Lewisham Council (202224592)

REPORT

COMPLAINT 202224592

Lewisham Council

28 June 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:
1. The landlords handling of the residents reports of damp and mould.
2. The landlords handling of the residents claim for damages and loss of personal belongings from damp and mould.
3. The landlords handling of the residents complaint and the level of compensation offered.
4. This service has also considered the landlords record keeping.

Background

The resident occupies a 2-bedroom 9th floor purpose built flat, under a secure tenancy agreement with the landlord. The landlord is a council, the property was managed by its arm’s length management organisation, but management was bought back in-house to the council from 1 October 2023. The resident lives in the flat with her 10-year-old son.
The landlord has no vulnerabilities recorded for the family. The resident has advised this service that she suffers from Fibromyalgia a condition that causes widespread pain and extreme tiredness. Her son has mental health issues he suffers extreme anxiety and is receiving support from Child and Adolescent Mental Health Services (CAHMS). There was evidence that the resident shared her sons health problems with the landlord on 31 May 2023, she advised the landlord that she needed advanced notice to prepare her son for the presence of workmen because of his severe anxiety.
The resident said she had experienced an ongoing damp and mould problem since 2015. There was evidence to support this from the landlords historical repairs records, noting frequent mould washes, anti-fungal treatments, providing de-humidifiers and installing thermal boarding to walls between 2015 and 2018. The resident reported that some other more recent work had been completed by the landlord. To circulate air in the bedroom 3 air vents had been installed in the living room. A plastic window ledge had been installed over the damp wooden one, which she felt was hiding the damp and mould and not removing or treating it. The damp and mould did not subside, in response a full property MOT was carried out by the landlord in August 2022.
On 27 October 2022, after many phone calls to the landlord had failed to get the damp and mould resolved after the inspection, the resident made a formal written complaint. In her complaint she said she was tired of living with damp and mould and did not believe it to be condensation. She had thrown away many clothes damaged by mould as well as a leather sofa, beds, and other furnishings. She said she could not afford to keep replacing these things. The thermal boarding the landlord fitted, was not fitted correctly, it had come loose and the whole wall now moved. There was no follow-up to the MOT inspection, despite her chasing for this. Any works that had been done by the landlord had resulted in damage to her belongings or property. When the operatives fitted the thermal boarding, they cut her carpet too short, and she had to dispose of it. Recent work to the bathroom resulted in her painted hallway floor being damaged, the contractor had still not responded.
The landlord said it investigated the residents complaint by consulting with the damp and mould team, the technical damp inspector who completed the MOT and by reviewing the repairs log. In the landlords response of 18 November 2022, the residents complaint was upheld. The landlord acknowledged the issues the resident faced following its remedial works and its delay in sending its complaint response to the resident on time. It committed to, a joint inspection from its damp inspector and contractor to agree a full schedule of works. Her complaint was being passed to the aftercare team to ensure works were completed.
On 30 November 2022, the resident requested that her complaint be escalated. This was because no one had arranged to meet her to discuss the works and how they would be done. An operative came to treat the mould in the bathroom hallway and bedroom, but not any other work, as it said this could not be done before the planned kitchen replacement work. She also did not appreciate being told, when she questioned works being carried out whilst the kitchen fitters were there, by the landlord that if she wants the work done, she has to live with the disarray. She had told it numerous times that she needs a plan to prepare her son for the work due to his mental health issues and she found comments like that un-professional and disrespectful. She had also been told that the thermal boarding was to be taken down and a mould wash of the walls instead, if the resolution was that simple why did they put the boarding up in the first instance, now she felt it was just to cover up the issue.
In its stage 2 response on 4 January 2023, the landlord apologised that the joint site meeting did not take place, it had mistakenly arranged a mould wash to take place in the hallway and bathroom instead. On attending, its operative realised the error and reported back that planned works were underway in the residents home, so any damp and mould works would need to be carried out once the planned works were completed. It advised its Technical Surveyor could attend on 6 February 2023 to inspect the areas of damp and mould and to advise on further repairs to resolve. He would also arrange any works as required and will oversee them through to completion.
On 20 March 2023, the resident took her complaint to stage 3 of the landlords complaints process, this involves a review by an independent adjudicator. In her escalation request she said that the surveyor attended on 6 February 2023, but not jointly with a contractor as expected, she was told a lot of work needs to be done, but had no details. She has heard nothing since. She did not feel it was appropriate to make a claim on insurance for her damaged belongings when it was the landlords fault. The landlord had not responded to her complaints about the comments by staff. She re-iterated her need to know when things are going to be done because of her son’s anxiety issues. Despite constant chasing, she was not getting anywhere with the landlord.
The adjudicators findings were that the landlord had let the resident down. In summary it said:
1. Actions to resolve the damp and mould had not been effective, the joint inspection promised November 2022 did not take place, and the inspection on 6 February 2023 had not resulted in any action.
2. Another inspection should not be necessary, but a clear plan of action with timescales was. It recommended the landlord sends a copy of the schedule of works with timescales, that it must commit to, within 2 weeks.
3. The landlord should apologise and pay compensation to acknowledge the frustration and risk of harm the landlords action or inactions have caused, it suggested £250.
4. It was appropriate for the landlord to refer the resident to its insurers. However the resident would need to provide a more comprehensive list of items and their value. The landlord was advised to send a copy of the adjudication to its insurers confirming it accepts liability for the damage caused by damp and mould.
5. To improve service in the future it recommended the landlord:
  1. Ensures it keeps clear readily accessible records of damp and mould inspections.
  2. Ensures it completes works identified in its inspections quickly.

