Birmingham City Council (202219556)

REPORT

COMPLAINT 202219556

Birmingham City Council

31 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 handling of:
1. Pests specifically cockroaches, woodlice and psocid mites.
2. Damp and mould in her home.
3. The formal complaint.

Background

The resident lives in a low rise one bedroom ground floor flat with her daughter. The resident has a secure tenancy that started on 22 February 2016. The resident’s daughter has a respiratory condition. The resident has experienced anxiety.
The resident said she reported the presence of damp and mould in her property since 2016. The landlord accepts the resident has raised complaints about its handling of damp and mould since December 2019.
Between 9 December 2021 to 21 November 2022 the resident reported damp and mould five times. She wanted the landlord to either investigate the cause of this or move her. Between 25 January 2022 to 3 February 2023 the landlord made four appointments to visit the resident’s property.
The resident complained to the landlord on 26 May 2022 that the landlord was not dealing with the cause of the damp and mould effectively. She reported that the landlord was just painting over the mould rather than investigating the root cause.
The landlord provided a stage 1 response on 28 June 2022 and said:
1. it could not find the cause of the damp and mould as the resident refused work on 1 March 2022
2. it agreed to inspect the resident’s property on 24 June 2022 to establish the best way to treat the damp and mould, but it could not access the property
3. the resident needed to contact its repairs centre to raise a new inspection.
The resident escalated her complaint on 28 December 2022 and complained that the landlord did not attend in November or December 2022, as it promised to. She also expressed dissatisfaction that the contractors that attended in the past had just offered to paint over the mould.
On 3 February 2023 the landlord sent a plasterer who concluded that the cause of the damp and mould was condensation related. The resident complained on 3 February 2023 that the contractor was not qualified to decide on the cause of the damp and mould.
On 24 April 2023 it provided the resident with a stage 1 response. It told the resident that an operative who attended on 3 February 2022 completed the necessary works.
On 5 May 2023 the landlord provided a further stage 1 response and told the resident that the plasterer it sent was specifically trained in damp and mould issues and was competent to find areas of concern.
On 4 August 2023 the landlord visited the resident’s property and completed a housing conditions inspection report. This report found mould spores in the hallway, living room, kitchen, bathroom, and bedroom. The report recommended:
1. the painting of mould spores above the internal front door in the hallway and the backwall and near the window of the kitchen
2. the mould spores in the bathroom and bedroom needed to be addressed
3. the hole in the plasterboard to the lounge and kitchen party wall be boarded and plastered
4. the replacement of the small opener on the double-glazing unit in the kitchen
5. the renewal of the plastic internal airbrick in the bathroom.
On 8 August 2023, it also recommended the installation of a positive input ventilation system to improve the airflow. The landlord completed these jobs by 6 October 2023.
The resident contacted the Ombudsman for assistance as she had not received a final response. The Ombudsman contacted the landlord on 27 July 2023 and 18 August 2023 to request the landlord provide a complaint response.
On 8 September 2023 the landlord provided its stage 2 response and said:
1. it received the resident’s complaint on 28 December 2022 and provided its stage 1 response on 5 May 2023
2. it apologised for the delay in responding at stage 1 and for the impact this had on the resident, particularly living with damp and mould
3. it apologised for the miscommunication when its operative attended on 3 February 2023 which led the resident to understand that he was not capable of determining and resolving the damp and mould
4. its contractor employed skilled operatives trained to locate, diagnose, and treat damp and mould
5. it noticed on 3 February 2023 that there was mould growth around the walls and windows
6. it also noted that cold air was being blocked from entering the property which was likely to cause condensation and mould growth
7. the contractor could not refer to its damp specialist as the resident would not allow photographs to be taken
8. it attended on 4 August 2023 to inspect for mould and raised a number of repairs and it agreed to do these on 26 September 2023
9. it agreed to board and skim the hole in the party wall to the kitchen and lounge and renew the plastic vent to the bathroom on 15 September 2023
10. it agreed to reglaze three misted windows in the kitchen on 22 September 2023
11. it agreed to install a positive input ventilation system but could not access the property on 4 September 2023 and so it arranged for a sub-contractor to do this
12. the inspection did not reveal any defects that caused leaks
13. it believed that the restriction of airflow in the property had led to condensation and mould growth
14. it issued a response to the resident’s complaint on 3 February 2023 on 24 April 2023 at stage 1 in error when it should have provided a response at stage 2
15. its policy was not to rehouse residents where there was damp or mould
16. it offered the resident £100 for distress and inconvenience.
The resident referred her complaint to the Ombudsman. She complained that:
1. she was still waiting for the positive input ventilation to be installed
2. her daughter experienced daily coughing, wheezing and a swollen face
3. her sleep had been affected by anxiety
4. there were damp patches of water beneath her furniture
5. she had pests and in particular cockroaches, woodlice and psocid mites
6. the damp and mould had damaged her clothes, food, carpets, and curtains.
The landlord fitted the positive input ventilation on 14 June 2024.

