Summary: We will not investigate Dr X’s complaint the Council refused to cancel a financial penalty for failing to have a satisfactory Energy Performance Certificate at his rental property. This is because it was reasonable for Dr X to use his right of appeal to a residential property tribunal, and we will not consider the matter instead.

The complaint

1. Dr X, a private landlord, complains the Council:
1. issued a £1,500 financial penalty for not having a valid energy performance certificate (EPC) at his rental property; and,
2. failed to consider his evidence showing the action he had taken to resolve the issue, including recently obtaining a valid EPC with a rating of C.

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The Ombudsman’s role and powers

2. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
3. 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)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide there is not enough evidence of fault to justify investigating. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

5. I considered information provided by the complainant and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. When someone who complains to us has an alternative right of appeal about the matter, we will normally expect them to use it. We are not an appeal body and we cannot replace the role of a tribunal.
8. In April 2024, Dr X appealed to the Council about its decision to issue a financial penalty for failing to have a satisfactory EPC at his rental property.
9. The Council upheld its decision to issue the financial penalty because, at the time, Dr X had not taken the necessary action to comply with the Energy Efficiency (Private Rented Property) (England And Wales) Regulations 2015. It explained to Dr X that this was because the EPC rating remained below F or G (without a valid exemption in place). The Council provided Dr X with details of his appeal rights to the First Tier Property Tribunal. The Tribunal can consider appeals against financial penalties imposed by councils. It was reasonable for Dr X to use his right of appeal. There is not a good reason in this case for us to consider the matter instead.
10. Dr X obtained a new EPC in December 2024, which brought the property to a C rating. He complains the Council failed to consider this evidence. In its complaint responses, the Council provided Dr X with clear reasons why the action taken by him does not change its decision. This is because Dr X obtained the new EPC after its refusal decision. There is not enough evidence of fault to justify investigating.

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Final decision

11. We will not investigate Dr X’s complaint the Council refused to cancel a financial penalty for failing to have a satisfactory Energy Performance Certificate at his rental property. This is because it was reasonable for Dr X to use his right of appeal to a residential property tribunal, and we will not consider the matter instead.

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Investigator's decision on behalf of the Ombudsman