Summary: Miss X complains about how the Council handled her complaint about housing disrepair at a property she was renting. We have concluded our investigation having made a finding of fault. Although we found the Council were not at fault for how it handled Miss X’s reports about disrepair in her property, we found it missed an opportunity to properly consider disclosures made to it about her mental health and what, if any, support it could provide to her. The Council have agreed to our recommendations.

The complaint

1. Mr Y brings a complaint on behalf of Miss X. Miss X complains about how the Council handled her complaint about housing disrepair at a property she was renting. Miss X also complains the Council failed to acknowledge she was a vulnerable adult and take appropriate action. Miss X says the Council’s actions led to her landlord issuing her a retaliatory notice to end her tenancy. Miss X would like the Council to take accountability and apologise for its actions.

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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. 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. I liaised with Mr Y and considered the information he provided. I also raised enquiries with the Council and considered the information it provided. I offered Mr Y and the Council an opportunity to comment on my draft decision and I considered any comments submitted before making a final decision.

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What I found

Relevant law and guidance

HHSRS

6. The Housing Health and Safety Rating System (HHSRS) is to assess all the main housing related hazards. It recognises that all homes will contain some hazards. The HHSRS provides a means of assessing homes which reflects the risk from any hazard. It allows a judgement to be made about whether the risk in the particular circumstances is or is not acceptable. The assessment is solely about the risk to health and safety and not about the quality or standard of any works.
7. Private tenants can complain to a council about the failure of a landlord to keep the property in good repair. The Housing Act 2004 gave Councils powers under the HHSRS to inspect and assess the condition of tenanted properties.
8. Hazards assessed under the HHSRS fall into two categories. The most serious hazards are classed category 1, with less serious hazards being category 2. If a Council identifies a category 1 hazard in a property, it must serve an improvement notice saying what the owner must do to stop the hazard. If a Council identifies a category 2 hazard, it has the power, but not the duty, to take action.
9. The HHSRS also outlines hazard bands to identify the danger a hazard presents to a person. Band A is the highest potential hazard and Band J is the lowest potential hazard.
10. There are several notices available to councils that require an owner to comply with requirements related to category 1 or category 2 hazards. These include:
• Hazard Awareness Notice- gives formal notice that a hazard exists. The notice 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.
• Improvement Notice- requires remedial works within a specified time and must, as a minimum, remove category 1 hazards.
11. Government guidance says if a landlord agrees to take the action required by a council it might be appropriate to wait before serving a notice. This is unless the landlord fails to start the work within a reasonable time.

Illegal eviction

12. Councils have powers under the Protection from Eviction Act 1977 to investigate complaints of harassment and illegal eviction. A council can prosecute a landlord where he or she commits an offence. But councils have no power to force a landlord to reinstate an illegally evicted tenant as only a court can do this. Nor can a council help with a claim for damages against a landlord. A tenant can take their landlord to court themselves to claim for damages for an illegal eviction.
13. The Council’s illegal eviction and harassment policy (the policy) refers to the Council’s legal powers to investigate and prosecute landlords under the Protection from Eviction Act 1977.
14. The policy says in all cases of illegal eviction and/or harassment the Council will actively consider a formal caution or prosecution on behalf of the customer. In deciding whether a case is suitable for a caution or prosecution the Council will take into account:
• the strength of the evidence obtained;
• the severity of the offence and the circumstances of the case;
• voluntary disclosure;
• social factors.

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What happened

15. I have included a summary of the key events in this complaint. This is not intended to be a comprehensive account of everything that took place.
16. In April 2022, Miss X contacted the Council to report concerns with disrepair in the property she was privately renting.
17. In late-April 2022, the Council issued a Reg 3 Notice, requesting an Electrical Inspection and Testing Certificate to the landlord (LL).
18. In May 2022, the LL, contacted the Council to inform it she had not been able to gain access to resolve maters and was unaware of some of the disrepair reported by Miss X.
19. In June 2022, Miss X contacted the Council again to report further disrepair in her property. Miss X informed the Council that she had been informed by a tradesperson that the property was uninhabitable.
20. Shortly after, the Council wrote to Miss X to query whether Miss X had raised her concerns directly with the LL. The Council followed up with a call to Miss X who said she would provide the report from the tradesperson and requested the Council’s provide support to mediate between her and the LL. Miss X also provided pictures to the Council of her property.
21. In early July 2022, the Council wrote to the LL to confirm it would be visiting the property to undertake a HHSRS inspection. The LL advised the Council she would not be attending the appointment, but that the electrician she has arranged to visit the property has not been provided access to the property to remediate the reports.
22. Shortly after, Mr Y, acting on behalf of Miss X, called the Council seeking an update. Mr Y informed the Council that Miss X has mental health issues and that the condition of her property was impacting her mental wellbeing.
23. In mid-July 2022, the Council undertook its inspection of the property. The Council did not note any significant Category 1 or Category 2 hazards within the property. The Council acknowledges it was not able to determine whether the heating was working at the time due to the heating type in the property. The Council noted that:
• the shower and lights were tripping the fuse board
• there were damp readings near the entrance
• the extractor in the kitchen was not working
• the toilet was not flushing
• the tap on the bath was not working
• Miss X’s deposit was not registered with a rent deposit scheme
24. Shortly after, the Council contacted the LL to request an electrician visit the property. The Council informed the LL it would address the other matters of disrepair following an internal discussion.
25. In mid-August 2022, Miss X contacted the Council seeking an update. Miss X advised the Council that it had visited her property a month ago and had not had an update since.
26. A week later, the Council wrote to the LL, seeking an update and informing her about the additional works that needed to be addressed. The Council requested an update from the LL within 14 days, and that the property would be subject to a formal review and enforcement action in the absence of satisfactory progress and updates by the end of the month.
27. In early-September 2022, the Council issued the LL with a Reg 4 Remedial Notice.
28. In mid-September 2022, the LL contacted the Council that she was having difficulty arranging the works to be completed.
29. In late-September 2022, Miss X was served with a section 21 eviction notice to terminate the tenancy at the end of November 2022.
30. In absence of the requested documents from the LL, the Council undertook a desktop HHSRS review, and deemed the heating a Category 1 hazard.
31. In early-October 2022, given the absence of the requested documents from the LL, the Council undertook a desktop HHSRS review, and deemed the heating a Category 1 hazard. The Council issued the LL with an Improvement Notice.
32. In mid-October 2022, Mr Y formally complained to the Council on behalf of Miss X about how it handled her reports of housing disrepair. Mr Y says the LL’s actions amount to a retaliatory eviction, and if not for inaction by the Council, Miss X would have been protected from the section 21 eviction notice. Mr Y also complained the Council failed to recognise Miss X as a vulnerable adult despite its knowledge of Miss X’s mental health condition.
33. The Council responded in November 2022, however unhappy with the Council’s response, Mr Y escalated the complaint as part of the Council’s process.
34. Following a Council appeal hearing heard in March 2023, the Council wrote to Miss X concluding that:
• The Council had dealt with Miss X as a vulnerable adult, however that Miss X was not classed as vulnerable within the legislation with regard to repairs in the property.
• The Council used the correct section of the Enforcement Guidance as Miss X was deemed to be not at an imminent risk.
• The service of an improvement notice would not have prevented the LL from serving a section 21 eviction notice, as there is an exemption under the regulations to enable a sale of the property.

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Analysis

Actions taken by the Council

35. Following reports of housing disrepair from Miss X In April 2022, the Council issued a Reg 3 Notice to the LL, requesting an Electrical Inspection and Testing Certificate. It is noted that no Electrical Inspection and Testing Certificate was provided by the LL.
36. Mr Y raised concerns with the delay taken by the Council to arrange an inspection of the property, notably that Miss Y’s original reports were made to the Council in April 2022, but an inspection not carried out until July 2022, 3 months later. The HHSRS enforcement guidance states that an authority, where a complaint is made, must arrange for an inspection, but the guidance does not give a timeframe to do so. The Council, in the continued absence of an Electrical Inspection and Testing Certificate, and further evidence provided by Miss X subsequently arranged to do so in July 2022.
37. I recognise the period with which the Council took to do so, but I am satisfied that the time taken was not because the Council allowed matters to drift, given the evidence of action taken by the Council during this period and communication with the LL. The Council were required to arrange an inspection of Miss X’s property, and whilst I recognise it did not do so immediately, this does not meet the threshold as to make a finding of fault.
38. In July 2022, the Council undertook a HHSRS inspection. The outcome of its inspection was that the Council did not attribute any of the deficiencies identified in the survey to be significant Category 1 or 2 hazards.
39. As per paragraph 8, if a Council identified a Category 1 hazard in a property, it must serve an improvement notice saying what the owner must do to stop the hazard. If a Council identified a Category 2 hazard, it has the power, but not a duty to take action. It was noted by the inspection offer, that the deficiencies were minor items of disrepair which could be actioned informally with the LL. This is an action the Council were entitled to make, despite any concerns raised by Mr Y about the appropriateness of doing so.
40. The Council said it had no reason to suspect a lack of compliance by the LL in completing the remedial work, and the Council has the discretion to come to this view. I understand Mr Y has concerns with the engagement of the LL, which he says should have led the Council to begin enforcement action, but from the evidence available to me, I do not agree. The LL was engaging with the Council, and the evidence suggests that a lack of progress can be attributed to the difficultly the LL said she was having arranging access to the property. I, therefore, have not made a finding of fault.
41. The Council says that during its inspection, it was not able to establish if the heating in the property was functional, given the type of heating provision present in the property. The Council were awaiting the Electrical Inspection and Testing Certificate to evidence whether heating in the property was working. The Council remained in communication with the LL, who said she was having difficulties with access to the property. However, in the continued absence of evidence to demonstrate progress, the Council deemed the matter concerning the heating a Category 1 Hazard following a desktop HHSRS review, and served the LL with an Improvement Notice. I find no fault in the Council’s decision, nor its timing to do so.

