Summary: Miss X complained that the Council identified a category 2 health and safety hazard in her flat but decided to take no action. Miss X said this caused unnecessary and avoidable distress and frustration. We do not find the Council at fault.

The complaint

1. The complainant, who I refer to here as Miss X, complained that the Council identified a category 2 health and safety hazard in her flat but decided to take no action. She said repairs the landlord made to her flat to address a damp/mould problem are inadequate because the problem has returned.
2. Miss X said this caused unnecessary and avoidable distress and frustration.

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The Ombudsman’s role and powers

3. 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 how the organisation made its decision, 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)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. The law says we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply. However, we may decide to investigate if we consider it would be unreasonable to notify the organisation of the complaint and give it an opportunity to investigate and reply. (Local Government Act 1974, section 26(5), section 34(B)6)

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What I have and have not investigated

7. As I have said above, we cannot normally investigate a complaint unless we are satisfied the organisation knows about the complaint and has had an opportunity to investigate and reply.
8. In this case, the Council did two assessments of Miss X’s flat: January 2023 and late May 2023. Miss X complained to us in early May 2023, before the second assessment.
9. The Council has agreed that the Ombudsman can include its May assessment in this investigation, even though Miss X’s complaint about it has not been through the Council’s complaints procedure.

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How I considered this complaint

10. I considered the information and documents provided by Miss X and the Council. I also spoke to Miss X and the Council about the complaint. Miss X and the Council had an opportunity to comment on an earlier draft of this statement. I considered all comments received before I reached a final decision.
11. I considered the relevant legislation and statutory guidance, set out below.

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What I found

What should have happened

12. The housing health and safety rating system (HHSRS) is a risk-based evaluation tool to help councils identify and protect against potential risks and hazards to health and safety from any deficiencies identified in dwellings.
13. An HHSRS assessment or survey will determine whether any category 1 or 2 hazards exist in the property. If a council determines there is a category 1 hazard in the property, it has a duty to take action. If it determines there is a category 2 hazard, it has a power to take action.
14. Guidance says the number of category 2 hazards may be a factor in a council’s decision whether or not to take action. In some cases, councils will need to form a view on whether a number of hazards justifies the use of its powers.

What happened

15. In January 2023, Miss X complained to the Council about mould in her flat.
16. The Council did a housing health and safety rating system (HHSRS) assessment. It found no category 1 or high category 2 hazards, so it decided not to take any enforcement action. The Council told Miss X the outcome of its assessment. It explained what Miss X could do to reduce condensation and humidity in her flat. It told Miss X she could contact the Council again if the problem got worse.
17. In March, Miss X complained.
18. In its complaint response, the Council explained the housing health and safety rating system. It explained the difference between a duty to act on category 1 hazards, and a power to act on category 2 hazards. The Council said its inspection had not found any category 1 hazards, but did find a low-level category 2 hazard (very small patches of mould).
19. The Council said it is not required to act on category 2 hazards. It said officers concluded that taking enforcement action against the landlord would not be a necessary or proportionate response to the category 2 hazard. The Council offered to meet with Miss X to address her concerns and give her more information on the HHSRS.
20. In early May, Miss X complained to the Ombudsman.
21. In late May, the Council did a second HHSRS assessment of Miss X’s flat. It made the same finding, that there was a low-level category 2 hazard because there were still some mould patches. The Council decided not to take any enforcement action on that hazard. The Council told Miss X of its decision.
22. In June, the Council had a meeting with Miss X. This meeting ended because Miss X became upset.

Analysis

23. Miss X complained that the Council identified a category 2 health and safety hazard in her flat but decided to take no action.
24. I have considered the way the Council made its decision that the hazards in Miss X’s flat were category 2. I find no fault in the way the Council carried out its HHSRS inspections in January and May. The Council made decisions it was entitled to make.
25. As I have said above, if there was no fault in how a council made its decision, we cannot question the outcome.
26. The Council has no duty to act on category 2 hazards, but it does have a power to act on them. I find, in this case, that the Council properly considered whether to take enforcement action on the category 2 hazards. The Council was entitled to decide not to take action.
27. For these reasons, I do not find the Council at fault.

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Final decision

28. I have completed my investigation. I do not find the Council at fault.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman