Leeds City Council (202226755)

REPORT

COMPLAINT 202226755

Leeds City Council

16 February 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:
   1. The resident’s reports of damp and mould.
   2. The associated complaint.

Background

2. The resident occupies a property under a secure tenancy agreement which began on 14 November 2021. The property is a ground-floor one-bedroom flat. The resident told this service he suffers from anxiety, depression, and PTSD.
3. The resident reported that there was damp, mould and condensation in the property on 3 November 2022. The landlord inspected the property on 14 November 2022, assessed the humidity levels and found them to be moderate. The contractor advised the landlord to install extractor fans in both the kitchen and bathroom.
4. The resident raised a formal complaint on 23 November 2022. He said that:
   1. The landlord said it was going to install ventilation at the property and it had not.
   2. His house was mouldy and some of his belongings had been damaged as a result.
   3. He was unhappy with the service that the landlord had provided.
5. The landlord’s stage 1 response explained that there was an appointment to install the extractor fans on 16 December 2022. The resident escalated his complaint on 3 January 2023 because:
   1. There was white mould in the property, and he said it was getting worse and impacting his mental health.
   2. The original appointment for the installation of the fans could not proceed because the contractor did not have the appropriate tools to carry out the work.
   3. The fan installation had been re-booked for 2023 but this was a further delay.
   4. The property was starting to smell and mould cleaner was not making a lasting repair.
6. The landlord said in its final response on 20 January 2023:
   1. The property had been inspected appropriately and there was no rising or penetrating damp causing the humidity levels.
   2. The reason behind the moderate humidity levels was because of the tenant’s lifestyle and that it gave him advice about how to mitigate this.
   3. Mechanical ventilation was going to be installed to combat his living conditions; however, the appointment was delayed, and it apologised for this.
7. The landlord fitted a bathroom humidistat fan on 6 February 2023. It later installed a vent in the hallway on 25 July 2023. This was because it said it was unable to install a kitchen fan due to a pre-existing gas pipe that could not be moved. At the same time, it applied insulation paper to the bedroom walls.
8. The resident remains dissatisfied because he feels that the landlord has not done enough to resolve the damp, mould, and condensation in his home. He is seeking the landlord to:
   1. Apply anti-mould wallpaper and anti-mould paint throughout the property.
   2. Install more fans in the property, specifically in the kitchen.
   3. Paint his walk-in wardrobe that was covered in mould.
   4. Provide damages for the impact of the repairs on his mental health and damage to his property.
   5. Provide compensation for the cost of the dehumidifier and increased electricity bills.