Post Internal Complaint Process (ICP)

There was evidence of an apology and efforts to obtain the residents bank details to make the compensation payment.
A schedule of works was not provided to the resident as recommended; she has said she has not received one to date. No further work has been completed by the landlord to resolve the damp and mould. The resident has told this service all her attempts to contact the landlord have not been responded to since she received the final response.

Assessment and findings

The landlords handling of damp and mould in the residents property.

There are statutory responsibilities for landlord’s when it comes to the repair and maintenance of rented properties.
The operation of the Homes (Fitness for Human Habitation) Act 2018, implied a term into the resident’s tenancy agreement that the landlord must ensure its dwelling is fit for human habitation at the beginning of, and throughout, the tenancy. This places a responsibility on landlords to assess hazards and risks within its rented properties. The existence of a hazard as defined by the Housing Health and Safety Rating System (HHSRS) is one of the factors that may be considered when assessing fitness. A hazard can include mould and all types of dampness.
The landlord also has a repairing obligation to maintain and repair the structure of the home, under section 11 of the landlord and Tenant Act 1985 and repairs must be completed within a reasonable period.
When considering whether the landlord acted reasonably and fairly to reports of damp and mould, this Service considers the recommendations made in the Ombudsman’s Spotlight Report on Damp and Mould (published October 2021). This report has provided recommendations for landlords, that they should:
1. Adopt a zero-tolerance approach to damp and mould interventions.
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.
The landlord’s historical repairs records from 2015 to 2017, confirm that the residents property has had an ongoing damp and mould problem, for which remedial works for condensation were carried out by the landlord at various intervals. The works however were ineffective as the damp and mould continued to return.
The resident continued to raise the issue and the landlord carried out a full inspection of the property known as an ‘MOT’ in August 2022. It is not clear of the exact date, what the findings were or whether any works were recommended. This was because the subsequent report is not available, and no repair logs have been provided for the period February 2018 until November 2022. Nevertheless, it was evident that this case had an ongoing history of damp and mould problems, and as such the Ombudsman would expect to see the matter treated by the landlord with a sense of urgency.
The landlords repairs policy states that it complies with all relevant legislation and often exceeds statutory requirements. It also states its target response time for routine repairs should be 20 working days, if an inspection is needed first, it will arrange any follow on works promptly. The residents complaint on 27 October 2022, and the landlord’s upholding of it, confirmed that no follow-up works were carried out as a result of the inspection in August 2022, and the property still had damp and mould. This demonstrated that despite the bold claims in its repairs policy, the landlord had failed to adhere to either its policy or any of its statutory repairing obligations which was not appropriate.
Moreover in the landlords stage 1 complaint response, as part of the resolution, advised a further inspection of the residents property would need to be completed, and said this would be a joint inspection with the surveyor and contractor to agree a full schedule of works. They would be contacting her directly to arrange. The resident had to escalate her complaint response to stage 2 on 30 November 2022, because the landlord did not progress this with her. This was a further service failing, demonstrating a further lack of urgency by the landlord and a failure to learn anything from the residents complaint.
