Lambeth Council (202340018)

REPORT

COMPLAINT 202340018

Lambeth Council

26 November 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. Damp and mould.
2. Boiler repairs.
The Ombudsman has also considered the landlord’s record keeping and complaint handling.

Background

The resident lives in a studio flat and has a secure tenancy that started on 8 August 2016. The resident lives in the property with her 3-year-old son. The resident experiences asthma and her son has eczema. The landlord was aware of this in November 2021.
The resident told this service that she experienced damp and mould at the property “a little while” after she moved in. The resident stated that she reported mould to the landlord on 9 November 2021. This is when she became concerned about the potential impact of mould on her son who was 3 months old at the time. The resident complained to the landlord about damp and mould on 11 January 2022.
The resident and landlord have both said that the landlord inspected her property for mould on 25 January 2022. The resident stated that she told the landlord that her boiler was not working on 8 February 2022. The resident said that the landlord provided its stage 1 response on 4 March 2022 and said:
1. it sent a gas engineer on 3 March 2022 and resolved the issues with the resident having no heating or hot water
2. it raised a work order for mould issues and its contractor would contact the resident.
The resident said she complained again on 9 March 2022. The landlord offered the resident £495 as a gesture of good will for the delays in dealing with the damp and mould. It upheld the resident’s complaint at stage 1 and sent a copy of this to the resident on 17 May 2022.
The resident continued to experience further issues with her boiler and damp and mould. She raised a further complaint on 20 June 2022 and asked for her complaint to be escalated. The landlord sent the resident another stage 1 response on 17 January 2023 and said it had booked an appointment for 2 February 2023 in respect of the damp and mould.
The resident escalated her complaint on 17 January 2023 and the landlord provided its stage 2 response on 10 February 2023 and said:
1. it needed to mould wash the resident’s property and this would present no health risk to her or her son if they remained in the property and would take half a day
2. it accepted that she had limited space, and it would be difficult to move belongings about to allow it to treat the property for mould, so it agreed to provide the resident with storage for her belongings for up to a week
3. it asked the resident to let it know about her availability for a mould wash and said once the resident had booked this, she could contact the storage company
4. it accepted that the property was unsuitable, and it reflected this in the housing priority it had awarded on 16 June 2021
5. it completed boiler repairs on 28 January 2023 and the delays in repairing the boiler were because of a difficulty it had in obtaining parts
6. it asked the resident for details of the missed appointments and the periods in which she was without heating and hot water.
The resident told this service that she experienced boiler problems, including a loss of heating and hot water, between January 2023 to February 2023 and again between May to July 2023.
The resident told this service that the landlord has not resolved the damp and mould in her property but intends to inspect her property again the week commencing 14 October 2024.Neither the resident nor landlord have confirmed this happened. The resident would like the landlord to resolve the damp and mould. The resident also told this service that she would like her landlord to compensate her for the loss of clothes, duvets, a storage unit and a wardrobe she alleged she had to throw out because of mould damage. She also disclosed that the landlord’s handling of damp and mould had made her stressed and her son unwell. The resident is seeking rehousing.

Assessment and findings

The scope of the investigation

The resident has told the Ombudsman that there is a long history of persistent mould at the property going as far back as “a little while” after she moved in in 2016. While the Ombudsman acknowledges this, it would not be fair or practical to investigate as far back as this. This is because the records may not be available and with the lapse in time it would make it impossible to fairly investigate. This investigation will consider the landlord’s handling of damp and mould since November 2021. This is because this is the first evidence we have of the resident raising the concerns that became the subject of her complaint of 11 January 2022.
The resident has expressed concerns regarding the impact on her physical and mental health of the landlord’s handling of damp and mould. The resident has specifically referred to the landlord’s delays in dealing with this causing her stress and anxiety.
When this type of dispute arises, the courts rely on expert evidence in the form of a report from an independent medical professional. This will give an expert opinion on the cause of any injury or deterioration. A court will also allow the examination of such witnesses and allow the evidence to be tested. This process helps the court determine whether a person’s health has been injured by the landlord’s actions or inactions.
Therefore, a court is better place to offer a binding decision on this as it will have the benefit of expert evidence and will be able to allow examination of witnesses. The Ombudsman can consider any distress and inconvenience caused to the resident by the landlord’s handling of damp and mould and the boiler repairs.
As part of the complaint, the resident has raised concerns about the landlord’s handling of her rehousing request and priority award on the local housing register. Housing allocations, banding and priorities on the housing register are all functions which the landlord deals with as a local housing authority rather than social landlord.
The Ombudsman can only consider complaints that relate to the landlord’s role as a social landlord in respect of:
1. its housing activities that relate to its housing management functions or
2. management of properties on a long lease that the landlord owns.
This is under paragraph 41.d. of the Housing Ombudsman Scheme.
Therefore, the aspect of the resident’s complaint that relates to rehousing under the landlord’s allocations policies is outside the scope of this investigation. This is because these are legal functions performed by the landlord as a local housing authority rather than as a social landlord. The resident may wish to discuss this aspect of her complaint with the Local Government and Social Care Ombudsman who have jurisdiction.
Paragraph 42.o. of the Scheme also states that the Ombudsman may not consider complaints where a resident is seeking an outcome the Ombudsman has no authority to provide. As a general principle the Ombudsman will not order a landlord to rehouse a resident. This is because this may not be possible, or fair given the availability of suitable vacant properties and competing local housing need.

The landlord’s record keeping

In this case it is difficult to determine the exact course of events due to the lack of complete repair records. As part of this investigation the Ombudsman asked the landlord to provide:
1. a copy of all the resident’s damp and mould reports
2. all internal correspondence and telephone contact notes concerning the reports of damp and mould
3. all records concerning the landlord’s investigation into the reports of mould and boiler disrepair
4. copies of any survey or inspection reports, or feedback from other employees or contractors
5. all repair logs that explain what works the landlord completed and when.
The landlord has not provided all the above, despite the Ombudsman requesting this on 6 August 2024, 5 September 2024 and 19 September 2024. It is a concern that the landlord has been unable to provide this information.
Paragraph 10 of the Scheme states that a member must provide copies (without charge) of any information requested by the Ombudsman that is, in the Ombudsman’s opinion, relevant to the complaint or assessment of compliance with the Complaint Handling Code.
Record keeping is a core function of a repairs service. A landlord should keep accurate detail records to create an audit trail and to ensure that it can effectively monitor and manage repairs.
The Ombudsman’s spotlight report on complaints about repairs, published in March 2019, states that “… it is vital landlords keep clear, accurate and easily accessible records to provide an audit trail. The landlord and its contractors should keep comprehensive records of residents’ reports of disrepair and their responses, including details of appointments, any pre and post inspections, surveyors’ reports, work carried out and completion dates.”
The landlord’s record keeping has affected this services’ ability to conduct a thorough investigation, as highlighted at various points throughout this report. This was a failure by the landlord that contributed to the other failures identified in this report.
The landlord’s poor record keeping highlighted in this report is likely to have contributed to the poor communication and delays in repairs that the resident experienced, and which increased her distress. Therefore, the Ombudsman has made a determination of maladministration in relation to record keeping.

The landlord’s policies and legal context

The landlord was under an obligation to repair the structure and exterior of the property and the boiler. This is under Landlord and Tenant Act 1985, s.11 and the landlord’s repairs manual 2021. This duty extended to repairing any disrepair to the structure (walls, external windows, ceilings and floors) that were caused by mould or damp.
The landlord’s repairs manual 2021 states that it must complete urgent emergency repairs within 24 hours and emergency repairs within one working day. The landlord also provided a repairs health and safety (COVID-19) policy for 2022 that includes a total loss of heating as an emergency.
The Ombudsman’s spotlight report on damp and mould which this service published in October 2021 recommends that landlords should:
1. adopt a zero-tolerance approach to damp and mould
2. ensure that their responses to reports of damp and mould are timely and reflect the urgency of the issue
3. review the number of missed appointments in relation to damp and mould and consider what steps may be required to reduce them
4. identify when an independent, mutually agreed, and suitably qualified surveyor should be used and share the outcomes of all surveys with residents
5. evaluate what mitigations they can put in place to support residents.
The landlord was under an obligation to ensure the resident’s tenancy was fit for human habitation. This includes a requirement that it be free from damp and mould both under the Landlord and Tenant Act 1985 and the Housing Health and Safety Rating System (HHSRS). The HHSRS provides a risk-based tool for landlords to assess hazards in properties, including from damp and mould. The government have also provided landlords with guidance on its use.

The landlord’s handling of damp and mould

The resident made the landlord aware there was an issue in her property with damp and mould on 9 November 2021.
The landlord’s operative attended the property on 24 January 2022 and their repair record of this date shows the property tested positive for damp and mould. A survey was carried out the following day. It is unclear however what the landlord found or what work it recommended following this as it has not produced any evidence of the nature and extent of the inspection or whether it was able to establish the cause of the mould.
This was inappropriate as this did not comply with the Ombudsman’s expectations in the spotlight report on damp and mould that requires landlords to inspect properties and identify the cause of the damp and mould with urgency. The landlord also did not consider its duty to assess hazards in the government’s guidance for landlords on the Housing Health and Safety Rating System. The landlord has therefore been unable to demonstrate that it satisfied itself that the property was safe and fit for human habitation.
The landlord said that it raised a work order on 3 March 2022 to replace the resident’s kitchen fan and fit a thermal board on two walls in her property. The resident provided this service with an email she said she sent to the landlord on 9 March 2022 noting that the landlord had offered a mould wash. This was a reasonable step for the landlord to take to deal with the mould.
The landlord’s account is that it replaced the kitchen fan on 12 April 2022 although its repair records state it completed this on 7 or 10 April 2022. The Ombudsman has seen a record of an email that the resident said she sent to the landlord on 3 May 2022 confirming the landlord replaced the kitchen fan. Therefore, the Ombudsman is satisfied that the landlord replaced this although the inconsistency in the landlord’s records is a concern.
The resident provided this service with an email she said she received from the landlord on 17 May 2022 explaining that it could not fit the thermal boards on 12 April 2022. The landlord said that this was because the resident was wanting the landlord to offer temporary accommodation while it did the mould wash and thermal board fitting.
The resident said she emailed the landlord on 9 March 2022 to ask it to store her items while it treated her property for mould. The resident said she mentioned in this email that she was concerned about “inhaling products” from the mould treatment.
The resident then told the landlord on 28 March 2022 that she did not feel it was practicable to mould wash while she was present. This was because the resident:
1. was concerned that the treatment would create harmful vapours
2. felt the property needed to be aired for up to 48 hours after the mould wash.
The Ombudsman notes that the landlord told the resident on 17 May 2022 that it would explore offering her a temporary move. The resident said on 20 June 2022 that the landlord had initially agreed to offer moving her temporarily. By 10 December 2023 the resident stated that the landlord decided not to offer her a temporary move. The Ombudsman has not seen evidence of the landlord’s decision or its communications with the resident over this issue.
The Ombudsman considers that it was appropriate of the landlord to have considered offering the resident alternative accommodation. This was because the landlord acknowledged that it would explore this option and said its contractors recommended this. It will often be appropriate for a landlord to arrange for a resident to move to alternative accommodation where a landlord cannot complete works with them in residence.
The landlord has not provided evidence to this service to show how it considered the decision or communicated it to the resident. Therefore, the Ombudsman cannot be satisfied that the landlord acted in a reasonable, timely or fair way.
The Ombudsman has not seen evidence either that the landlord addressed the resident’s health and safety concerns about the mould treatment until 10 February 2023 (from 9 March 2022). The landlord therefore lost an opportunity to support the resident and allay her concerns so that it could mould wash.
The resident said she told the landlord on 3 May 2022 that the mould in the kitchen needed doing and the bathroom extractor fan needed replacing too. The landlord’s repair records indicate that the landlord mould washed and painted the kitchen with anti-mould paint as well as fitted a bathroom extractor fan on 13 to 15 June 2022. The Ombudsman considers that the landlord failed to demonstrate that it responded within a reasonable time. This is because the resident had raised her concerns about the mould in November 2021 and yet it took the landlord nearly seven months to do this work. This was not in line with the Ombudsman’s spotlight report on damp and mould that requires landlords to deal with mould urgently.
Both the landlord and resident have accepted that a surveyor attended the resident’s property in June 2022. However, the evidence does not confirm what the outcome of this visit was. Therefore, the Ombudsman cannot assess the reasonableness of the landlord’s actions in respect of what works were required, if any, or how the landlord followed up on these.
The resident emailed the landlord on 20 June 2022 suggesting the work the landlord completed in the kitchen was unsuccessful and would likely lead to mould regrowth. This record also refers to the bathroom extractor fan being defective because “wires had been cut” allowing it to be on all the time. This email confirmed that the work to address mould in the other areas (thermal boards) was outstanding from the resident’s account. The landlord has not provided evidence to show what its response to these reports were so the Ombudsman cannot assess the reasonableness of its actions.
The landlord’s second stage 1 response on 17 January 2023 referred to it having booked an appointment for 2 February 2023 in connection with the damp and mould. However, the landlord has not provided any records to show if this went ahead or what happened if it did. The landlord agreed on 10 February 2023 to help the resident with storage of her personal items to enable the mould wash to go ahead. The landlord confirmed they had made a referral to a removal company and said the resident should contact them to arrange collection of the items she needed stored. While this was a positive step the landlord has not provided evidence to show what the outcome of this was. The resident has said she decided not to store her items as the landlord did not confirm it would accept responsibility for any damage to her belongings while in storage.
The landlord was not under an obligation to cover any damage or loss to the resident’s belongings during storage as it was being handled by a third-party company. It was reasonable for the landlord to give the resident the option of storage on that basis. However, as the resident has told this service she refused the landlord’s offer the Ombudsman finds no fault with the landlord for it not proceeding.

Post complaint

The landlord was unable to arrange for a mould wash following the complaint closure based on the available evidence. There is some dispute between the landlord and resident over the reasons for this.
The landlord has not provided any evidence to show what steps they took throughout this period. Therefore, there is no evidence on which the Ombudsman could conclude that they took reasonable steps to secure access and complete the agreed works. As the resident has told this service that work is still outstanding the Ombudsman has made an order relating to this.

Summary

The Ombudsman has identified the following failures in the landlord’s handling of the mould and damp:
1. the landlord failed to act in a timely way that reflected the urgency of the problem with the available evidence showing a delay in it arranging an inspection between 9 November 2021 to 25 January 2022
2. the landlord has not provided the Ombudsman with any evidence to show it properly assessed the risk of the mould to the resident or established the cause with an agreed plan to deal with any mould following the inspection in January and June 2022 and February 2023
3. its failure to explain its decision not to temporarily move the resident and the delay in it addressing the resident’s health concerns around mould washes (9 March 2022 to 10 February 2023)
4. the absence of evidence of what steps the landlord took between 2 February 2023 (when it booked an appointment) to 11 October 2023 (when the resident said it offered a mould wash).
The Ombudsman considers, based on the available evidence, that the resident objected to the landlord doing a mould wash or fitting the thermal boards unless:
1. it was prepared to temporarily move her while it did this work
2. or it agreed to store her goods safely and take responsibility for them.
The Ombudsman is of the opinion that the landlord cannot be faulted for not storing the resident’s belongings because the resident refused this offer. However, the Ombudsman considers that the landlord failed to consider the resident’s request for alternative accommodation in line with its temporary decant policy. The landlord’s referral to insurance to cover damage to the resident’s personal belongings was in line with its compensation policy.
The evidence does not allow the Ombudsman to conclude that the landlord offered an effective repair service or that it addressed the resident’s concerns in a timely or fair way. The failures identified in this report increased the resident’s distress and sense that the landlord was ignoring her. The landlord also put the resident to an unreasonable amount of time and trouble in having to chase repairs. Together, this damaged the landlord and resident relationship and caused significant distress. For these reasons the Ombudsman has found maladministration in the landlord’s handling of damp and mould and have awarded compensation. The Ombudsman’s remedies guidance provides for awards of up to £1000 where there has been maladministration that has caused the resident detriment and significant impact.

