Lambeth Council (202343630)

REPORT

COMPLAINT 202343630

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

The complaint is about:
1. The landlords handling of the residents reports of damp and mould throughout the property.
2. The landlords handling of repairs to the residents windows.
3. This service also considered the landlords handling of the residents complaint.

Background

The resident has occupied her 1 bed ground floor flat on a secure tenancy with the landlord since 26 July 2021. The landlord is a Council.
The landlord said it had no vulnerabilities recorded for the resident, however its sign up paperwork stated that she requires a walking stick due to mobility issues and had left her previous property due to its unsuitability because of ill health / disability.
The resident reported a damp and mould problem in her property, on 14 December 2022, 21 December 2022, and 20 January 2023. On 21 December 2022 an order was raised by the landlord to re-seal all windows as water was penetrating, this was chased by the resident on 9 January 2023 and noted by the landlord for a target completion date of 2 February 2023. A mould wash was ordered for walls, ceilings and window returns in the hallway, living room and bedroom on 24 January 2023.
On 6 June 2023, the landlords records show an order raised following a request from the resident for a damp and mould inspection. The next day the landlords housing officer and surveyor attended for a joint inspection. Following this inspection the resident was of the view that the landlord had determined there to be a significant fault, that needed works. There was no report or details of the outcome of the inspection recorded on the landlords repairs records. On the day of the inspection an order was raised to seal holes around the central heating pipes in 3 rooms, check the waste trap for blockages in the wet room, check the floor gradient and apply stain block to the ceiling. It was not clear whether this order was an outcome from the inspection. The order appears to have subsequently been closed, but re-ordered 5 October 2023. The resident chased the landlord 6 times by email between 26 November 2023 and 12 January 2024. Her emails advised the damp problem was ongoing, her furniture was getting damaged and requesting that the works following the damp and mould inspection in June 2023, be completed.
On 12 January 2024, when the resident had not received any response from her chase up emails, other than to be advised that they had been referred to the maintenance team, she made a formal complaint. In it she said she was complaining about the landlords failure to repair her home, she had issues with the walls in the front rooms which were causing damage to her home and was affecting her health. She had been advised by her housing officer since 7June 2023 that work to the walls was to be carried out, but nothing had been done since. Her complaint was accompanied by photographs, of poorly finished wall surfaces, sections of damp and mould and a wardrobe which she said she had replaced which she had to clean and paint the back of due to the mould.
On 23 January 2024, the landlord completed its stage 1 investigation and provided its response, in summary it said:
1. The complaint was partially upheld, and it apologised for any inconvenience caused.
2. The investigation had determined an inspection had taken place on 19 January 2024. Works orders had subsequently been raised to:
  1. Ease and adjust the windows and apply draught excluder.
  2. Arrange an inspection by a damp specialist.
3. The expected completion date for both was 29 February 2024.
On 23 January 2024, the resident advised the landlord she was not satisfied with the response. The recent inspection had determined that the walls were badly affected by water rising from the ground, which she further demonstrated providing images of her wet walls. This had not been taken seriously by the landlord in its inspection of 7 June 2023. Her furniture had been affected and there had also been no explanation as to what would happen to her while any extensive work to the walls takes place. She requested her complaint be escalated.
The landlord completed its stage 2 review and provided its response to the resident on 1 March 2024, in summary its final position on the matter was:
1. That it was sorry the resident had been dissatisfied with the service.
2. It offered sincere apologies for the delay in responding to the stage 2 complaint.
3. It had confirmed with its contractor that an appointment had been made for 25 March 2024 to carry out the window repairs.
4. In respect of the damp survey, the damp specialist would be arranging a damp survey with the resident directly.
5. It appreciated the residents frustration and the amount of time taken to address her concerns and offered her a “gesture of goodwill” payment of £225.
The resident approached this service as she was not satisfied with this outcome, the problem had not been resolved and the sum offered did not cover the cost of the wardrobe she, had had to replace.

Post the complaint process.

On 15 April 2024, a specialist damp contractor attended the residents property to assess the damp, its report concluded:
1. That whilst moisture meter readings were recorded above prescribed limits of 20% WME, to the areas specified, these were not fully conclusive of rising damp due to other potential sources of moisture being present, free water (condensation) evident to the wall surfaces.
2. Moss growth was noted externally below the damp proof course level, due to the gathering of rainwater in the area, that would indicate moisture exists, however the damp proof course was functioning adequately at the time.
3. Damp proof course supplementation would not alleviate these conditions and, on this basis, no remedial works against rising or penetrating dampness, was required at this time.
4. Slight mould was noted to the external walls in the living room, and it understood from the occupier that a mould wash had recently been carried out.
5. The presence of condensation and mould within the property indicated humidity levels were regularly too high, creating conditions conducive to mould growth. The mould needed to be treated and removed to prevent a build-up of mould spores.
6. The condensation within the property was currently being managed by the occupant, however it would recommend that the resident is advised on introducing a better balance of heating and ventilation to assist in the control of condensation and mould growth. Humidity levels within the property need to be consistently reduced by ventilating as the mould will return even following treatment and removal if the levels remain too high.
7. It said condensation was “chiefly a winter problem”. It said it was highly likely that its findings would alter considerably during the winter months, but may recommend condensation control works are carried out in advance so that the risk of condensation and mould is reduced beforehand.

Assessment and findings

The landlords legal and policy context

There are statutory responsibilities for landlord’s when it comes to the repair and maintenance of rented properties.
The operation of the Homes (Fitness for Human Habitation) Act 2018, implied a term into the resident’s tenancy agreement that the landlord must ensure its dwelling is fit for human habitation at the beginning of, and throughout, the tenancy. This places a responsibility on landlords to assess hazards and risks within its rented properties. The existence of a hazard as defined by the Housing Health and Safety Rating System (HHSRS) is one of the factors that may be considered when assessing fitness. A hazard can include mould and all types of dampness.
The landlord also has a repairing obligation to maintain and repair the structure of the home, under section 11 of the landlord and Tenant Act 1985 and repairs must be completed within a reasonable period.

The landlords handling of the reports of damp and mould throughout the property.

