East Devon District Council (202336310)

REPORT

COMPLAINT 202336310

East Devon District Council

31 October 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. Reports of damp, mould and moisture.
2. Repairs to the bathroom light.
3. Its decision not to replace a kitchen sink unit.
4. The associated complaint.

Background

The residents are a couple. For the purpose of this report, when we refer to “the resident”, we are referring to the joint residents.
They are secure tenants living in a house. On 13 December 2022 they reported finding mould in the living room behind furniture. The resident reported that the mould was affecting their breathing. The landlord conducted a mould survey on 15 December 2022.
On 17 December 2022 the resident reported that the bathroom light had gone out. They requested that it be replaced.
On 21 December 2022 the landlord called the resident. Around this time both parties report that a plan was arranged to perform an interim mould wash while the survey could be assessed and appropriate works could be raised. The landlord completed the interim mould wash on 29 December 2022.
On 5 January 2022 the resident complained. They were unhappy that the landlord had not attended until 2 days after the first report and then taken a further 14 days to conduct a mould wash. The resident believed this should have been attended as a priority, because of the reported health issues. The resident was also unhappy about some confusion on the landlord’s part about the location of the mould after the inspection. They said that 2 ‘AirTech’ vents in the property were not working. They were unhappy that they had chased the landlord on multiple occasions. They disputed the landlord’s account that it could not have attended sooner due to contractor availability, citing seeing a contractor spend an hour “sat in has van” when attending a recent repair at a neighbouring property. The resident was also unhappy with delays in attending the light repair.
Programmed works resulting from the damp and mould survey began on 29 January 2023.
The landlord issued its stage 1 response on 16 February 2023. It apologised that its contractors had been busy and reassured the resident that it had attended at the earliest available appointments. It explained that its policies gave 28 days to complete a routine repair such as the bathroom light, however it apologised that due to contractor availability the appointment would exceed this timescale. It outlined the works that would be completed to address the damp and mould and committed to monitoring any future reports.
The resident requested to escalate the complaint on 19 February 2023. They requested the landlord respond to reports that contractors were seen “sitting in their van”, questioning the landlord’s account of contractor availability. The resident added that the mould spray that had been used for the mould wash was a “95p bottle” that the operative had bought the same day. The resident said that they had completed the repair to the light themself and incurred costs. They reiterated the health impact they believed had been caused by the mould.
The landlord asked the resident for extra time to respond at stage 2 on 19 February 2023. It issued its stage 2 response on 4 April 2023. It stated that its previous account of limited contractor availability had been accurate, and that operatives were entitled to take breaks, which is what the resident may have been referring to when seeing an operative in his van. It added that appropriate equipment had been used for the mould wash. It said that the resident had made no mention of incurring costs to replace the bathroom light prior to the escalation request and invited the resident to submit invoices in order to provide a refund. It offered £150 for distress and inconvenience of any delays experienced.
Following the conclusion of damp proofing works at the property, the landlord completed a survey on 9 August 2023. It showed that no mould was present and confirmed that a number of the earlier recommendations had been completed. It concluded however that airflow remained inadequate and recommended further works, such as that air exchanges be installed and that some existing units be upgraded or replaced.
On 22 September 2023 the resident complained that a contractor had missed an appointment. The resident was unhappy that they had not been informed of the cancellation until they had chased the contractor. The landlord asked for more time to respond to the complaint on 20 October 2023.
On 3 November 2023 the resident submitted further elements to the complaint, including that there had been further missed appointments and miscommunication around some jobs. They were also unhappy that the landlord had said it would replace the sink unit in the kitchen, but had later changed its mind.
The landlord issued a new stage 1 response on 28 November 2023. It apologised for delays in complaint handling, citing increased demand. It advised that missed appointments by its contractors were not the level of service it expected, and apologised for this and for poor communication. It advised that it was facing increased demand and was making changes to its processes to improve its services. It apologised that after initially removing some mould from the kitchen sink unit, it had changed its position and no longer believed the unit warranted replacement. It apologised that the resident still felt the property had excessive moisture, explaining that it had conducted a mould wash on 6 November 2023 and raised a cavity wall survey to further improve the problems.
The resident requested to escalate the complaint to stage 2 on 29 November 2023. They said that a leak to a pipe from an Air Source Heat Pump (ASHP) had leaked in October 2021, resulting in damage to the sink unit. The resident was unhappy with how the leak and resulting damage had been handled at the time, but emphasised that a promise to replace the unit had been made by the landlord. The resident was unhappy with the landlord’s response to reports of an adverse health impact and sent further information about this. The resident chased the landlord on 21 December 2023.
The landlord issued its stage 2 complaint response on 12 January 2024. It stated that:
1. It was sorry for delays in complaint handling, which had been due to an increased workload.
2. Although communication had “not been good” historically, it had improved and that staff had visited on 4 occasions since November as part of this.
3. It accepted that a surveyor had previously advised the sink unit would be replaced, but that it had since dried out and contractors and its own surveyor had confirmed that it did not require replacing.
4. Surveyors were now confident that no further works were required. There were no gaps in the cavity wall insulation, which was supported by reports.
5. It offered £75 compensation for what it described as communication issues.
The resident remained unhappy with the landlord’s response and approached the Ombudsman. The resident disputed the landlord’s account that damp issues had been resolved.

