The Ombudsman's final decision
Summary: Mr X complains the Council failed to serve an improvement notice when it should have, and that a lack of advice contributed to his eviction. I have concluded my investigation not having found fault in the Council’s actions. The Council’s decision not to issue an improvement notice was substantiated, and it was not reasonable to have expected it to provide Mr X with advice about the risks of contacting his landlord.
The complaint
Mr X complains the Council should have served an improvement notice on his landlord. Mr X says he was not fully aware of the risks involved complaining to his landlord, and he was subsequently issued with an eviction notice. Mr X says that as a result of the Council’s actions, he was evicted from his property, and would like support from the Council in moving into private rented accommodation.
The Ombudsman’s role and powers
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) We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) If we are satisfied with a council’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)
How I considered this complaint
I spoke with Mr X and offered him the opportunity to provide any more information and to comment on my draft decision. I also considered information provided by the Council and considered its comments in response to my draft decision.
What I found
Relevant legislation and guidance Councils have powers under the Housing Act 2004, Part 1 to take enforcement action against private landlords where the property is in a condition that may result in harm for the occupant. In 2006 the Office of the Deputy Prime Minister issued guidance on the Housing Health and Safety Rating System and Enforcement.
Councils must inspect properties to decide whether there are Category 1 or 2 hazards. If following an inspection, the Council identifies a hazard, it has powers to ensure the landlord takes corrective measures. Where the Council identifies the most serious (‘Category 1’) hazards, the Council must act. It can also choose to take action in regard to less serious (‘Category 2’) hazards.
The action councils can take include: serving an improvement notice; making a prohibition order; serving a hazard awareness notice; or, taking specified emergency measures.
Emergency measures cannot be used for Category 2 hazards.
Where an owner or landlord agrees to take the action required by the Council it might be appropriate to wait before serving a notice unless the owner fails to start the work within a reasonable time.
Under the Defective Premises Act 1972, a landlord has an obligation to repair or maintain a property and owes a duty of care to their tenants. Where it can be proven that a landlord had knowledge of disrepair and failed to complete the works within a reasonable time, the tenant can take the matter to court and seek damages.
Housing Health and Safety Rating System (HHSRS) guidance Government guidance on the matter says, where, in the light of the review of housing conditions under section 3, or following a complaint or for any other reason, the authority considers it appropriate to inspect premises to determine whether a category 1 or 2 hazard exists, the authority must arrange for an inspection. While there is not an express duty on local authorities to inspect properties where they think there might be hazards, sections 3 and 4 of the Act, when taken together, imply that an authority should have good reason not to investigate further.
The Council’s enforcement policy The Council says that wherever possible, they try to improve the standards of the property by working with the landlord, owner or leaseholder. However, in some circumstances, it is necessary to take formal action. This includes: A Hazard Awareness Notice Improvement Notice Prohibition Notice Emergency Remedial Action Demolition Order Designate a Clearance Area.
What happened I have included some of the key events below. This is not intended to be a detailed summary of what took place.
Mr X contacted the Council regarding disrepair in his kitchen. Mr X sent the Council photos of his kitchen.
The Council sent Mr X’s landlord, Mr Y, a schedule of the work to be undertaken. The scheduled specified for work to be undertaken and completed within 8 weeks.
Mr Y confirmed to the Council that some of the repairs were already underway, and that he had planned to have the rest completed as per the schedule.
A month later, the Council confirmed to Mr X that it had wrote to Mr Y and sent him a schedule of the work to be undertaken.
Mr X contacted the Council again to advise it that he was not happy with Mr Y’s work, again sending pictures of some of the completed repairs. The Council contacted Mr Y who assured it that he would carry out the repairs.
Mr X contacted the Council to advise it of further disrepair and so the Council agreed with Mr X to visit the property.
The Council visited the property the following month. The Council confirmed all the work had been completed and emailed Mr X to advise him it would be closing the case.
After the Council’s visit, Mr X contacted it again regarding new damage. The Council did not respond to Mr X. The next month, Mr X emailed the Council again, advising it that some of the repairs were deteriorating and that the finish to the surface made it uncleanable.
Later that month, Mr X complained to the Council about new issues. The Council contacted Mr Y who advised that he would rectify the issues. The Council advised Mr X that under the Housing Act, it was unable to formally insist Mr Y complete some of these particular repairs, but that it had made him aware of the issues.
When Mr X responded to the Council, he advised it that the damage presented a hazard, as both his wife and daughter had been hurt by poor workmanship. Mr X also advised the Council that it had not addressed his concerns about the finish to other works. The Council did not respond to Mr X.
Mr X chased the Council for a response twice at the end of that month, but again did not receive a response.
It is not known exactly when, but Mr Y carried out some of the repairs sometime in the following months.
