X’s response to its informal contact about the disrepair, the enforcement action regarding the hazards identified in the Improvement Notice and the TLO’s discussions with Mr X before deciding it was not appropriate for it to pay for, and carry out, the repairs.

Complaint f: delay in responding to Mr X’s complaint

76. I don’t propose finding fault by the Council in the way it responded to Mr X’s complaint. This is because:

• Its policy on unreasonable customer behaviour allows it to refuse to deal with a complaint by a customer whose behaviour has been identified as unreasonable;
• It told Mr X about the behaviour it had identified as unreasonable and why it would not respond to his complaint;
• It confirmed it would respond to his complaint if it was resubmitted without the references it considered offensive; and
• It responded to the complaint when it was resubmitted without the offensive language.

77. In my view the Council properly considered its policy on unreasonable customer behaviour in making its decision not to respond to Mr X’s complaint until it was resubmitted in an appropriate form.

Complaint g: the cease and desist letter

78. I don’t propose finding fault by the Council in issuing notice to Mr X to cease and desist contact. This is because:

• It warned Mr X about the behaviour it considered offensive and asked him to only contact the officer it had named before it issued the notice;
• It considered his further contact with officers, whether this was offensive, and consulted with its legal services team before deciding to issue the cease and desist notice; and
• The notice, sent by its legal services team, explained why the notice had been issued and specified the behaviour and contact Mr X must stop. It also provided details of how Mr X could contact the Council, through the legal services team, to discuss the letter or any other legitimate concerns.

79. In my view the Council properly followed its policy on unreasonable customer behaviour when making its decision about, and in the way it served, the cease and desist notice.

Conclusion

80. I appreciate what Mr X has said about his role as a landlord, responding promptly to any concerns raised by his tenants and that he wasn’t aware of any outstanding repair issues at the property before the contact from the Council in February 2023.
81. But for the reasons set out above, I do not consider the Council was at fault in the action it took in response to the concerns about possible disrepair at the property and the hazards identified following its inspection.

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Final decision

82. I have completed my investigation of this complaint. I have not found fault with the Council’s actions.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman