Clarion Housing Association Limited (202301794)

REPORT

COMPLAINT 202301794

Clarion Housing Association Limited

27 June 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. The resident’s reports of a roof leak and associated damp and mould.
2. The associated complaints.

Background

The property is a 2-bedroom flat on the second floor of a purpose–built block. The resident was granted a 6-year assured shorthold tenancy which began on 9 November 2018.
The landlord has advised this Service that it had no vulnerabilities listed for the resident.

Summary of events

The landlord raised an order on 3 November 2022 to attend to a roof leak that was affecting the communal stairwell area. An operative attended on the same day and identified that a roofing contractor was required.
The resident phoned the landlord on 14 November 2022 to report a leak and mould in the communal hallway. She mentioned that there had been issues over the past 7 months but the situation had become considerably worse as there was water damage on the floor and mould on the ceiling.
On 20 November 2022, the resident submitted an online repair request on the landlord’s website. The resident stated that she had already reported the leak affecting the communal area and the leak was now affecting her property. She added that there were water marks on the bedroom ceiling and it was damp.
The landlord wrote to the resident on 25 November 2022 and advised her that it had arranged an appointment for its contractor to attend on 2 December 2022 to address the leak.
The landlord delivered a dehumidifier to the property on 9 December 2022 and carried out a mould wash to the communal area on the same day. The landlord’s records stated that the resident advised the landlord while on site that there was no mould present in her bedroom, just a damp patch “the size of a fist”. The landlord advised the resident to run the dehumidifier in the bedroom for the duration of the leak.
On 9 January 2023, the resident phoned the landlord to make a complaint about the reported roof leak affecting her property and the communal stairwell. She stated the following:
1. The contractor had carried out a mould wash to the communal stairwell and had inspected the resident’s property. The resident said the contractor had advised her that there was no mould present in her property as the walls were still wet. However, the mould would grow once the walls were dry.
2. The resident confirmed that the landlord had provided her with a dehumidifier.
3. The resident stated that she and her daughter had been prescribed inhalers due to respiratory issues.
The landlord’s records state that the landlord had arranged for a surveyor to inspect the roof on 10 January 2023 and take photos so that the landlord could contact the original developer and the National House–Building Council (NHBC) as the roof was still under warranty.
The resident phoned the landlord on 18 January 2023 to request an update regarding her complaint. The landlord informed her that it would chase the developer as soon as it had received information from its surveyors about the defects. It added that the leak needed to be resolved before the mould treatment could be carried out. The resident advised the landlord that she was concerned about her daughter’s health. The landlord replied on 19 January 2023 and advised her that its surveyors were investigating the roof leak.
The landlord wrote to the resident on 26 January 2023 to provide an update regarding her complaint. The landlord advised her that its surveyors had sent all the necessary information regarding the reported roof leak to the developer and would be working to establish the next steps.
The landlord raised an order on 31 January 2023 to apply bitumen to the flat roof above the resident’s property.
On 2 February 2023, the landlord wrote to the resident to provide an update on her complaint. It explained that the matter had been passed to the developer in order for the developer to arrange repairs. However, in the meantime, the landlord had erected scaffolding and arranged for liquid bitumen to be applied to the roof on 2 February 2023 in order to provide a temporary repair.
The landlord’s records show that on 9 February 2023 the landlord had registered the defect with the NHBC and was awaiting a response. Their records also show that the landlord was in contact with the developer regarding liability for the roof.
On 13 February 2023, the landlord raised an order to carry out a mould wash and stain blocking to the communal area and to the resident’s property.
On 17 February 2023, the landlord sent its stage one complaint reply in which it stated the following:
1. The resident had explained that she was unhappy with the delay in the landlord addressing a leak that was affecting the communal area and her property.
2. The landlord had carried out a mould wash in the communal area and inspected the resident’s property but had found no mould present.
3. As the walls in her property were wet, the landlord had provided a dehumidifier until it could carry out repairs to address the leak.
4. The resident had advised the landlord that she and her daughter had developed breathing difficulties since the leak had started and had been prescribed inhalers.
5. The leak was first reported on 3 November 2022 and was inspected by an operative on the same day. The operative determined that a contractor was needed to address the leak.
6. The landlord had received the report of damp from the resident on 14 November 2022. There was a delay while the landlord made arrangements for a contractor to attend to the leak. The landlord then raised orders for mould washes to be carried out to “the affected areas” on 8 and 9 December 2022 and for the resident to be supplied with a dehumidifier.
7. As the roof was still under warranty, the landlord sent a referral to the original developer on 25 January 2023 (there was a delay in sending the referral due to administrative delays).