Assessment and findings

Scope of the investigation

During the course of the residents’ case with us, they have raised additional concerns about the landlord and its handling of issues at the property, for example:
1. Reports of cracking, subsidence, or movement at the property.
2. Historic leaks from a pipe connected to the Air Source Heat Pump.
3. Repairs or works at the property which were ineffective or unfinished.
4. Reports of unsatisfactory staff conduct, such as an allegation that a staff member told the resident that they “just wanted a move”.
However, these are not matters that formed part of the complaint put to the landlord, and therefore are not addressed in this report. This is because before we consider a complaint, we would fist expect the landlord to have had the opportunity to respond to any concerns and put things right. This is in line with paragraph 42a of the Housing Ombudsman Scheme. Should the resident wish to pursue these issues they can raise a formal complaint with the landlord (although should be aware that the historic issues relating to the Heat Pump may fall outside of the landlord’s complaints policy given the time that has passed), and if they are dissatisfied with the outcome, bring the matters to us for consideration once the complaint process with the landlord has been completed.
The resident reported throughout the period of assessment that the landlord’s handling of reports of damp and mould directly caused or contributed to illnesses or health conditions. The Ombudsman cannot draw any conclusions as to the likely cause of any adverse health impacts experienced by the resident. This is better suited to the courts, where cross examinations of medical evidence can be conducted by appropriate medico-legal expert witnesses.

