London Borough of Hackney (202234457)

REPORT

COMPLAINT 202234457

London Borough of Hackney

24 October 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 response to the resident’s:
1. Reports of various repairs to the property including damp and mould in the basement; damp in the upstairs of the property; disrepair to the kitchen; a collapsed basement ceiling; and the request for an additional toilet and the subsequent damp in that room.
2. Associated complaint.

Background

The resident has a secure tenancy with the landlord. The landlord was unable to provide a copy of the actual tenancy agreement because of a cyber attack in 2020 and provided a blank copy instead. The landlord is a local authority. The property is a house with 5 bedrooms. Three of the children in the property are disabled. The landlord understands that, due to their condition, the children fall down a lot. The resident told us that one of his children had breathing difficulties.
In February 2020 the landlord inspected the property. It found water on the basement floor, damp and identified that a rear elevation downpipe was not connected to the water outlet. The landlord noted that it should engage a damp specialist to investigate the sources of the water ingress; assess the damp and provide an estimate to resolve the damp and leaks. The repair log notes that the landlord received an estimate, which it passed on for approval, at the end of March 2020.
Some 2 years later the resident reported that the basement flooded when it rained. The landlord inspected the basement in early March 2022 and sent details of follow-on works to its contractor the next day.
Six months later, in early 6 September 2023, the resident reported that the kitchen was old, and said all the units were rotten and degrading due to wear and tear. The landlord inspected the kitchen later that month. It noted that, while there were signs of wear and tear, it was in working order and did not require an upgrade.
In late November 2022 the surveyor conducted a survey of the basement. They found collapsed plasterwork from the basement ceiling. They noted a hole at the bottom of a supporting timber pillar in the basement also and raised an order for a repair to reinforce the bottom part of that pillar. The repair log shows that materials were ordered the next day, and the repair closed.
The resident chased this repair a few weeks later and in early January 2023 reported that plasterboard that had come away from the basement ceiling. This repair was completed on 20 January 2023.
On 23 January 2023 the resident made a formal complaint about various repair issues including damp and mould in the basement; the supporting beam in the basement that had not yet been repaired; that the kitchen was “old and crumbling”; and said that there was only one toilet between 9 people in the property.
Following this Service’s intervention on 11 April 2023, the landlord issued the stage one complaint response the next day. It said that a survey had been carried out on the basement pillar in November 2022 and that it had repaired it at the end of March 2023. The landlord explained the damp contractor had drawn up extensive follow-on works for the basement, but it was not clear if further work had been carried out. It said, to move this forward, a surveyor would carry out another inspection of the basement and kitchen on 24 April 2023. The landlord added that a decision had not yet been made on an additional toilet. It apologised for any inconvenience caused.
A surveyor carried out an inspection in April 2023 and noted:
1. The basement was not a living space and was only used for storage. It noted there had been heavy rain in the 3 to 4 days previously but there was no indication that the basement had flooded.
2. A couple of the base unit’s doors hinges were loose in the kitchen and should be repaired. It would check when the kitchen was due to be upgraded under its planned works.
The landlord repaired the hinges to the kitchen base unit on 2 May 2023.
Meanwhile on 25 April 2023, the resident had asked the landlord to escalate the complaint. He raised several concerns including the collapsed ceiling in the basement. He told the landlord that it had also not come back to him about an additional toilet. He added there was damp on the wall of the bathroom and that flooding in the basement had caused damp, mould and mushrooms. He also said his children had breathing difficulties.
The following month, the landlord asked its surveyor to inspect the property to see if an additional toilet could be installed. The repair log evidences that this was approved on 9 June and on 16 June 2023 an additional toilet was installed in the basement.
In July 2023 the damp contractor provided the landlord with a quote “to tank” the basement (that is to create a completely impermeable waterproof barrier on an internal wall to prevent damp).
On 29 December 2023 the resident reported tiles falling off the walls of the basement toilet. In early January 2024 an operative attended and noted the wall behind the tiles was very wet and water was coming in from the outside. They noted further that the exterior wall should be repaired to stop the water seepage.
On 11 January 2024 the resident chased the stage 2 complaint response. He said the basement toilet was very damp, and that the kitchen was a “health hazard” because the kitchen units were disintegrating. The resident also asked the landlord to install a second shower. The landlord acknowledged the escalation request the next day following this Service’s intervention.
On 19 January 2024 the landlord issued its stage 2 complaint response. It acknowledged failings saying that some of the issues the resident had raised had not been fully resolved and remained outstanding. In relation to specific issues the landlord said the following:
1. The kitchen would be upgraded when due for renewal under its planned works programme.
2. The basement was used for storage and there was no evidence of flooding at that time.
3. The landlord said it had failed to escalate his complaint in April 2023 in error. It apologised for that failing.
4. The landlord apologised and said it was clear that the issue of damp and mould within the property was unresolved. It said it would re-inspect the basement on 23 January 2024 to get an accurate picture of its current condition.
The landlord offered the resident compensation of £3,420 made up of £1,000 for the level of fault; £500 for the vulnerability issues related to his children’s health; £1,000 for delay; and £920 for complaint handling delays.
A survey was carried out on 23 January 2024. While the landlord noted it was expecting a schedule of works following that inspection, there is no evidence of that. Nor have we seen a copy of any inspection report. The resident told the landlord the surveyor had identified damp in the toilet in the basement and in a bedroom. He said they had also noted that water was coming inside through the steps, that a gutter pipe should be connected to an outlet and that the basement might need tanking.
In May 2024 the landlord noted that works had been agreed for the kitchen and that, while it was responsible for the toilet in the basement, it was not responsible for the basement itself as it was not a habitable space and therefore it would not be carrying out any damp works to it.
When the resident approached the Ombudsman, he said that the landlord had recently repaired the downpipe (within the last 4 weeks) and cracks on the exterior wall to stop the damp. He said he was concerned that the damp remained, and the basement remained mouldy, and mushrooms were growing there. He said the landlord had renewed the kitchen and he was happy with it. He added the landlord had also repaired the basement ceiling.

