Manchester City Council (202303266)

REPORT

COMPLAINT 202303266

Manchester City Council

25 July 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 response to the resident’s:
1. Reports of damp and mould, and associated outstanding repairs;
2. Complaint.
This reports has also assessed the landlord’s record keeping.

Background and summary of events

The resident is a secure tenant of the landlord. The property is a 2 bedroom first floor flat in a semi-detached house. She lives with her children in the flat, which she has occupied since February 2010.
The landlord’s repair records show that, between January 2022 and April 2023, the resident reported several repairs, including leaks in her kitchen and bathroom. The landlord attended to the leaks on 20 July 2023 and 1 March 2023 respectively. Although there are no records to show that the resident had raised any concerns of damp and mould during this time, she told the Service that she had raised such concerns with the landlord in March 2023.
On 11 April 2023, the landlord carried out a damp and mould survey. It has not provided the Service with a copy of the inspection report. Soon after, the resident raised a complaint on 25 April 2023. We have not been provided with a copy of the complaint either. However, the resident informed this Service on 9 May 2023 that she had received a complaint reference number. The landlord sent its stage 1 response on 16 May 2023, which it said was in response to her concerns about recurring damp and mould in her property. It thanked her for her complaint, which it said it had received on 11 May 2023. It stated that:
1. Following its inspection on 11 April 2023, it had raised works to carry out damp and mould treatments in the bedrooms, kitchen, bathroom and toilet. In addition, it had arranged to install air vents in the external soffits.
2. It had scheduled the works for 13 July 2023.
3. Given that this was a recurring issue, it wanted to make arrangements to carry out another inspection at the end of October 2023 to ensure the remedial works had been effective.
4. It would appreciate if the resident contacted it “well in advance of this” so it could make the necessary access arrangements.
On 7 July 2023, the landlord received a letter from the Service, informing it that the resident had sought its assistance because she had not received a response to her complaint. In response to this, the landlord called the resident on 7 July 2023 to discuss her complaint about recurring damp and mould in her property. It then wrote to her to state that:
1. Further to her recent complaint of 11 May 2023, it was writing in response to her request for her complaint to be escalated to stage 2.
2. To assist it in its investigations, it wanted to instruct a third-party consultant to undertake a building condition survey of the property to identify any outstanding defects.
3. The inspection would establish if the property was fit for habitation, and identify any potential solutions that may prevent the return of damp and mould.
4. To allow sufficient time to complete the survey and review its findings, it would need an extension, which would result in a revised response date of 4 August 2023.
On 13 July 2023, the landlord completed the works, as advised in its stage 1 response. Following this, on 18 July 2023, it carried out an independent habitation condition survey. The report found that:
1. There was evidence of mould growth in the bathroom, toilet, kitchen and bedrooms.
2. The surveyor believed mould growth around the windows and doors was as a result of poor ventilation.
3. High moisture readings around the internal front entrance door confirmed the area was subject to damp ingress.
4. The humidity levels in the property were within acceptable tolerances with respect to the Housing Health and Safety Rating System.
5. The hazards present within the building presented a minor risk to the resident and the surveyor considered the property to be “habitable in its current condition”.

The survey report recommended a number of works, which included:

Replacement of existing loft insulation to a depth of 270mm;
Replacement of spalled brickwork to the external elevations and of any damaged brickwork around the front entrance;
Replacement of existing kitchen extractor fan for a dual speed version;
Encouraging the resident to use the trickle vents to allow for passive background ventilation;
Treating and cleaning down mould affected surfaces using a suitable fungicidal wash.
Replacement of sealants around all the windows and doors.

The landlord sent the resident its stage 2 response on 3 August 2023. This stated that:
1. It had received the building condition report from its consultant, a copy of which it had attached for her records.
2. The resident’s home had been assessed as presenting a “minor risk” and was considered to be in a habitable condition.
3. The surveyor’s report had identified a number of repairs the landlord needed to undertake.
4. In addition, it was proposing to arrange some works that did not fall within the landlord’s service standard.
5. It proposed to complete all of the identified works within 2 months of its stage 2 response.