Assessment and findings

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. Paragraph 42(a) of the Scheme states:

“42. 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.”

The resident complained to the Ombudsman about pests at her property, specifically cockroaches, woodlice and psocid mites. There is no evidence that the resident raised these issues as a formal complaint or that the landlord dealt with them as part of the complaint procedure. This aspect of the resident’s complaint has not been investigated by the Ombudsman.

The scope of the Ombudsman’s investigation

The resident has complained about damp and mould at the property since 2016. This investigation will consider the landlord’s handling of damp and mould following the resident’s most recent reports in the 12 months leading up to the complaint on 28 December 2022. This is because this was the complaint that the landlord responded to through its complaint process. The Ombudsman is of the opinion that the lapse in time and available documentary evidence means that it would not be possible to conduct a fair investigation going back to 2016.

The Ombudsman’s spotlight report, the landlord’s repair policy and the legal context

The Ombudsman’s spotlight report on damp and mould which the service published in October 2021 recommends that landlords should:
1. adopt a zero- tolerance approach to damp and mould
2. ensure that their responses to reports of damp and mould are timely and reflect the urgency of the issue
3. review the number of missed appointments in relation to damp and mould and consider what steps may be required to reduce them
4. identify when an independent, mutually agreed, and suitably qualified surveyor should be used and share the outcomes of all surveys with residents
5. evaluate what mitigations they can put in place to support residents
6. ensure they avoid automatically apportioning blame or using language that leaves residents feeling blamed.
The landlord’s repair policy states that the landlord should complete routine repairs within 30 days of residents reporting them. This is unless the repair is larger and requires special materials and arrangements in which case the landlord will give the resident a revised timescale.
The landlord was under an obligation to ensure the resident’s tenancy was fit for human habitation. This includes a requirement that it be free from damp and mould both under the Landlord and Tenant Act 1985 and the Housing Health and Safety Rating System.

