Ashford Borough Council (202308502)

REPORT

COMPLAINT 202308502

Ashford Borough Council

27 August 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. Repairs to the windows.
2. Damp and mould in the property.
The Ombudsman has also investigated the landlord’s:
1. Record keeping.
2. Handling of the complaint and level of compensation offered.

Background

The resident is a secure tenant of the property which is a 2–bedroom house. The resident lives in the property with her 2 children and has reported that her youngest son has asthma.
The resident raised a formal complaint to the landlord on 15 December 2022. She said that the mould in her house was disgusting and had taken over many rooms. She said there was a damp issue which she believed was caused by the roof, broken gutters, and inadequate windows and doors. She said the windows and doors had been assessed 3 times and needed to be replaced, but no action had been taken by the landlord. The resident said the cause of the mould had not been investigated and had been simply covered by a sealant. The resident said her son had severe asthma which had been impacted by the issues. She said both herself and her other son had respiratory issues too. She asked for the issues to be raised as a matter of urgency for their health.
The landlord provided its stage 1 response on 9 January 2023. It acknowledged that the resident first reported damp and mould in the property in April 2021. It outlined the action it had taken in response to her reports and which it felt would be sufficient to prevent the damp and mould from returning. It said she reported a cracked bathroom window, defective window seals, and loose guttering, all which it had addressed. It said following an additional report of mould in June 2022 it had arranged to inspect the property again. It outlined the action it had taken since then which included fitting 2 vents and works to the guttering. The landlord said in November 2022, it requested a quote to renew all the windows and to install a positive pressure unit to help alleviate condensation. It apologised that the resident had cause to complain, it said it did not uphold the complaint.
The resident escalated her complaint on 10 January 2023. She acknowledged that some repairs had been addressed but said that was not the case for the windows, the root cause of the damp issues, and the broken guttering. She said simply painting over the mould was not a resolution to the ongoing problem. She said there was missing information and dates in its response from when she reported issues, when she chased the landlord, and when it missed appointments. She said she had submitted a subject access request because of that. The resident said her son’s asthma nurse had stated that the damp and mould had contributed to his decline in health. She said she reported the windows when she moved in and it was not acceptable that it had now been 2 years since then.
In its stage 2 response dated 11 May 2023, the landlord stated the following:
1. That it had responded to her subject access request and the information provided to her at the time was a complete record.
2. It said she first reported the cracked bathroom window, defective seals, and loose guttering in March 2022. It outlined the appointments which were booked to carry out the repairs. It said on 16 May 2022 its contractor advised that the windows were in a poor state of repair and while they could renew them, they would not be perfect. The contractor confirmed that the windows could not be fitted with trickle vents to aid ventilation and therefore, recommended a window replacement.
3. The windows were inspected on 22 June 2022 and a request was then made for a second opinion. It said the contractor attended the property on 11 August 2022. The landlord said it chased the report from the contractor and it was received on 17 September 2022. The report confirmed that every window needed to be replaced, along with the front and back door. It said a further visit was made to measure for replacement glass.
4. The resident was informed that the replacement windows and doors would be dealt with via a planned maintenance programme and this would take place on 18 November 2022. It said in view of that, it raised repairs to replace the hinges and seals to the windows to ensure they were draught proof. It said orders were raised for blocked air vents in the bedroom walls and for the mould to be washed down.
5. The landlord said its contractor raised an order for the works on 25 November 2022 and they tried to attend the property on 16 December 2022 but could not gain access. It said its contractor attended on 10 January 2023 and provided a quote on 19 January 2023. It noted the resident wanted french doors in the living room and due to the delays, it was agreed as a discretionary improvement.
6. It said it believed all works were completed, apart from recent concerns regarding the guttering and mould for which it had arranged appointments. It noted some workmanship issues which had been raised and that it would look to address them.
7. It said the resident had had an unacceptably long wait, suffered from poor workmanship and delays in responses to her complaint, and it apologised for that. It identified areas for improvement, which included its record keeping. The landlord offered £800 in compensation.
The resident remained dissatisfied with the landlord’s response and brought her complaint to the Ombudsman. She said she had had to chase the landlord constantly and it was slow to fix the issues. She said she submitted a subject access request to enable her to evidence how much she chased them but she was provided with inaccurate information. She said it had been extremely stressful and worrying as the household’s health had been affected. The resident felt the compensation amount should be increased as it was not sufficient for the time taken and the stress caused. She said she would also like the landlord to learn from its mistakes and take resident’s reports seriously.