Events following conclusion of the complaints process

The resident wrote to the landlord on 3 April 2024 to say that, as she had not heard from it regarding the works to her property, she was going to contact the Ombudsman. She stated that the mould and poor insulation was still a “big issue” in her flat and her children had been suffering with respiratory problems for months. The landlord responded on 5 April 2024 to say it was sorry the mould had returned and asked if it could visit her property to inspect it. The resident wrote back to it on 7 April 2024 and stated that:
1. She had contacted the landlord on 8 December 2023 and 31 March 2024 but had not received a reply.
2. The only works it had completed were those in the bathroom and toilet, but it had failed to undertake any of the other recommended repairs.
Following further correspondence between the landlord and resident, the landlord wrote to her on 13 June 2024. It stated that:
1. It was writing to update her regarding the proposed works as detailed in its letter of 3 August 2023.
2. Although it had completed the repairs to her bathroom and toilet, the works intended to prevent the recurrence of the damp and mould remained outstanding.
3. It acknowledged that it had failed to complete some of the works it had detailed in its stage 2 response, and apologised for the delay.
4. It had issued instructions for her property to be reinspected by an independent specialist to ensure the previously reported damp and mould had not returned.
5. It would ensure the outstanding works were completed “as a matter of priority” and its contactor would contact her within 5 working days with proposed appointment dates.
6. It wished to offer the resident £2,000 compensation for its failure to complete the proposed works within the agreed timescale.
On 14 June 2024, the resident informed the landlord that its contractor had contacted her with suggested dates on which it could complete the remaining works. The landlord responded on the same day to confirm that it had submitted the compensation payment and that the resident should receive it within 30 days.

Assessment and findings

Legal and policy framework

As per Section 11 of the Landlord and Tenant Act 1985, the tenancy agreement states that the landlord must keep the structure and exterior of the property, including drains, gutters and external pipes, in repair. It must also keep in repair and proper working order installations for supplying water, gas, electricity and sanitation. This includes basins, sinks, toilets and baths. The law says that a landlord should repair a housing defect ‘within a reasonable amount of time’. This is not specific but depends on the circumstances and levels of urgency.
The landlord also has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying. Section 9a of the Landlord and Tenant Act 1985 implies an obligation into the tenancy agreement that the landlord must ensure the property is ‘fit for human habitation‘ in relation to, by virtue of Section 10 of the same act, ventilation.
The landlord’s website stated that, when a resident reports a repair, it will offer them an appointment within:
1. 3 hours for an emergency reported during working hours or where the matter could be made seriously worse by waiting.
2. 24 hours for an emergency reported out of working hours.
3. 5 working days for repairs such as a broken window or gas fire.
4. 10 working for repairs such as a broken toilet part.
5. 4 weeks for attending to repairs such as broken roof slates or a blocked gutter.
6. 6 weeks for repairs such as fitting a new window frame.
The landlord’s complaints policy sets out its 2 stage complaints process. It will acknowledge both stage 1 and stage 2 complaints within 5 working days and will respond to stage 1 complaints within 10 working days, and stage 2 complaints within 20 working days. If a response within these timescales is not possible, the landlord should contact the resident to explain the reason for the delay and give a date when they can expect a final response.
The landlord’s compensation policy outlines 4 levels of discretionary compensation it will pay in recognition of poor service. Payments of between:
1. £25 to £75 are made for minor issues in areas such as failures in communication and failures in service delivery. Any such issues are likely to have a relatively small impact on residents;
2. £75 to £300 are made for failings that result in significant and/or ongoing impact on the resident;
3. £300 to £750 are made where there has been a significant and long-term impact on the resident, and:
4. Over £750 where the failure has had significant and long-term, physical or emotional impact and where there was aggravating factors that the landlord or its contractor has failed to act on appropriately.

