Summary: Mrs X complained the Council wrongly issued a prohibition order against her and her husband, which it later revoked, to stop them renting out a property they own. The Council was at fault in how it recorded its decision to revoke the order, but this did not cause Mrs X a significant personal injustice. The Council will remind staff they must keep suitable records of their decision making when they decide to revoke a prohibition order where the person has not completed all the repairs listed in the order.

The complaint

1. Mrs X complained the Council wrongly issued a prohibition notice against her and her husband, Mr X, to stop them renting out a property they own. Mrs X said this caused her and Mr X stress and resulted in a loss of income.

Back to top

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 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)
3. 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)

Back to top

What I have and have not investigated

5. The law says we cannot normally investigate a complaint when someone has a right of appeal, reference or review to a tribunal about the same matter. However, we may decide to investigate if we consider it would be unreasonable to expect the person to use this right. (Local Government Act 1974, section 26(6)(a), as amended)
6. Mrs X had the right to appeal the prohibition order to the First Tier Tribunal Property Chamber. However, I have chosen to investigate her complaint because the Council revoked the order within the appeal period. As a result, it was not reasonable to expect Mrs X to have pursued an appeal.
7. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
8. Mrs X thinks the Council was not truthful about how it heard that she was planning on renting the property out again, after she told the Council she planned to sell it. Any fault did not cause her a significant personal injustice because ultimately, the Council should have been notified the property was going up for rent again.

Back to top

How I considered this complaint

9. I considered evidence provided by Mrs X and the Council as well as relevant law, policy and guidance.
10. Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

Back to top

What I found

Relevant law and guidance

11. The Housing Act 2004 sets out councils’ duties and powers to address hazards in residential properties in their area. Where a council, for any reason, considers it would be appropriate to inspect a property to determine whether any category 1 or 2 hazard exists, it must arrange an inspection. If a council considers a category 1 hazard exists it must take the 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.

12. 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.

13. The law says that:
• A council must revoke an order in relation to a category one hazard if it is satisfied the hazard no longer exists;
• A council may also revoke an order if it is satisfied there are special circumstances that make it appropriate to do so;
• A council can choose to revoke an order in relation to a category two hazard when it decides it is appropriate to do so;
• Councils can also vary a prohibition order once it is issued; and
• A prohibition order takes effect 28 days after the council serves the notice on the property owner, unless the owner appeals to the Tribunal.
14. Government guidance “Housing Health and Safety Rating System, Enforcement Guidance” explains that assessment of hazards is based on the risk to a potential occupant who is most vulnerable to the hazard. It also says it is for the council to decide what action they should take in response to hazards.

What happened

15. Mrs X and Mr X own a property which they rent out privately. In early April 2024 a Council officer inspected the property after a tenant raised concerns about disrepair.
16. The Council found there was a category one hazard of damp and mould in the home. It identified that issues with the electrics were a category two hazard.
17. The Council told Mrs X it had identified hazards in the home. It listed what she needed to do to fix them.
18. Mrs X responded to say she did not agree to carry the repair works out. She said the problems had arisen because of the tenant’s lifestyle choices which led the home to be cold and damp and for the home to fall into disrepair.
19. Mrs X asked for a report on the condition of the property and in late April 2024, a surveyor visited the home. The surveyor prepared a report which recommended a range of actions to take to bring the home back into repair. It noted the internal walls were made of plasterboard. At the start of the report there was a label saying 'incomplete’. In the report itself, the only section left empty was one where the surveyor should have included a site plan with the areas of damage highlighted. However, the report included 31 photographs of the house and detailed in writing what areas were affected by damp or mould.
20. Mrs X has concerns about the surveyor’s report. She feels:
• The surveyor was not independent from the Council because the officer who had originally inspected the property met with the surveyor for a coffee after inspecting the property;
• The fact the surveyor also prepared a quote for the work they had recommended means they were incentivised to identify more repair work than was necessary; and
• The report could not be relied on because it was incomplete.
21. The Council considered the report and agreed with the recommendations in it. It asked Mrs X to complete the repair works. Mrs X was unhappy with this. She feels the Council failed to take into account the information she had supplied to support her view that the disrepair was because of the tenant’s behaviour. This included the views of a previous tenant, that there were no issues with the property next door and the views of other officers at the Council.
22. Nonetheless, Mrs X confirmed she would carry out remedial work when the current tenants moved out. In early May, she said she and Mrs X were thinking of selling the property. The Council agreed to wait until the tenants moved out as a good will gesture, as it would not normally allow landlords to delay fixing issues. It asked Mrs X to confirm when the house was sold, at which point it would close the case.
23. The tenants moved out of the house and the Council heard Mrs X was considering renting out the property again.
24. In early August, Mrs X sent the Council a list of remedial works she and Mr X had carried out at the property. They did not align with the list of works the Council had decided were necessary. The Council responded to Mrs X to ask her to do the necessary works and confirm when they were completed.
25. The Council did not receive evidence Mrs X had arranged for the works to be carried out, so it issued a prohibition order in late August. The order said it came into force that day. The order listed the repairs needed before the Council would revoke it. These included, under category one hazard damp and mould:
• To provide a certificate to show extractor fans had been installed by a competent engineer;
• An intrusive examination of the front bedroom wall cavity and condition of the window, which had to include inspection of the roof and brick work. If the inspection identified any repair work needed, that work should be completed on all exterior walls;
• To remove and replace the plasterboard on the exterior bedroom wall.
• For a qualified person to inspect the porch and provide a report to the Council. Any repair works necessary should be completed, to avoid further water leaking.
26. Mrs X feels the Council should not have issued the order without visiting the property again, to confirm if the actions in the order were still required.
27. Mrs X disagreed that the actions in the order were necessary. She commissioned some work to the property and sent the Council a new surveyor’s report she commissioned in early September. It explained what had been done to fix the house and stated that some of the works the Council wanted were not necessary in their opinion. One of the comments was that the exterior bedroom wall did not have plasterboard, it was paper over plaster. The report noted Mrs X had had the paper removed and walls cleaned before decorating.
28. The Council responded to say the surveyor’s report did not show Mrs X had fully complied with the order. It said the actions, which I have set out in paragraph 25 of this decision, were still outstanding. The Council said that while the surveyor’s September report had included the porch, it was not satisfied the survey met the requirements of the order.
29. The Council noted Mrs X’s surveyor had said she was planning on replacing the porch roof in the next few weeks. It asked Mrs X to confirm if that was the case and confirm when the works would be carried out.
30. After further contact from Mrs X the Council confirmed that while her surveyor had said the porch roof was fine, it was not satisfied sufficient work had been done to remedy the damp. It said Mrs X’s surveyor would have seen the walls freshly painted which would obscure the underlying issue. It said the April survey had recommended an intrusive examination of the exterior walls to figure out what was caused the mould growth and that it agreed that investigation was needed.
31. Mrs X sent the Council the extractor fan electrical certificate a few days later. She said again that her surveyor had confirmed the porch roof was fine and that she would replace it at some point in the future.
32. In mid-September 2024, the Council revoked the prohibition order. It told me it revoked the order because Mrs X’s surveyor’s report showed all the works listed in the order had been completed.