8. As there had been a delay in addressing the leak and the leak had worsened, the landlord decided on 31 January 2023 to carry out repairs to the roof. Scaffolding was erected on 1 February 2023 and repairs were carried out on 2 February 2023 by applying bitumen to the roof.
9. The landlord had not received any further reports of leaks from the roof since the works were carried out.
10. The landlord confirmed that the repairs carried out were not temporary works as the bitumen was expected to last effectively for years. However, the landlord confirmed that it would continue to monitor the situation.
11. The landlord had raised orders to attend the resident’s property and the communal stairwell on 24 and 28 February 2023. The landlord said it had also offered to reimburse the resident for the extra electricity used to run the dehumidifier. The landlord requested the resident to contact its repairs team to discuss the reimbursement.
12. The landlord apologised for the delay in raising the orders and in resolving the leak sooner. It offered the resident £350 as compensation for the delays. It also offered £50 for the delay in replying to the resident’s complaint.
The resident contacted the landlord on 23 February 2023 to say that she was unhappy with the landlord’s stage one reply and wanted the landlord to escalate her complaint. The local authority’s Environmental Health team had visited her property and confirmed that there was no condensation in her daughter’s bedroom and the dampness had come from the roof leak. The resident therefore stated that the dehumidifier had not been effective while the roof leak had been outstanding. The resident asked the landlord when it would carry out permanent repairs to the roof.
The landlord attended the property to carry out a mould wash on 28 February 2023 but was unable to access the property as the resident was on the ‘school run’.
On 28 February 2023, the resident wrote to the landlord and stated that she was dissatisfied with the stage one reply for the following reasons:
1. She stated that the landlord had carried out a temporary repair to the roof rather than a permanent one.
2. An operative had attended on 24 February 2023 and had informed the resident that her daughter’s bedroom could not be sorted out and that the landlord did not carry out redecorating. The resident also stated that the mould wash in the communal area had only been partially completed.
3. The resident confirmed that an operative had attended the property on 28 February 2023 in the morning to carry out a mould wash. However, she had been unavailable as she had previously advised the landlord that she was not available during early mornings or during the ‘school run’ times.
4. The resident had approached the local authority Environmental Health team, her local councillor and her MP as she considered that the landlord was not dealing with the issues.
5. The resident stated that she and her daughter were using inhalers as they had developed persistent coughs, which she believed was due to the reported damp and mould.
The landlord’s records show that it collected the dehumidifier from the resident’s property on 1 March 2023.
The landlord raised an order on 14 March 2023 to carry out a mould wash and stain blocking to the resident’s property following the roof leak. The contractor attempted to attend on 27 March 2023, however, the resident contacted the landlord to ask for the appointment to be rescheduled.
The landlord sent its stage 2 complaint reply to the resident on 13 April 2023 in which it stated the following:
1. The landlord had reviewed the stage one response and considered the information contained in it to be fair, accurate and in line with its policy and procedures.
2. The mould wash appointment had been arranged on 28 February 2023 but had not been arranged within the ‘school run’ timeslot and was therefore missed. It meant the resident had to chase updates and a new appointment. The landlord apologised for this.
3. The landlord had arranged a further appointment for 27 March 2023 to carry out the mould wash, however, due to access issues, the appointment had been rescheduled to 18 April 2023.
4. The landlord confirmed that the repairs carried out were deemed temporary but the roof was weatherproof and the repairs were expected to last a number of years.
5. The landlord said it had not carried out “a full and proper repair” because it needed to ensure it did not invalidate the 10 year warranty and the NHBC guarantee on the property.
6. The landlord advised the resident that she would be responsible for any redecorations as it did not compensate for damage to personal possessions, which it expected residents to refer to their contents insurance.
7. The landlord advised the resident that she could submit a personal injury claim to its Insurance Manager if she believed the landlord was liable for the persistent coughs she had advised the landlord about.
8. The landlord offered a further £165 compensation for service failures including the missed appointment.
The landlord attended the property to carry out a mould wash on 9 May 2023 but the landlord’s records stated that it could not obtain access.
The resident phoned the landlord on 3 July 2023 and stated that although she was happy with the roofing work that had been carried out, she still had issues with mould in her daughter’s bedroom. The contractor had visited at times she had been doing the school run despite advising the landlord of the times she was unavailable. The resident also mentioned outstanding work on the flooring and the railing in the communal area.
The landlord raised an order on the same day (3 July 2023) to investigate the damp and mould. The landlord attended the property on 12 July 2023 to carry out a mould wash. Its records stated that there was no mould found on site but it had carried out the mould wash anyway.