Scope of investigation

The resident has raised concerns that her children’s health had been detrimentally affected by the damp and mould in her property. The Ombudsman does not doubt the resident’s comments regarding their health. However this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurer (if it has one) as a personal injury claim. We have, however, considered any distress and inconvenience caused to the resident as a result of any failings by the landlord.
The resident told the Service that her property had been impacted by recurring damp and mould since she moved into it in 2010. We do not seek to dispute this. However, the Ombudsman encourages residents to raise complaints with their landlords at the time the events happened. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Taking this into account and the availability and reliability of evidence, this assessment has focussed on the period from March 2023 onwards. This is where records indicate the beginning of events leading up to the resident’s complaint. Reference to events that occurred prior to that date is made for the purpose of providing context.

Reports of damp and mould, and associated outstanding repairs

The Ombudsman wishes to acknowledge that the resident and her family have experienced distress and inconvenience over a lengthy period of time, while living in a property with a recurring damp and mould problem. We recognise how upsetting and uncomfortable it must have been for the resident to live in a house with multiple outstanding repairs, particularly while looking after young children. When investigating the resident’s complaints, the Ombudsman’s role is to consider whether the landlord has taken reasonable and appropriate steps to respond to the resident’s reports. This report will focus on whether the landlord acted in line with its policies and procedures, and if it took proportionate action and followed good practice.
This Service’s spotlight report on complaints about damp and mould, published in October 2021, confirms that damp and mould should be a high priority for landlords. It states that landlords should take a zero-tolerance approach; be proactive in identifying potential problems and clearly communicate to residents about actions. Where inspections result in recommended works to tackle condensation, damp or mould, landlords should ensure they act on the recommendations in a timely manner. Any deviations from the recommendations should be clearly documented and explained to the resident.
The spotlight report also recommends that landlords need to ensure they can identify complex cases at an early stage, and have a strategy for keeping residents informed and for effective resolution of the issue. Landlords should identify where an independent, mutually agreed and suitably qualified surveyor should be used, share the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps. Landlords should then act on accepted survey recommendations in a timely manner.
It is unclear on precisely what date the resident raised concerns about damp and mould in her property. However, she told the Service she had reported the issue to the landlord in March 2022. The landlord did not provide a record of the resident’s initial report but the evidence shows that it responded by carrying out a damp and mould inspection on 11 April 2022. The evidence shows that the landlord did not unreasonably delay inspecting the property and that therefore it had at this point responded appropriately to the residents report.
As the landlord has not provided a copy of the inspection report, its findings are unclear. However, its stage 2 response outlines the recommendations from the inspections, which included mould treatments to the bedrooms, kitchen, bathroom and toilet, along with air vents to the soffits. Although the landlord confirmed the date on which it would carry out those works in its response, it is unclear why it could not have arranged the repairs for an earlier date. Its repair timescales for non-urgent responsive repairs range from between 5 working days and 6 weeks. The date the landlord provided was 13 July 2023, which was around 3 months after the date of the inspection. This was excessively outside of the landlord’s own repair timeframes, and therefore a departure from its policy.
It is accepted that contractors might not be able to attend appointments due to capacity issues or periods where they are busy and their services are therefore stretched. However, landlords should ensure they are appropriately resourced and that service agreements with contractors enable it to complete repairs in line with their policies. Furthermore, given most of the rooms in the house were affected by damp and mould, and the household included young children, the landlord should reasonably have either made efforts to prioritise the works or explained to the resident why it could not provide her with an earlier date. That the landlord could not demonstrate that it made reasonable efforts to ensure the works were completed within its timescales, or that it had communicated effectively with the resident was a failing.
As stated above, the landlord could not give any indication why it took so long for it to carry out the repairs. However, it was appropriate that it had fulfilled its commitment to complete them on the date it had advised it would in its stage 1 response. It was also appropriate that, when the resident continued to raise concerns about ongoing damp and mould in her property, the landlord commissioned an independent, third party damp and mould survey. It is noted that the survey took place 11 days after the landlord advised the resident of its intention to arrange one. This shows the landlord was taking the matter seriously, and demonstrates a customer-focussed approach and a willingness to try and resolve the problem.
The survey found evidence of mould in the property, which it identified was caused by poor ventilation. It concluded that humidity levels were within acceptable levels and that the property presented “a minor risk” to the resident. It was reasonable for the landlord to rely on the findings and recommendations by a suitably qualified professional.
The report suggested that poor ventilation and condensation contributed to the build up of mould. However, there is no indication that, in response to this, the landlord took any steps to offer advice to the resident on how to minimise or mitigate the build-up of condensation. In the circumstances, it would have been reasonable for it to have carried out a visit to explain ways the resident could tackle the problem. It could have also provided a leaflet or signposted her to relevant information on its website. This would have demonstrated that it was doing everything it could to help the resident address the recurring damp and mould in her property. That the landlord did not take such action was therefore a failing in its handling of the matter.
The independent survey recommended a number of works that the landlord told the resident in its stage 2 response it would complete within 2 months. The evidence shows that, despite making this commitment on 3 August 2023, it had still not completed many of those works by June 2024, some 11 months later. During this period, there is no indication the landlord made any effort to provide the resident with regular updates, provide estimated completion dates or to keep her informed at any point. The evidence shows the resident was consistently left to contact the landlord herself for up-to-date information, sometimes without getting a response. This suggests she made significant efforts to progress the outstanding repairs, which should not have been necessary given the landlord’s obligations and the undertaking it had given to complete the works by the beginning of October 2023. The landlord’s poor communication and failure to provide regular updates would have added to the resident’s uncertainty over whether the remaining works would be completed.
The Ombudsman’s Dispute Resolution Principles are, be fair, put things right, learn from outcomes. The Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified. In recognition of the excessive delay in completing the repairs that the independent surveyor had recommended, the landlord offered the resident £2,000, which it is understood it may have already paid. The Ombudsman considers this to be a reasonable redress to recognise the distress and inconvenience caused as a result of such a delay. It is also broadly in line with what the Ombudsman would order for a similar failing. However, as the landlord had made its offer after the resident had advised it that she would be approaching the Ombudsman, we cannot consider this to be reasonable redress. Although the Service will not order any additional redress for this particular failing, we have made a finding of maladministration. We have also made a series of orders aimed at ensuring that the landlord does not repeat the failings highlighted by this complaint.