Damp, mould, and moisture

Upon receiving a report of damp and mould at a property, the landlord’s Damp and Mould Policy states that it “will undertake effective investigations and implement all reasonable remedial repair solutions and improvements to eradicate damp”.
The resident reported being unwell as a result of the damp and mould, therefore it was important that the landlord responded promptly. The evidence shows that the landlord attended the property to complete a full survey within 48 hours of the first report. Although the resident was unhappy with this delay, the delay was not substantial enough to reflect a failing.
The landlord conducted a mould wash within 2 weeks of the inspection. It did this in line with the timescale set out in its responsive repairs policy, which states that routine repairs should be completed within 28 days. However, although a survey had been completed, the results were not yet available. The Ombudsman’s Spotlight Report on Damp and Mould explains that landlord’s should take a risk-based approach to responding to reports of damp and mould. The landlord did not have the evidence to support that the issues at the property were not causing a health risk to the resident, which would have warranted a mould wash being carried out sooner. The landlord could have either completed a risk assessment on the first visit to inform its next steps, or attempted to conduct an interim mould wash sooner. This was a failing. There were mitigating factors in that the landlord reported that contractor availability contributed to delays, and the delay was not substantial.
When the landlord completed the mould wash, the resident was unhappy with the quality of the materials used. The resident was also concerned that the contractor had gone out themselves to purchase what was described as a “95p bottle [of mould wash]”. The landlord later stated that appropriate materials were used. The Ombudsman understands that the resident was concerned about their health and felt that the landlord’s handling of the mould wash appeared unprofessional. However there is no evidence that the materials used were ineffective in combating the mould.
There was some evidence of miscommunication in this period, such as the resident having to correct the landlord regarding which areas of the property were affected by mould. It is understandable that incidents of this kind may serve to undermine trust between the resident and landlord. However there was no evidence that this contributed to any delays or further failings. The landlord’s surveyor called the resident to apologise for the miscommunication and assured the resident that the relevant documents had been updated accordingly. This was a positive step by the landlord to attempt to put things right in this instance. The evidence also shows that the landlord’s communication with the resident improved as time went on, including the landlord meeting with the resident in person on a number of occasions.
Following the survey, the landlord organised a number of works to address the root cause of the damp and mould, in line with its policy. Having completed a mould wash to eliminate the immediate risk, the landlord treated these as routine repairs, which was in line with its policy. The landlord completed the first works on 29 January 2023. However, the landlord reported that limited contractor availability resulted in works not being completed until an unknown date in August 2023. The resident was unhappy with this, particularly as they disputed the landlord’s account of limited contractor availability, having seen a contractor spend up to an hour sat in his van outside a neighbouring property. The landlord stated that the contractor may have been on a break, which they were entitled to take, and that this did not reflect that the landlord had been dishonest in its reasons for the delays. There is no evidence that contradicts the landlord’s account. The evidence also shows that no further mould growth was reported following the initial washes. As a result, there was no adverse effect caused by these delays and therefore no failing.
The landlord completed a further survey in August 2023 following the works. This was appropriate to monitor the effectiveness of the works done. The evidence shows that the recommendations made in the initial survey had been completed. However, although no new mould growth was noted, some more recommendations to further improve airflow and ventilation were made. The evidence shows that these works were completed on 3 October 2023. The landlord also showed good practice by carrying out a Legionella Risk Assessment at a similar time.
The landlord also completed a cavity wall insulation survey in November 2023. It showed that no further remedial works were required. The resident disputed this, referring to conflicting information given verbally by the contractors who completed the survey. There is no evidence to suggest what may have been said to the resident, or if what was said was accurate. There was therefore no evidence of a failing in regard to this aspect of the damp proofing works.
In conclusion, in handling of reports of damp, mould, and moisture at the property, the landlord followed its policy, conducted appropriate investigations and completed the subsequent remedial works. However, its approach was not adequately risk-based and some delays were noted. The landlord offered £150 compensation for the distress and inconvenience caused by the damp and mould which was present over the Christmas period.
The Ombudsman’s remedies guidance states that where a service failure occurs which has a short-term impact on the resident, compensation of over £100 should be considered. The landlord adequately put things right by offering £150 compensation in respect of the damp and mould which was present over the Christmas period. Paragraph 53 of the Scheme states that where a landlord has offered redress which resolves the complaint satisfactorily, a finding of ‘reasonable redress’ will result. The Ombudsman has made further recommendations for the landlord in case further steps are required to learn from the outcomes of this investigation.

Repair to the bathroom light

The resident reported that a repair to the bathroom light fitting was required on 17 December 2022. Due to contractor availability, a repair could not be arranged until 31 January 2023. The landlord apologised that this exceeded the 28 day timescale required of it. The delay led to the resident organising their own repair of the light. In the resident’s initial complaint, it was stated that the resident had completed the repair themselves. In the escalation request however, the resident was unhappy that the landlord had not responded to an email relating to the costs incurred of the repair, which appeared to imply an electrician had attended.
In either event, the landlord showed good practice by offering to refund any costs incurred at the first time of asking, in the stage 2 response. The resident was unhappy that the landlord did not respond to an email sent on 19 December 2022 asking to refund the cost of this repair. The Ombudsman has not seen a copy of this email, so it is unclear why the initial email may have been missed. However, the landlord put this right at the earliest opportunity.
The resident was unhappy because they felt that the light repair should have been treated as an emergency repair, due it being a health and safety risk. The Ombudsman would expect the landlord to take this into account when the repair was reported, or gather more information about the perceived risk. The evidence shows however that by the time the resident had raised concerns about a health and safety risk, the light had already been repaired. The landlord did not have an opportunity to respond to this therefore, and there was no maladministration.

