The Ombudsman's final decision
Summary: We found fault with the Council for failing to recognise it may owe Miss X a homeless duty when it found a category one hazard at her property. This did not cause Miss X an injustice because it is unlikely it would have led to a different outcome.
The complaint
Miss X complained about the Council’s response to her reports of hazards at her accommodation. She complained the Council: Incorrectly assessed the hazard at her property and applied the wrong rating.
Failed to take any action against the landlord to resolve the issues.
She said this caused her significant distress and adversely affected her, and her children’s health. She said that because of the Council’s failure to take action she continues to live in an unsuitable and hazardous environment.
She would like the Council to review its decision, change the rating and take action against the landlord.
What I have investigated I have not investigated the landlords actions as this is out of our jurisdiction.
I have considered events from 2021 and not before because the complaint issues and decisions in 2019 are out of time.
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 investigate late complaints unless we decide there are good reasons. Late complaints are 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) 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)
How I considered this complaint
I spoke to Miss X and considered the information she provided with her complaint. I made enquiries with the Council and considered it with relevant law and guidance.
Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Law and guidance Housing Health and Safety Rating System (HHSRS) The HHSRS enforcement guidance is intended to help Council’s decide appropriate enforcement action under section five of the Housing Act 2004. It also provides guidance on how Council’s should exercise discretion under section seven.
Council’s must inspect properties to determine whether there are category one or two hazards, using the methods set out in the regulations.
Assessing hazards is one part of the process leading to action. The score does not determine subsequent action. Action to remove a hazard is based on a three stage consideration: The hazard score determined under HHSRS; Whether the Council, in light of the score, has a duty or discretion to act; and The Council’s judgement as to the most appropriate means of dealing with the hazard, taking account of both potential and actual vulnerable occupants.
Council’s must take the most appropriate action when they have duty to act. This can include: Serving an improvement notice Making a prohibition order Serving a hazard awareness notice Taking emergency remedial action It is for Council’s to decide which course of action is the best in all the circumstances.
Where there are concerns about vulnerable occupants councils should consult other relevant agencies to agree an appropriate response to the hazards, such as social services, child protection and the police.
Homelessness A person can be viewed as homeless if it is not reasonable for them to continue to occupy the accommodation, for example, because it is not fit for habitation. In such cases, councils should take a homeless application and consider whether it has a duty to provide alternative accommodation. The council can discharge its housing duties by assisting the person to find private rented accommodation.
What happened
Background
Miss X lived in rented accommodation with her two children. Her landlord is a registered social landlord. In 2019 Miss X reported issues with the property. The Council inspected the property and found a category one hazard because of overcrowding. It issued a hazard awareness notice to the landlord. It recommended the landlord “Undertake all necessary steps to reduce the occupation” and “the use of the bedsitting room is not accepted as suitable accommodation for a child”.
Chronology What follows is a brief summary of key events. It does not contain all the information I reviewed during in my investigation.
In 2021 Miss X told the Council the landlord had not taken any action in relation the hazard awareness notice.
The Council wrote to the landlord. This was a joint letter sent by the welfare/ benefits team and the family social worker. In the letter the Council expressed concerns about the impact of the overcrowding on the family: “The housing situation is significantly impacting on the children’s social, emotional and mental needs and they urgently need to be rehoused to a larger property”.
The officer and social worker requested a meeting with the landlord and asked the environmental health officer to reengage with Miss X and the landlord.
Miss X complained to the Council in January 2022. She said the Council failed to take any action after it issued the notice in 2019. The Council did not uphold Miss X’s complaint.
Miss X was unhappy with the response and asked for her complaint to be escalated. The Council partially upheld her complaint in relation to the officer’s comments that enforcement action by the Council would make her family homeless. It told Miss X the comment was not an appropriate response. It apologised and said the officer was spoken to be their manager.
Miss X remained unhappy with the Council’s response and complained to the Ombudsman.
My findings
I have included the actions and decisions from 2019 because they are relevant to the background and chronology. I have not made a finding because these parts of the complaint are out of time. My findings relate to the Council’s actions from 2021 onwards.
The Council told the landlord about the overcrowding hazard and recommended it take action. It was not due to fault by the Council that the landlord failed to act.
I understand that Miss X is living in unsuitable and challenging circumstances that are having a detrimental effect on her family. However, the HHSRS is not the correct way to address the situation.
I found fault with the Council for failing to provide advice and guidance about homelessness.
In her complaint Miss X told the Council she was homeless because it was not reasonable for her to continue to occupy her accommodation. The Council failed to address this point in its complaint response and missed an opportunity to provide Miss X with information and advice.
In its response to my enquiries the Council continued to fail to recognise that it might owe Miss X a homeless duty because of her current accommodation.
The Council failed to carry out the actions it recommended in its 2021 letter. This was fault.
The Council failed to work with other agencies and share information in relation to vulnerable occupants when it identified a category one hazard. This was fault.
I cannot say what may have happened without the fault. I carefully considered the potential injustice to Miss X from the faults identified in this statement. On balance I do not think advice and guidance from the Council about homelessness would have led to a different outcome because: Miss X had already identified herself that she may be homeless and she could have made a homeless application but did not.
Miss X wanted to continue her tenancy with her landlord, but move to a more suitable property.
It remains open to Miss X to approach the Council for advice and information about her housing situation and homelessness.
I made service improvement recommendations because I was concerned about the Council’s response in respect of its homelessness duties.
Agreed action
Within two months of my final decision the Council agrees to: Review its policy in relation to how environmental health work, and share information, with other departments and agencies in respect of vulnerable occupants in properties where hazards are identified.
Remind relevant officers of their responsibilities in respect of point 16 and the definition of homelessness in relation to tenants where it may not be reasonable for the tenant to continue to occupy the property because of an identified hazard.
The Council should provide the Ombudsman with evidence it completed the agreed actions.
Final decision
I found fault with the Council. I completed my investigation.
Parts of the complaint that I did not investigate I did not investigate the landlords actions because they are out of jurisdiction. Miss X can complain to the landlord.
I did not investigate matters prior to 2021 because these were out of time and I did not find any reason to exercise discretion.
Investigator's decision on behalf of the Ombudsman