Waltham Forest Council (202232227)

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REPORT

COMPLAINT 202232227

Waltham Forest Council

30 May 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 landlord’s handling the resident’s:
1. Concerns about overcrowding and the suitability of the accommodation due to her child’s disability.
2. Reports regarding the ventilation system in the property.
We have also considered the landlord’s handling of the associated complaint.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42 (I) of the scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, seek to raise again matters which the Housing Ombudsman, or any other Ombudsman has already decided upon.
The evidence provided by the landlord shows that the Local Government and Social Care Ombudsman considered the landlord’s handling of the resident’s concerns about overcrowding and whether due consideration was given to her children’s disabilities. It decided on 20 November 2023 that it would not investigate the complaint, because it was unlikely to find evidence of fault by the landlord.
In accordance with paragraph 42 (l) of the scheme, the landlord’s handling of the resident’s concerns about overcrowding and the suitability of the accommodation due to her child’s disability is outside the Ombudsman’s jurisdiction. The resident has been advised to work with the landlord regarding her rehousing options.

Background and summary of events

The resident became the tenant of the landlord by mutual exchange on 5 December 2011. The property is a 2-bedroom flat on the second floor. The landlord is a local authority. The landlord advised that one of the resident’s children has a disability.

Scope of investigation

The information provided by the landlord shows that the resident’s reports about the ventilation issues within the property date back to 2020. However, according to the evidence (information in the landlord’s stage 2 response), the resident did not formally complain about the issue until 7 July 2022.
This investigation therefore focusses on events that occurred within 6 months prior to the date of the stage 1 complaint as noted above. This is in accordance with paragraph 42 (c) of the scheme which states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising. Any reference to the events that occurred before this period will be for contextual purposes only.
The Ombudsman notes the resident’s reference to the adverse effect that the landlord’s handling of the repairs has had on children’s health. Whilst this service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. These matters are likely better suited to consideration by a court or via a personal injury claim.Consideration has been given to the general distress and inconvenience that may have been caused to the resident.

Landlord obligations

The Equality Act 2010 provides a legislative framework to protect the rights of individuals and to advance equality of opportunity for all. The landlord would be required to comply with the provisions for public bodies under the Act. Under the Act the landlord has a legal duty to make reasonable adjustments where there is a provision, criterion or practice which puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled.
Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on the landlord to keep the structure and exterior of the property in repair including drains, gutters, and external pipes. The landlord also has a responsibility under the Housing Health and Safety Rating System, introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard so the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
The landlord’s repairs policy states that:
1. It is generally responsible for the maintenance of the structure of its homes.
2. It adopts a zero-tolerance approach when addressing reports of damp or mould and will carry out actions to prevent or it, which could include programmed repairs, or responsive repairs.
3. It will deal with routine repairs that do not fall within emergency and urgent care within 21 calendar days.
The landlord’s complaints policy (effective February 2023) states that it will aim to respond to stage 1 complaints within 20 working days, acknowledge stage 2 complaints within 3 working days, and respond to stage 2 complaints within 25 working days.

Summary of events

The landlord logged the resident’s stage 1 complaint on 7 July 2022. She complained that:
1. Despite numerous appointments booked and emails sent to the landlord regarding the poor ventilation in the bathroom, no action had been taken. Works recommended had not been approved.
2. The delay in resolving the ventilation issue had caused mould in the bathroom, as there is no window and the air conditioning unit in the property was not working.
3. The mould was affecting her child who is disabled.
The landlord responded to the resident’s complaint on 3 August 2022. It said:
1. It was sorry for the difficulty she had experienced in trying to make contact and for the number of “unproductive appointments”.
2. It had arranged for the relevant staff to attend the property on 11 August 2022.
The resident requested the escalation of the complaint to stage 2 on 9 January 2023. She said:
1. A manager attended the property and advised her that an extractor fan would be installed in September 2022.
2. She telephoned on 9 January 2023 and was informed that the notes on the system indicated she did not want an extractor fan, but this was not the case.
3. The landlord should take action to address the issue as the fire alarms in the property got set off when she cooked, used the shower, or bathed due to poor ventilation. The poor air circulation was also affecting her child.
The landlord wrote to the resident (undated but likely around March 2023) and apologised for the distress and frustration caused as a result of the delay in responding to her stage 2 complaint. It said it was unable to confirm a date for the stage 2 complaint response.
The resident contacted this Service on 16 March 2023 and 18 May 2023 regarding the complaint. She said the landlord had failed to address her concerns about the ventilation in the property.
This Service wrote to the landlord on 10 June 2023 and asked it to respond to the resident’s complaint.
The resident engaged the services of an independent organisation who specialised in the assessment of domestic properties in relation to heating, insulation and energy efficiency. They assessed the property and sent a copy of the report to the landlord on 26 June 2023 to address. The report noted that:
1. The property was inspected on 4 May 2023 in response to the resident’s concerns about damp and disrepair, and the impact these conditions were having on her family.
2. There was a problem with black mould growth in the bathroom, which mainly affected the ceiling. The room is entirely internal, with no windows, so it was dependent on mechanical extraction. Mechanical ventilation appeared to be present in the flat which connected to vents in several rooms including the bathroom and kitchen. However, the resident said it had not worked since she moved into the property.
3. A repair or replacement of the combined ventilation system would greatly improve conditions in the home. Any mould growth should be treated with an effective fungicidal chemical and sealed with a fungus-inhibiting solution.
The landlord responded to the resident’s complaint concerning overcrowding on 15 June 2023.
The landlord passed the survey report to its damp and mould team on 28 June 2023 for further investigation.
The landlord issued its stage 2 response on 5 July 2023. A summary of the response is detailed below:
1. It apologised for the late response to the complaint. It said this was due to some changes in the team which led to a backlog in cases, but it was working on resolving the issue and returning to its standard timeframes.
2. The resident had 28 days from the date of the stage 1 response to request an escalation of the complaint, but 5 months had elapsed before she raised a stage 2 request. Although it was not obliged to investigate this matter further under its complaints procedure it had decided to conduct a discretionary investigation because it acknowledged receipt of the stage 2 request.
3. It failed to adequately deal with the resident’s request on 24 August 2020 for an extractor fan in her bathroom. Although it attended on 09 October 2020, it did not follow up on the repairs to the ventilation unit which it noted was faulty at the time.
4. Its contractors attended in July 2021 and noted that a new extractor fan was required. However, its contractors visited on 3 August 2021 and noted that she did not want an extractor fan installed in the bathroom, as there was already a ventilation unit in the property. It was aware that she disputed this in her telephone call on 9 January 2023, but it had no way of ascertaining the actual events that occurred.
5. Its contractors attended the property on 5 July 2022, and found a fault with the ventilation unit but they were unable to repair the fault during the visit.
6. Its response to the resident’s stage 1 complaint was not adequate, as it was dealt with as a service request rather than following its corporate complaints process. Although it apologised, it should have offered compensation for difficulties experienced due to the service failure. It also failed to address her concern about mould.
7. Its surveyor attended on 11 August 2022 and noted that the ventilation unit needed to be looked into to determine if it needed to be replaced or repaired but this was not followed up.
8. On 26 January 2023, its contractors attended the property and noted that the resident wanted the unit removed and not repaired.
9. On 04 July 2023 the landlord agreed to replace the existing ventilation unit with a centralised mechanical extraction ventilation installation (CMEV) unit. Its contractors would contact her (within the week commencing 03 July 2023) to survey and arrange a convenient date for the installation.
10. The landlord concluded that there was evidence of poor communication with its contractors, a failure to follow up actions, a lack of ownership of the works which resulted in unnecessary delays of 3 years for the resident. It further said there was no clarity in terms of the works to be undertaken, who was responsible and the resident’s desired outcome. The resident’s request for increased ventilation was as a result of the installation of a shower due to her child’s disability but it lost sight of this.
11. It failed to track the case through its complaints process and found no evidence to mitigate the delays which had affected the resident and her family.
12. It offered compensation in the amount of £625.00 broken down as:
  1. £575 for the unnecessary delays in remedying the ventilation issue at the property from September 2020 to July 2023 (at £25.00 per month).
  2. £50 for the time and trouble to the resident in pursuing the complaint.

Summary of actions after the complaints process had been exhausted.

