Ocean Housing Limited (202301895)

REPORT

COMPLAINT 202301895

Ocean Housing Group Limited

28 March 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

1. The complaint is about the landlord’s handling of:
   1. the resident’s reports of antisocial behaviour and noise nuisance.
   2. damp and mould in the resident’s home and the associated complaint.

Background

2. The resident is an assured tenant under a tenancy dated 24 November 2014. She resides in a first floor 2-bedroom flat with her 2 children who were aged 2 and 9 during the complaint procedure. The resident explained to the landlord during the complaint that her 9-year-old son suffered from anxiety and ADHD. She said the damp and mould in the property was irritating her eyes and that all her household had been affected by coughs, colds and breathing difficulties.
3. The resident reported damp and mould in her home in February 2022. The landlord arranged an inspection. By April 2022, some of the recommended works had not been completed and the resident raised a complaint on 11 April 2023. In her email, she explained:
   1. one of the landlord’s contractors had attended the property and said that repair works were required, the extent of which would require the resident to be decanted for 2 weeks
   2. the resident said the repairs were to strip back the walls and install insulation, followed by mould treatment and redecoration of the area. Instead, the landlord had sent two contractors to clean the mould and hang wallpaper over it
   3. she was allergic to the damp and mould which was irritating her eyes
   4. she was seeking compensation for the distress caused by the damp and mould in the property
4. On 12 April 2023, the resident referred her concerns to the council for enforcement under the Housing Act 2004. There is no evidence of any enforcement action.
5. The landlord responded to the complaint on 26 April 2023 at stage 1 of its complaint procedure. It said:
   1. An inspection of the property had taken place on 17 February 2023. The findings were:
      1. There was no damp and mould in the kitchen, living room, hallway, stairs and landing.
      2. Black mould was observed in the main bedroom, affecting the front and party walls.
      3. There was slight mould in bedroom 2.
      4. There was significant mould on the ceiling, walls and soil pipe in the bathroom.
   2. The landlord cleaned the gutters and installed a humidistat fan in the bathroom on 23 March 2023.
   3. The landlord’s policy was to eradicate mould and it had passed the matter to its external contractor. The contractor attended on 5 April 2023, but the resident refused the work as she believed it would not resolve the wider problems responsible for the damp and mould. The landlord said it understood the resident had received advice not to allow the works to be completed.
   4. It would start the work on 26 April 2023 starting with the resident’s son’s bedroom. After this, it was prepared to discuss practical ways forward to have the remaining work done taking into account the resident’s allergies.
   5. The inspection of the property took place within the right timescales – nevertheless, the contractor did exceed its service standards in attending and offering the work. The landlord offered the resident £100 compensation.
6. The resident escalated her complaint on 27 April 2023 by email. She said the redress and the landlord’s actions were not sufficient to resolve the complaint. Her reasons were as follows:
   1. The damp and mould survey was requested on 9 February 2023 and completed on 17 February 2023. The resident said she had not had sight of the report and requested a copy. This is because she said what the surveyor told her and the work offered were different.
   2. The resident disputed the gutters had been cleared.
   3. Whilst the landlord agreed to install a new fan – the contractor only cleaned the existing fan in the bathroom. The resident said this was insufficient to reduce the humidity in the bathroom.
   4. The contractors attended on 16 April 2024 and wiped the walls in bedroom 1 with large ‘wipes’. The resident said the label on the wipe did not confirm they were suitable to disinfect the area and rid the bedroom of mould spores. The contractors then proceeded to paint the walls with stain block.
   5. It took from 17 February 2023 to 5 April 2023 (9 weeks) for the landlord to arrange for the contractors to attend. When they did attend, the resident was dissatisfied with the proposed works because what was offered was not the same as what the surveyor had informed her was needed. As the contractors were only offering to clean the mould and redecorate, the resident said this would only mask the issue and would not resolve it.
   6. The resident had previously informed the landlord that the property was cold and breezy. She said the landlord had not commented on this in the complaint response.
   7. The contractor previously confirmed the loft space required more insulation and the resident asked if the inspection report confirmed this.
