Clarion Housing Association Limited (202339804)

REPORT

COMPLAINT 202339804

Clarion Housing Association Limited

30 September 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice, or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman, and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlords handling of the residents reports of damp and mould at her property and the associated repair works.
This Service has also considered the landlords consideration of its duties towards the resident under the Equality Act.
This Service has also considered the landlords complaint handling.

Background

The resident holds a joint assured tenancy with the landlord for a 2-bed ground floor bungalow that she shares with her husband. The tenancy commenced on 9 November 2021.
The landlord was aware that there were vulnerabilities within the household. The resident has extensive health conditions which include but are not limited to, liver and kidney disease, chronic obstructive pulmonary disease (COPD), crumbled discs and associated mobility issues. The resident uses oxygen and says she is housebound. Her husband is reported to have a long-term heart condition.
The resident maintains that there has been damp and mould in the property historically, since she moved in, which was supported by reports of damp and mould logged on the landlords repair records in 2021. This was attributed to a leaking roof and toilet and the relevant repairs were completed at the time.
The resident made further reports of damp and mould 5 December 2022. A damp and mould inspection also described as an “MOT” was completed on 17 December 2022, records state that this identified that a mould wash was needed to the walls and ceilings throughout the property. Early February 2023, the resident contacted the landlord to ask when the works would commence highlighting her medical issues and the impact the damp and mould were having on her. A further technical inspection took place on 16 March 2023 and further works were identified.
On 11 April 2023, when no work had begun, the resident made a formal complaint to the landlord. In summary she said that they were still waiting for works to commence, she had again been rushed to A&E with breathing difficulties, which she attributed to the impact her living conditions were having on her COPD. She said she had been prescribed 11-12 courses of an anti-biotic and steroid mix in a year since she lived there, and had been advised that she could not sustain this with a stomach ulcer. She said she could not continue to live with damp, fungus, and black mould.
In its stage 1 response on 20 June 2023, the landlord accepted there had been delays in follow-up works being ordered from the inspection in March 2023. It apologised for this and listed the works that had since been ordered, which included installing an extractor fan, completing a mould wash, and insulating the roof eaves. It offered the resident £150 compensation in recognition of the failings identified in her complaint.
The resident escalated her complaint on 26 June 2023, because despite attendance by the landlord the extractor had still not been fitted. She re-iterated that damp and mould had been an issue since she moved in, but she had been pressured to take the property. Despite multiple attendances from the landlord nothing had been resolved since 2021 and her health was deteriorating.
In response on 18 August 2023, the landlord agreed that although it was satisfied it had dealt with the damp and mould appropriately in 2021, it had not dealt with the residents case in accordance with its policies and procedures for the reports in 2022. For this reason, her complaint was upheld, and it offered the resident a total of £900 compensation made up of:
1. £500 for its response to the damp and mould from December 2022
2. £150 discretionary payment awarded at stage 1
3. £150 discretionary award for materials to redecorate
4. £100 delay in issuing a stage 2 response
It was confirmed that all repairs identified had been completed.

Post Internal Complaints Process (ICP)

Within 3 months of the repairs being completed on 13 November 2023 the resident reported that black mould was re-appearing all over the property. Mould treatment was ordered 15 November 2023, specifying a two-person job to move furniture. This was completed 24 November 2023.
The resident reported on 5 January 2024 that black mould was re-appearing in all rooms, affecting the residents breathing and eyes. A further mould wash treatment was ordered and completed 19 February 2024.
On 26 January 2024, the resident approached the landlord to make a further formal complaint. The landlord did not take the complaint, as it said the resident had exhausted its ICP, it referred the resident to HOS.
The resident recently advised this service that she has moved and no-longer lives at the property.

Assessment and findings

Scope of the investigation.