At the beginning of the next month, Mr X chased the Council again for a response, bringing to its attention new issues. The Council advised Mr X that it would contact Mr Y regarding the failed repairs.
The Council followed up with Mr Y toward the end of the month, confirming the work that was required, and requested it be completed within four weeks. Mr Y advised the Council that much of the work had already been completed and that he would attend to the remaining work.
Later that year, Mr X advised the Council that Mr Y had issued him with a S21 notice to seek possession of the property. The Council advised Mr X that it would forward his email to its Housing Needs team.
Mr X asked the Council whether it had issued an improvement notice to the landlord after he had contacted it about disrepair to the property. Mr X asked the Council for details of any contact it had with Mr Y so he could contest the S21 notice. The Council confirmed to Mr X that it had not issued an improvement notice to Mr Y.
The next month, Mr X complained to the Council about its decision not to issue an improvement notice. Mr X requested a copy of any reports produced by the Council when it inspected his property, but it did not provide it to Mr X.
Mr X also advised the Council that he had yet to hear from its Housing Needs team. The Council advised Mr X that his emails had been passed on and provided Mr X with their contact details to make contact directly.
The Council concluded its stage 2 complaint process the following month, concluding that it believed its decision not to issue an improvement was the correct decision.
Analysis HHSRS report In the Council’s stage 2 complaint response, it advised Mr X that disrepair identified within his property were classed as low risk category 2 hazards. The Council says it was satisfied with how it scored the disrepair identified.
In the Council’s response to the Ombudsman, it says it did not produce a HHSRS report or score. The Council says it undertook an initial assessment and did not identify any significant risks; therefore it did not arrange to inspect the property, and did not produce a HHSRS report.
Although the Council visited Mr X’s property, a formal inspection was not undertaken as during the visit, it determined the work that had been scheduled had been completed. Had the works not been completed, the Council says it would have completed a HHSRS report.
As the guidance says, there is not an express duty on local authorities to inspect properties where they think there might be hazards. I have not found fault in the Council’s decision not to complete a HHSRS report; its decision not to do so is substantiated. The Council undertook an initial assessment giving consideration to the photos Mr X sent it, and decided the issues were low risk and instead sent Mr Y a schedule to undertake repairs.
It should be noted that there is a contradiction in the information given to the Ombudsman and Mr X about the existence of a HHSRS report and score. Although I have not made a finding of fault, the Council advised it will be undertaking regular case reviews to monitor and ensure the quality of its record keeping.
The Council’s decision not to issue an improvement notice Mr X says the Council should have served an improvement notice, which may have protected him against a retaliation eviction for a period of up to 6 months. Given the evidence available to me, I have not found fault in the Council’s decision not to issue an improvement notice. The Council did not identify any significant hazards that warranted the serving of an improvement notice. Further, the Council’s enforcement guidance on the matter says it will, wherever possible, try to improve the standards of the property by working with the landlord.
Following the Council’s initial assessment, the Council issued Mr Y with a schedule to undertake work to be completed within 8 weeks. When the Council visited Mr X’s property it concluded the work had been completed.
Any subsequent defects in the property identified by Mr X, the Council alerted Mr Y, who arranged to undertake the repairs. The Council says that Mr Y was cooperating, and it was therefore not considering taking any formal action. I have not found fault in the Council’s actions.
Mr X says that had the Council made him aware that the disrepair identified did not merit an improvement notice, he may not have complained to his landlord. It is not reasonable to expect the Council to discuss the possible risks of Mr X complaining to his landlord, and the Council cannot be held accountable for Mr Y issuing a S21 notice to Mr X.
Although I have not found fault in the Council’s actions, it must be noted that there were several instances where Mr X had to chase the Council for a response or an update. Whilst this does not amount to fault, the Council could have better handled contact from Mr X, by acknowledging his emails and providing substantive updates. The Council advised it has implemented a new IT system to improve functionality and enable it to set up automatic alerts to ensure target deadlines are met. The Council has also advised it will be undertaking regular case reviews to ensure responses to customers meet the expected standard.
Support into appropriate housing After Mr X was issued with a S21 notice for possession of his property, he contacted the Council to inform them. The Council advised Mr X it would forward his correspondence to the appropriate housing team. Mr X chased the Council that it had yet to contact him a week later.
The Council provided Mr X with the contact details of the appropriate team Mr X submitted a homelessness application. The Council says Mr X did not provide all the information required to progress his application later, Mr X requested that his homelessness application be closed.
Final decision
I have concluded my investigation having not found fault in the Council’s actions. The Council’s decision not to issue an improvement notice was substantiated and it is not reasonable to have expected it to provide Mr X with advice about the risks of contacting his landlord.
Investigator's decision on behalf of the Ombudsman