The landlord’s handling of boiler repairs

The Ombudsman cannot establish from the available evidence when the resident first reported her boiler was in disrepair. The landlord was under a duty to respond to a report of boiler disrepair within 24 hours under its repair’s manual. This is because a boiler disrepair could amount to an emergency because of the danger of gas leaks or the danger to health caused by a lack of heating and hot water.
The resident has provided this service with a copy of an email she said she sent to the landlord on 8 February 2022 reporting that her boiler had stopped working. This email refers to the landlord’s contractors attending two weeks previously which suggests the resident reported a disrepair earlier. The Ombudsman cannot verify this on the available evidence.
The landlord said that an engineer attended on 3 March 2022 and resolved all the issues the resident experienced with the heating and hot water. The resident said that her boiler had stopped working on 8 February 2022 and the landlord attended on 9 and 10 February 2022. This is consistent with the landlord’s repair records which indicates that the landlord restored heating and hot water on 10 February 2022. While the resident stated that the landlord missed an appointment on 19 February 2022 the landlord’s account is that it could not gain access to the resident’s property on 22 February 2022. The landlord’s repair records show that it completed a boiler service on 25 March 2022.
Based on the available evidence the landlord responded within 24 hours to the report of no heating and hot water (8 February 2022). The repair records state that it restored heating and hot water within 48 hours before returning to undertake a permanent repair on 3 March 2022. It was reasonable of the landlord to do a patch repair while it awaited parts to complete a permanent repair. However, the Ombudsman considers that the landlord ought to have restored heating and hot water within 24 hours as this was during winter and the resident had a young child.
The resident told the landlord on 20 June 2022 that the landlord left her without heating or hot water for almost two weeks, but it is unclear when this was. The resident told the landlord on 9 January 2023 that she did not have heating and hot water during May to June. The Ombudsman cannot establish, based on the available evidence, what periods the resident was without heating or hot water.
The resident told the landlord on 9 January 2023 that she started to experience problems with her boiler again at the start of December 2022. It is unclear if or when the resident reported this to the landlord. In the resident’s email to the landlord of 9 January 2023 she said:
1. that she reported to the landlord not having heating or hot water on 12 December 2022
2. an engineer came on 14 December 2022 but did not repair the boiler
3. she called the landlord last week and it booked an appointment for 9 January 2023 which the landlord cancelled without notice and left the resident to rearrange for the next day.
The resident told the landlord on 17 January 2023 that she had been living with boiler issues for 8-9 months. The landlord’s repair record from 14 December 2022 refers to it attending with a leak sealer but that it could not find a leak and the “pvc looked ok”. The landlord in its stage 2 stated that it had repaired the boiler on 28 January 2023 and the delays in it repairing the boiler was because of difficulties in getting parts. This admission is inconsistent with the resident’s accounts and its finding on 14 December 2022 and therefore calls into question the reliability of the landlord’s records.
The absence of detailed records for the boiler repair and the inconsistencies means that the Ombudsman cannot be satisfied that the landlord acted reasonably or in line with its repair’s manual. Therefore, the Ombudsman finds maladministration in the landlord’s handling of boiler repairs. The landlord said that it paid the resident £155.20 in March 2023 for six missed appointments and 10 days loss of heating and hot water. The resident has not confirmed she received this and the landlord has not provided the Ombudsman with evidence to verify this. The landlord’s handling of the boiler caused the resident distress. Therefore, the Ombudsman has made an order of compensation to reflect this which is in line with our Remedies guidance. This provides for payments of between £100 to £600 where the resident has experienced a detriment by the landlord’s maladministration but where this has not been permanent.