Complaint

From the evidence, it is not possible to ascertain when the resident made her complaint. The resident told the Service she had raised her complaint on 25 April 2022 but that she was not given a reference number. The landlord stated in its stage 1 response that it had received her complaint on 11 May 2023. We would not seek to dispute what the resident had told us. However, without any corroborating evidence, and due to the landlord’s poor record keeping, it has not been possible to establish how long it took the landlord to respond to the complaint. Furthermore, it is unclear from the records whether the landlord had acknowledge the resident’s stage 1 complaint within 5 working days, or at all. For this reason the landlord has been unable to demonstrate it had acknowledged the resident’s complaint in line with its policy. That it had departed from its own policy and the Ombudsman’s Complaint Handling Code was a failure.
The landlord has not provided a copy of an escalation request. However, the records suggest it had escalated the complaint in response to correspondence it had received from the Ombudsman on 7 July 2023. The landlord stated that the resident had contacted the Service for assistance, having not received a response to her complaint about recurring damp and mould.
It was appropriate that the landlord acknowledged the escalation request on the same day it was contacted by the Ombudsman. It advised the resident at the outset that it would have to extend its timescale to allow for an independent survey to take place. The intentions of the landlord to keep the resident updated and manage her expectations by providing a response date that it felt was achievable were reasonable. However, a complaint response should not be delayed because repairs are ongoing or the landlord is trying to resolve the repair issue itself. The substantive issues and the landlord’s attempts to resolve these should be kept separate from the complaints process and should not prevent it from issuing a timely response. It is noted that the landlord sent its stage 2 response within the timescale it had advised in its acknowledgement letter. Although the landlord’s complaint handling at stage 2 was reasonable on the whole, that it could not evidence it had acknowledged the resident’s stage 1 complaint was a service failure.