Findings

33. The Council has a duty to carry out enforcement action on category one hazards and a power to take action on category two hazards. Its role is to ensure rental properties are habitable for tenants. Mrs X feels the disrepair in her rental property were caused by the tenants living there at the time. However, the cause of the hazards is only relevant in terms of what action is needed to bring a home back into repair. The Council initially inspected the property and identified category one and two hazards in it. It considered the disrepair was not the result of the tenant’s lifestyle and there were other causes. As a result, it decided the repair work Mrs X needed to do was more significant than re-decorating and should involve investigation into the underlying cause of the damp. That was a decision the Council was entitled make, based on its inspection of the property and the officer’s professional judgement. The Council was not at fault.
34. The Council later considered the outcome of the April surveyor report. Ms X feels the report cannot be relied upon. However, there was no significant information missing from the report, despite it being labelled as incomplete. I do not consider the fact that the surveyor issued a quote with their report or that they had a coffee with the Council officer shows their report was unreliable. The Council was not at fault in how it decided to include the report in its consideration of what action to take to remedy the hazards.
35. Nor was the Council at fault in how it decided not to give weight to the evidence Mrs X supplied in the form of testimonials from a previous tenant, other Council officers or the condition of the home next to the rental property. The Council considered the information Mrs X provided but was not persuaded it was relevant to the decision that there were hazards in the property, or what should be done about. That was a decision for the Council to make.
36. Mrs X is unhappy the Council issued the prohibition order after it heard she intended to rent the property out again. However, the Council initially acted on the hazards by agreeing Mrs X could carry out the necessary works after the tenants moved out. That was a goodwill gesture the Council was not required to make. By August, Mrs X had not sent evidence she had carried out the repairs the Council asked for and it became aware she planned to rent out the property. As a result, the Council issued the order to ensure the property was safe and habitable when new tenants were ready to occupy it. That was in line with the law and guidance and was not fault.
37. Mrs X feels the Council should have visited the property before issuing the order to see if the works she had completed were sufficient. I do not find the Council at fault. It had been clear about what works were necessary and Mrs X had not completed them. That was sufficient information for the Council to decide to issue the order.
38. The order said it came into force the same day it was issued. This was fault as prohibition orders come into force 28 days after they are issued, unless the recipient appeals the order.
39. Having issued the order, the Council heard from the surveyor who inspected the property in September, that the exterior bedroom wall was not plasterboard. This meant it was not possible to comply with the requirement to remove and replace the plasterboard there. There is no evidence the Council considered that information before telling Mrs X she had not complied with that part of the prohibition order. However, this did not cause Mrs X a significant injustice because the Council revoked the order a few weeks later.
40. The Council told me it revoked the order because Mrs X had taken sufficient action to remove the hazards in the property. However, it did so when Mrs X had not arranged for the intrusive examination of the front bedroom wall cavity, or for a qualified person to inspect the porch and report to the Council. There is no evidence to show how the Council decided it no longer felt those actions were necessary to remove the hazards in the home, particularly given it had told Mrs X it felt they were necessary a few weeks earlier. This was fault, but it did not cause Mrs X a significant injustice given the order was revoked.

Back to top

Action

41. Within one month of the date of my final decision, the Council will remind staff they must keep suitable records of any decisions to revoke a prohibition order when the recipient has not complied with the order in full.
42. The Council will provide us with evidence it has complied with the above actions.

Back to top

Decision

43. On the evidence considered there was fault but this did not cause a significant injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman