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Lambeth Council (202220368)

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REPORT

COMPLAINT 202220368

Lambeth Council

28 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

  1. The complaint is about the landlord’s handling of the resident’s reports of damp and mould in the property and associated repairs.
  2. The Ombudsman has also considered the landlord’s:
    1. Complaint handling.
    2. Knowledge and information management.

Background

  1. The resident is the leaseholder of the property since 2006. The landlord is a local council. The property is a 1-bedroom flat located on the fourth floor.
  2. The resident reported issues with a possible roof leak on 7 January 2021. On the following day, the resident added that the walls in her bedroom were wet, despite always having the windows open and the room being well ventilated. By 14 January 2021 a contractor inspected the property and said it was a roof issue, potentially brickwork. On 14 January 2021 the resident attached photos of damp and water ingress in the bathroom, top of the window area and damp in the bedroom. The landlord provided the roofing contractor’s number if she wanted information on the roof inspection and she confirmed a roof contractor had attended on the same day.
  3. On 30 November 2022 the resident messaged her councillor saying the landlord would not fix the mould and severe wet walls. She then complained to the landlord on 5 December 2022 about the damp and mould present in her property. She submitted that despite lots of attempts to resolve matters she was still experiencing issues. She relied on “lodgers” for income, and they were dissatisfied. The damp and mould had caused damage to property, possessions, and health. She wanted the landlord to apologise, rectify what was causing the damp and mould, pay compensation to her, and repaint damaged walls.
  4. The resident contacted her MP on 29 January 2023. She included a message from her tenant who wanted to leave the property unless quick action to fix the damp and mould was taken. The MP emailed the landlord on 31 January 2023 asking it to investigate her concerns. The landlord replied to the MP and said a legal disrepair claim was raised regarding the issues and as a result, it was unable to comment on matters. On 21 February 2023 the resident’s solicitor confirmed that her case with them was closed. This Service first emailed the landlord on 16 February 2023 asking it to provide a complaint response to the resident.
  5. On 10 March 2023 the landlord provided the resident the final response on her complaint. It outlined the history of repairs and said on 10 May 2020 it had renewed the roof. From 7 January 2021, it had inspected the roof again. It had completed removing debris from the roof to facilitate an inspection on 4 May 2021. On 29 July 2021 the landlord raised repairs with its contractors at the time, to repoint brickwork, but was unable to confirm if this was completed due to it changing contractors.
  6. The landlord confirmed in its final response that on 22 November 2022 it cleared blockages to the building’s drainage. On 6 December 2022 it raised repairs for the roof and a report was sent to the resident on 30 January 2023. On 16 February 2023 it raised repairs for damp and mould in the property and to inspect the roof and external brickwork but was cancelled. On 7 March 2023, it reopened the repairs from 16 February 2023 to be completed by 18 April 2023.
  7. The landlord apologised and offered £1,780 in its stage 2 complaint response for the delay in repairs, and the time and trouble the resident experienced. It told the resident it would consider making a further payment from the date of the final response until matters were resolved. It acknowledged delays in getting a response from the resident’s solicitors. However, since the resident was no longer legally represented, it had instructed a surveyor to visit the property on 15 March 2023.
  8. The resident contacted this Service on the same day she received the landlord’s final response. She mentioned that she was losing £800 per month income from her tenant. She also told this Service that the surveyor was attending on 28 March 2023 instead and that the roofing contractors were to attend on 24 March 2023.
  9. The landlord confirmed that all works to the property were completed on 27 July 2023.
  10. The resident told this Service on 21 September 2023 that she remained dissatisfied with the level of compensation offered by the landlord. She wanted this Service to investigate her complaint as she was apprehensive the same issue would reoccur in winter.

Assessment and findings

Scope of investigation

  1. Paragraph 42c of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion were not brough to the attention of the landlord as a formal complaint within a reasonable period. Under the Scheme, a reasonable period would be within 12 months of the matters arising.
  2. Residents are expected to raise complaints with their landlords in a timely manner. so that the landlord has a reasonable opportunity to consider the issues. This also means evidence is available to reach an informed conclusion on the events that occurred.
  3. The resident did not raise a formal complaint to the landlord until 5 December 2022. There is also no evidence or record that the resident made a formal complaint prior to this date. However, there was ongoing dialogue since the resident’s report on 7 January 2021. As such, in the interest of fairness to both parties, the scope of this investigation will focus on the period since the resident’s initial report of 7 January 2021 until all works were completed on 27 July 2023.
  4. Further, paragraph 42f of the Scheme states the Ombudsman may not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal or procedure.
  5. A claim for loss of income and reimbursement requests, or damaged personal items is not dealt with within a landlord’s internal complaints process. Negligence is a legal matter to be decided by the courts and residents are expected to make a claim to their insurer in such cases, alternatively, they may make a claim to the landlord’s insurer, who would consider whether the landlord is liable for the damaged items. The resident may wish to seek independent advice about insurance or pursuing aspects of the complaint through the courts. However, this Service will consider the landlord’s communication about these matters.