Record keeping

The Ombudsman’s spotlight report on complaints about repairs, published in March 2019, states that “it is vital landlords keep clear, accurate and easily accessible records to provide an audit trail. The landlord and its contractors should keep comprehensive records of residents’ reports of outstanding repairs and their responses, including details of appointments, any pre- and post-inspections, surveyors’ reports, work carried out and completion date”’. In addition, the Ombudsman’s latest spotlight report on Knowledge and Information Management states that, “the failings to create and record information accurately results in landlords not taking appropriate and timely action, missing opportunities to identify that actions were wrong or inadequate, and contributing to inadequate communication and redress”.
The evidence that the landlord provided in response to our initial request for information, is lacking in detail. Clear record keeping and management is a core function of a repairs service, as this assists the landlord in fulfilling its repair obligations. Accurate and complete records ensure the landlord has a good understanding of the progress of ongoing repairs at any given time to be able to provide updates to residents. Records also enable outstanding repairs and complaints to be monitored and provide an audit trail of actions, including any delays that were outside of its control. Effective record keeping means landlords are also able to carry out effective investigations when things go wrong.
Apart from the report of the independent survey, the landlord has not provided copies of any inspection reports. Furthermore, its repairs logs are confusing and do not always make clear whether certain repairs had been completed, and on which days. As a result, they do not appear accurate or reliable. Contemporaneous records of telephone calls and written correspondence between the landlord and resident were also very limited, as was complaint related correspondence. In addition, the landlord provided no records of correspondence between the landlord and its contractor during the period when the resident was waiting for recommended repairs from the independent survey to be completed. The poor record keeping is likely to have contributed to the landlord’s piecemeal repairs management and its failure in putting together a coherent plan to identify and complete all the repairs that were required, within the timescale it had committed to. It would have also contributed to the excessively protracted delays in carrying out many of the repairs. The Ombudsman has taken this into account when reaching the overall finding that there was maladministration in this case.
We encourage landlords to self-assess against the Ombudsman’s spotlight reports following publication. In May 2023, we published our spotlight report on Knowledge and Information Management. The evidence gathered during this investigation shows the landlord’s practice was not in line with that recommended in the spotlight report. We encourage the landlord to consider the findings and recommends of our spotlight report unless the landlord can provide evidence that it has self-assessed already.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s reports of damp and mould, and associated outstanding repairs.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s response to the resident’s complaint.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s record keeping.

Orders

Within 4 weeks of the date of this report the landlord must:
1. Apologise to the resident, in line with the Service’s Remedies Guidance.
2. Pay the resident compensation of £2,400, calculated as follows:
  1. If it has not done so already, pay the resident the £2,000 compensation it had offered in its letter of 13 June 2024;
  2. £200 in recognition of the distress and inconvenience caused by lack of any explanation for why it was unable to complete damp and mould treatments any sooner than 3 months later;
  3. £100 for the distress and inconvenience caused by the landlord’s failure to provide appropriate advice to the resident to help her tackle condensation in her home;
  4. £100 in recognition of its poor complaint handling.

It is the Ombudsman’s position that compensation awarded by the Service should be treated separately from any existing financial arrangements between the landlord and resident and should not be offset against arrears, where they exist.

Contact the resident and the Ombudsman within 4 weeks to provide a schedule for when it will carry out any outstanding works, and to continue to provide her with regular progress updates until completion.