Consideration of Miss X’s vulnerability

42. The Council says it first formally became aware of Miss X’s mental health condition in October 2022, when Mr Y, having provided written authority to act on behalf of Miss X, disclosed the information.
43. The Council says that Miss X had told it that she was anxious about getting in contact with her LL, and the Council therefore took on the role to mediate between both parties. The Council says it had no indication prior to being informed in October 2022 that Miss X was experiencing difficulties with everyday living to the extent that she required additional support.
44. From the evidence available to me, I consider that the Council became aware of concerns with Miss X’s mental health in July 2022. Whilst I accept the Council had not received written authority for Mr Y to act on behalf of Miss X, I consider the disclosures made should have prompted the Council to explore the matter further, for example by contacting Miss X to determine what support, if any, it could or should provide. Failure to do so is fault.
45. The Council says that in circumstances where it was aware of additional support requirements, it would signpost to services that can offer support to tenants, both internal and external to the Council. The Council said in circumstances where it is notified formally, this would impact upon how it triages the reports from the tenant but would not impact upon the action taken thereafter which is in line with its enforcement policy. I therefore conclude that whilst the Council missed an opportunity to act upon the disclosures made to it, this would not have impacted upon the outcome of the HHSRS inspection, and any subsequent action taken thereafter.

Retaliatory eviction

46. Mr Y raises concerns that inaction from the Council is inextricably linked to Miss X being issued with what he considers, a retaliatory section 21 eviction notice. As described between paragraph 37 and 41, I have not found fault either with the time taken by the Council to inspect Miss X’s property, nor the action taken by the Council when it took an informal approach to resolve deficiencies identified at the inspection.
47. However, it should be noted, that even if the Council opted to issue an Improvement Notice to the LL at an earlier time, the section 21 eviction notice would still be valid, given the LL had put the property on the open market. This means that the injustice of a retaliatory eviction that Mr Y alleges could not apply.
48. Miss X disputes that the property was marketed at the time the section 21 eviction notice was served. Miss X says the property was not sold until June 2023 and has provided information of when the property was listed for auction, but this does not demonstrate that the property was not marketed at the time the LL served the section 21 eviction notice. Although I have not seen evidence the property was marketed at the time the notice was served, I have not seen evidence to dissuade me otherwise, nor demonstrate that the property was not marketed at that time. Therefore, on balance, given disclosures made the LL to the Council at the time, I am satisfied that the property was marketed when the notice was served.

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Agreed action

49. To resolve matters and prevent similar occurrences, the Council have agreed to:
1. Review its relevant policies and guidance to ensure that it acts appropriately on any disclosures about mental health made to it. The Council should consider the appropriateness of staff training with regard to handling such matters.
2. Contact Miss X, to determine whether there is any additional help or support it can assist her with, regarding disclosures made to it.
50. The Council will complete action point a within two months of the Ombudsman’s final decision, and action point b within one month of the Ombudsman’s final decision.

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Final decision

51. I have concluded my investigation having made a finding of fault. Although I found the Council were not at fault for how it handled Miss X’s reports about disrepair in her property, I found it missed an opportunity to properly consider disclosures made to it about her mental health and what, if any, support it could provide to her. The Council have agreed to our recommendations.

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Investigator's decision on behalf of the Ombudsman