The resident advised the landlord in an email dated 28 July 2023 that all efforts on her part to contact the landlord and its complaints team had failed.
The resident contacted the landlord on 7 August 2023 and asked it to confirm a date for the repairs.
The landlord issued a separate response to the resident’s complaint about overcrowding and discrimination against her child.
The resident contacted this Service between September 2023 and November 2023. She provided video footage in one of the emails and said:
1. Although she had been offered compensation, no appointments had been scheduled for any works.
2. She continued to live with damp and mould in the bathroom, with no air vents and the situation was having an adverse effect on her mental health.
3. Her child who has vulnerabilities, continued to be exposed to mould which is against all health regulations.
The landlord noted in an internal email on 13 December 2023 that it would arrange a visit to the property.
The landlord noted in an internal email on 15 December 2023 that there was evidence of service failures despite corrective actions initially agreed and missed opportunities following the independent survey report. It said a visit had been arranged to the property in the next week.
The landlord noted in its internal communications on 21 December 2023 that it attended the resident’s property earlier in the week. It said the resident agreed to a CMEV and it explained why it was not possible to install individual extractor fans in the bathroom and kitchen.
The resident informed her local councillor on 26 February 2024 that she had received contact from various operatives regarding the installation of a ventilation system following their intervention.
The landlord noted in an internal email dated 10 April 2024 that the resident wanted her new kitchen installed before the ventilation system. It also said it had contacted the resident to assess the damp and mould in the property.
The resident informed this Service on 9 May 2024 that she did not request the cancellation of the works or ask to delay the installation until the kitchen had been installed. She said her family had been treated poorly by the landlord and she had spent the compensation awarded on cleaning the mould privately. She said the landlord has now confirmed a date for the works for 22 May 2024.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:
1. be fair.
2. put things right.
3. Learn from outcomes.
This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

The resident’s reports regarding the ventilation system in the property

This Service’s spotlight report on damp and mould published in October 2021, emphasises that it should be treated as a high priority. Landlords should take a zero-tolerance approach, be proactive in identifying potential problems, extend investigations to other properties in a block, and clearly communicate to residents about actions. Whilst this investigation focuses on events that happened from January 2022, the evidence shows that the resident initially reported this issue in August 2020. It is of concern that the issue remained unresolved as of April 2024. Despite the resident’s reports about the urgency of the matter, and her concerns about mould due to the delay in installing or repairing the ventilation system, there is no evidence that the landlord took the matter seriously.
The resident expressed in the stage 1 complaint raised in July 2022, that various appointments and visits had been carried out at the property but the works recommended were not followed through. The landlord visited the property in August 2022 as a result of the complaint, but it missed another opportunity to resolve the issue and put things right for the resident. What we have seen throughout the life of the case is a lack of coordination and poor communication between the landlord, the resident and its contractors. This would have caused the resident distress and frustration, particularly in light of her concerns about the impact of the mould and damp on her household.
Due to the landlord’s inaction, the resident arranged for an independent surveyor to inspect the property around May 2023, this was 11 months after the resident formally complained. The recommendations were passed to the landlord’s damp and mould team in June 2023 but no action was taken. This is unreasonable. Whilst the landlord’s repairs policy states that it may schedule repairs faster than normal for vulnerable residents who require support to safely occupy their home, it failed to implement this in practice. The policy further states that the nature of support it provides may depend on the level of vulnerability and the household’s circumstances. The resident informed the landlord in various communications between July 2022 and December 2023 that the delay in resolving the ventilation system had caused mould in the property.
The resident provided video footage of the bathroom to this Service in November 2023, which showed the walls were covered with mould or damp. The resident said this was of particular concern as her vulnerable child who has a disability was being exposed to damp and mould. We have seen from the evidence that the landlord did not take the child’s vulnerability into consideration throughout the investigation of the case. It failed to assess any risks to the child and determine if reasonable adjustments needed to be made in adherence with its duties under the Equality Act 2010. This is a significant failing on the landlord’s part.
The landlord apologised for its failures in its stage 2 response, which indicated that it had learned from its earlier mistakes and would take steps to put things right for the resident. It apologised for the distress, frustration and time and trouble to the resident and admitted that it failed to manage the resident’s expectations and had got things wrong. It offered £625 to the resident, but the evidence shows that it did not to follow through with the commitments made at the end of the stage 2 process. It advised the resident in the stage 2 response that an agreement had been made to install a centralised mechanical extract ventilation system in the property. However, this action remained outstanding as of December 2023. The resident was left with no choice than to escalate the matter to this Service and to her local councillor.
Overall, there is evidence of maladministration in the landlord’s handling of the resident’s reports about the ventilation system in the property. It failed to manage the resident’s expectations and it admitted that the resident had experienced over 3 years of inconvenience and distress due to mismanagement of the case. It agrees under the tenancy agreement with the resident, to repair and maintain the structure of the property, but it failed to comply with the agreement. There is also evidence of a lack of coordination, poor communication and collaborative working between the landlord and its contractors which clearly prevented any progress on the outstanding repairs.
The landlord was not proactive in how it handled the resident’s case. It should have taken ownership and proactively managed the repairs when it became apparent that the works were not being effectively managed. It is therefore the Ombudsman’s opinion that it had not met its contractual obligations to the resident to facilitate and manage the outstanding repairs. Due to its consistent failure to act on the resident’s concerns about the ventilation issues in the property, the resident and her family were left in a potentially hazardous condition without regard for her child’s vulnerability.
At stage 2, the landlord offered a total of £625 in compensation for the distress, inconvenience and time and trouble to the resident. It said this was in recognition of the 3 years of distress to the resident. It is evident from the history of this case that the impact on the resident and her family had been prolonged. She informed this Service that the issue remained unresolved, over 20 months since she raised the formal complaint. In view of this, it is the Ombudsman’s opinion that the amount offered did not reflect the detriment to the resident and her household. An order has been made to address this.