Paragraph 42(a) of the Housing Ombudsman Scheme says the Ombudsman may not investigate complaints which have not completed the landlord’s internal complaints procedure (ICP), unless there is evidence of a complaint handling failure, and the Ombudsman is satisfied the landlord has not taken action within a reasonable timescale.
The ICP ended with the landlords final stage response on 18 August 2023. The landlord had taken actions that it believed would resolve the damp and mould problem and offered compensation in acknowledgment of its earlier service failings. In January 2024, 5 months later, the resident submitted another complaint because damp and mould had occurred again in her property.
The landlord, did not accept the residents complaint, and an email 18 January 2024, explained to her that she had exhausted its ICP, and referred her to our Service. This was not the correct process; this was a new complaint about reports of damp and mould in the property. The landlord should have accepted a new complaint from the resident.
In failing to do so, the Ombudsman considers that there has been a complaint handling failure, and the landlord has not taken action within a reasonable timescale. As a result the usual time constraints of paragraph 42(a) will not apply on this investigation, it will extend to February 2024.
The residents complaint, said that living with damp and mould in her property and the landlords delays in resolving it, had contributed to a negative impact on her health.
The Ombudsman does not doubt the residents view on this, but it is not within the remit of the Ombudsman to draw conclusions on the causation of, or liability for damage to health and wellbeing. Personal injury claims must, ultimately, be determined by the courts, as the courts can consider medical evidence, make legally binding findings and award damages in this regard. As such this aspect of the residents complaint will not form part of this investigation. However, the Ombudsman will consider any general distress and inconvenience the situation caused the resident.
Part of the residents complaint to this Service was about water penetration through an adjacent wall with the neighbouring bungalow. This followed a leak from a burst tank in the empty property next-door. In addition to increased damp in the residents property, this resulted in significant damage to the residents furniture and personal belongings.
In accordance with paragraph 42(a) set out in paragraph 13 above. The issue of the leak from next-door and the resulting damage did not form part of the residents original complaint. This means that this issue has not been through the landlords ICP, and the landlord has not had a chance to consider the matter. As a result the issue of the leak and the resulting damage will not form part of this investigation.
If the resident wishes to pursue this aspect of her complaint, she can make a new formal complaint to the landlord, and or consider a claim for damages through the landlords insurer.

The landlords handling of the residents reports of damp and mould at her property and the associated repair works.

The landlord has a responsibility under the Housing Health and Safety Rating System (HHSRS) to assess hazards and risks within its rented properties. Damp and mould growth are a potential health hazard and as such the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
When determining whether a landlord has acted appropriately to reports of damp and mould, the Ombudsman gives due consideration, to the recommendations it made for landlords, in its Spotlight report on damp and mould, published in October 2021. These include.
1. Adopt a zero-tolerance approach to damp and mould interventions. Landlords should review their current strategy and consider whether their approach will achieve this.
2. Ensure they can identify complex cases at an early stage and have a strategy for keeping residents informed and effective resolution.
3. Ensure that they clearly and regularly communicate with their residents regarding actions taken or otherwise to resolve reports of damp and mould.
4. Identify where an independent, mutually agreed and suitably qualified surveyor should be used, share the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps. Landlords should then act on accepted survey recommendations in a timely manner.
The Government has also issued guidance for landlords on understanding and addressing the health risks of damp and mould in the home. While damp and mould pose a risk to anyone’s health and should always be acted on quickly, it is particularly important that damp and mould is addressed with urgency for the groups more vulnerable to significant health impacts.
These groups include, but are not limited to, people with a pre-existing health condition (for example allergies, asthma, COPD, cystic fibrosis, other lung diseases and cardiovascular disease) who are at risk of their condition worsening and have a higher risk of developing fungal infections and/or additional allergies.
The resident reported a new occurrence of damp and mould in her property, on 5 December 2022.
The landlords repairs policy requires that non urgent repairs should be addressed within 28 days. However the landlords repairs policy also states that when repairs are reported the call handler will confirm if there are any disabilities or support needs which should be taken into account. This should be recorded on the residents record so that the service can be delivered appropriately, aligned to the needs of the household.
The resident had significant health problems including COPD that put her at a higher risk of the adverse effects of damp and mould. This requires that the vulnerability aspect of the landlords repairs policy should have been implemented, to ensure the issue was addressed with some level of urgency.
The landlord carried out a damp inspection 13 days after the residents report, on 17 December 2022. A copy of the report has not been provided to this service, so the cause of the damp identified was unknown. Repair records however, indicated that an order was raised from this inspection to provide a damp and mould treatment to all walls and ceilings in the property.
There was however no evidence that the mould wash was followed through. This was further supported by the residents contact 6 February 2023, asking the landlord when works would commence. This meant that not only had no urgent priority been awarded to take account of the health vulnerabilities of the resident, the landlord had not even met the repairs policy timescales for non-vulnerable residents.
Moreover having been alerted 2 months later that the treatment had not commenced, the resident obtained no response from the landlord and was compelled on 13 February 2023, to chase up the landlord again. This was not reasonable.
Furthermore in its damp and mould policy the landlord commits to “keeping residents informed of any property inspections, diagnosis of issues and the timetabling of works, where these are required. This includes explaining what work might be needed and why”. This aligns with the recommendations in the Spotlight report. However, it was not evident, from any of the interactions with the resident that the outcomes of the inspections were shared or works and timescales discussed or adhered to.
The lack of action from the landlord during this time was concerning given the Ombudsman’s Spotlight on damp and mould had been published a year prior to this. The landlord had been put on notice that the resident was suffering with damp and mould in her property, and was considered highly vulnerable to its effects. The landlord’s approach in the circumstances, was inappropriate and did not demonstrate the “proactive interventions” called for in the Spotlight report.
The landlord raised a further inspection which took place on 16 March 2023. This re-recommended mould treatment to all rooms in the property, as well as installation of an extractor fan in the kitchen. As the resident mentioned experiencing water penetration in the front corner of the living room, an inspection of the roof was requested. It was noted however that the resident did not open the trickle vents or windows.
The tenancy conditions and tenants repairing obligations, require residents to take measures to prevent excess moisture building in their properties. This includes ventilating the property by using trickle vents and opening windows.
The resident has however disputed that she had not used the trickle vents, but does have to close them and cannot open the windows for health reasons. This is because the neighbours use a wood burner. The smoke from it gives her breathing problems and the smell gives her nausea.
If opening the windows presents a health risk to the resident, because a neighbouring log burner is in use, it cannot be considered unreasonable that the windows are kept shut.
It must however be noted that the resident not opening the windows and creating the necessary ventilation, will exacerbate the production of moisture in the property, which will contribute to the development of damp and mould.
Taking account of the households vulnerabilities and previous failings in treating the mould within a reasonable timeframe, the expectation would be, that following the damp and mould inspection in March 2023, the necessary repairs would be carried out with some urgency.
They were not, and the resident had to make a formal complaint in April 2023. Moreover it was not until June 2023, that any of the repairs needed were actually ordered which was not reasonable.
Overall the service the resident received from the landlord for her reports of damp and mould between December 2022 and August 2023, did not meet expectation. However the landlord appropriately acknowledged this through its complaint handling process, apologising, chasing the necessary works and offering £750 compensation which was reasonable.
On 10 November 2023, the resident reported that there had been a re-occurrence of damp and mould throughout the property. The notes stated that a surveyor ordered a “3 stage wash for the whole property” although it was not clear when they attended or what the diagnosis was for the cause of the damp and mould.
Operatives attended on 19 October 2023, but unfortunately on the day the resident was very unwell, and asked if the appointment could be rescheduled. This was unfortunate, but the delay was outside of the landlords control. A mould treatment was logged as being carried out on 24 November 2023, which was reasonable.
On the 5 January 2024, the resident reported that the damp and mould had returned again. An appointment was made for operatives to attend on 5 February 2024 to complete a further mould wash. The landlord offered an earlier available appointment, but this conflicted with a hospital appointment the resident already had booked in. Again this delay was unfortunate, but it was outside of the landlords control.
Mould removal is considered essential when a resident has respiratory problems such as COPD and can provide a satisfactory contribution in the treatment of damp and mould. However, simply removing surface mould will not prevent the damp and mould from reappearing. It is important to identify and tackle the underlying causes of damp and mould, including building deficiencies, inadequate ventilation, and condensation.
Surveyors notes dated 5 February 2024, indicated that the landlord was exploring other options. On the day of attendance damp metre readings taken, had been low, indicating at the time the property was dry. However, moisture readers were left, and additional works were recommended, to prevent any further build-up of damp and mould. These included sealing gaps around the windows, repairing the lead flashings on the neighbouring property and consideration of a stronger extractor fan.
A letter was sent to the resident on 26 April 2024 to confirm all preventative works had been completed. This was within a reasonable timeframe, taking account that the landlord had, had to work around the resident being unwell and pre-planned medical appointments.
The government guidance on damp and mould, recommends that post inspections should be completed 6 weeks after treatment and if damp and mould have reappeared, further investigation and intervention should be pursued.
It was not evident that the landlord had post inspected the property following any works undertaken, while this was slightly remiss of the landlord, this was not a service failing.
Historically as the problems in this property had been more prevalent in the colder months, it would be pertinent for the landlord to post inspect the property as the autumn/winter months approach to ensure preventative measures undertaken have been successful.
Its response to the residents reports of damp and mould post the ICP, in October 2023, was appropriate, in accordance with its policy and completed within reasonable timescales, considering its need to work around the residents health and medical appointments.

The landlords consideration of its duties towards the resident under the Equality Act

The resident had made the landlord aware of the households significant health problems, some of which put them at a higher risk to the health impacts of damp and mould.
Where a landlord receives notice of a vulnerability, it would be required in line with the Equality Act 2010 to give consideration as to whether the resident has a disability as defined by law.
Where on notice, it must consider whether its actions or decision making, could place a person at a particular disadvantage due to their vulnerabilities. If this is a possibility, under section 20 of the Act, the landlord has a duty to minimise the disadvantages suffered, by offering to make reasonable adjustments.
The landlords tenancy agreement required that the residents redecorate their own property. Both residents were in their mid-70’s and in extremely poor health. Despite the interior being damaged by the presence of re-occurring damp and mould throughout, the landlord still maintained in its stage 2 response that the residents needed to redecorate the property themselves. It offered them a discretionary sum of £150 towards decorating.
In the Ombudsman’s view this decision was not reasonable and placed the residents at a significant disadvantage to residents who were not disabled. Damp and mould were present due to issues attributed to the fabric of the building (lack of extraction, non- breathable roof felt, damaged flashings). Without these issues damp and mould would not have affected the property, and the resident would not have had a need to decorate.
The Ombudsman Spotlight on attitudes respect and equals, highlighted that social housing residents are ageing, increasingly vulnerable and disadvantaged and that there is a need for landlords to adjust approaches and attitudes to meet the needs of this changing population.
Some residents can end up in a position where they are unable to continue to uphold their tenancy responsibilities due to ill health, disablement, or mental capacity. These are prime examples of when a landlord would need to consider its duties under the equalities act, and consider whether reasonable adjustments to its usual policy requirements might need to be made.
The residents were no longer in a position to uphold their responsibility, to decorate their property due to age and ill-health. The landlords decision that they were still required to do so, did not demonstrate that it had given due regard to whether it had obligations to consider under the equality act. Those obligations should have extended to considering whether a reasonable adjustment to decorate the property was required.
Neither had it appropriately implemented its vulnerable persons policy to ensure the resident received the required service or assistance to sustain their tenancy and live well. Or the vulnerable persons aspect of its repairs policy to deliver the service appropriately, aligned to the needs of the household. This was a significant failing of the landlord.
Overall the landlord has failed to adequately demonstrate that it had fully consider the residents vulnerabilities, and its duties under the equality act and whether this extended to a reasonable adjustment of decorating the residents property, post works. This has contributed to a finding of maladministration.

The landlords handling of the residents complaint.