Assessment and findings

Scope of the investigation

The Scheme explains at paragraph 42.a that the Ombudsman may only look at matters that have exhausted the landlord’s complaint procedure. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service.
The resident requested a second shower when he chased the stage 2 complaint response in January 2024. However, this was solely a request, not a complaint about the landlord’s handling of this request. Therefore, as this matter has not exhausted the landlord’s complaint procedure, we will not consider this request as part of this report. When we spoke to the resident, he told us that an additional shower had not yet been installed. We can see that the landlord was considering this request. A recommendation has therefore been made for the landlord to write to the resident with a decision on this request including the reasons for its decision.
If the resident wants to complain about the landlord’s handling of his request for an additional shower, he can contact the landlord. If he remains dissatisfied with the landlord’s final response to his concerns, he may be able to refer the matter to the Ombudsman as a separate complaint at that stage.

The landlord’s response to the resident’s reports of various repairs

The tenancy conditions for a secure tenancy sets out that the landlord is responsible for, among other things, repairing the structure and outside of the property (including drains, gutters and external pipes), repairing the systems for sanitation (including toilets), and keeping those systems in proper working order. This reflects the landlord’s obligations under section 11 of the Landlord and Tenant Act 1985.
The landlord’s website sets out the timescales for repairs. It explains that it will attend within 5 working days for an urgent repair which includes a surveyor’s appointment following reports of damp and mould. It adds it will attend a normal repair within 21 working days.

Flooding, damp and mould in the basement

The tenancy conditions document provided by the landlord does not give details of whether or not the landlord is responsible for a basement, and we have not seen the specific tenancy agreement for the property. When the resident first approached the landlord in 2020, it should have clarified its obligations to him in relation to the basement at that stage.
The landlord did not do so but acted reasonably in engaging a damp specialist and getting an estimate for the damp works they had recommended. There is no evidence the landlord took any action on that estimate. We note that it would have received it not long before the first lockdown started in March 2020. It was therefore reasonable that the landlord did not progress this at that time. However, it should have had oversight of its outstanding repairs so that it could re-visit the outstanding estimate and make a decision on any follow-on works after it re-started non-emergency repairs in early to mid-2021. There is no evidence it did so and that was a failing.
When the resident reported flooding again in early 2022 the landlord referred the follow-on works to its contractor. This would have raised the resident’s expectations that it was going to carry out significant works in the basement to resolve the flooding, damp and mould.
In the stage one complaint response the landlord did not know if any further works had been carried out. This again demonstrates poor oversight by the landlord which needs to ensure it has adequate supervision of any outsourced repairs. At both complaint stages, the landlord carried out further surveys. It obtained a further estimate to carry out significant works to the basement; however, its decision in May 2024 was that it would not carry out such works as the space was not habitable.
A habitable room usually means any room used or intended to be used for sleeping or living which are not solely used for cooking purposes but does not include rooms such as bath or toilet facilities, hallways or utility rooms. That a room is classed as not habitable does not mean that a landlord is not responsible for its repair and maintenance.
We consider that it might have been reasonable for the landlord to have reached a decision that it did not have to remedy the damp in the basement when the resident reported it in 2020. However, the installation of a toilet in the basement in June 2023 means it is not reasonable to expect the resident and his family to walk through a damp and mouldy basement to reach the toilet. The Housing Health and Safety Rating System (HHSRS) is concerned with avoiding or minimizing potential hazards. Given the family are obliged to use the basement area to access the toilet, we consider the landlord has a responsibility to keep this area free from category one hazards, including damp and mould growth.
The Ombudsman has made an order for the landlord to take one of the following steps:
1. Engage a damp specialist to tank the basement as previously recommended by its damp contractor.
2. Move the second toilet to an appropriate different location within the property so that it is not necessary to go through the basement to access the toilet.