When considering whether the landlord acted reasonably and fairly to reports of damp and mould, this Service considers the recommendations made in the Ombudsman’s Spotlight Report on Damp and Mould (published October 2021). This report has provided recommendations for landlords, that they should:
1. Adopt a zero-tolerance approach to damp and mould interventions.
2. Ensure they can identify complex cases at an early stage and have a strategy for keeping residents informed and effective resolution.
3. Ensure that they clearly and regularly communicate with their residents regarding actions taken or otherwise to resolve reports of damp and mould.
In accordance with the recommendation in the Spotlight report the landlord has developed a repairs damp and mould policy and a damp charter, setting out what residents can expect in response to reports of damp and mould which is appropriate.
The landlords records indicate that the resident first raised the issue of damp and mould on 14 December 2022. A damp and mould wash was ordered on 24 January 2023, but had a target completion date of 03 March 2024, which was 54 working days from the initial report.
Under its current damp and mould policy the landlord commits to prioritising the removal of mould with an initial wash and treatment within 7 days, however it is acknowledged that the residents initial reports of damp and mould pre-date the policy which was not implemented until August 2023. It is not clear prior to the policy which response timeframe the landlord considered relevant for a report of damp and mould. A routine repair 1 commits to 7 working days, a routine repair 2, has a completion time of 28 working days, the landlord’s target response time in this case far exceeded this, and was not reasonable.
The Governments guidance on damp and mould states that simply removing surface mould will not prevent the damp and mould from reappearing. It is important to identify and tackle the underlying causes of damp and mould, including building deficiencies, inadequate ventilation, and condensation. Post inspections should be completed 6 weeks after treatment and if damp and mould have reappeared, further investigation and intervention should be pursued.
The landlord did not post inspect, but it responded to the residents report 3 months later in June 2023, that the damp and mould had returned. The housing officer and a surveyor attended to carry out an inspection, which was appropriate.
It would however be reasonable to expect that any quality inspection of damp and mould should include an assessment of all possible causes of the damp, (leaks, rising damp, penetrating damp, and condensation) which would involve checking the fabric of the building for faults. It would also be reasonable to expect a written record of the inspection and its findings. The Ombudsman could not comment on the quality of the landlord’s inspection as there was no accompanying report or clear plan of action or works to support it, which was not appropriate.
Despite significant attempts by the resident to chase the landlord, there was no evidence of the landlord taking any further action to address the damp and mould until the residents formal complaint 12 January 2024. This did not align with any of its repairs response times, or its commitment for a quick diagnosis and action plan to resolve in its damp and mould policy which became effective in August 2023, and was not reasonable.
The landlord attributed much of the delay to the resident not answering her phone to the contractors. There was evidence that the resident had changed her number in correspondence from January 2024, but there was nothing to support this in the records provided prior to January. There was also no mention of this in either complaint response. It was also noted that the resident emailed a request on 27 November 2023 for the contractors to contact her by email.
The spotlight report on damp and mould encourages a respectful and empathetic approach, it highlighted in its findings, that the distress and inconvenience experienced by residents living with damp and mould was the most profound the Ombudsman had seen. For this reason the report is very clear, on the importance of communicating with residents and keeping them informed regarding actions taken or otherwise, when reports of damp and mould are received.
It was not evident that the landlord made any contact with the resident in relation to the damp and mould, post the June 2023 inspection, until her complaint January 2024. This was despite evidence that 6 emails were sent by the resident from 26 November 2023 -12 January 2024. Only 1 email received a response from the landlord, to inform her it had been referred to another department. This was not reasonable and did not demonstrate an empathetic approach or the degree of communication called for in the Spotlight report.
The lack of action from the landlord during this time was concerning given the Spotlight report on damp and mould had been published a year prior to the residents damp problems being reported. The landlord had been on notice for some time that the resident was suffering with damp and mould in her property, it was not reasonable that a year on the resident had to make a formal complaint to initiate a response from the landlord. The landlord’s approach was inappropriate and did not demonstrate the “proactive interventions” required from the recommendations in the Spotlight report.

The landlords handling of the residents window repairs.

In addition to the landlord’s statutory repairing responsibilities, to keep in repair the structure and exterior of the property, set out earlier, the landlord has its own “lettable standard”. This document, under windows and doors, commits to all windows being sealed against wind and water penetration. All window elements including frames and boards to be in a sound and usable condition with all necessary attachments in working order.
The landlord identified a problem with the seals of the windows as a result of an inspection for a report of damp and mould. It raised an order on 21 December 2022, to seal all windows, as water was penetrating and causing a damp problem. This order was chased on the 19 January 2024, and the target completion date was recorded by the landlord as 30 January 2024. It was not helpful that the landlords records did not contain an “actual” completion date, however it was noted this job was not chased again by the resident indicating that it had been completed, which was reasonable.
A further inspection of the residents property took place on 19 January 2024, following her complaint about the landlords response to the damp and mould. Along with a request for a damp specialist to attend, the landlord also requested further works to the windows. An order was raised on 22 January 2024 to ease, adjust and fit draught excluders to all windows, with a target date of 29 February 2024 for completion. The landlords repairs records provided, extended to May 2024, and again there was no evidence this job was chased during this time by the resident, indicating it was completed, which was reasonable.

The landlords handling of the residents complaint.

In July 2020, the Housing Ombudsman published a new complaint handling code, with the purpose of enabling landlords to resolve complaints raised by their resident’s quickly and to use the learning from complaints to drive service improvements. All member landlords were required to complete a self-assessment against the Code and take appropriate action to ensure their complaint handling was in line with the Code, by 31 December 2020. The Code became statutory on 1 April 2024, meaning that landlords are now obliged by law to follow its requirements.
The Ombudsman’s Code requires that landlords shall address all points raised in the complaint and provide clear reasons for any decisions. While the landlord’s stage one complaint identified the necessary action to progress the treatment of the damp and mould, it failed to address the substantive complaint, of why no action had been taken following its damp inspection in June 2023. The response provided no findings from that inspection or gave any explanation as to why no works had been ordered or progressed. The response also stated that the residents complaint was partially upheld, but provided no further information to explain this determination. This was not reasonable and not Code compliant.
The resident had consistently complained that her home and furniture had been damaged by the damp and mould, this was referenced again in the stage 2 complaint. The issue related particularly to a wardrobe that had to be replaced. In accordance with the landlords complaints policy it would have been appropriate for the landlord to advise the resident how to make a claim for damages from its insurers, and it was a service failing that it did not. Moreover this issue was completely overlooked in the landlords response which was again not reasonable or Code compliant.
The landlord did, in its stage 2 complaint response of 1 March 2024, apologise for failings in its complaint response time. It was unclear what the landlords recommended stage 2 response time was, as the policy document provided was from March 2016 and did not give a response time for this stage. The Code recommends 20-working days response time for stage 2 complaints, the resident escalated her complaint on 23 January 2023 which meant the landlord exceeded the response time recommended in the Code by 7 working days. It was therefore appropriate that the landlord apologised.
Furthermore in its stage 2 response, in acknowledgement of its failings it offered the resident as a gesture of goodwill, a payment of £255 for “delays experienced, and distress caused”. The landlords compensation policy, sets out its approach to applying remedies and compensation, should a service failure occur. It states that ‘gestures of goodwill’ should be offered if there has been “some upset” caused by a service failure which would usually come in the form of flowers or vouchers for a local shop. Financial compensation should be awarded when a service failure has occurred, and it has had an adverse effect on a resident.
It was evident that there was some confusion in the implementation of the landlord’s compensation policy. The resident was awarded an offer of financial payment but as a ‘gesture of goodwill’, when a financial offer is not the type of gesture usually awarded, which did not align with its compensation policy.
Aside from the in-action of the landlord following it’s damp and mould inspection in June 2023, by the time it re-inspected the property on 19 January 2024, the damp problem was significant enough for the landlord to suspect it was rising damp. The resident had been living with these conditions when the landlord had the opportunity to resolve the problem 7 months earlier. The residents complaint was therefore clearly not just a service failing that had caused “some upset” as defined for a gesture of goodwill, and required consideration of calculation of ‘compensation’ under the landlords compensation policy. Having considered the level of service failings identified above, the financial redress offered (£255) was considered to be low, and not within the range the Ombudsman would recommend for the level of service failure and resulting detriment experienced by the resident.

Determination

In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was maladministration in the landlords handling of the residents reports of damp and mould throughout the property.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was no maladministration in the landlords handling of repairs to the residents windows.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was maladministration in the landlords handling of the residents complaint.

Orders and recommendations

The Ombudsman orders that the landlord within 4 weeks:
1. Apologises to the resident for the failings identified in this investigation.
2. Pays the resident the sum of £800 (in addition to the £255 already offered), this is broken down as follows:
  1. £450 for the unexplained delays and failings identified in the landlords handling of the damp and mould.
  2. £350 for the failings identified in the landlords handling of the residents complaint.
3. Provides the resident with a plain English written explanation, of the outcome of the specialist damp report, with a copy to this service. (The resident is still under the impression major works will be carried out to the exterior walls of her property).
The Ombudsman orders that the landlord within 8 weeks
1. Reviews the residents property to see what condensation control measures can be put in place before the winter months, to alleviate the build-up of condensation (As suggested in the specialist damp report) and provides a copy of its findings to this service.