The landlords stage 1 complaint response, 20 June 2023, did acknowledge there had been unreasonable delays in both the landlords response to the damp and mould and its complaint handling response time. For this it apologised and offered the resident £100 compensation for the inconvenience caused and £50 for the delayed complaint response.
The resident escalated her complaint, because the repairs actions agreed in the stage 1 response, had still not been completed, she did not think the landlord had acknowledged the stress and detriment caused to them, she was unhappy that remedial works did not include internal decorating after treatment and the compensation was not reflective of the amount of time they had lived with the damp and mould despite the number of tradespeople that had attended.
The Ombudsman requires that any remedy offered must reflect the extent of any service failures and the level of detriment caused to the resident as a result. The resident was highly vulnerable to the effects of damp and mould and had been required to live with it in the property for 7 months, as it was acknowledged there had been avoidable delays by the landlord.
Furthermore it was evident that all communication was instigated by the resident. The landlord had failed to communicate with the residents clearly and regularly regarding actions to be taken or otherwise, as the Spotlight report recommends. The offer of £150 was not therefore considered proportionate to the detriment and level of service failure experienced by the resident and not within the range the Ombudsman would recommend.
The landlords stage 2 review agreed. It accepted its findings, that it had not followed its policies and procedures since the residents report of damp and mould in December 2022, and she had not received the service they would expect.
It explained the measures it was taking to improve the damp and mould service and prevent it from happening again. Which was appropriate and compliant with the aims of the Ombudsman’s complaint handling code.
The landlord increased its offer of compensation for the inconvenience and failings in treating the damp and mould. For the period December 2022 to June 2023, it offered £500 in addition to the £150 discretionary payment offered at stage 1. This was in recognition of:
1. the inconvenience caused.
2. household vulnerabilities.
3. repeat visits to the property.
4. failure to follow policy and no-one taking overall responsibility.
5. Plus further £100 for the delay in responding to the stage 2 complaint.
The sum of £650 compensation was more in keeping with the level of detriment and service failure experienced by the resident for 7 months delay, in treating the damp and mould and its complaint handling. This was also within the range the Ombudsman would recommend for failings that had, had a significant longer-term impact on a resident.
While the landlord had acknowledged its failures to respond to both of the residents’ complaints in the timescales expected and paid a total of £150. There was no indication of any lessons learnt or service improvements identified by the landlord to prevent this happening in the future.
A consistent failure to adhere to timescales throughout the process, is something the landlord needs to address. This could be seen as the landlord placing a lack of importance on the process, increasing the risk of damage to the landlord tenant relationship and a lack of trust in the landlords complaints procedure.
The resident wanted to make a further complaint 5 months after the ICP, because the previous resolutions had not prevented the damp and mould re-occurring and she did not think the landlord was handling the new reports appropriately.
The landlord declined her request to make a formal complaint as it was an issue she had already taken through the internal complaints procedure. This was not appropriate. This was a new complaint about new occurrences of damp and mould, which appeared following completion of the remedial works recommended in the landlords ICP for the previous occurrences of damp and mould.
The landlord should have logged a new complaint and the fact it did not was a service failing.

Determination

In accordance with paragraph 53 of the Housing Ombudsman Scheme there was reasonable redress in the landlords handling of the residents reports of damp and mould at her property and the associated repairs.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlords consideration of its duties towards the resident under the Equalities Act.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlords handling of the residents complaint.

Orders

The Ombudsman orders that within 4 weeks the landlord:
1. apologises to the resident for the failings identified in the landlords responsibilities under the equality act.
2. Pays the resident the sum of £450 in addition to the £250 previously offered (total £700)
  1. £350 in addition to the discretionary award of £150 for decorating materials (Total £500) for not adequately considering the household vulnerabilities, and its duties under the equality act.
  2. £100 in addition to the £100 previously offered for the additional failings identified in the landlords complaint handling (total £200).
The finding of reasonable redress for the failings identified in the landlords handling of the damp and mould and delayed complaint response is dependent on proof of payment to this Service of the £650 previously offered by the landlord.

Recommendations

The Ombudsman recommends that the landlord post inspects the property to ensure that the remedial action taken to prevent damp and mould has been successful, and the new resident will not experience the same issues.
Evidence of compliance should be provided to this Service within 4 weeks.