Assessment and findings

Scope of the investigation

The resident advised the landlord on 9 January 2023 that she and her daughter had been prescribed inhalers due to respiratory issues, which she said was linked to dampness in her property. The Ombudsman does not doubt the resident’s comments regarding her health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be better dealt with as a personal injury claim through the courts. The resident may wish to consider taking independent legal advice if she wishes to pursue this option.
The resident contacted the landlord on 3 July 2023 to report that she still had issues with mould in her daughter’s room and that the contractor had attempted to visit her property during the school run. A key part of the Ombudsman’s role is to assess the landlord’s response to a complaint and therefore it is important that the landlord has had an opportunity to consider all of the information being investigated by the Ombudsman as part of its complaint response. It is therefore considered fair and reasonable to only investigate matters up to the date of the final response. Information following the landlord’s final complaint response has, however, been included in this report for context.

The landlord’s handling of the resident’s reports of a roof leak and associated damp and mould

Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on the landlord to keep the structure and exterior of the property in repair, including the roof. The landlord also has a responsibility under the Housing Health and Safety Rating System, introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
The landlord’s Repairs and Maintenance Policy states:
1. Emergency repairs will be attended within 24 hours and in the case of non-emergency repairs an appointment will be offered and the repair completed within 28 calendar days of the repair being reported.
2. Communal repairs will be completed within 28 days.
The landlord offers 3 appointment slots: morning (8am-11am), midday (11am-2pm) and afternoon (2pm-5pm). The midday appointment slot is offered to residents who are unavailable because they have to drop off or collect their children from school. It is referred to as the ‘school run’ appointment slot. However, the landlord advised this Service that between June 2022 and February 2023, it had to rely on manual systems to book school run appointments due to problems with its computer system.
The landlord raised an order on 3 November 2022 to attend to a roof leak that was affecting the communal stairwell. An operative inspected the area on the same day and identified the need for a roofing contractor to address the leak. The landlord had therefore responded within a timely manner by arranging for an operative to inspect the area on the same day as the order was raised.
The resident contacted the landlord on 14 November 2022 to report that the leak was affecting the communal area and had got worse. She then submitted an online complaint form on 20 November 2022 and advised the landlord that the leak was now affecting her property as there were water marks on her daughter’s bedroom ceiling.
The landlord stated in its stage one reply that it had arranged for “the affected areas” to receive mould washes on 8 and 9 December 2022. It was reasonable that the landlord had carried out a mould wash in the communal area as the resident had reported the presence of mould on the communal ceiling on 14 November 2022. At this stage, however, the landlord had not yet resolved the roof leak.
The landlord’s records that during its visit to the property on 9 December 2022, the resident had advised the landlord while on site that there was no mould present in her bedroom, just a damp patch “the size of a fist”. The landlord advised the resident to run the dehumidifier in the bedroom for the duration of the leak. In her complaint dated 9 January 2023, the resident stated that the landlord’s contractor had inspected her property and advised her that there was no mould present as the walls were still wet. Therefore, based on the information seen, the contractor had inspected the resident’s bedroom the information indicates that no mould was present at that stage. As there are known health hazards associated with mould, it was appropriate that the contractor had inspected the property and spoken to the resident to establish if any mould was present.
An operative attended the property on 28 February 2023 to carry out a mould wash. However, the resident was unavailable as the operative had attended during the school run, despite the resident previously advising the landlord that she was not available during the school run times. The landlord accepted in its stage 2 reply that it had failed to arrange the appointment within the school run timeslot and apologised for this. As the resident had previously advised the landlord of her availability, it was inappropriate that the landlord had not taken this into account when arranging the appointment. It meant there was a delay in carrying out the mould wash and that the resident had to spend unnecessary time and effort contacting the landlord for a new appointment.
The landlord arranged a further appointment on 27 March 2023 but the landlord’s repairs log stated that an operative had again tried to attend during the school run times and therefore she had requested the landlord to reschedule the appointment. The landlord stated in its stage 2 reply that an appointment had been booked for 18 April 2023.
The landlord’s records show that it had arranged for a surveyor to inspect the roof on 10 January 2023 to enable it to contact the developer of the building as the roof was still under warranty. The landlord had then sent a referral to the developer on 25 January 2023. It was reasonable for the landlord to seek to invoke the warranty with the developer rather than carrying out repairs which may have invalidated the warranty. However, the landlord accepted in its stage one reply that it had delayed sending the referral due to administrative delays.
Given that the landlord had been aware of the roof leak since 3 November 2022, it was unreasonable that it had taken almost 3 months to send the necessary information to the developer. This meant there was a delay in receiving a response from the developer regarding liability for the roof leak and this therefore affected the time it took to repair the roof.
Having accepted there had been a delay in referring the information to the developer, the landlord raised an order on 31 January 2023 to carry out repairs to the roof by applying liquid bitumen. The scaffolding was erected on 1 February 2023 and the roof was repaired on 2 February 2023. The landlord had therefore acted quickly to arrange the repairs once it had decided that it would need to carry out interim repairs to the roof.
