Lincoln City Council (202308522)

REPORT

COMPLAINT 202308522

Lincoln City Council

14 May 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 landlord’s handling of repairs to damp and mould in the resident’s property.
2. The landlord’s complaint handling.

Background

The resident is a secure tenant of the landlord. They live with their partner and 2 children. The property is a 3-bedroom terraced house. The landlord is a local authority.
The resident first reported damp and mould in their bathroom on or around 1 February 2017. The landlord’s repair logs indicate it raised further damp and mould-related repairs between February 2021 and January 2023.
The resident made a complaint on or around 22 March 2023. They complained that:
1. There was severe mould and damp in the property. This was causing health problems for them and their children.
2. The ceiling in their daughter’s bedroom was wet and they were worried it may fall through.
3. The landlord had told them it would fit an extractor fan and it was going to put scaffolding up around the house. This had not happened.
4. The landlord had not completed the fitting of the windowsills in their son’s bedroom causing a considerable draught in the room.
The landlord issued its stage 1 complaint response on 28 March 2023. It said:
1. There had been a long-standing issue at the property and the resident had been reporting mould since 2017.
2. It had carried out an inspection on 30 January 2023 and highlighted several repairs as still requiring action. It acknowledged the resident had told them there was now further mould as the repairs had not taken place.
3. It had failed to resolve the mould for a number of years. It had also not carried out agreed repairs promptly.
4. It had arranged for:
  1. A mould wash on 31 March 2023.
  2. The loft insulation to be topped up and the gutters repaired on 25 April 2023.
  3. The bathroom fan to be upgraded on 5 April 2023.
  4. The bathroom ceiling to be painted with anti-mould paint on 26 April 2023.
The resident escalated their complaint on 14 June 2023. They said that:
1. They were still waiting for the landlord to fit the bathroom fan.
2. The landlord had previously told them a bathroom window which it had plastered over needed bricking up and the fan installed in the new wall, but the fan was now going to be fitted in the ceiling.
3. The bathroom still had serious condensation even with the windows and doors open. This was causing mould.
4. The paint on the bathroom ceiling was peeling again.
5. The impact on their, and their family’s, health was still ongoing.
6. The contractors had not shown any respect for their daughter’s privacy, walking into her bedroom twice while she was getting changed. The contractors had also soaked the room and belongings with spray and had broken a gift by kneeling on it.
7. They wanted the landlord to fix the root cause of the damp and mould, rather than ‘papering over the cracks’.
8. They requested compensation for:
  1. The distress the ongoing damp and mould issues had caused.
  2. The cost of anti-mould paint/treatments they had bought to try and keep their home hospitable.
The landlord issued its stage 2 complaint response on 11 July 2023. It said:
1. It had completed repairs to address the root cause of the mould and address the condensation issues. These included:
  1. Installing a bathroom fan.
  2. Repairing the guttering.
  3. Increasing the amount of loft insulation.
  4. Replacing the damaged bathroom ceiling.
2. It had carried out a post-inspection to ensure the repairs had been completed. During the inspection, the resident confirmed there were no outstanding repairs and no visible signs of mould.
3. It had noted some damage to decorations in the bathroom and bedroom where previous mould treatments had taken place. It was therefore offering a £40 voucher for each room (£80 in total) to go towards the cost of redecoration.

Events after the end of the complaints procedure

Following this service’s request for evidence, the landlord issued a revised stage 2 response on 13 March 2024. It said:
1. It had failed to acknowledge the resident’s request for compensation for personal injury. It had now passed this matter to its nominated insurers.
2. It acknowledged the resident’s concerns about its operatives’ conduct and apologised that this had caused distress.
3. It did not have any record of personal health concerns or requests for adjustments for works being carried out due to individual needs. It asked the resident to contact their housing officer if this was something they required.
4. It understood it had completed all the repairs identified at stage 1 and 2. It asked the resident to let it know if this was not the case or they believed the repairs had not been completed to a satisfactory standard.
The resident told this service on 18 March 2024 that they still had issues with damp and mould in their bathroom. They stated this was now affecting their kitchen ceiling as well.

Assessment and findings

Scope

In their complaints to the landlord and this service, the resident reported that the damp and mould had caused or contributed to their (and their family’s) ongoing health problems. It is beyond the remit of this service to determine whether there was a causal link between the landlord’s handling of the damp and mould and the impact on health. 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 medico-legal reports. This will give an expert opinion of the cause of any injury or deterioration of a condition. This would be a more appropriate and effective means of considering such an allegation. If the resident wishes to pursue this matter they should seek independent legal advice.

The landlord’s record keeping

The Ombudsman expects landlords to maintain a robust record of contacts and repairs. This is because 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 significantly impacted this service’s ability to carry out a thorough investigation, as highlighted at various points throughout this report. This was a significant failure by the landlord and contributed to the other failures identified in this report.