Decision not to replace the kitchen sink unit

It was understandable that the resident was unhappy when the landlord changed its mind about its decision to replace a kitchen unit that had been damaged by a historic leak. Although the landlord’s contractor had made this assessment, the landlord responded appropriately to by sending its own surveyor to make a final decision. The surveyor acknowledged that it had been previously affected by water damage, but that “it has now dried out, is in good order, there are no concerns about mould on the rear panel and there is no swelling or expansion in the chipboard.” In the escalation request the resident agreed that it “had dried out over those past two years” but remained unhappy because “the unit is still damaged”. The resident added that the first contractor had “never looked at or even inspected the unit”, though acknowledged that they had not been present at the time.
When the surveyor attended, the resident agreed that the unit “shows little damage” but felt that there was damage “behind and underneath” where the resident reported that the surveyor did not inspect. Both the resident and landlord reported taking photographs of the sink unit, however these have not been shared with this investigation. It is unclear therefore which account is accurate. The Ombudsman has however seen internal emails from multiple contractors and staff members, confirming that they could find no reason why the sink unit should be replaced. Although there are possible signs of damage on the unit, there is also no suggestion that unit was otherwise non-functional or that the outstanding replacement led to any adverse effects. As a result, although there was a shortcoming in the landlord changing its position which caused understandable frustration and disappointment, there was no maladministration in the landlord’s decision not to replace the kitchen sink unit.

Complaint handling

The Ombudsman’s Complaint Handling Code (the Code) sets out the timescales by which a landlord should respond to complaints. It sets out that stage 1 complaints should be acknowledged within 5 working days, and, and stage 2 responses issued within 10 working days of the acknowledgment, while stage 2 complaints should be acknowledged within 5 working days, and stage 2 responses should be issued within 20 days of the acknowledgment. Where delays may be expected, it should communicate this to residents clearly and promptly. In each instance of a resident’s complaint or escalation request, there were delays. The landlord mitigated the adverse effect of these by notifying the resident of expected delays (though these were not always issued promptly), and ensuring that all reports of repairs had been actioned in the meantime. The landlord cited an increased demand on its complaints team as the reason for the delays.
Nevertheless, the delays led to frustration on the part of the resident and meant that the resident had to chase the landlord. The Ombudsman’s Remedies Guidance states that where there has been a service failure which resulted in inconvenience and disappointment to the resident, compensation of over £50 should be considered. In its final stage 2 complaint response, the landlord offered £75 for poor communication, which is taken into account and adequately “puts right” this element of the landlord’s complaint handling.
However, there is evidence that the resident complained about missed appointments by the landlord or its contractors, which the landlord acknowledged, for example on 22 September 2023. The landlord’s responsive repairs policy sets out that it will pay £20 compensation to a resident per instance of an appointment it has missed, or arrived late to. The landlord failed however to put this element of the complaint right in its complaint responses. As such there was a service failure in the landlord’s complaint handling. The Ombudsman was unable to establish exactly how many missed appointments there were, therefore an order has also been made for the landlord to clarify this and pay any remaining compensation which may be due to the resident.

Determination

In accordance with paragraph 53 of the Housing Ombudsman Scheme, there was reasonable redress offered by the landlord in respect of its handling of reports of damp, mould, and moisture.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the repair to the bathroom light.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s decision not to replace the kitchen sink unit.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of this determination, the landlord must:
1. Establish how many instances of missed appointments there were between 13 December 2022 and 12 January 2024.
2. Pay £20 compensation to the resident, per missed appointment, in line with its policies.

Recommendations

That the landlord complete a senior review of this case, alongside its policies and procedures, to identify any changes required to ensure it is taking a risk-based approach to reports of damp and mould.