Summary: there was service failure and fault in the way the Council investigated Ms X’s complaint about poor housing conditions in her private rented accommodation. This caused her avoidable frustration, distress and uncertainty. The Council has agreed to provide a suitable remedy for this injustice.

The complaint

1. Ms X complained that the Council took too long to start investigating her report about serious disrepair and defects in her private rented accommodation. It also delayed serving an Improvement Notice on the landlord after an officer inspected the property in July 2022. She says she was given misinformation, the case officer lied to her and he missed some defects when he inspected the property. This has caused significant stress and inconvenience because she has lived for much longer than necessary in poor housing conditions which have an adverse impact on her health.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. A complaint is late when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. Service failure can happen when an organisation fails to provide a service as it should have done because of circumstances outside its control. We do not need to show any blame, intent, flawed policy or process, or bad faith by an organisation to say service failure (fault) has occurred. (Local Government Act 1974, sections 26(1), 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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What I have and have not investigated

5. Ms X says there has been disrepair and defects in the property for several years. But this investigation considers the Council’s response since Ms X contacted the Private Sector housing team in December 2021.
6. An officer from the Private Sector Housing team inspected the external balcony and staircase in December 2021. The case was then put on a waiting list for a full inspection which took place in July 2022. Ms X complained to us in late May 2023 more than 12 months after she first reported the defects to the Council.
7. We do not usually investigate events that happened more than 12 months before we receive the complaint. However there are good reasons to exercise discretion to investigate what has happened since December 2021. I took into account that Ms X was on a waiting list for several months before the Council carried out a full property inspection. I also took into account the continuing disrepair and the impact of this on Ms X’s living conditions.
8. There have been further developments since we accepted Ms X’s complaint for investigation in June 2023. However these more recent events fall outside the scope of this investigation. We can only investigate what happened in the period before the complaint was made to us.

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How I considered this complaint

9. I have spoken to Ms X and considered the information she sent me. I considered the Council’s response to my enquiries and evidence from the private sector housing team’s records. I have read the Council’s private sector housing enforcement policy.
10. Ms X and the council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

The relevant law

11. The Housing Act 2004 sets out councils’ duties and powers to address hazards in residential properties in their area.
12. Where a council, for any reason, considers it would be appropriate to inspect a property to determine whether a category 1 or 2 hazard exists, it must arrange an inspection. The law does not set a timescale for carrying out the inspection.
13. If a council considers a category 1 hazard exists it must take appropriate enforcement action. This means doing one of the following.
• Serving an improvement notice.
• Making a prohibition order.
• Serving a hazard awareness notice.
• Taking emergency remedial action.
• Making an emergency prohibition order.
• Making a demolition order.
• Declaring the area a clearance area.
14. If a council considers a category 2 hazard exists it has powers to take the following enforcement action.
• Serve an improvement notice.
• Make a prohibition order.
• Serve a hazard awareness notice.
• Make a demolition order.
• Make a slum clearance declaration.

The Council’s Private Sector housing team

The waiting list and assessing priority

15. The Private Sector housing team has 3.6 full time equivalent officers who each handle around 50 cases (pro rata). The Council says officers can only take new cases from the waiting list when they have spare capacity.
16. The Council operates a triage system to assess the severity of hazards reported by residents to decide their priority on the waiting list:
• P1 priority: where a reported defect may cause imminent risk of harm it is investigated within 24hrs.  Examples include serious electrical hazards where there is a risk of electrocution, blocked fire escapes or other serious fire hazards, or a risk of imminent collapse of structural elements of a building. 
• P2 priority: where the reported hazards would affect the health and safety of the occupants but not cause an imminent risk.  This would include broken boilers (excess cold), severe damp and mould, and fire hazards not deemed to be an imminent risk.  The target response time is two weeks. 
• P3 priority: less serious hazards and general disrepair – anything not considered to be P1 or P2. The target response time is six weeks. 

The Council’s private sector housing enforcement policy

17. Where the Council finds hazards following a property inspection, it takes a staged approach to enforcement. This means it encourages the property owner to cooperate and carry out works voluntarily (unless there is an imminent risk of harm to the occupier). If this approach does not work, it then goes on to consider formal action, which may lead to service of Notices, prosecution and civil penalties. The policy sets out the circumstances in which a formal notice will be considered. These include:
• When informal action has not secured compliance; or
• There is a history of non-compliance; or
• The defect presents an imminent risk to health; or
• The Council is required to serve a statutory notice.
18. The policy also says the Council may choose to carry out works in default if the property owner does not complete the works required by a Notice within the permitted time. Works in default may be done at the same time as, or following, a prosecution for failure to comply with a Notice.

What happened

19. This statement focuses on the key events relevant to this investigation. It is not intended to be a comprehensive account of everything that has happened since December 2021.
20. Ms X is the tenant of a private rented property in the Council’s area. The maisonette is arranged on two floors above other premises with a timber balcony and external staircase. There is a separate main entrance to the property.
21. Ms X’s adult son, who has autism and is partially sighted, stays with her for part of the week and during holidays. Ms X has asthma and another lung condition which means she is more at risk of harm from living in damp and cold conditions.
22. In mid-December 2021 Ms X completed a form on the Council’s website to report defects in her accommodation. She referred to:
• Defective windows in the living room – one did not close which allowed wind and rainwater in and made the flat cold - the other four windows could not be opened;
• The balcony doors could not be locked so the property was insecure and she was at risk of being burgled;
• The stairs to her front door had been deemed dangerous in a previous inspection in 2020 and had not been fixed;
• The bathroom window was nailed shut from outside;
• Concerns about the bathroom light and lack of ventilation;
• The landlady had told Ms X there were structural problems with the walls which made her concerned for her safety.

She uploaded several photographs showing conditions in the property and requested an urgent inspection. Among other things, Ms X’s photos showed rotten timber railings on the external balcony and areas of bare and damaged wall plaster inside the property.

23. At the time the Council says the Private Sector housing team (PSHT) had between 150 and 200 cases on its waiting list. It was taking six months or longer to arrange an inspection. The Council says the backlog was partly caused by the COVID-19 pandemic, when officers could not carry out non-urgent inspections, and partly due to the high demand for the service. It says the average waiting time for an inspection has reduced to about three months. However, if a hazard is reported that presents an imminent risk of harm, the complaint will be allocated to an officer immediately.
24. The manager of the PSHT screened Ms X’s form. She decided most of the issues were P2 priority. But she asked an officer to investigate the staircase and balcony immediately to assess if they posed an imminent risk. 
25. Officer A from the PSHT inspected the staircase and balcony in mid-December 2021. Photographs Ms X took at the time show damaged sections to the timber rails on the balcony. Officer A liaised with Ms X’s landlord who said works to replace the staircase were programmed but some structural works to the walls had to be done first. By mid-January 2022 the landlord had arranged for some temporary repairs and anti-slip paint to be applied to the timber treads on the external staircase. At this stage, Ms X’s landlord said she was considering a complete replacement of the external staircase which would require planning permission.
26. Ms X’s case remained on the waiting list until early July 2022. The Council did not write to Ms X between December 2021 and July 2022 to explain her priority on the waiting list and how long it may take for an officer to do the inspection.
27. In early July 2022 Officer B from the PSHT contacted Ms X. He inspected the property and took photographs on 13 July. Ms X’s landlord, Mrs Z, was present.
28. In mid-July 2022 Officer B wrote to Mr Z, asking him to rectify all the defects he had identified:
• Damp meter readings showed damp on the internal walls of the bathroom, kitchen/dining room and living room – he said a damp specialist should establish the cause and recommend remedial works;
• Replace rotten and loose timbers to the guard rail on the external balcony which was unsafe;
• Fit restrictors to all the windows that could be opened;
• Make good or replace damaged lino floor covering in the kitchen/dining room;
• Resecure tiles behind the washbasin in the bathroom which had come away from the wall;
• Fill holes in two rooms and make good the plaster;
• Fill cracks in walls, make good areas of flaking plaster and redecorate in other areas.

Officer B asked Mr Z to send his proposals for remedial works within 21 days. He sent a copy of the letter separately to Mrs Z. He said if the proposed works were not sufficient, or they did not respond, he would arrange a full assessment under the Housing Health and Safety Rating System (HHSRS).