The resident stated on 28 February 2023 that she was unhappy the landlord had carried out a temporary repair. In response, the landlord stated in its stage 2 reply that it had not carried out a full and proper repair because it needed to ensure it did not invalidate the warranty on the roof. However, as a result of the repair, the roof was weatherproof and the repairs were expected to last a number of years.
Whilst the Ombudsman understands the resident’s anxiety that the landlord’s repairs were not ‘permanent’, it was reasonable for the landlord to seek to invoke the warranty in order to minimise its costs and therefore it was reasonable for it not to invalidate the warranty. The warranty protects the landlord against defects in materials and workmanship that might emerge later. In terms of the longevity of the repair carried out, the landlord was entitled to rely on the expertise of its staff and contractor who stated that it would last a number of years.
Under the landlord’s repairs policy, a roof repair would be categorised as a non-emergency repair and would therefore take up to 28 calendar days to complete. In this case, it took 3 months for the landlord to stop the leak. The delay meant that the leak was causing damage to the communal area and had made the resident’s property damp.
The Ombudsman has taken into account the added complication of the roof being under warranty, which meant that the landlord could not simply allocate the repair to its roofing contractor. This undoubtedly contributed towards the delay in stopping the leak. Nevertheless, even with the added complication of the warranty, the time taken to attend to the leak was inappropriate given that the landlord had delayed sending the information to the developer and the resident’s property was damp.
The Ombudsman has noted that the landlord had provided the resident with a dehumidifier in December 2022 to help dry out the property. Although the effectiveness of the dehumidifier is likely to have been reduced while the roof was still leaking, it was reasonable that the landlord agreed for the resident to continue using the dehumidifier for about a month after the leak had been resolved. It was also reasonable that the landlord had agreed in its stage one reply to reimburse the resident for the extra electricity used to run the dehumidifier.
The resident stated in her stage 2 complaint that she was dissatisfied with the landlord’s decision not to redecorate her daughter’s bedroom after the leak had been resolved. The landlord stated in its stage 2 reply that the resident was responsible for any redecorations as it did not compensate residents for damaged possessions. The landlord added that it would expect residents to claim on their contents insurance for damage to decorations.
The landlord’s website makes it clear that residents are responsible for decorations within the home. The landlord has also confirmed to this Service that following a leak, it would ‘stain block’ any water damage when dried, however, decorations would be the resident’s responsibility. Residents would be asked to contact their insurers in the first instance if appropriate.
Therefore, the landlord acted in accordance with its policy in advising the resident to claim on her contents insurance. However, the resident then made it clear that she was dissatisfied with this advice and wanted the landlord to make good the damaged decorations. Having done so, the Ombudsman’s view is that as the landlord had accepted it had delayed carrying out the roof repairs, it should then have explored an alternative solution with the resident. Possible solutions could have been to make good the damaged area, pay her a decorations allowance or even advise the resident to claim through the landlord’s liability insurer.
The principle has been established, for example in Bradley v Chorley DC (1985), that where damage has occurred because of a failing on the landlord’s part, it should make good any resulting damaged to decorations. Therefore, as the landlord had accepted in its stage one reply that the leak should have been resolved sooner, the landlord’s insistence that the resident should claim through her contents insurer was inappropriate.
In January 2020, the Ombudsman published guidance on complaints involving insurance issues, which stated: “If a landlord accepts that it was / may have been at fault it may not be reasonable to ask complainants to claim on their own contents insurance policy as all claims made on a policy may affect the complainant’s future premium and / or require them to pay an excess”.
Overall, the Ombudsman has found the following failings in terms of the landlord’s handling of the resident’s reports of a roof leak and associated damp and mould:
1. The landlord had attended the property during school run times, despite the resident having previously requested the landlord to avoid these times.
2. The landlord delayed sending the information to the developer to invoke the warranty in relation to the roof. This contributed to an overall delay in the landlord carrying out repairs to stop the leak.
3. The landlord did not assess the damage to the decorations in the bedroom and offer to make good any damage.
The landlord offered the resident total compensation of £515 at stage one and two of the complaints process for the failings relating to the handling of the leak, damp and mould. This excludes the £50 offered for the delay in replying to the stage one complaint, which is covered in the next part of this assessment.
Where there are failings by a landlord and the landlord has offered redress, the Ombudsman’s role is to consider whether the redress put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
The landlord acted fairly in acknowledging the delays and the missed appointments and apologising to the resident. It also sought to put things right by offering compensation in line with its compensation policy. However, the Ombudsman has found that the amount offered was not proportionate to the failings identified in this investigation because the landlord did not assess the extent to which the decorations in the bedroom had been damaged and did not offer to make good any damage. This Service has therefore found there was a service failure and has ordered the landlord to pay additional compensation of £100. The landlord has also been ordered to assess the extent of the damage to the decorations in the bedroom and make good any damage.