Assessment and findings

Scope of the investigation

The resident has alleged that the information provided in her subject access request from the landlord was inaccurate. Paragraph 42.j of the Scheme states that the Ombudsman will not investigate matters which, “in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.” The Information Commissioner’s Office (ICO) was set up to deal with concerns about data handling by organisations, it is therefore in a position to assess the regulatory aspects of both the resident’s complaint, and the landlord’s actions. As a result, this aspect of the resident’s complaint falls outside of the Ombudsman’s jurisdiction to consider. Consideration has, however, been given to the landlord’s record keeping.
The resident has referred to the household’s health and how the landlord’s handling of the repairs could have had an impact on this. It is beyond the remit of the Ombudsman to determine whether there would have been a direct link between the actions or lack of action by the landlord and any subsequent impact on the resident’s health. Although we cannot assess the impact of the landlord’s actions on the resident’s health, consideration has been given to any distress and inconvenience which the resident may have experienced as a result of the situation.
The resident has stated that she had been reporting the issues since December 2020. Paragraph 42.c of the Housing Ombudsman Scheme states that we may not consider complaints that were not brought to the landlord’s attention as a formal complaint within a reasonable period of normally 12 months of the matter arising. As the resident made a formal complaint on 15 December 2022, the investigation will not consider the events prior to 15 December 2021 as they did not occur within 12 months of the complaint.

The landlord’s handling of the repairs to the windows

The landlord’s repairs policy categorises replacing windows and doors as planned maintenance and states that a timeframe will be agreed in advance.
The housing health and safety rating system (HHSRS) guidance refers to a landlord’s obligations and the risks posed to the safety of the property from windows regarding inadequate locks and falls from outside of a dwelling.
In this case, it is not disputed that the windows required replacement and there were unreasonable delays in the landlord carrying out the works. The resident reported concerns about the windows on 11 February 2022. The landlord acted appropriately by raising an order to inspect the property, however, the records do not show the inspection taking place until 11 March 2022. It is the Ombudsman’s opinion that the landlord should have attended sooner, given the resident’s concerns.
The landlord determined in September 2022 that all the windows would be replaced in the property. This decision was based on its staff and contractor’s inspections which it said took place on 16 May 2022, 22 June 2022, and 11 August 2022. While it was reasonable for the landlord to rely on their expertise and experience, it is unclear why all the inspections were required. On each inspection, there was no evidence to suggest that the condition of the windows was disputed. It is of concern that the landlord took 7 months to confirm that all of the windows required replacement. The repeated inspections and lack of communication delayed the progression of the works, which is a failing.
The landlord stated that the windows would be replaced on 18 November 2022. It said it raised an order on 28 September 2022 for its contractors to replace the hinges and seals on the windows in the meantime, to ensure they were draught proof. It was reasonable for the landlord to have considered temporary solutions to address any issues with draughts until the replacement could go ahead. Unfortunately, it is unclear from the records if and when the interim works were carried out in the property.
The window replacement did not go ahead on 18 November 2022. In its stage 2 response, the landlord stated that its contractor raised works on 25 November 2022. It is unclear which works the landlord was referring to, whether this was the window replacement or the interim works. However, the delay in raising the works since the landlord’s confirmation that it had done so, was not appropriate. The landlord did not offer an explanation for why the window replacement did not go ahead in November 2022. It would have been reasonable for it to do so to manage the resident’s expectations.
In her email dated 11 February 2022, the resident raised concerns regarding the safety of one of the windows having to be open constantly. She said this was due to not having a trickle vent or “small top windows”, and that it was a danger to her 3 year old son. While there was no legal requirement for the landlord to fit window restrictors, the landlord should have risk assessed the windows in line with the HHSRS to determine if it had a responsibility to take any further action. There is no evidence that the landlord considered this when raising the repairs to the windows. In the absence of this, the Ombudsman assumes that the potential risks associated with the windows remained unaddressed until the windows were replaced over a year later. This was not appropriate.
As evidenced above, the landlord’s handling of the windows appeared to be disorganised and confusing. It failed to communicate effectively with both the resident and its contractors which led to repeat visits and unnecessary delays. The landlord’s record keeping is a further concern, an example of this was when the landlord referred to chasing its contractor for over a month following a visit on 11 August 2022. However, the records provided show an update provided from the contractor the day after the visit. It did not appear that the landlord had sight of that update and therefore, there were further unnecessary delays in it chasing them. The record keeping will be addressed later in this report.
Where there are acknowledged failings and remedies are awarded for these by a landlord, the role of this Service is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in all the circumstances of the case. The determination takes into account whether its offer of redress was in line with our dispute resolution principles to be fair, put things right, and learn from outcomes.
In this case, the landlord acknowledged that there were delays in its handling of the resident’s reports and her complaint. In view of this, it apologised and offered her £800 compensation. This was in line with the landlord’s compensation policy and the Ombudsman’s remedies guidance for cases of maladministration. In addition, the landlord showed learning by identifying improvements it could make regarding its record keeping, complaint handling, and repairs team. These steps were reasonable in the circumstances.
While the landlord took steps to put things right with the resident, it did not identify or put right its failure regarding the safety of the windows. As such it could not evidence how it would do anything differently in the future. The Ombudsman has therefore found service failure in the landlord’s handling of the repairs to the windows. A recommendation will be made with the aim of ensuring the landlord reviews its practices to prevent similar failures in future.