The landlord’s handling of repairs to damp and mould in the resident’s property.

The Ombudsman’s expectations for how landlords should deal with reports of damp and mould can be found on our website.
The landlord has told this service that its damp and mould policy is going through its committee process to be approved and published. The landlord has provided evidence that it has self-assessed against the recommendations in the Ombudsman’s damp and mould spotlight report.
The landlord’s repairs logs show that it inspected the damp and mould in the property on or around the following dates:
1. 7 February 2017.
2. 19 February 2021.
3. 31 January 2022.
4. 25 April 2023.
Its stage 1 complaint response states an inspection also took place on 30 January 2023.
The landlord has not provided this service with any inspection reports or other contemporaneous records of these inspections. It is therefore not possible to adequately determine:
1. Whether it had inspected the property on these dates.
2. If so, what the inspection had looked at and what it had found.
3. Whether it had identified any repairs to deal with the cause of the damp and mould.
4. If it had identified repairs, whether it had completed these within a reasonable time and checked they had been effective.
5. Whether it had assessed the risk to the resident from the damp and mould.
There does not appear to be any dispute that the landlord did carry out some works, including those outlined in its stage 2 response. The resident’s complaints also confirm that the landlord had carried out mould washes and re-painting of the affected areas. However, due to the inadequacy of the landlord’s records, it is not possible to determine:
1. The specific issue each repair was intended to resolve.
2. The full scope of the intended work.
3. What the landlord did when it attended to do the work.
4. Whether it had undertaken any post-completion inspections to confirm all the required work had been completed and that it had been effective.
There is therefore no evidence on which the Ombudsman could conclude that the landlord’s responses to the damp and mould were appropriate or reasonable. This was a significant failure by the landlord, occurring repeatedly over a 6–year period.
The landlord’s stage 1 complaint response acknowledges it had failed to rectify the damp and mould issues and that the repairs were delayed. However, neither the stage 1 or the stage 2 complaint response provides a full, clear explanation for why the landlord had been unable to resolve the damp and mould, or why it had been unable to carry out repairs promptly. It would have been appropriate for the landlord to have reviewed what had taken place and provided this explanation to the resident.
The landlord’s stage 2 complaint response did not address the resident’s concerns over the intended location of the bathroom fan. The landlord’s repair logs, in an entry created in July 2021, records it would look at moving the ceiling extractor to an external wall. There is no additional evidence which explains why the landlord did not follow up on this and instead installed the fan in the ceiling.
It would have been appropriate for the landlord to have reviewed its records to see whether it had considered the best location for the bathroom fan. It should have taken the opportunity to revisit this matter and reach a fresh view on whether the fan was fitted, or due to be fitted, in the most effective location. It then should have provided an explanation of its decisions to the resident as part of the stage 2 complaint response.
There is a single entry in the landlord’s repair logs relating to the daughter’s bedroom ceiling. The entry was created on 22 March 2023 and states ‘inspect and if required make safe ceiling in bedroom’. The landlord recorded that the resident had said the ceiling was wet and was going to fall through. There is no evidence the landlord did this inspection or, if it had done so, what the findings of the inspection were. It is therefore not possible to determine whether the landlord had acted reasonably or appropriately in response to the resident’s report about the ceiling. This was a significant failure by the landlord.
There is no evidence the landlord provided the resident with any additional support or guidance on steps they could take to minimise the risk of damp and mould. While this would be unlikely to have resolved the damp and mould issues it may have lessened the impact and would have demonstrated the landlord had considered the resident’s wellbeing.
It is the Ombudsman’s opinion, having considered all the circumstances, that there was severe maladministration by the landlord in its response to reports of damp and mould at the property. The resident first raised the problems with damp and mould in February 2017. Due to the lack of adequate records, it is not possible for the Ombudsman to determine:
1. If and when the landlord inspected the property, and whether this was reasonable.
2. Whether the landlord identified the extent of the damp and mould.
3. Whether the landlord identified the cause of the damp and mould.
4. What repairs the landlord identified as required, if any at all.
5. If and when the landlord carried out those repairs, and whether this was reasonable.
6. If and when the landlord made any reasonable efforts to assess whether the repairs were effective.
7. Whether the landlord ever assessed the risk to the resident.
The compensation offered by the landlord (£80 for redecoration) does not take into account the distress and inconvenience caused to the resident, or the loss of enjoyment of their home. The Ombudsman therefore does not consider the offer to be appropriate.