Assessment and findings

The reports of damp and mould

9. Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on landlords to keep in good repair the structure and exterior of properties. once it is notified of the issue by a resident, landlords are responsible for making repairs that are lasting and effective in all cases. Once a resident notifies the landlord of the issue, the landlord is responsible for making repairs that are lasting and effective, ensuring they are completed promptly to avoid impacting the resident’s enjoyment and use of their property.
10. Section 9A of the Landlord and Tenant Act 1985, requires landlords to ensure a property remains fit for human habitation from the start of the tenancy and throughout. This includes it being free from damp and having adequate ventilation (s.10).
11. The landlord’s repairs policy categorises repairs as:
    1. Emergency repairs that require urgent action to prevent a serious risk to health and safety, major damage to the structure of the property. It states it will attend to these repairs within 3 hours and complete emergency repairs within 24 hours.
    2. Priority repairs that seriously affect the comfort of residents or cause damage to the property. It uses the example of an extractor fan not working in the kitchen or bathroom. It states it will attend within 3 working days and carry out the repair within 7 working days.
    3. General repairs that need to be done to the home. It states it will repair within 20 working days.
12. The evidence shows that from at least February 2021, there were some issues with damp and mould in the property. The repair logs state that the resident contacted the landlord on 19 February 2021 to ask if an extractor fan could be fitted. The notes also state that the resident chased this in April 2021. This indicates the landlord was aware of damp and mould in the property in February 2021.
13. The resident reported damp, mould, and condensation in his property on 3 November 2022. The landlord responded by:
    1. Assessing the humidity levels in the property on 14 November 2022. It found that there were “moderate humidity levels” in the property. The contractor noted that the resident was drying clothes in the property, and they did not note any mould. The contractor recommended that the landlord install humidistat fans in the bathroom and kitchen.
    2. Providing advice at this appointment to the resident about how to mitigate the humidity levels in his property by changing his “lifestyle.”
    3. Attending the resident’s property on 16 December 2022 to install the fans, however, the contractor did not have the appropriate tools to do this and rescheduled the appointment for “2023.”
    4. Installing a humidistat fan in the bathroom. In its stage 1 response, it said it completed this on 6 February 2023 but the repair records state this was completed on 1 March 2023.
    5. Carrying out a joint inspection with the repairs team and the resident’s housing officer on 12 April 2023 to assess the damp and mould. There is no record of the landlord’s findings during this visit.
    6. Installing a vent in the hallway on 25 July 2023. It said this was an alternative to installing a fan in the kitchen because a kitchen fan was unable to be fitted due to a logistical issue with an external gas pipe that could not be moved.
    7. Applying insulation paper to the bedroom walls on 25 July 2023.
14. The landlord told this service that it provided the resident with advice about damp and mould. However, it has provided no evidence to substantiate this.
15. The landlord also stated that the property did not have extractor fans previously and that it had classified the repair as an improvement repair. The landlord’s repair policy cites that “extractor fans not working in the kitchen or bathroom” as a “priority” repair. Therefore, it is fair and reasonable to conclude that the installation of extractor fans would also fall under the definition of a priority repair.
16. The landlord took:
    1. 67 working days outside of its repair timeframe to install the bathroom extractor fan.
    2. 167 working days outside of its repair timeframe to install the kitchen vent.
17. This does not factor in that the landlord was aware of the need for an extractor fan in February 2021. The Ombudsman considers that the landlord unreasonably delayed in completing the repairs it had undertaken to complete in the resident’s property. This was maladministration because it impacted the resident’s enjoyment of their home and caused him distress and inconvenience.
18. The landlord carried out a joint visit to the property to assess the damp and mould on 12 April 2023. Whilst the Ombudsman considers this a reasonable action to take to review the works up to that point, there is no evidence to confirm the outcome of the inspection, the condition of the property or any outstanding works.
19. In its formal response, the landlord copied an extract of a surveyor’s report which stated: “Bath & kitchen fans required to combat tenant’s living conditions, I advised tenant to dry clothes in the bathroom with the door closed once fan is installed.” The landlord went on to qualify this statement with “I agree with the report findings which identified excessive humidity. This is not a fault with the structure of the building or damp, it is condensation caused by occupancy which is, in turn, causing the mould growth you now report.” The resident told this service that it made him feel targeted and to blame for the damp and mould.
20. The Ombudsman expects landlords to avoid automatically apportioning blame or using language that leaves residents feeling blamed. The terms “combat the tenant’s living conditions” and “condensation caused by occupancy” suggest that it is a resident’s choice to live in a certain way which resulted in the deterioration of the relationship between parties. This was inappropriate.
21. It is important to note that it is normal for households to dry their clothes in their homes given UK weather and during winter months. Our Spotlight Report on Damp and Mould stated: “An effective response begins when the resident first contacts the landlord. Landlords must avoid paternalistic attitudes, automatically apportioning blame or using language inferring blame on the resident.”
22. Although the landlord said that is offered the resident leaflets to inform him of the risks of damp and mould, it could have done more to support the resident. For example, supporting behavioural change by considering installing humidity and temperature sensors to inform the resident in real time of the levels in his home; or by assessing the resident’s situation in more detail to identify if more could be done to make the cost of heating or ventilating more affordable.
23. In addition, the Ombudsman considers this a failure in record keeping. This service expects landlords to maintain clear, accurate, and easily accessible records provide an audit trail and enhance landlords’ ability to identify and respond to problems when they arise. It is the Ombudsman’s opinion that the landlord has failed to maintain adequate records, which has affected this service’s ability to carry out a thorough investigation into this element of the complaint. This was a service failure.
24. The resident has explained that the condition of his home caused damage to his household goods and contents. He also explained that it has affected his mental wellbeing.
25. Often when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts rely on expert evidence in the form of a medico-legal report. This will give an independent and expert opinion of the cause of any injury or its deterioration. Without that evidence, the Ombudsman is not able to make conclusions on whether the resident’s health has been affected by the damp and mould in his home. In this case, whilst we have reviewed what the resident has said and the Ombudsman has no reason to dispute this, the evidence is not unequivocal that the landlord’s failure in fact caused or exacerbated his health in this specific case. These cases are often better dealt with by the courts, where a medical expert can give evidence and oral testimony can be given under oath. Notwithstanding this, it is clear, however, that the resident has been caused some distress by the incidents complained.
26. The other issue is the damage to the household goods and contents. Landlords will be responsible for damaged household goods and contents where its failure to keep a property in repair or fit for human habitation has resulted in that damage. In this case, the Ombudsman has reviewed the photographic evidence, which appears to show the property affected by white mould, with household contents also affected by it. The evidence also shows the level of moisture within the property. That together with the time taken for the landlord to take some action, from 19 February 2021 to 25 July 2023 means the landlord has failed in its responsibilities and it would be fair in all the circumstances to ask it to contribute towards the damaged goods. The difficulty for this service is assessing what the items were worth immediately before they were damaged.