The landlord’s handling of damp and mould in the property

Damp and mould are potential health hazards to either be avoided or minimised in line with the HHSRS. Landlords should be aware of their obligations under the HHSRS and are expected to carry out additional monitoring of a property where potential hazards are identified.
In its stage 2 response, the landlord suggested that the first report of mould made by the resident since April 2021 was in June 2022. The landlord’s response was incorrect as the resident reported having black mould in the property on 22 February 2022. She explained the actions she had taken to attempt to remedy the issue and that she was still experiencing mould in the property. While the landlord attended the property to inspect the windows and guttering, there is no evidence of it inspecting the mould, which is a failing.
Following additional reports from the resident, the landlord carried out a damp and mould inspection on 9 June 2022. The notes stated that it had previously been identified that additional insulation was needed in the property, which was raised but then it was advised that it was “not within the scope of others to do.” It said the loft space needed to be checked for the cause of mould and to top up areas of insulation where needed.
The landlord’s stage 2 response stated that in a roofing inspection the previous year, it identified that a top up of insulation would be sufficient to prevent the damp and mould returning. It said the works were carried out shortly after. There are no records of the work being carried out and the response conflicts with the repair notes from June 2022, which suggested that it never was. It was not appropriate for the landlord to state that it had carried out the work, when there was no evidence that it had done. This caused unnecessary delays in addressing the damp and mould in the property. It is a further failing that the loft was not inspected until 25 November 2022, 5 months later.
In both her formal complaint and her stage 2 escalation, the resident informed the landlord of her concerns regarding her son’s health. She believed that the damp and mould had contributed to his decline in health. As well as inspecting the property, the landlord had a responsibility in line with the HHSRS to assess the risks to the household. By carrying out a risk assessment, the landlord would have evidenced that it had considered whether the property was of a decent standard for the family, and it is not appropriate that this was not done. While the stage 2 response outlined some of the action it had taken, it did not consider the likely distress and inconvenience caused to the resident as a result of its handling of the issue.
The landlord’s notes stated that much of the condensation was caused by the lack of trickle vents on the windows. The landlord should have considered what other action and interim measures it could take to address the damp and mould while waiting for the window replacement. The landlord reported that it had installed air vents, carried out mould washes, and arranged for a positive pressure unit in the resident’s property. While these were reasonable actions to take in relation to the concerns raised, it is again unclear how and when the decisions were made. This makes it difficult for the Ombudsman to determine whether the landlord acted appropriately in all the circumstances.
Overall, the landlord’s planning and oversight in relation to resolving the damp and mould was poor. Its approach was reactive, rather than proactive, and this led to avoidable delays in its handling of the matter. The issue is now resolved in the property. However, the failures identified likely caused an adverse impact for the resident who was understandably concerned about her family’s health. The stage 2 response was an opportunity for the landlord to reclaim oversight of the issue and put right any failures, and it did not do so.
The Ombudsman has found maladministration in the landlord’s handling of the damp and mould in the property.

The landlord’s record keeping

Evidence of poor communication and record keeping has been a feature seen throughout this investigation. The resident has stated that she chased the landlord on many occasions, and while the Ombudsman does not doubt this, the landlord has provided little evidence to corroborate the communication that took place. The Ombudsman would expect the landlord to keep a clear record of its contact history with the resident and this information should be centrally accessible.
The records provided were confusing. The status of recommended works was unclear and it was difficult to understand when repairs had been completed. Despite the number of inspections, the Ombudsman has not had sight of any inspection reports and the findings are just briefly referenced in notes on the repairs. These did not provide the level of detail expected when dealing with repeat problems which carry potential health risks. For example, the Ombudsman would expect to see the areas inspected, full technical findings, photographs taken, and any tests carried out, such as moisture readings.
While it was positive that the landlord identified that it could improve its record keeping and particularly storage of information from its contractors, it is not clear whether any further action was taken. An order will be made for the landlord to confirm what action it has taken to improve its record keeping. If no action has been taken, it must outline what action it will take, and when it will do it. The Ombudsman has found maladministration in the landlord’s record keeping.

The landlord’s handling of the complaint and level of compensation offered

The landlord took 14 working days to provide its stage 1 response and 84 working days to provide its stage 2 response. The delays were not acceptable nor in line with its complaints policy or the Ombudsman’s Complaint Handling Code. The landlord did, however, apologise for the delays, and award compensation. It also showed learning by stating that it had implemented a regular complaints review meeting with its contractor and closer monitoring of outstanding works. It said these changes should assist it in monitoring cases and picking up delays more quickly. The Ombudsman finds that the landlord’s response to the delays was reasonable.
The overall compensation offer was £800. The landlord said the compensation was in view of the lengthy delays experienced and the quality of the work completed. It would have been helpful for the landlord to have broken down the compensation to specify what had been awarded for each respective failing. However, the Ombudsman finds the amount to be proportionate to the delays experienced in this case, both with the repairs, and the complaint responses.
It has already been considered that the stage 2 response did not sufficiently consider or acknowledge the likely distress and inconvenience caused to the resident as a result of its handling of the issues. Therefore, the Ombudsman has ordered a further £400 to be paid to account for the additional failing. This is in line with the Ombudsman’s remedies guidance for cases where the landlord has acknowledged failings and made some attempt to put things right but failed to address the detriment to the resident.
Overall, the Ombudsman has found service failure in the landlord’s handling of the complaint and level of compensation offered.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Service failure in the landlord’s handling of the repairs to the windows.
2. Maladministration in the landlord’s handling of damp and mould in the property.
3. Maladministration in the landlord’s record keeping.
4. Service failure in the landlord’s handling of the complaint and level of compensation offered.

Orders and recommendations

Orders

The landlord must pay a total of £1,200 to the resident. This includes the £800 it previously offered.
The landlord must provide an update regarding any action it has taken to improve its record keeping. If no action has been taken, it must provide an action plan outlining what improvements it intends to make and provide an estimated timeframe for when it will do so.
The landlord must provide evidence of its compliance with the orders within 4 weeks from the date of this report.

Recommendations

The landlord should review its internal guidance around window safety. It should consider whether its guidance is in line with the HHSRS and building regulations.
The landlord should review its strategy for handling damp and mould and whether any changes are required based on the findings of this report. It should consider its response times to reports and the assessments which are required on each inspection. The Ombudsman’s spotlight report on damp and mould outlines best practice and further guidance for landlords.