29. Mrs Z replied on the same day to say she had contacted a specialist damp contractor and was waiting for a date when he could inspect. She said she had also contacted some tradespeople who had worked in the property before to ask if they could fix the loose wall tiles and damaged floor covering in the kitchen/dining room.
30. Over the following months, there was frequent email and telephone contact between Officer B, Ms X and Mr and Mrs Z. The Council’s case records recording the contact between all the parties run to 540 pages. There is far too much information to include details of every contact in this statement so I have selected and summarised the main events:
• A plasterer attended to prepare a quotation but said a specialist damp report should be obtained first;
• A specialist damp contractor was due to inspect the property in late July but he failed to attend on the arranged date;
• Mrs Z told Officer B she was having difficulty finding an alternative reputable specialist damp contractor;
• Ms X would not agree to have two handymen into the property because she said they had been verbally abusive to her on a previous visit;
• A damp specialist contractor attended with Mrs Z in early August to inspect the property. Ms X said Mrs Z had not given her advance notice of the appointment so she was not at home. They were not able to gain access to carry out the inspection;
• Appointments for contractors to have access to the property to carry out inspections or do work had to fit around the times when Ms X was not working or caring for her son when he came to stay with her;
• The relationship between Ms X and Mrs Z became increasingly strained. Mrs Z asked Ms X to move out and served a Section 21 Notice. Mrs Z wanted to carry out unrelated improvement works but Ms X wanted Mrs Z to prioritise urgent work to repair the balcony rails and deal with the damp instead;
• Officer B obtained advice from the Legal Service because Mr Z owned the property but Ms X’s tenancy agreement was with Mrs Z and she paid rent to a third party’s bank account;
• A specialist damp contractor was due to inspect the property in late August but did not attend because the company made an error when booking the appointment;
• In late August Mr Z told Officer B he would arrange for works to make the balcony safe, secure the bathroom washbasin and fit a fire door to the kitchen;
• Officer B and Mr Z arranged to make a joint visit to the property in early September. However Ms X was unwell and did not keep the appointment – the visit was rearranged for mid-September when Officer B showed Mr Z damp readings he had taken;
• In early September Mrs Z sent Officer B a copy of a specialist damp contractor’s inspection report;
• A fire door to the kitchen was fitted in early September but it did not meet required standards;
• In September 2022 Ms X informed Officer B she could not close the living room window properly because a handyman damaged the frame when he previously worked on it. This allowed water into the property and made it very cold;
• In late October Mr Z informed Officer B that replacement windows had been fitted in two bedrooms in the flat. Officer B visited the property and found a latch was not working on one of the new windows. Officer B told Mr Z to apply another coat of anti-slip paint to the external staircase.
• Mr Z told Officer B that he would take responsibility for the repairs from then on.
• In early January 2023 Ms X reported further damage to the balcony railings caused by high winds. She also reported a hole in one bedroom ceiling caused by water ingress from the roof. She was worried the ceiling may collapse.
• Officer B met Mr Z at the property in mid-January 2023. Shortly after, Ms X asked Officer B to send an action plan with dates for completion of outstanding works.
• Officer B said roofers were not willing to work in the winter months because it was a coastal property exposed to strong winds. Officer B suggested Mr Z should make arrangements with roofers so they would be ready to start work in the spring of 2023;
• Despite Mrs Z’s statement that Mr Z should take over responsibility for arranging the repairs, and Mr Z’s agreement to do so, they both continued to contact Ms X and Officer B separately about the works. This made it unclear who was taking the lead and increased the scope for confusion and miscommunication;
• Ms X cancelled a planned inspection by Officer B in late March 2023;
• In March 2023 Ms X informed Officer B that she had been diagnosed with a lung condition which required hospital treatment. She said the damp and cold conditions in the property were making her ill. She also complained it had been eight months since he first inspected the property and asked whether he was going to take enforcement action.
• In March and April 2023 Ms X commissioned reports from specialist damp proof contractors who found evidence of penetrating damp due to roof defects. She also obtained reports from roofers and quotations for remedial works and sent these to Mr Z and Officer B;
• In April 2023 a roofer attended but told Ms X he could not do a temporary fix to stop water ingress through the hole in the bedroom ceiling because work was required to the main roof structure.
31. In early April 2023 Ms X made a complaint to the Council about the delay and lack of progress.
32. In mid-April 2023 Officer B inspected the property again. Mr and Mrs Z were both present. Officer B’s case note says they all agreed that the damp internal walls were caused by defects in the roof and a large crack in one of the external walls.
33. On 19 April 2023 Officer B served an Improvement Notice on the property owner, Mr Z, and sent a copy to Mrs Z and Ms X. The Notice required Mr Z to start the works listed in the schedule by 26 June and complete them by 20 August. The schedule listed works to remedy the following Category 1 hazards:
• Repair and secure the balcony balustrade or replace the balcony if this was not possible;
• Provide a current gas safety certificate for the boiler;
• Provide a report on the condition of the electrical installation.
34. The schedule also listed remedial works for the following Category 2 hazards:
• Repair the roof to make it watertight and weatherproof;
• Repair a crack in the external wall to prevent damp;
• Investigate and fix the cause of water penetration through the bedroom ceiling and a cupboard on the staircase, then fill the hole, make good and redecorate;
• Make good the hole and relay the lino floor covering in the kitchen to create a level surface to walk on. If that is not practicable, replace with new floor covering.
• Replaster and repaint the damaged walls and ceiling in the kitchen;
• Repair the broken riser on the lower step on the external staircase;
• Take steps to make the living room window handle easier to operate and open.

Ms X says Officer B missed out one item: making good a hole in the plaster near the front door. The Council says the front door had been left open during the inspection so Officer B did not notice this defect. He reported it to the landlords subsequently. 

Events after Ms X complained to us

35. We have investigated the Council’s actions up until June 2023. But there have been some further significant developments since then.
36. In late August 2023 Officer B and a colleague inspected the property a few days after the compliance period in the Improvement Notice had expired. Ms X, Mr Z & Mrs Z were present. Officer B established that the works in the Improvement Notice had not been completed by the 20 August deadline.
37. The Council has issued civil penalty notices to Mr Z and Mrs Z. At the same time Officer B continued to liaise with Mr Z about the outstanding works.  The Council said there was no point doing internal repairs to make good the damage to the walls and ceilings until the roof was repaired or replaced to make the property watertight.
38. The Council carried out a further inspection of the property in mid-December 2023. This confirmed that works from the Improvement Notice served in April 2023 were still outstanding. It also identified further defects and Officer B prohibited the use of the balcony for health and safety reasons. Officer B wrote to Mr Z and Mrs Z on 21 December listing these defects and asked them to reply with written proposals for remedial works and timescales within 21 days.
39. In response to my draft decision, the Council said it has considered the option of doing the works in default and recovering the costs from the property owner. But it does not consider that is appropriate at present and it would not lead to earlier completion of the remedial works.
40. Ms X says the damp in the property is getting worse and the property is cold. She has reported an infestation of mould mites. She has been seriously ill with a chronic lung condition and severe asthma attacks which resulted in hospital admission for treatment. The cold and damp conditions are making her health worse. She has also been diagnosed with a mental health condition. The water ingress from the hole in the ceiling has saturated the floorboards in her son’s bedroom. There is water damage to other parts of the property.
41. In response to our enquiries, the Council said it did not serve an Improvement Notice sooner for the following reasons:
• its policy is to try to work with landlords on an informal basis in the first instance and use formal enforcement action as a last resort;
• the landlords indicated they intended to carry out works and some works were done (the installation of new windows and a fire door, and temporary repairs to the external staircase);
• the landlords had problems finding contractors and contractors had difficulties sourcing materials due to the ongoing effects of the pandemic;
• the property is in a multi-storey building in a coastal location and is exposed to strong prevailing winds. Roof works could not be done during the winter months.
• Ms X would only give access at certain times and requested advance notice of times when contractors would visit;
• Mr and Mrs Z were estranged and would not work together to get works completed.