Complaint handling

27. The landlord’s complaint policy states that it will respond to complaints within 15 working days of receipt at both stages.
28. The Complaint Handling Code (‘the Code’) states landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law, and good practice where appropriate.
29. The landlord issued its:
    1. Stage 1 response within 4 working days of the resident’s complaint.
    2. Stage 2 response within 13 working days of the resident’s escalation request.
30. The Ombudsman can find no fault with the response times of the landlord.
31. The resident expressed in both his original complaint and escalation request that the property conditions had caused damage to his belongings. He also said that the situation had an impact on his mental health.
32. In relation to the wider elements of complaint handling the Ombudsman considers the landlord failed to address these points as part of its formal responses. The Ombudsman would have expected the landlord to address all the points raised as part of the complaint. This was maladministration because the landlord failed to comply with the requirements as set out in the Code.

Determination

33. In accordance with paragraph 52 of the Scheme, there was maladministration with the way the landlord handled the resident’s reports of damp and mould.
34. In accordance with paragraph 52 of the Scheme, there was maladministration in the way the landlord handled the resident’s complaint.

Orders

35. The landlord must, within 28 days of the date of this determination:
    1. Write to the resident to apologise for the failures found in this report.
    2. Pay the resident £1,350 comprised of:
       1. £300 for the distress and inconvenience caused by the delay in assessing the property and arranging extractor fans.
       2. £500 for the loss of enjoyment of the resident’s home during the period of the damp and mould and in concluding the repairs.
       3. £150 for the upset caused by blaming the resident for the damp and mould, as opposed to assisting him.
       4. £250 to contribute to the damaged household goods and because the distress and inconvenience of the resident because of the landlord’s failure to sufficiently consider the goods when it had a reasonable time to do so.
       5. £150 compensation for failing to respond to all aspects of the resident’s complaint.
    3. Provide evidence of payment of this compensation to the Ombudsman.
    4. Contact the resident to arrange a property survey (see paragraph 38 for further information).

The survey order

36. The survey must be arranged within 28 days of the date of this determination or within a reasonable time at the agreement of both the landlord and the resident.
37. The survey must assess:

a.   Whether all the extractor fans have been installed as necessary and are in proper working order

b.   Assess the moisture levels within the property.

c.   Assess the walk-in wardrobe.

d.   Assess if there are any outstanding works required property to prevent/mitigate the damp, mould, and condensation.

38. The findings of the surveyor must be produced in a report. The report must:

a.   Include photographs (with the resident’s consent).

b.   An opinion on whether further repairs or mitigation works are required to combat the damp and mould.

c.   If works are required, a full schedule of work – together with timescales to complete them.

d.   Whether anti-mould paint/wallpaper is required in the property

39. The landlord must share the report with the resident and the Ombudsman within 5 working days of the inspection date.
40. If further works/mitigations are required, then the landlord must use all best endeavours to ensure these works are completed within 28 days of the date of the report. The landlord must provide the Ombudsman with evidence of completion of all the works in the survey report within 5 working days of completion.

Recommendations

41. The landlord may wish to send the resident’s claim for damaged household goods and contents to its legal liability (indemnity) insurer.
42. The Ombudsman recommends that the landlord:
    1. Arrange training for its staff on the Ombudsman’s Spotlight on Damp and Mould report.
    2. Circulate the Ombudsman’s ‘Knowledge and Information Management’ Spotlight report internally with front-end staff. It may then wish to assess how it is performing against the recommendations in the report.
    3. Arrange for complaint handling refresher training to ensure staff are aware of the importance of capturing and addressing all complaint points raised by residents.