While damp and mould pose a risk to anyone’s health and should always be acted on quickly, the Government Guidance stresses that it is particularly important that damp and mould is addressed with urgency for the groups more vulnerable to significant health impacts. This includes children and young people whose organs are still developing and are therefore more likely to suffer from physical conditions such as respiratory problems, as well as children who are at risk of worsening mental health. The resident had a son who was 8 years old at the time of her complaint and who she had advised suffered from mental health problems and had been referred to CAMHS.
Furthermore in the landlords stage 2 response, 4 January 2023, it had to apologise that the inspection had not taken place, and arranged for a surveyor to attend on 6 February 2023. Having apologised twice now in its complaint process for the failings around the inspection of damp and mould, it would be reasonable to expect the landlord to give the residents case its highest priority, however, the inspection arranged was a further month away, which was not reasonable.
The delays and complete lack of urgency in identifying and carrying out the necessary repairs by the landlord during this time was extremely concerning given the Ombudsman’s Spotlight on damp and mould was published a year earlier. The landlord was on notice for some time that the resident was suffering with reoccurring damp and mould in her property, and that her son was considered vulnerable to the effects of it. The landlord’s delays and lack of clear communication was unreasonable and did not demonstrate the “proactive interventions” called for in the Spotlight report.
The spotlight report on damp and mould encourages a respectful and empathetic approach, it highlighted in its findings, that the distress and inconvenience experienced by residents living with damp and mould was the most profound the Ombudsman had seen. For this reason the report is very clear, on the importance of communicating with residents and keeping them informed regarding actions taken or otherwise, when reports of damp and mould are received.
The landlords repairs policy also commits to proactively keeping the tenant updated where it is unable to complete a repair on a single visit or within expected timeframes. It was evident in this case, that the landlords communication with the resident was poor throughout the process. All communication was instigated by the resident, who consistently had to chase the landlord for information and action, over an extensive period of time, which was not reasonable.
An inspection of the residents property did eventually take place on the 6 February 2023. The resident informed the surveyor who attended she had recently cleaned off all the mould. The report gave a visual overview of the residents property on the day, description, and damp meter readings, but gave very little in the way of analysis of the findings or any recommendation for the way forward. There was also no reference to the failing thermal board and ultimately no further action resulted from the inspection, which was not reasonable. On 20 March 2023, the resident was forced to proceed to the 3rd stage of the landlords complaints procedure, independent adjudication, to try and obtain some resolution, which was a further failing by the landlord.
The adjudicator also recommended on 24 April 2023, that within 2 weeks, the landlord send the resident a copy of a schedule of works to address the damp and mould in her property, with expected timescales, and commit to those timescales. The landlord was unable to provide evidence to support that it had implemented this recommendation from its independent adjudicator. The resident recently advised this service, 17 May 2024, a year on, that no schedule of work was given to her by the landlord, she still has damp and mould in her property, and no works have progressed since that determination was made.

The landlords handling of the residents claim for damages and loss of personal belongings from damp and mould.

In the residents stage 2 complaint she made reference to the damage to her belongings and furniture caused by the damp and mould. She alluded to the amount of clothes she had thrown away along with a leather sofa and beds, stating that she was not in a financial position to keep replacing things. The landlord referred the resident to its insurers. The landlord is covered by insurance for these sorts of matters, and it was within its rights to direct the resident to make a claim, which was in accordance with its compensation policy. It also sent her the appropriate forms which was reasonable.

The landlords handling of the residents complaint and the level of compensation offered.

The Ombudsman’s Complaint Handling Code (the Code) has been in effect since October 2021 and became statutory on 1 April 2024, meaning that landlords are now obliged by law to follow its requirements.
The Code has always recommended a 2-stage approach to complaints, to avoid unduly prolonging resolution, but it now stipulates that stage 2 is the landlord’s final response and it does not recognise a third stage. The landlords 3 stage complaint handling procedure has been non-compliant since 2021, however the landlord’s website confirms that the landlord has removed the third stage of its complaints procedure from 1 February 2024. As such, the Ombudsman is satisfied that complaints moving forward will not be unnecessarily delayed or overcomplicated by having a third “independent” stage.
The landlord failed to adhere to its response timescales at all 3 stages of its complaint process. It recognised and apologised for this in its stage one response which was reasonable. It pre-empted that high demand was going to impact its response time at the adjudication stage, which prepared the resident for the delay. Although it was only 3 working days late with its stage 2 response the delay was not acknowledged. While the detriment to the resident of this 3-working day delay was not high, if the response cannot be completed in the timescale specified, the Code states that an extension must be agreed with the resident, and there was no evidence that it was at either stage 1 or stage 2.
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 creating a lack of trust in the landlords complaints procedure.
The Ombudsman’s Code also states that landlords shall address all points raised in the complaint and provide clear reasons for any decisions. The landlords stage one response was not Code compliant because it failed to respond to the issue of the defective thermal boarding, why there were three vents in the living room to address airflow in the bedroom and the damage caused to her flooring and floor coverings by the landlords contractor. Its stage two response failed to address the issue of inappropriate comments made by its staff. As this was not part of the stage 1 complaint the landlord should have logged this as a new complaint. It also failed to respond to the residents need for a planned approach for the works to address her son’s mental health issues.
The residents declaration about her sons mental health was important, it was a trigger for the landlord to look at whether the residents son had a disability in accordance with the Equality Act 2010, and to consider whether it had a responsibility to make any reasonable adjustments for him under section 20 of the Act. It was also information that highlighted that there was someone in the household with an increased risk to the effects of damp and mould, that required a more urgent approach. It was evident however, in the complaint response that the issue was completely disregarded, which was a failing.
The Code states that the remedy offer must clearly set out what will happen and by when, in agreement with the resident where appropriate. Any remedy proposed must be followed through to completion. The landlord has consistently failed to follow through with its agreed outcomes at each stage of its complaint process, which was not reasonable and not compliant with the code.
On 24 April 2023, the landlords adjudicator upheld the residents complaint, noting the landlord had let the resident down. It concluded the landlord had not acted with sufficient urgency to effectively address the damp and mould in the residents property. It recommended the landlord apologised to the resident and pay her £250 to acknowledge the frustration and risk of harm caused to the resident and her family by the failings identified. The Code states any remedy offered must reflect the extent of any service failures and the level of detriment caused to the resident as a result. The Spotlight report requires that landlords remedies should be commensurate to the distress and inconvenience caused to the resident. This sum was not in the Ombudsman’s view commensurate for the distress and inconvenience experienced by the resident and did not reflect the extent of the service failures identified by this investigation or the level of detriment caused.
The adjudicator as part of the landlords final stage complaint said “a clear plan of action with timescales” was needed to resolve the substantive complaint. It recommended the landlord send the resident “a copy of the schedule of works with timescales, that it must commit to, within 2 weeks”. The landlord failed to do this, which has resulted in it not taking any action to resolve the damp and mould which was not reasonable. It is not clear to the Ombudsman as to why the landlord would procure an independent adjudicator as part of its complaint process, only to ignore its recommendations on how to put things right, but this is what it did which was not acceptable.
One of the key aims of the Code, is to take learning from complaints and use it to drive service improvement. The fact that the substantive complaint was not resolved at all three stages of the landlord complaints process, demonstrates the landlords complaint handling process is not achieving this aim.

This service has also considered the landlords record keeping.

Clear record keeping and management is a core function of a repairs service, not only so that evidence can be provided to the Ombudsman when requested, but because this assists the landlord in its understanding of the condition of a property, enabling outstanding works to be monitored and enabling provision of accurate information to residents. Records also serve as evidence in any external processes which the resident and landlord may engage in.
The landlord had to be chased twice to provide all of the relevant information this Service needed to properly investigate the residents case. There was a significant amount of information that the landlord said it could not provide. The omissions indicate poor record keeping by the landlord as it was not able to provide the relevant information when asked. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedure. In light of the above, this Service finds that redress is warranted to the resident for the impact the landlord’s record-keeping has had on the fair and thorough investigation of the resident’s concerns.
Furthermore it was noted that quite early on after the MOT inspection of the residents property in August 2022, the landlord was unable to rely on its content to resolve the residents damp and mould problem. It is not clear whether the notes were not written up or the details were lost. What was evident was that no follow up works materialised as a result which adversely affected the resident. At the time of her complaint 27 October 2022, no details could be referenced from the report and another inspection was needed to determine what the problems were. Having to provide further access for the landlord was inconvenient and detrimental to the resident when she had previously provided it.
Moreover there was an absence of records in the repairs history provided by the landlord for the period 2019 to 2022. There was evidence work had been done during this time as there was reference to plastic window boarding being fitted and 3 air vents in the living room, as well as comments in an internal email about the resident not being happy with work carried out the previous year. However there was no record of these works being done on the repairs history. Repairs records should provide a true reflection of any defects reported, the works ordered and when they were completed, it was not appropriate that the landlords did not. This may well have contributed to the fact that although the landlord was aware the resident was unhappy with the earlier work, having no records hindered the resolution of them.
It should also have been clear from the records when and what capital works were being progressed in the residents property. Operatives arrived on site totally unaware new kitchen installers were in situ and were unable to complete necessary work, causing more stress and inconvenience for the resident.
The landlord also had to admit, that following an agreement in its stage 1 response which committed to completing a joint inspection of the residents property, a mould wash was ordered instead. The Operatives attendance was also to complete a mould wash in the residents bathroom when the resident had never reported damp in the bathroom. Clearly there was a level of miscommunication by the landlord, which could reasonably have been avoided if proper records of repairs, major works and decisions taken were maintained.
There was also evidence that the resident had declared that her son had mental health problems, however this was not updated on the residents records, the landlord advised this Service there were no vulnerabilities in the household which was incorrect.

Determination

In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was maladministration in the landlords handling of the residents reports of damp and mould.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was no maladministration in the landlords handling of the residents claim for damages for loss of personal belongings from damp and mould.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was maladministration in the landlords handling of the residents complaint and the level of compensation offered.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was maladministration in the landlords record keeping.

Orders and recommendations

The Ombudsman orders that within 4 weeks the landlord:
1. Sends a written apology to the resident from a member of the Executive Team for the failings identified in this report.
2. Pays the resident the sum of £1,800 (in addition to the £250 already paid), which is broken down as follows:
  1. £600 for the failings identified in the landlords handling of the damp and mould.
  2. £600 for the failings identified in the landlords complaint handling and compensation offered.
  3. £600 for the failings identified and detriment caused to the resident from the landlords poor record keeping.
3. Ensures the resident has a claims form, and assists the resident to make a claim with the landlords insurers for the loss of her belongings.
4. Engages a damp specialist to inspect the property, draft a schedule of works with reasonable expected timescales for completion to address the damp and mould in the resident’s home.
5. Review the residents’ case against its more recent damp and mould policy to determine whether the policy will ensure the failings in this case are not repeated. Provide a copy of the review to this service.
The landlord was ordered to assess itself against the Ombudsman’s spotlight report on Knowledge and Information Management (KIM) on 9 November 2023, so an order for this is not required.
Following a meeting between this Service and the landlords management team, 16 May 2024 we were made aware of significant changes the landlord is making in relation to its resources and processes for complaint handling, including compliance with the updated Code. An order for this is therefore not required.