The landlord’s complaint handling

The landlord’s complaint procedure states a relevant line manager should investigate stage 1 complaints and an appropriate senior manager should investigate at stage 2. The Complaint Handling Code 2022 (the Code) states the same person must not consider the complaint at both stage 1 and stage 2. This is an important aspect of complaint handling and allows for an objective review of the complaint to take place at each stage.
All 3 of the landlord’s complaint responses were issued by the same individual. There is no evidence that any other individuals were involved at any stage of the complaint. This was not in line with the landlord’s procedure or the Code and was therefore not appropriate. It is also likely to have contributed to the other failures identified in this report.
The landlord failed to respond to all the complaint points raised by the resident at stage 1 and stage 2. There is no evidence it spoke to the resident during the complaint and reached an agreement that some complaint points no longer required a response. If it had done so it should have ensured there was a written record of the agreement and that it had shared this with the resident before the complaint response was issued.
If there were matters raised in the complaint that the landlord could not respond to, it should have included a clear explanation about this at the relevant complaint stage. This would have allowed the resident to understand the landlord’s decision-making and make an informed decision on whether to escalate those matters, either to stage 2 or to the Housing Ombudsman.
The landlord acknowledged the failure to respond to all the complaint points by issuing a further complaint response on 13 March 2024. However, this further response did not provide any explanation for why it had not responded to these points earlier. It would have been more appropriate for the landlord to have clearly acknowledged it should have responded to all complaint points at stage 1 and 2 and explained why it had not done so.
There is no evidence that the resident had requested the landlord review their complaint again after the stage 2 complaint response had been issued. It is reasonable to conclude this review, and further complaint response, was a result of this service contacting the landlord on 20 February 2024 to request evidence about the resident’s complaint.
It is concerning that the landlord’s further response states it has no record of the resident’s health concerns or needs for adjustments. The landlord was aware of these by 14 June 2023, at the latest. The resident’s complaints suggest they had raised these with the landlord earlier, but there is no documentary evidence to confirm when this was. The landlord should have ensured it had recorded the resident’s vulnerabilities as soon as they had made it aware of them. It should have done this in a manner that allowed all relevant parties to be aware of the vulnerabilities and any changes they would need to make when interacting with the resident.
For the reasons set out above, the Ombudsman considers there was maladministration by the landlord in its handling of the resident’s complaint.
The landlord did not offer any compensation to the resident for the failures in complaint handling. This was not appropriate.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been severe maladministration in the landlord’s handling of repairs to damp and mould.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

The landlord must within 28 days of the date of this determination:
1. Provide the resident with an apology for the failings outlined in this report. This written apology must be from the landlord’s Chief Executive.
2. Carry out an independent damp survey of the property, with the resident’s consent, and produce a report.
  1. The report must set out what further works/repairs are necessary to provide a lasting repair.
  2. It must include date-stamped photographs.
  3. A timescale for those works to be completed.
  4. Within 5 days of the survey the landlord must provide a copy of this survey and a schedule of works to the resident and this service.
  5. The landlord must then use its best endeavours to ensure that all identified works are carried out within 56 days of the date of the survey. The landlord must create and maintain records to demonstrate to the Ombudsman what endeavours it has taken to have the works completed.
  6. If the landlord is unable to complete the works within 56 days of the date of the survey it must agree on a time-specific action plan with the resident for any outstanding works.
3. Pay the resident compensation of £5,230 which is comprised of:
  1. £3,530 compensation for the loss of enjoyment of the property. This has been calculated as 12% of the rent between 1 February 2017 and 13 March 2024. The rent value used for February 2017 to March 2020 has been the average rent for the area. For April 2020 to March 2024 the resident’s actual rent (as provided by the landlord) has been used.
  2. £1,500 for distress and inconvenience caused by the landlord’s handling of repairs to the property.
  3. £200 for the time and trouble of having to raise a complaint together with the inconvenience caused by the landlord’s complaint handling failures.

This award replaces any offer made to date by the landlord through its internal complaints process. The landlord is entitled to offset against this sum any payments already made to the resident. All payments must be paid directly to the resident and not credited to the rent account unless otherwise agreed by the resident.

Confirm with the resident what their medical vulnerabilities are and whether they require any reasonable adjustments. The landlord should then ensure it has updated all relevant records.

Within 56 days of the date of this determination, the landlord must undertake a detailed review of this case to identify lessons learnt. This review must include:
1. Why there was a lack of records in this case.
2. Whether its record-keeping systems and processes are adequate and meet the demand for the service.
3. What it could do to encourage positive behaviours and better record keeping with staff and prevent the same failures from occurring in future
4. Decide whether it needs to introduce written guidance for staff on the principles and importance of good record keeping.
5. Consider if more training is required for front-end staff in respect good record keeping.
6. The landlord must produce a report for the Ombudsman confirming the outcome of its review.
7. The landlord must show it has shared its report and findings together with any recommendations with any affected head of services and/or executive director.

This is an order for the purposes of paragraph 54(f) of the Scheme.