The landlord’s response to damp and mould

The landlord’s repair log notes that the resident reported damp and mould throughout the property on 9 December 2021. The record of the report states that the resident had been dealing with mould for a long time and that other properties in the block were affected. The target date for an inspection was 25 January 2022.
The landlord raised a job on this date to attend the resident’s property. It left a voicemail for the resident informing her of an appointment it made for 25 January 2022. The landlord’s repair notes state that the appointment did not go ahead because the landlord could not access the property. The landlord cannot be held responsible for this.
On 27 January 2022 the landlord raised another job to attend to the resident’s property and left a voice message on the resident’s telephone informing her of an appointment for 1 March 2022. While the evidence is that this appointment went ahead, it is unclear what the landlord found or what work it completed. There is no evidence to show whether the landlord’s inspection and consideration of the reports (about damp and mould) in her home and the homes of others was considered in this inspection. The landlord has produced no evidence of the nature and extent of the inspection or diagnostics or the cause or severity of the mould in the property. This was inappropriate as it did not comply with the Ombudsman’s expectations in the damp and mould report. The landlord also did not consider its duty to consider hazards in the government’s guidance for landlords on the Housing Health and Safety Rating System. The landlord has been unable to demonstrate, therefore, that it satisfied itself that the property (and other properties) was safe and fit for human habitation.
When the resident told the landlord on 26 May 2022 that every room in her property had mould on the walls and ceilings the landlord arranged an inspection for 24 June 2022. This was to see if a damp and mould inspection was needed. The landlord’s evidence is that it was unable to complete this inspection as the resident did not answer her door or phone. The Ombudsman considers the landlord should have offered an urgent assessment. Nevertheless, it cannot be held responsible where it cannot gain access to a property.
When the resident reported that the damp was getting worse in all rooms on 26 May 2022 and on 21 November 2022, the landlord missed two opportunities to raise an urgent inspection. The landlord’s tenancy arrears team told it on 17 January 2023 that the resident’s daughter had suffered an allergic reaction to the damp and mould. Despite this disclosure there is no evidence that the landlord took action to satisfy itself that the property was free from hazards and fit for human habitation as it ought to have done. This was unreasonable given the potential health risks damp and mould created and the landlord’s duty to provide a habitable property that was free from mould.
The landlord eventually arranged an inspection on 3 February 2023. The time it took for the landlord to arrange this was unreasonable as this did not reflect the urgency of the situation.
The inspection was conducted by a plasterer who noted that there was damp and mould on the external walls and around the windows. The contractor noted that the mould was caused by a “condensation issue” and he was prevented by the resident from taking photographs. Condensation related damp and mould occurs where moisture rests on surfaces in colder parts of the home which creates damp and mould.
The wording of the contractor’s assessment looked to shift the responsibility for the mould onto the resident which was inappropriate. This was not in line with the Ombudsman’s spotlight report on damp and mould which requires landlords to avoid blaming residents.
There are several steps a landlord can take to help deal with condensation related damp and mould and these include:
1. dealing with any structural defects found
2. repairing any leaks that may have created moisture
3. improving ventilation
4. improving energy efficiency
5. working with residents to encourage good practice to improve ventilation or heating.
The resident disputed that the plasterer who attended was qualified to conduct a survey and that she refused to allow the plasterer to take photographs. The Ombudsman considers the landlord should have considered an expert’s opinion in diagnosing the damp and mould in the property. It was inappropriate to rely on the opinion of a plasterer. This is because surveyors will usually be trained to differentiate rising damp from condensation-related damp. It is understandable that the resident was concerned about the landlord’s actions.
It was also unreasonable of the landlord to place the blame on the resident. This is because landlords are legally responsible for identifying the cause of damp and mould and treating it, irrespective of its cause.
The landlord told the resident that it would call her on 7 February 2023 to discuss a plan of action and update her. The Ombudsman has not seen evidence that the landlord took any other action until 4 August 2023 when it inspected the resident’s property. This was an unreasonable length of time for the landlord to take to inspect given the ongoing nature and severity of the mould.
The landlord’s report of 7 August 2023 that followed the inspection found mould growth in the resident’s hallway, living room, kitchen, bathroom, and bedroom. The evidence is that the landlord raised several jobs on 7 August 2023 and:
1. replastered the ceiling, wall and boarded and skimmed the opening in the wall between the living room and kitchen wall on 15 September 2023
2. replaced the bathroom air vent on 15 September 2022
3. painted the hallway, living room, kitchen, bathroom, and bedroom with anti-mould paint on 25 September 2022
4. reglazed three windows on 6 October 2023 after the resident was unavailable for the appointment on 22 September 2023
These jobs ought to have been identified and completed much sooner following the resident’s report in December 2022. The landlord should have inspected the property earlier to consider these factors, this is especially given the reported severity and risks to the resident’s daughter. This is a significant failure, which is likely to have caused distress, inconvenience and worry to the resident, but also her enjoyment of her home.
Following this inspection the landlord also agreed to fit a positive input ventilation system which it had rescheduled for 4 September 2023, but this did not occur until 14 June 2024. This was an unreasonable delay in arranging this which the landlord has not accounted for.
The landlord should have inspected the property earlier to consider these factors, this is especially given the reported severity and risks to the resident’s daughter. The landlord’s failure to do this means that the Ombudsman cannot be satisfied that its approach was effective or reasonable.

Summary

The landlord had failed to show that it took timely, effective and reasonable action to reduce the risk of damp and mould. The landlord failed:
1. to urgently inspect the resident’s property for mould after disclosures of mould on 9 December 2021, 27 January 2022, 26 May 2022, and 21 November 2022
2. attend appointments on 25 January 2022 and 24 June 2022
3. to demonstrate it acted reasonably following the inspection on 1 March 2022, with no record of what was done
4. to send out another contractor to assess the mould after the disputed inspection of 3 February 2023
5. to show that it took reasonable action to mitigate the risk of mould including offering mould washes or a decant
6. to investigate the mould to the external walls and around the windows
7. to show it updated the resident on 7 February 2023 or took any action relating to the mould until 4 August 2023
8. to install a positive input ventilation system within a reasonable time.