My analysis

42. In December 2021 the Council promptly assessed Ms X’s online form to decide her priority on the waiting list. An officer inspected the external balcony and staircase then after this was flagged for immediate investigation. He liaised with the landlord and accepted assurances that remedial work would be done to make it safe. Temporary works to apply anti-slip paint were completed by mid-January.
43. The Council did not write to Ms X in December 2021 to tell her the outcome of the external inspection and that she had been placed on a waiting list for a full inspection. The enforcement policy says a letter should be sent at this stage.
44. Ms X then had to wait seven months for the Private Sector Housing team to carry out a full property inspection. That was far too long. The Council’s target time for a Priority 2 case is two weeks. The Council has explained the delay was due to the backlog of inspections held over from the COVID-19 pandemic, the relatively small size of the team and the high demand for the service.
45. The team is working under pressure with a significant caseload and limited resources. The Council exceeded its own target time for a Priority 2 inspection by more than six months. Although the delay was in large part due to circumstances outside the Council’s control, the failure to carry out a timely inspection was nevertheless service failure (fault).
46. It is the property owner and Ms X’s landlord, not the Council, who are responsible for carrying out repairs and maintenance to remove hazards and improve her living conditions. However the long wait for the first inspection left Ms X in a state of uncertainty and frustration. Until the property was inspected, she did not know what action the Council would take to get the landlord to deal with hazards in the property. Meanwhile conditions in the property continued to deteriorate and new defects emerged.
47. Ms X was also frustrated that Officer B did not give Mr Z a clear timeframe in which to complete the works listed in the July 2022 letter. It was not fault for the Council to work with the landlord and encourage voluntary compliance in the first instance. The private sector housing enforcement policy says informal action is the approach taken in most cases.
48. The records show there was considerable amount of contact between Officer B, Mrs Z, and later with Mr Z. They led Officer B to believe they were prepared to carry out remedial works. Significant time and effort was put into liaising with Mr and Mrs Z but, as the months passed without progress on the major works, the Council should have reconsidered whether the informal approach was working and was still appropriate.
49. The case officer had to communicate separately with Mr Z and Mrs Z to clarify who would take responsibility for the works. There was some inconsistency and confusion about what they had each agreed to do. They only appeared to communicate with each other through Officer B. This complicated matters. But the Council should have considered before April 2023 whether to issue an Improvement Notice. By the time the Improvement Notice was served, nine months had passed since the July 2022 inspection and the urgent hazards had still not been resolved. The property was deteriorating due to the ongoing water ingress from the roof and living room window. It was fault not to consider the need for formal enforcement action sooner.
50. I cannot say that Ms X’s living conditions would necessarily have improved if the Council had served the Improvement Notice sooner. Even after the Council served the Notice in April 2023, the landlord did not comply. The Council has since gone on to issue civil penalty notices. But, if there had been no delay in arranging the first inspection, and the Improvement Notice had been served sooner, Ms X would not have experienced such a long period of frustration, distress and uncertainty. That is the resulting injustice.
51. The Council told me it has reduced the average waiting time for property inspections to three months for Priority 2 cases. But that is still much longer than the target timescale set out in its working procedures. It intends to review the timescales and procedures with input from the senior management team.

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Agreed action

52. Within six weeks of my final decision, the Council will:
• arrange for a senior manager to send Ms X a written apology acknowledging the impact of the faults identified in this statement;
• pay Ms X £500 to recognise the frustration, distress and uncertainty caused by the delay in arranging the first inspection and in serving the Improvement Notice;
• draw up an action plan, which takes account of the findings from the most recent property inspection, with clear timescales mapping out the next stages to secure the landlord’s compliance with the works listed in the Improvement Notice, and the additional works since identified. It should send a copy of the action plan to us and to Ms X. It should also send Ms X monthly updates until matters are resolved and the case is closed.
53. Within three months of my final decision, the Council will complete a review of the timescales for property inspections in its working procedures. The senior management team will oversee this work and track progress.
54. The Council should provide us with evidence it has complied with the above actions.

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Final decision

55. I have completed the investigation and found Ms X suffered injustice due to service failure and fault. The Council has agreed to provide a suitable remedy.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman