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Brentwood Borough Council (202016001)

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REPORT

COMPLAINT 202016001

Brentwood Borough Council

20 December 2021


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

  1. The complaint is about the landlord’s handling of:
  • The allocation of housing points for the landlord’s choice–based lettings scheme.
  • The resident’s reports of water ingress, damp and mould in her property.
  • The resulting complaint.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. The resident says that the level of disrepair in her property, the landlord’s failure to remedy the problem to date, and the medical circumstances of her household give her an entitlement to additional points under the landlord’s housing allocation scheme which to date have not been awarded.
  3. After carefully considering all the evidence, in accordance with paragraph 39 (m) of the Housing Ombudsman Scheme, the complaint about the housing points allocation awarded to the resident is outside of the Ombudsman’s jurisdiction.
  4. Paragraph 39 (m) of the Scheme states that: The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: fall properly within the jurisdiction of another Ombudsman, regulator, or complaints-handling body;
  5. This part of the complaint concerns the council’s assessment of the resident’s application for housing, in its capacity as a local authority. The Local Government and Social Care Ombudsman is usually the appropriate body to consider complaints about such issues. Accordingly, the complaint is not within the Ombudsman’s jurisdiction to consider in line with paragraph 39 (m) of the Scheme, as it falls within the jurisdiction of the LGSCO.
  6. Details for the LGSCO are as follows:

Local Government and Social Care Ombudsman

Tel: 0300 061 0614

https://www.lgo.org.uk/contact-us

Background and summary of events

  1. The resident is a secure tenant of a two bedroom flat on the seventh floor of a block. The resident lives with her children, one of whom has a medical condition which she says is adversely affected by the damp and mould in the property.
  2. It is not disputed that the resident has a problem with water ingress in her property. The water is entering from a corner of the living room adjoining an external wall. The resident says this has caused damage to the floor and is causing damp and mould growth which is getting progressively worse. This is disputed by the landlord who has said that the ingress is intermittent and the problem is contained in a small corner of the living room.
  3. The resident says the damp affects other parts of her flat and is dissatisfied with her accommodation. She is seeking alternative accommodation for these reasons.
  4. The resident has lived in the property since 2013. Her complaint arose following her request for an inspection by the landlord of the damp and mould problem made in October 2020. The evidence available to this service shows this was the first time the resident reported the issue to the landlord.
  5. The landlord checked the pipework in the property on 5 November 2020. It checked the flat above and surrounding areas for signs of a leak.
  6. The landlord returned to the property at the end of November 2020 and carried out a water test and some remedial work on the balcony. The landlord said the leak was not coming from the balcony but said it needed to carry out further checks to find the possible leak. A surveyor attended again on 14 December 2020 to check the status of the wall.
  7. The resident made her stage one complaint on 7 January 2021. She expressed concern that the damp and mould was worsening and she said there was a significant health and safety risk due to the electrics in the flat. The resident was given advice about this and further inspections and a mould wash was organised on the 18 January 2021.  
  8. On 13 January 2021, a surveyor attended again and said that the condition of the property had not worsened since his previous visit although this is disputed by the resident. The resident said the mould wash was not an effective solution since it only ‘masks’ the problem and did not deal with the source of the water ingress. The following day, the landlord acknowledged that the expansion joints (to the floors to the outside wall) ‘have green algae and are very wet’ and it was recommended that a team of abseilers be used to check the outside of the building thoroughly.
  9. As part of the stage one complaint response, on 27 January 2021, a surveyor and an environmental health manager checked the property again to assess whether the property was suitable for continued habitation. The environmental health manager said there were no category one hazards according to the Housing Health and Safety Rating System. It was also said following this visit that there was ‘no evidence of substantial mould.’ The landlord therefore considered the property to be fit for habitation and did not uphold the resident’s stage one complaint. The landlord sent its findings at stage one to the resident in a letter dated 4 February 2021.
  10. On 10 February 2021, the abseilers inspected the exterior of the property. Although they found no external faults at the property, they applied mastic to some minor visible defects and wanted to return following heavy rain to check on their work.
  11. The resident escalated her complaint to stage two on 11 February 2021. The resident was not satisfied that the leak had been resolved and disputed the claims made by the landlord such as the mould being successfully treated and the damp being contained in the corner of her living room. The resident said that all parts of her flat had been affected by the damp and the kitchen and living room were worst affected.
  12. The resident also said that she had reported problems with the communal lifts and her balcony door which had also not been addressed or fixed. The landlord agreed to address these issues via email but said the resident would need to make a new complaint if she wanted to raise previously unraised issues. The resident provided photographic evidence of the damp and mould on 15 February 2021.
  13. Following escalation of her complaint, the resident was offered a dehumidifier and the landlord said it would reimburse the resident for its use. The resident did not want to use the dehumidifier due to the cost and said that it would not resolve the cause of the leak.
  14. The resident exhausted the internal complaints process on 4 March 2021 when the landlord sent a stage two response. However, this was not received by the resident until 15 March. The resident was not satisfied with the outcome of the complaint investigation. The stage two response had suggested the water ingress issue had been resolved but the resident said that further inspections and checks were due to take place so it was not possible to say the issue had been resolved. The resident had been asked to draw lines on the affected wall and it was clear that continued monitoring by both landlord and resident was taking place.
  15. The stage two response stated that the water ingress had been ‘sufficiently dealt with’ leaving the resident with the understandable impression that the landlord believed that her issue had been fully resolved. This issue was raised by the resident on 15 March 2021 in an email to the landlord stating she was puzzled by this since the landlord had already put in motion plans to inspect her property again with a view to taking further action.
  16. The resident provided more photographs to show the spread of the water damage to her living room wall and reported damage to her flooring. The stage two response informed the resident that she would need to make a new complaint about the communal lift issue that was not raised in her initial complaint.  
  17. At the end of April 2021, the landlord authorised two surveys of the roof to be carried out to try and identify the cause of the leak. The evidence the landlord had collected so far indicated that the leak was affecting other flats in the block above the residents flat and the landlord therefore suspected the problem was coming from the roof of the block.
  18. The resident has said the cause of the leak is still has not been resolved and she is seeking an acknowledgment from the landlord that there is an unresolved disrepair issue in her property as this will support her request to move to alternative accommodation.

 

Assessment and findings

The Landlords Response to Water Ingress, Damp and Mould

  1. Under Section 11 1a of the Landlord and Tenant Act 1985, the Landlord has an obligation to ensure the ‘structure and exterior of the dwelling house’ is kept in good repair. This investigation covers the period from October 2020 until April 2021 shortly after the landlord’s internal complaints process was exhausted and will consider whether or not the landlord took reasonable steps to ensure that its duty under Section 11 was met.
  2.  The issue of water ingress reported by the resident was consistent with a priority 2 (non-emergency) repair under the landlord’s repairs policy. The landlord aims to respond and resolve priority 2 disrepair issues at the ‘residents convenience’ but within 28 days. Although the landlord was not able to successfully resolve the resident’s problem within 28 days, it was able to respond to the resident’s initial report in October within its timescales by carrying out an inspection and attempting to identify the source of the water ingress.
  3. The landlord’s decision not to move the resident or prioritise the resident for a management transfer was based on information from the Environmental Health inspection. This was a reasonable decision given the information available to the landlord that there were no category 1 hazards in the property and that the damp and mould problem was not worsening rapidly or significantly, even though this is disputed by the resident. According to the landlord, the water ingress was ‘intermittent’ and contained within a ‘small corner of the living room and not affecting other parts of the property.’
  4. The evidence shows that even by the end of April 2021, the repair issue was still not resolved since despite its efforts, the landlord was still having difficulty in identifying specifically what needed to be fixed to stop the water ingress, although by this stage it suspected a roof problem. For this reason, it arranged two surveys of the roof of the block at the end of April clearly showing that there was still an unresolved problem and a need to investigate further.
  5. The failure to completely fix the water ingress from the exterior or roof of the property evidences service failure since the landlord has not met its obligations under Section 11 of the Landlord and Tenant Act 1986. However, the evidence does also show that the landlord made several reasonable attempts to try and tackle the issues reported by the resident and the source of the problem was not simple to identify.
  6. Over the period of the complaint, the landlord increased the level of actions taken looking at both preventive measures (to identify the source of a possible leak) and reactive measures such as carrying out the mould wash and offering to provide a dehumidifier. The landlord started by assessing the extent of the water leak at its initial visit and then moved logically through steps to try and identify the source of the problem such as the water tests on the balcony and the abseiling team inspection of the external buildings. By April 2021, although the problem was still not resolved, the landlord had reasonable plans (such as the surveys to identify the source of the ingress) to try and address the problem.
  7. From October 2020 to April 2021, it is clear that the resident experienced inconvenience and distress as a result of the water ingress problem. The Housing Ombudsman does not have sufficient powers to assess any medical impact of the damp and mould and there is insufficient evidence of any specific financial loss. However, the landlord should have taken steps to offer financial compensation for the detriment experienced by the resident as a result of its failure to fully resolve the water ingress. An order about this has been made below.
  8. I note that the tenant has raised other concerns regarding the communal lifts in the building and her balcony door. The landlord has not provided evidence that it has responded to either of these issues although the landlord did give a commitment to the resident via email that it would attend to her balcony door which was not closing correctly. 
  9. Overall, there was service failure in the landlords handling of the resident’s reports of disrepair in her property. However, this was partially mitigated by the reasonable steps taken to attempt to fulfil its legal duties and follow its own repairs policy and procedure.