Collapsed basement ceiling

When the resident reported damage to the basement at the end of October 2022, the landlord acted reasonably in inspecting the area the next month. It identified a collapsed ceiling in the basement. The evidence suggests that some materials were ordered following that inspection, but it is not clear if they were for the damaged pillar or ceiling. Once the materials were ordered the repair log notes that the job was closed.
The resident chased this matter in December 2022 and early January 2023. The repair log evidences that the repairs were completed at the end of that month. The landlord’s handling of this repair was not appropriate because it did not resolve it within 21 working days in line with its repair guidelines. The evidence suggests that there was poor oversight of this repair. It is likely that the closure of the work order contributed to the delay in resolving it as the landlord only revisited this repair after further contact from the resident. A recommendation has been made for the landlord to review its oversight of repairs to ensure that work orders remain open until works are completed, rather than closed when materials or parts are ordered.

The additional toilet

The resident asked for an additional toilet when he made the formal complaint in January 2023. The landlord did not appear to know how to treat this request. It asked the surveyor to inspect but they considered this was a housing matter and referred it back to the landlord. The landlord at different times made reference to it being an improvement; said that “legal permission” was required to install one; and considered recharging the resident the cost of the installation. Some 4 months later, it sought legal advice. While that was a reasonable step to take, it would have been appropriate for it to have done so sooner.
The legal response confirmed that there was no requirement for a second toilet but, from a practical perspective, a 5-bedroomed house should have at least 2 toilets. The landlord then engaged a contractor, and a second toilet was installed 2 months later. While there was some delay by the landlord in considering this matter, once the landlord had made a decision to install a second toilet, the work was done within a reasonable timeframe.
Some 6 months after its installation, the resident reported that tiles were falling off the walls of this second toilet. The landlord acted appropriately by inspecting it and noted that the walls were wet as water was leaking into the property from outside. Despite further chasing by the resident, it appears that the landlord did not carry out these repairs until very recently. This delay was not appropriate because it should have been resolved within 21 working days in line with its repair guidelines. The delay would have caused the resident inconvenience over a long period of time. This has been considered when assessing compensation as detailed later in this report.

Damp in the upstairs of the property

The survey report from 2020 identified a broken downpipe on the rear elevation. The evidence suggests that in January 2024 the surveyor identified damp in the upstairs toilet and in a bedroom. The resident told us that the repair to the downpipe was carried out within the last month.
The landlord’s handling of this repair was not appropriate. It should have been resolved before lockdown in March 2020 in line with its repair timescales. There was again poor oversight by the landlord in respect of this repair which meant it was not picked up to resolve after the lockdowns had ended.
The resident told us that he was concerned that the recent work had not resolved the damp. An order has been made for the landlord to engage a damp specialist to evaluate the success of the repairs in relation to the damp in the basement toilet, bedroom and upstairs bathroom.

Disrepair to the kitchen

The landlord acted reasonably by inspecting the kitchen when the resident suggested it needed upgrading in September 2022. However, at that time, it decided renewal was not necessary. It was reasonable for the landlord to reach that decision on the basis of advice given by a qualified staff member or contractor. The landlord also acted appropriately by carrying out repairs to the hinges in May 2023 after identifying them as defective the previous month.
In January 2024, after reports of significant problems in the kitchen, the landlord acknowledged internally that it should re-assess the kitchen upgrade after noting its planned maintenance team would not include this in its ongoing programme of works. That was an appropriate step to take to resolve matters given the evident deterioration the resident had described. We have not seen evidence of when the kitchen was renewed but the resident confirmed it was replaced earlier this year and he told this Service he was satisfied with that outcome.