The landlord’s handling of the associated complaints

The landlord’s complaints policy at the time of the resident’s complaint stated that it operated a 2-stage complaint process. The landlord would respond to stage one complaints within 20 working days and stage 2 complaints within 40 working days.
The resident submitted a complaint on 9 January 2023 regarding a leak affecting her property. The landlord sent its stage one reply on 17 February 2023, which was 29 working days after receiving the complaint. The landlord therefore exceeded its published target timescale for replying to stage one complaints. However, the delay was not excessive and the landlord had provided updates to the resident on 19 January 2023, 26 January 2023 and on 2 February 2023. The landlord acknowledged the delay in its stage one reply and offered the resident £50 compensation. The landlord’s offer was in line with its compensation policy for cases where it had failed to meet its service standards. The Ombudsman’s view was that the amount offered was therefore reasonable.
The resident wrote to the landlord on 28 February 2023 to say that she was dissatisfied with the landlord’s stage one reply and she set out her reasons for her dissatisfaction. The landlord sent its stage 2 reply on 13 April 2023, which was 31 working days after receiving the stage 2 complaint and was therefore within its advertised timescale.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in its handling of the resident’s reports of a roof leak and associated damp and mould.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord in relation to its handling of the associated complaints.

Reasons

The landlord did not assess the extent to which the decorations in the bedroom had been damaged and did not offer to make good any damage, even though it accepted it had delayed repairing the roof. Therefore, although it offered compensation for its failings, its offer was not proportionate to put things right.
There was a delay in the landlord sending its stage one reply. However, the landlord acknowledged this and offered reasonable redress to put things right.

Orders

The landlord is ordered within 4 weeks of this report to:
1. Pay the resident £100 for its handling of the resident’s reports of a roof leak and associated damp and mould.
2. Assess the extent of the damage to the decorations in the bedroom and make good any damage caused by the leak.

Recommendations

The landlord should reoffer the resident the £565 offered during the complaints process if this has not already been paid.