The landlord’s complaint handling

The landlord had a 3 stage complaint policy. It aimed to deal with complaints at stage 1 straight away and immediately escalate complaints it could not resolve to stage 2. The landlord aimed to deal with complaints at stage 2 within 15 working days and those at stage 3 within 20 working days.
The evidence is that the landlord accepted the resident’s complaint on 26 May 2022 but did not respond until 28 June 2022 at stage 1. It took the landlord 21 working days to respond against a target of 15 working days.
The landlord told the resident on 8 September 2023 that it responded in error at stage 1 on 24 April 2023. It accepted that it should have escalated the complaint she made on 3 February 2023 rather than dealing with it at stage 1.
The evidence however shows that the landlord failed to escalate the resident’s complaint on 28 December 2022 and then again on 3 February 2023. Instead, it provided two stage 1 responses on 24 April 2023 and 5 May 2023. This led to a delay in the landlord providing a stage 2 response until 8 September 2023, this was 175 working days after the day it should have escalated the complaint (28 December 2022). The landlord provided this after the Ombudsman made contact.
When the landlord responded at stage 2 it offered the resident £100 for the distress and inconvenience caused. The Ombudsman considers that this was not reflective of the level of failure. The landlord also did not consider the damage the resident reported to her personal belongings. It would have been appropriate of the landlord to have signposted the resident to make an insurance claim.
The resident has experienced distress and inconvenience by the delay in the landlord taking reasonable steps to resolve the issues. The landlord noted that the delay likely affected the resident’s wellbeing but offered no redress. This was not reasonable. The Ombudsman expects landlords to put things right when landlords find failures. Instead, the landlord’s final complaint response blamed the resident for contributing to the damp and mould.
The landlord also did not consider whether it should offer accommodation in line with the landlord’s decant policy and procedure. This allowed the landlord to offer a decant where it is unsafe for residents to remain.
The landlord left the resident and her daughter to live with damp and mould for an unacceptable length of time. The repeated delays in the landlord escalating the complaint delayed the referral of the complaint to this service and caused the resident considerable distress and inconvenience.

Determination

In accordance with paragraph 42(a) of the Scheme, the Ombudsman has not investigated the resident’s complaint about pests.
In accordance with paragraph 52 of the Scheme, there was severe maladministration in the landlord’s handling of damp and mould.
In accordance with paragraph 52 of the Scheme, there was severe maladministration in the landlord’s complaint handling.

Orders

Within 28 days of the date of this determination the landlord must:
1. write to the resident to apologise for the failures identified in this report
2. conduct an inspection to assess the impact of the positive input ventilation on the damp and mould and to see if any further work is needed to deal with this, providing a copy of the report to the resident and the Ombudsman within 5 working days of receiving it. If this is not possible the landlord must explain why and agree an extension with the Ombudsman in advance
3. pay the resident directly the sum of £1,800 made up of:
  1. £1,500 for the distress and inconvenience caused by the landlord’s failure to investigate and deal with the reports of damp and mould over a prolonged period. The resident is likely to have been caused some considerable worry given the doctors note and the landlord ought to have done more.
  2. £300 for the distress and inconvenience caused by the failure to escalate the resident’s complaint
4. calculate reimbursement for the cost of using dehumidifiers since December 2021 on production of energy bills from the resident showing any increase in energy usage since the year before
The landlord should provide the Ombudsman with evidence of compliance with the above orders within 28 days of the date of this determination.
In accordance with paragraph 54(g) of the Scheme, the landlord must (within 56 days of the date of this determination) conduct a review of how the landlord responded to the damp and mould in this case. In doing so it must consider:
1. why there were delays in having a survey of the property to determine the effect and cause of the damp and mould
2. whether it has or should have a database of qualified damp specialists employed by it, to ensure the correct type of expert is sent to diagnose damp and mould
3. why there was a delay in installing the PIV
4. what it would do differently in this case.
The landlord must produce a report and share it with the resident and this service within 56 days of the date of this determination.