Complaint Handling

  1. The evidence shows that the landlord was generally able to communicate with the resident effectively and within a reasonable timescale to keep her informed of developments on her repair. This was done predominantly by the repairs team rather than by the complaints team. This was the case for example in January when the resident contacted to query a safety issue with the electrics.
  2. The actions taken at stage one such as the joint inspection with the Environmental Health service were constructive since it was necessary for the landlord to obtain evidence of the extent of the problem and make a decision on whether it was appropriate to decant the resident. Although the resident did not agree that the problems with damp and mould were minor, the landlord had made its position clear based on the evidence obtained from suitably qualified officers.
  3. However, the stage two process did not clarify or resolve matters for the resident. Even if the landlord believed it had taken reasonable steps to contain or minimise the disrepair issues raised by the resident, its final position at the end of the complaints process was not that there was an ongoing problem that required further action, but that the problem had been ‘sufficiently dealt with’. It is understandable why this was confusing for the resident.
  4. Similarly, the stage two response failed to adequately explain the resident’s entitlement to housing points. The resident had a specific query regarding points where ‘the issue cannot be reasonably be resolved (sic) within 6 months and by continuing to occupy the property the accommodation will pose a considerable risk to the applicant’s health.’ This query was not addressed and there was no mention of the points awarded on medical grounds. This is addressed in the orders below.
  5. Finally, it is not clear why the landlord felt it was necessary for the tenant to raise the faulty communal lift issue as a separate complaint. Effectively refusing to address new issues was not resolution focussed and the complaints policy of the landlord does not state that new issues cannot be raised at the point of escalation.
  6. Although the landlord was trying to resolve matters and put things right, the second stage of the complaints process did little to reassure the resident, provide clarity on her situation or address all the complaint issues raised.     

Determination (decision)

  1. In accordance with paragraph 39 (m) of the Housing Ombudsman scheme the complaint about the resident’s housing points allocation is outside the jurisdiction of the Housing ombudsman.
  2. In accordance with paragraph 54 of the Housing Ombudsman scheme there was service failure in the landlord’s response to the resident’s reports of water ingress in her property.
  3. In accordance with paragraph 54 of the Housing Ombudsman scheme there was service failure in the handling of the resident’s complaint.  

Reasons

  1. The landlord has been pro-active and thorough in attempting to discover the source of the water ingress and resolve the issue. However, the evidence shows that even after the internal complaints procedure was exhausted, the landlord had not resolved the problem indicating a failure to meet its repair obligations.
  2. The stage two complaint response gave an inaccurate summary of the situation and failed to address all the issues of the complaint which caused the resident further distress and inconvenience.

Orders

  1. It is ordered that the landlord write to the resident within four weeks and provide a clear explanation of any further plans to remedy the water ingress problem. If there is no further remedial action planned, the landlord should explain why not and what steps the resident can take to minimise the impact of the problem. The letter should also provide a detailed explanation of the resident’s housing points allocation and housing options.
  2. It is ordered that the landlord pay the resident compensation of £200, comprising £150 for the distress and inconvenience caused by its failure to repair the water ingress problem and £50 for the distress and inconvenience caused by its highlighted complaint handling failures.
  3. The landlord should confirm its compliance with the orders to the Housing Ombudsman within four weeks.