Summary: The Council failed to properly consider whether to prosecute Mr B’s former landlord for harassment. The Council has agreed to apologise to Mr B and consider again whether to prosecute his former landlord.

The complaint

1. Mr B complains that the Council failed to properly consider whether to prosecute his former landlord for harassment after it agreed to do so.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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.
5. 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

6. I have:
• considered the complaint and the documents provided by Mr B;
• considered Mr B’s previous complaint;
• considered relevant legislation;
• considered the documents the Council has provided; and
• given the Council and Mr B the opportunity to comment on my draft decision.

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What I found

Landlord harassment

7. The landlord or an agent of the landlord will be guilty of an offence if he does acts likely to interfere with the peace or comfort of the residential occupier or members of his household, or where he persistently withdraws or withholds services reasonably required for the occupation of the premises in question as a residence. For this offence to be committed, the landlord or agent must know or have reasonable cause to believe that the conduct is likely to cause the occupier to give up occupation or to refrain from exercising any right or pursuing any remedy. There is a defence to this offence if the landlord can prove that he had reasonable grounds for the act in question. Protection from Eviction Act 1977 1(3A) and (3B)

Overview

8. Mr B previously complained to us about the Council. One of his complaints was that it had failed to take appropriate action when he notified the Council that he was being harassed by his landlord.
9. We found fault by the Council and recommended that the Council properly consider whether to prosecute Mr B’s former landlord. The Council agreed to take this action.
10. After we closed the complaint, the Council decided not to prosecute Mr B’s former landlord. It wrote to the Ombudsman and Mr B with the reasons for its decision. It also provided us with a copy of its infringement report, setting out its reasons in more detail.
11. Mr B then complained to us that the Council had:
• failed to approach its decision with an open mind, and that the matter was entirely pre-judged;
• applied the wrong legal tests under the Protection from Eviction Act 1977;
• failed to consider relevant evidence; and
• failed to provide a reasoned decision.
12. We decided to open this new case to consider whether the Council had failed to properly consider whether to prosecute Mr B’s former landlord.

Analysis

13. The Council’s Illegal Eviction and Harassment Procedures states that “details gained from both sides during the course of the investigation will be the basis for deciding whether a case of harassment has occurred”. The Council’s infringement report shows that it only considered information provided by Mr B and his family when reaching its decision; it did not obtain information from Mr B’s former landlord or his agent. This was fault.
14. Mr B told the Council that he had further evidence to support his claims of harassment, including photographs and videos. The Council did not ask to see the evidence and so did not take it into consideration. This was fault.
15. The Council’s Illegal Eviction and Harassment Procedures states that it should consider whether any services have been withheld or if the landlord has neglected to carry out repairs for which he is liable. The Council’s infringement report does not demonstrate that it has considered this. This was fault. Whilst there were clear complications surrounding the reason for the lack of repairs after Mr B obtained an injunction, the Council should still have considered whether there was any harassment arising from a withdrawal or withholding of services by the landlord.
16. The infringement report sets out incidents which occurred on six dates, some of which were reported to the police, and which were used by Mr B to obtain an injunction against his landlord. On four occasions the landlord or his agent visited the property, including one where Mr B alleges the landlord’s agent used his car to trap Mr B and his mother and one where Mr B alleges his landlord attempted to physically force entry into the property.
17. The infringement report contains no analysis of what happened during each of the incidents, and it does not demonstrate that the Council considered whether the landlord’s actions were “likely to interfere with the peace or comfort of the residential occupier or members of his household”, as required by the legislation. This was fault.
18. The Council states that the landlord visited the property on no more than three occasions and the communication was no more than it would expect for a family in rent arrears. The report concludes that the Council does not consider there to have been a pattern of behaviour which would be sufficient to constitute an offence.
19. The reasons provided for the Council’s decision appear to focus primarily on the number of contacts rather than the substance of the communications. We do not consider there needs to be a pattern of behaviour for there to have been an offence.
20. The report also states that the landlord could demonstrate that he had reasonable grounds for attending the property in defence of any offence. The burden of proof for this defence is on the landlord. The Council should have obtained the landlord’s statement before reaching this view.
21. For the reasons explained, I find the Council failed to properly consider whether to prosecute Mr B’s former landlord. This has caused frustration for Mr B.

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Agreed action

22. Within four weeks, the Council will apologise to Mr B for the failings identified in this case.
23. Within eight weeks, the Council will properly consider whether to prosecute Mr B’s former landlord and his agent. In order to do so, the Council will:
• obtain statements from Mr B’s former landlord and agent;
• request any evidence Mr B has of the harassment he and his family experienced;
• consider if the landlord persistently withdrew services reasonably required for the occupation of the premises as a residence;
• consider whether any of the landlord’s or agent’s actions were “likely to interfere with the peace or comfort of the residential occupier or members of his household”.

The Council will then write to Mr B and the Ombudsman setting out the reasons for its decision.

24. The Council should provide us with evidence it has complied with the above actions.

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Final decision

25. 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