The landlord’s complaint handling

The landlord’s housing management complaint’s policy at the time that the resident complained contained 3 stages which were:
1. early resolution: the landlord passed these onto an officer to resolve and agree time scales and actions but did not involve a written response
2. local resolution: these requests must be made in writing with a senior officer responding within 20 days (stage 1)
3. review: these are dealt with by an improvement and review officer and a member of the senior leadership group of the landlord with no time scale for a response (stage 2).
The landlord’s complaint policy at the time did not comply with the Ombudsman’s Complaint Handling Code (the Code). The resident complained on 11 January 2022 and the resident said that the landlord provided a stage 1 response on 4 March 2022. The Ombudsman has also seen another stage 1 response that referred to the complaint on 11 January 2022 which the landlord forwarded to the resident on 17 May 2022. It is unclear, based on the available evidence, if the landlord sent this earlier. Therefore, this service cannot be satisfied that the landlord acted in line with its complaints policy.
The resident escalated her complaint on 9 March 2022, the landlord forwarded a stage 1 response to the resident on 17 May 2022. It said it awarded the resident £495 but the resident has been unable to confirm receipt.
The landlord also failed to monitor the agreed actions to resolve the issues. It issued another stage 1 on 17 January 2023 in response to receiving another complaint on 9 January 2023. The resident escalated her complaint again on 17 January 2023.
The landlord provided its stage 2 response on 10 February 2023, this was 18 working days after the second escalation. The Ombudsman has found the landlord:
1. failed to monitor and address the issues the resident raised which led to the resident having to make repeated complaints about the same issues
2. delayed escalating the complaint to stage 2 until 10 February 2023 which delayed her referral to this service.
The landlord failed to demonstrate acknowledgement of the distress and inconvenience it caused by its delays and the loss of heating and hot water. It asked the resident for the dates of missed appointments and periods that she was without heating or hot water. However, in the Ombudsman’s opinion the landlord ought to have been able to work this out from its records or at least comment on the resident’s concerns.
The landlord continued to fail to demonstrate after its stage 2 response any effective monitoring of the complaint. This is evident by the fact that the complaint remains unresolved after the resident made it.
The Ombudsman has found that the landlord failed to recognise when it should escalate a complaint. This caused the resident distress and inconvenience and delayed the complaint being considered by this service. Therefore, the Ombudsman has found maladministration in the landlord’s complaint handling. The Ombudsman has made an award for compensation for the distress and inconvenience caused by its failures in complaint handling.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of damp and mould.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of boiler repairs.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s record keeping.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s complaint handling.

Orders

Within 28 days of the date of this determination the landlord must:
1. write to the resident to apologise for the failings identified in this report
2. send a damp specialist, or another suitably qualified professional, to inspect the resident’s property to identify the cause of the damp and mould, on a date agreed with the resident, unless it has already done so. The landlord must provide a copy of this report to this service and the resident
3. prepare a schedule of works detailing what works are required and when they will be carried out by. This should be shared with the resident and this service
4. write to the resident to explain what arrangements it will make to allow the work to proceed
5. pay the resident directly £1,000 (less any payments that it can prove it has made to the resident since 2022) made up of:
  1. £600 for the distress and inconvenience caused by the landlord’s delay in addressing the damp and mould caused by its failures to monitor, including record keeping
  2. £300 for the distress and inconvenience caused by the landlord’s handling of boiler repairs, taking into account the periods of loss of heating and hot water
  3. £ 100 for the distress and inconvenience caused to the resident by the landlord’s delays in complaint handling.
The landlord must provide the Ombudsman with evidence that it has complied with the above orders within 28 days of the date of this determination.
Within 56 days of the date of this determination the landlord must review how it recorded repairs in this case against its processes for recording completed repairs. This is to identify any improvements the landlord may make to the recording of information, including for missed appointments and inspections. The landlord should have regard to recommendations 7 and 19 of the Ombudsman’s spotlight report on knowledge and information management published in May 2023.
The landlord must provide a copy of its findings to this service within 56 days of the date of this determination.