   8. The resident explained that she was spending more money to heat her home. She felt this could have been a contributing factor to the damp and mould.
   9. The resident detailed that her eyes were irritated by the mould in her home. The irritation, she said, caused considerable pain and discomfort. In turn, this was affecting her mental health.  The resident went on to explain that she had been advised the mould would cause long-term damage to her eyes.
   10. The household were all affected by breathing difficulties and coughs and colds due to the condition of the flat – namely it being mouldy, damp and cold.
   11. The resident believed the property contained category 1 hazards based on:
       1. ‘widespread damp and mould’
       2. excess cold due to increased heat loss
       3. poor sanitation and drainage
       4. noise nuisance from the neighbours below
   12. The resident said she continued to experience hostility towards her from the neighbours regularly. She said she was fearful to leave her home. The resident said she had provided photographic evidence of the damage caused to the property. She also detailed that she had reported the neighbours to the police.
7. The landlord provided its final response on 30 May 2023, in which it partially upheld the complaint. The details of its response were as follows:
   1. It attached a copy of the inspection report dated 17 February 2023.
   2. Its system showed that the gutters were cleaned on 23 March 2023. The landlord would have these checked once more for completeness.
   3. The internal mechanics of the fan were changed, whilst the covers remained the same. In any event, it would arrange for a new fan to be fitted.
   4. The mould was wiped away with ‘heavy duty wipes’ which were antibacterial and would disinfect the area. It said that bleach was not the best product to use for mould where the decoration finish was porous. The stain block was primer and had been used, in accordance with the manufacturer’s instructions on its website, as part of the recommended mould treatment. The landlord explained it believed its approach was appropriate and was not an attempt to mask the issue.
   5. The offer for a practical way forward was to agree on a plan for the works to be completed taking into account the health of the resident and her young family. The landlord and resident had discussed a temporary decant from 5 June 2023 to 12 June 2023 in a short-term let.
   6. The landlord accepted the property was affected by ‘cold bridging’ which allowed the cold from outside to transfer into parts of the interior. This could result in condensation forming in living areas. The landlord agreed it was more challenging to heat a property affected by cold bridging.
   7. The property benefitted from central heating and there was insulation in the mansard roof. However, the landlord accepted the property would be difficult to heat which could exacerbate the condensation and damp and mould which required ongoing attention and management by both the landlord and the resident.
   8. The energy rating of the property was C, which the landlord wanted to confirm. It said if the energy rating fell below C, it would need to carry out further work.
   9. The landlord said it needed to upgrade the insulation in the loft, which was unlikely to happen until the next energy efficiency programme in 2030.
   10. The work offered in the meantime was to wash down and redecorate the affected walls, replace the fan, clean the guttering and install thermally lined paper in the main bedroom. It also wanted to install a positive input ventilation system – which was cost-effective to run and could ‘dramatically reduce condensation levels’.
   11. The landlord apologised for not acknowledging what the resident had said about the effect on her and her family’s health. It said the planned ‘room-by-room’ approach demonstrated it was taking the health issues into account. In any event, it had agreed to decant the resident whilst the work was completed in the bedrooms.
   12. A stock condition survey would establish whether the property met with the Decent Home Standard. The landlord explained the property was due to have a stock condition survey – but did not say when this was likely to occur. It said it believed the resident’s home was compliant with the decent home standard and the extent of the mould in the property would not constitute a category 1 hazard.
   13. In respect of the noise nuisance, the landlord said this had been dealt with during a different complaint process.
   14. The landlord signposted the resident to its hardship fund for residents experiencing financial difficulty. It said if the resident consented it would share her details and would ask an advisor to contact her.
8. The resident remained dissatisfied with the landlord’s response. She said it had not listened to her that the property was not suitable. She asked the Ombudsman to investigate.

Assessment and findings

The Ombudsman’s jurisdiction

9. We are not free to investigate every complaint referred to us. The rules by which we operate, called the Housing Ombudsman Scheme (‘the Scheme’) set out what we can and cannot consider. Paragraph 42(a) of the Scheme states:

“The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: a. are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint-handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale”

10. In this case whilst the resident has included details of her complaints about the way the landlord responded to antisocial behaviour and noise nuisance, the landlord’s final response explained that these matters were dealt with separately as part of an earlier complaint.  Whilst this evidences the issues were subject to the landlord’s complaint procedure, it does not show that the resident exhausted the complaint procedure within a reasonable time or at all. As such, the Ombudsman has no jurisdiction to investigate the complaint about the antisocial behaviour. This investigation has, therefore, focussed on the landlord’s handling of the damp and mould.

The landlord’s handling of the damp and mould

11. In her contact with the Ombudsman in April 2023, the resident explained she reported the damp and mould in the property around ‘3 months ago’. This indicates the initial report was around early February 2023. The landlord’s records indicate the resident reported mould in the property by telephone on 9 February 2023. The call record states that the resident’s eyes were ‘swelling up’ and the children were unwell when they were in the flat.
12. The Ombudsman’s Spotlight Report on Damp and Mould, sets out our approach to how we expect landlords to respond when damp and mould is reported in a property. In short, we expect landlords to:
    1. Inspect and determine the cause and extent of the damp and mould within a reasonable time
    2. Be proactive and take a zero-tolerance approach to the issue
    3. Not place blame on residents
13. There is no evidence that the landlord blamed the tenant for the occurrence of damp and mould in the property.
14. Following the resident’s report, the landlord arranged for the property to be inspected on 17 February 2023. This was 6 working days after the report and so was commendable. It demonstrated that the landlord did take reports of damp and mould seriously with a view to resolving the issue. 
15. The findings of the report were:
    1. There was a risk of condensation in the living room, kitchen, stairs and landing based on the moisture readings – but there was no visible mould.
    2. The main bedroom was affected by black mould to the front elevation and the party wall. This had caused the wallpaper to become unbonded. The issue was reported as condensation-related due to a lack of heating and ventilation.
    3. Bedroom 2 was also affected by black mould and the cause was listed as ‘condensation-related’.
    4. The bathroom was affected by black mould which was also condensation related.
16. The recommended works were:

17. On the same date of the inspection (17 February 2023), the resident called the landlord and said the mould was too severe for her to remain at the property. The landlord discussed this with the surveyor who had inspected the property that day. His position was that the resident could remain in the property but should not be in the affected rooms during and shortly after the mould treatment. The landlord confirmed this to the resident.
18. The resident chased for an update for the works on 20, 21 and 22 February 2023. The landlord raised the works order for the recommended works on 8 March 2023, which was 19 days after the mould report. The landlord emailed the resident with an appointment for 23 March 2023.
19. The landlord’s repair policy states:
    1. It will complete emergency priority (make safe) repairs within 24 hours. This is where there is a serious risk to health and safety or serious structural damage.
    2. Urgent priority repairs like blocked sinks would be completed within 5 working days.
    3. The landlord was required to complete standard priority repairs within 20 working days. This was repairs to guttering or downpipes etc.
20. The landlord’s repair records show that:
    1. the extractor fan was installed on 23 March 2023 at the arranged appointment. The operative commented, at 9:59 am of that date, that the fan was completed, however, the bathroom ceiling needed ‘battening’ and PVC installed. Battening is a form of insulation.  There is no information on file to confirm this additional work was raised and completed.
    2. the records state that the contractor recorded the gutters at the side and rear of the property as clear at 1:39 pm.
21. These repairs were standard priority repairs and were completed in 24 days – which was outside the landlord’s policy.
22. In respect of the repairs to the bedrooms, the council’s occupational therapist wrote to the landlord on 16 March 2023. They raised concerns about the potential health impacts of the damp and mould. The landlord considered the handling of the mould on 1 April 2024. It considered asking the resident to stay with family whilst the strip-out works were completed or to offer her a hotel. It appears following this an appointment was booked for 5 April 2023 to complete the works, but the resident called the landlord on 4 April 2023 to say she was not available.
23. The work in bedroom 1 started on 26 April 2023. As set out in the complaint summary, the resident was dissatisfied with the way the operatives cleaned the walls. The landlord has not demonstrated the wipes were the mould eradication treatment referred to in the survey (bactdet, halophen and anti-fungal additives).
24. The resident asked the landlord to be decanted on 27 April 2023, because she said the paint was making her feel unwell. In response to this, the landlord (in its internal emails) said it was not prepared to offer the resident hotel accommodation, as it was satisfied she had other arrangements she could make. That was an inappropriate comment to make.
25. The resident was eventually decanted to a local short-term stay property between 5 June 2023 and 12 June 2023 for the works to be completed. The resident returned home on 12 June 2023.
26. The landlord ought to have at least cleaned the mould pending other works within 5 days of the surveyor’s report. It was a failure that it did not do this. The period from 17 February 2023 to 12 June 2023 to complete the work was also unreasonable. The landlord was patently required to complete the works within 20 working days and no later than 17 March 2023.
27. The landlord has acknowledged the unreasonable delay and the question for the Ombudsman is whether it offered redress which resolves the complaint. The Ombudsman finds that it does not for the reasons which follow.
28. The works remained outstanding for 4 months and 3 days from the date the issue was reported until the date the works were completed. During this period the resident was concerned about the impact on her and her children’s health. She detailed the impact the mould was having on her eyes. This was likely to have caused distress and inconvenience.
29. Moreover, there is no evidence the landlord raised and completed the additional works in the bathroom logged by the operative on 23 March 2023. Adding to this, the landlord’s internal comments, that the resident complained about the mould because she wanted to move and the reluctance to offer her temporary alternative accommodation because it believed she could make arrangements, were unfair.
30. The Ombudsman is not able to say what the cause of the resident’s irritated eyes were, or the coughs and colds. In order to establish this, the Ombudsman would need to see a report from an independent medical expert confirming the diagnosis, cause and prognosis. Often this type of personal injury claim is better suited to the courts, where the judge would benefit from a jointly instructed medicolegal expert.