The associated complaint

The landlord’s response to the resident’s stage 1 complaint was within timescales published in its complaint policy. However, the response failed to provide a full review of the issues raised by the resident. It also failed to follow up the actions agreed to ensure the issue was fully addressed.

The landlord’s response to the resident’s stage 2 complaint was unreasonably delayed and fell significantly outside of the timescales required by its complaints policy. The resident requested the escalation of her complaint on 9 January 2023, but the landlord did not respond until 5 July 2023, approximately 122 working days after the complaint was submitted. It also took intervention from this Service to respond to the complaint. This is not appropriate.

While the landlord apologised in March 2023 for the delay and distress, this was in response to the resident’s request for an update on the complaint. It failed to manage the resident’s expectation as it advised her that it was unable to give her a timeframe for the response. This would have caused the resident some frustration and uncertainty as the complaint was already over 2 months late. This represented a failure by the landlord to comply with its policy and the Code requirement to keep the resident appropriately updated.

The landlord’s investigation of the stage 2 complaint was fair, impartial and the response was detailed. The evidence indicated that the landlord had learned from its mistakes and sought to put things right. Whilst this is noted, it failed to follow through with the actions and promises made at the end of the complaints process. It identified that mistakes were made and that its complaints process failed to track or monitor the issues raised to completion. However, it missed another opportunity to put things right as the resident continued to chase the landlord for a resolution of the matter. It advised the resident that arrangements had been made to replace her ventilation unit in July 2023, but it failed to follow this up with the resident or its contractors. This is not appropriate.

Although the landlord apologised to the resident, its offer of £50 for the time and trouble did not redress the distress and inconvenience caused to her. There is evidence the resident was put to particular time and trouble chasing the landlord to progress a response and in contacting this Service for our assistance. The landlord also failed to put measures in place to ensure that it committed to the actions agreed at stage 2. In view of this, there is evidence of maladministration in the landlord’s handling of the associated complaint.

Determination (decision)

In accordance with paragraph 42 (l) of the Housing Ombudsman Scheme, the resident’s concerns about overcrowding and the suitability of the accommodation due to her child’s disability is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports regarding the ventilation system in the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the associated complaint.

Reasons

The landlord did not deal with the resident’s report about poor ventilation in the property appropriately and this led to a significant delay of over 22 months. Whilst the evidence indicates various visits and inspections were carried out to the property, it failed to follow through any actions agreed. There was little or no communication with the resident about the works required to improve the ventilation system and it failed to manage her expectations. The resident repeatedly expressed concerns about the adverse effect of mould due to her child’s vulnerabilities, but it failed to take this into consideration.
The landlord unreasonably delayed its response to the resident’s stage 2 complaint. While it recognised and acknowledged errors made in its overall handling of the complaint, it failed to learn from this. It agreed actions with the resident, but it missed another opportunity to follow these through to completion. It acknowledged the time and trouble and distress to the resident, but its offer of compensation failed to reflect the detriment to her.

Orders

Within 4 weeks of the date of this report:
1. A senior member of the landlord’s staff to apologise to the resident in writing for the failings identified in this report.
2. Pay the resident the amount of £1625 broken down as:
  1. £500 for the distress and frustration due to the failures in its handling of the resident’s report about the ventilation issues in the property.
  2. £500 for the time and trouble to the resident due to the failures identified in the complaint handling.
  3. £625 previously awarded if it has not already been paid.
3. Any compensation awarded should be paid directly to the resident.
Within 8 weeks of the date of this report the landlord should:
1. Review any outstanding actions regarding the installation of the resident’s ventilation system and confirm to her in writing (if it has not already done so). A copy should be sent to this service.
2. Review its handling of the residents case to determine what went wrong. It should assess any measures that need to be put in place to prevent a reoccurrence, in particular how it responds to customer vulnerabilities.
Provide evidence of compliance with the above orders to this Service.