Compensation

Where the landlord has accepted it has made errors, it is the Ombudsman’s role to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
The landlord’s mishandling of the repairs has caused inconvenience and likely caused distress to the resident and his family. It also meant that at least 6 inspections/surveys were carried out, often with no subsequent substantive action which led to evident frustration on the part of the resident. In its stage 2 complaint response, it apologised and offered the resident compensation of £2,500 for this impact which included £500 to reflect the vulnerability of the children in the household. This sum was in line with its compensation guidance which says it may make an award of over £1,000 where there has been a severe long-term impact on the resident including where it had repeatedly failed to provide a service and where those failures accumulated over a significant period of time.
We consider the landlord’s apology and offer of compensation was a reasonable and proportionate step to take to reflect the impact on the resident and his family. However, this has not resolved the complaint as the substantive issue – the damp and mould in the basement – has not been resolved. To reflect that, a finding of maladministration has been made in relation to the landlord’s response to the resident’s reports of various repairs to the property.

The landlord’s handling of the associated complaint

The landlord’s complaints policy outlines that a stage one complaint response will be issued within 10 working days of a complaint being raised. At stage 2 the landlord aims to issue a response within 20 working days.
The landlord’s handling of the complaint was not appropriate. The landlord took approximately 2 and a half months to respond at stage one and almost 9 months to respond at stage 2. The landlord explained that it had not dealt with the escalation request correctly. The time taken by the landlord was not in line with the timescales set out in its complaint procedure. There were significant delays, and this Service had to intervene at each stage to progress matters.
After the resident asked the landlord to escalate his complaint in April 2023, the landlord suggested in internal emails the action it could take “as a way of trying to prevent the resident from escalating this complaint”. It did so by suggesting a further survey (in January 2023) and then by suggesting compensation (January 2024). The Complaints Handling Code says that if all or part of the complaint is not resolved to the resident’s satisfaction at stage one, it must be progressed to stage 2 of the landlord’s procedure. There is no discretion here. It appears that both these requests came from a manager to the complaints team. The Code also says that complaints staff must also have the authority and autonomy to act to resolve disputes promptly and fairly. Complaints staff should be able to act in line with the landlord’s policies and procedures without interference. This was a serious failing by the landlord.
A recommendation has been made for the landlord to carry out a review of its complaint handling in this case and implement the necessary remedial action to ensure it fully complies with the Complaint Handling Code going forward.
In its stage 2 complaint response, the landlord apologised for its complaint handling failings and offered compensation of £920 for the impact of that on the resident. This was in line with its compensation guidance which says that where there has been a significant impact on the resident, awards of up to £1,000 may be made. We consider the landlord’s apology and offer of compensation was a reasonable and proportionate step to take to reflect the impact on the resident and his family. A recommendation has been made for the landlord to pay the resident the compensation offered at stage 2 if it has not done so already. A finding of reasonable redress has been made on the basis that this sum is paid to the resident.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to the resident’s reports of various repairs to the property.
In accordance with paragraph 53.b of the Housing Ombudsman Scheme, the Ombudsman considers that the landlord has made satisfactory redress to the resident which, in the Ombudsman’s opinion, resolves the complaint with respect to its handling of the associated complaint.

Orders

The landlord should take the following action within 4 weeks of the date of this report and provide evidence to the landlord of compliance with these orders:
1. Engage an independent damp specialist to evaluate the success of the repairs in relation to the damp in the basement toilet, the upstairs bathroom and bedroom. This report should be completed within 4 weeks.
2. Decide which of the following steps it will take and write to the resident and the Ombudsman confirming which of the steps it will take and including a timescale for this step to be completed.
  1. Carry out tanking of the basement as recommended by the damp specialist.
  2. Move the toilet to somewhere else in the property.

Recommendations

It is recommended that the landlord takes the following action:
1. Write to the resident with a decision on his request for an additional shower in the property, including the reasons for the decision.
2. Carry out a review of its complaint handling in this case and implement the necessary remedial action to ensure it fully complies with the Complaint Handling Code going forward.
3. Review its oversight of repairs to ensure that work orders remain open until works are completed, rather than closed when materials or parts are ordered.
4. Pay the resident the compensation offered at stage 2 of £3,420 (if it has not done so already). A finding of reasonable redress has been made on the basis that this sum is paid to the resident.