The landlord’s complaint handling

31. The landlord’s complaint responses were thorough and demonstrated a willingness to resolve the issues for the resident.
32. The Ombudsman’s Complaint Handling Code requires landlords to:
    1. Log and acknowledge complaints within 5 days
    2. Respond to the complaint at stage 1 within 10 working days of the acknowledgement
    3. Respond to the complaint at stage 2 within 20 working days of the escalation request
33. The resident raised her complaint on 11 April 2023. The landlord logged and acknowledged the complaint on 12 April 2023. This was in line with the Code and was appropriate.
34. The Code requires that all grounds of complaint are responded to. The landlord accepted that it failed to respond to the resident’s concerns that the property was cold at stage 1. Nevertheless, it apologised for this and provided a full explanation in its stage 2 complaint response.
35. The resident escalated her complaint on 27 April 2023. The landlord asked the resident if an extension could be agreed to issue its stage 2 response. The resident declined this, and the landlord provided the response within 20 working days on 30 May 2023. This was good practice by the landlord.
36. In response to the cold bridging in the property, it was reasonable that the landlord said it would consider further insulation and would refer the resident to the hardship fund in the interim. The Ombudsman finds the landlord’s complaint handling was appropriate and fair.

Determination

37. In accordance with paragraph 42(a) of the Scheme, the Ombudsman has not investigated the complaint about the antisocial behaviour as there is no evidence it fully exhausted the complaint procedure.
38. In accordance with paragraph 52 of the Scheme, the landlord was responsible for service failure in respect of its handling of the damp and mould.
39. There was no maladministration by the landlord in the way it handled the complaint.

Orders

40. The landlord must, within 28 days of the date of this determination:
    1. Pay the resident £300 compensation for the distress, inconvenience and worry caused by the delay in completing the works in the property following its damp and mould inspection. This is in addition to the compensation offered by the landlord.
    2. Arrange a follow-up inspection of the property to confirm the works to the bathroom ceiling and loft space have been completed. If they have not, the landlord must use its best endeavours to complete this work within 28 days of the date of this determination.
    3. Write to the resident and explain when the stock survey and energy efficiency rating are likely to be reconsidered.