Policies and procedures

  1. Under the lease, the landlord is responsible for all structural parts of the property. This includes the roof space, foundations, main timbers, joists, concrete floors, and the window frames. As well as all walls bounding the property, external parts of the property other than windows and the glass. The resident is responsible largely for the interior of the property. Including the glass in the windows of the flat, the ceilings, non-structural walls, all fixtures and fittings, partitions, doors, and door frames.
  2. The landlord operated a 3-stage complaints process. At stage 2 of the internal complaint’s procedure, it aimed to respond in 15 working days.
  3. Under the landlord’s compensation policy, loss of room or amenities does not apply to leaseholders. The landlord told this Service that its responsive repairs policy is not applicable to leaseholders either.

Damp and mould in the property and associated repairs

  1. The resident experienced damp in the property from 7 January 2021 and it was not until 27 July 2023 the landlord completed all the associated repairs to the structure of the property. This was in excess of 2 years and 6 months, which was unreasonable. From the information provided, the landlord completed repairs to the roof, the building’s drainage, and windows.
  2. It was not disputed that the landlord was responsible for repairs to the roof of the property. The landlord has acknowledged there were failings in its service delivery and conducting the associated repairs.
  3. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman assesses whether the landlord’s offer of redress was in line with the Ombudsman’s dispute resolution principles. This says landlord’s should be fair, put things right and learn from outcomes.
  4. After exhausting the landlord’s internal complaints procedure, the resident disputed that the level of compensation offered by the landlord was sufficient. However, there have been no further reports of recurring issues. Also, the resident has not disputed that after the repairs were completed, that the problems persisted, or the quality of repairs were inadequate.
  5. Under this Service’s remedies guidance, consideration is given for distress and inconvenience caused to a resident by a particular service failure, considering the severity of the situation and the length of time involved.
  6. In the landlord’s final response, it did show a willingness to put things right. The landlord apologised for the delays, as well as the distress and inconvenience, and time and trouble experienced by the resident. Its offer of £1,780 took into account events up to 10 March 2023, which was paid to the resident.
  7. However, the landlord told the resident it would consider further compensation as at the time, not all repairs were completed. The targeted date of completion for repairs was 18 April 2023 and it did not complete all repairs until 27 July 2023. This meant the resident had to wait 100 calendar days further for the repairs to be completed to the date mentioned in its final response. This delay was unfair and unreasonable.
  8. It is unclear whether the landlord proactively considered revising its compensation offer since it mentioned it would consider doing so. There is evidence that on 6 October 2023 that the landlord would issue compensation, but no further details. There is also no evidence that the landlord communicated clearly with the resident what actions it was taking. Despite completing the repairs, the resident has expressed a loss of confidence in the landlord. She would have experienced further distress and inconvenience due to the delays beyond the final response.
  9. Additionally, there was damp and mould prevalent in the property that caused damages to fixtures and fittings and the interior walls. While the lease sets out the resident is responsible for the interior of the property, the landlord’s communication with the resident throughout the period from 7 January 2021 until 27 July 2023 was poor. It is evident that the resident was unaware whether the landlord’s contractor had attended all the appointments booked. Additionally, the length of time taken to carry out all the repairs to the structure of the property, and poor communication would have exacerbated the damp and mould within the property, causing distress and inconvenience.
  10. The resident told the landlord she had experienced a loss of income due to her tenant leaving and damages to fixtures and fittings. Therefore, it would have been reasonable for it to communicate to her that she could potentially make an insurance claim for damage to personal items, loss of income and reimbursement requests, but it did not.
  11. Therefore, it is the Ombudsman’s opinion that the level of compensation offered by the landlord was not proportionate to the detriment the resident experienced and its poor communication. The landlord had not identified any learnings from the outcome either, outside of telling this Service it had implemented a damp and mould policy. As such, this Service finds service failure in the landlord’s handling of the resident’s reports of damp and mould in the property and associated repairs. An order of further compensation has been made. This takes into account the remedies guidance and the previous offer made in its stage 2 complaint response but includes the detriment to the resident from 10 March 2023 until 27 July 2023.

The landlord’s complaint handling

  1. The Ombudsman’s Complaint Handling Code (the Code) sets out to achieve best practice in complaint handling and ultimately to provide a better service to residents. The Code in operation at the time of the complaint was the Code 2022.
  2. The resident had instructed solicitors to make a legal disrepair claim against the landlord. The legal disrepair claim was confirmed to be withdrawn on 21 February 2023 as the solicitors did not represent leaseholders. Despite this, both the Ombudsman and the courts will look to see that alternative dispute resolution (ADR) has been attempted in the first instance.
  3. The landlord operated a 3-stage process at the time of the complaint. The landlord did provide a stage 2 complaint response on 10 March 2023. However, the landlord told this Service that it had already provided a complaint response in the form of its member enquires to the resident’s councillor and MP. This Service has reviewed those responses as there was an absence of a clearly labelled stage 1 complaint response. The Ombudsman would expect a full response to the resident’s complaint at stage 1. At completion of stage 1, the response should include the following:
    1. the complaint stage
    2. the complaint definition
    3. the decision on the complaint
    4. reasons for any decisions made
    5. details of any remedy offered to put things right
    6. details of any outstanding actions
    7. details of how to escalate the matter to stage 2 if the individual is not satisfied with the response
  4. The landlord had only provided some detail that its legal disrepair team would liaise with the resident’s legal representative, so it would not comment on the matter. This response was not satisfactory as it was not in line with the Code. By not including key elements, the resident was deprived of the opportunity for a potential early resolution through ADR to the problems she was facing, which was inappropriate.
  5. Even though the resident had engaged legal representation, the Pre-Action Protocol (the protocol) does not constitute legal proceedings and ADR can be pursued at any stage of the protocol. Ultimately, this was a new complaint formally raised in December 2022. In receipt of the complaint, the landlord should have appropriately communicated that it would not disengage from the repair issue and the status of the complaint through ADR, which it did not.
  6. The Code states landlord must not refuse to escalate a complaint through all stages of the complaints procedure unless it has valid reasons to do so. Therefore, it was inappropriate to have not been clear with the resident that it would not continue handling her complaint through its internal complaint procedure. This ultimately affected her complaint journey as she was not able to progress her complaint without this Service’s intervention. Also, it is possible for landlords to engage both through the internal complaint procedure and the protocol.
  7. The landlord also omitted referral rights to the Housing Ombudsman in its final response, which was inappropriate and not in line with the Code.
  8. Overall, the landlord had not acknowledged any failings for its complaint handling in its final response. Hence, for the above failings, we find service failure in the landlord’s complaint handling. The orders include additional compensation in respect of the complaint handling failures and the landlord’s failure to address these during the resident’s complaint journey.

The landlord’s knowledge and information management

  1. A landlord should have systems in place to maintain accurate records. Good record keeping is vital to evidence the action a landlord has taken and failure to keep adequate records indicates that the landlord’s processes are not operating effectively.
  2. The landlord was unable to identify whether its contractors had completed repairs. The justification provided to this Service was that the contract with that company had ended. The landlord’s inability to record this information demonstrates that its processes are not operating correctly.
  3. Additionally, this Service needed to clarify with the landlord about details held within the lease and whether the lease itself was accurate. This delayed the Ombudsman’s investigation causing further delays to the resident. It was also unclear whether the landlord made an additional offer of compensation after the resident exhausted its internal complaints procedure. Clarification of compensation was requested by this Service. As such, there was service failure in the landlord’s record keeping as it either did not have, or did not provide, records which would have aided this investigation.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s handling of the resident’s reports of damp and mould in the property and associated repairs.
  2. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s complaint handling.
  3. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s knowledge and information management.

Orders and recommendation

Orders

  1. Within 4 weeks of the date of this determination, the landlord must:
    1. Make an in-person apology to the resident for the failures identified in this report.
    2. Pay the resident a total of £200 in compensation directly to her bank account, comprised of:
      1. £100 for the delays in associated repairs between 10 March 2023 and 27 July 2023.
      2. £100 for the complaint handling failures identified in this report.

This total of £200 is in addition to the £1,780 in compensation already paid to the resident from the landlord’s stage 2 complaint response. If the landlord had paid further compensation following its stage 2 complaint response (excluding the payment of £1,780), this can be deducted from the £100 proportioned for the delays with associated repairs only.

  1. The landlord must provide evidence of compliance with the above orders to this Service.

Recommendation

  1. The landlord is also recommended to review the Ombudsman’s spotlight report on knowledge and information management, published in May 2023.