Luton Borough Council (202316649)

REPORT

COMPLAINT 202316649

Luton Borough Council

16 January 2025

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 and related repairs.
2. The resident’s reports of personal injury cause by the presence of damp and mould.
3. The resident’s right to buy application.
The Ombudsman has also considered the landlord’s:
1. Complaint handling.
2. Knowledge and information management.

Background

The resident is the secure tenant of the property, which is a 2-bedroom flat. The landlord is a council. The resident has dyslexia, a breathing condition, and other physical and mental health conditions. She has been assisted in her complaint to the landlord, and to this Service, by her husband acting as her representative. For ease of reading both the resident and her husband will be referred to as the resident in this report.
The resident applied to buy the property via the right to buy in 2018. On 23 April 2018 the landlord wrote to her regarding this and said it would “not undertake repairs to the property after the date of your application unless they are essential in order to comply with the statutory obligations”.
On 13 January 2023 the resident emailed the landlord to report ongoing issues with damp and mould in all rooms of the property. She said this was affecting the health of her 3 young children and asked it to complete a Housing Health and Safety Rating System (HHSRS) inspection. The landlord inspected on 31 January 2023 and raised repairs, however, it has not provided a copy of its inspection report to this Service.
The landlord raised a repair to install a positive input ventilation system (PIV) the following day. It also overhauled an extractor fan, checked for leaks and resealed around the bath by 7 February 2023. The landlord’s external contractor completed a survey on 3 March 2023 and provided a report to the landlord and the resident on 25 April 2023. This report has not been provided to this Service. The following day in an internal email the landlord asked if it should raise the works recommended as the resident had a right to buy application.
On 11 May 2023 the resident made a stage 1 complaint (the first complaint) which was about:
1. Wanting to delay her right to buy application as the landlord had delayed in carrying out repairs.
2. It having ignored her reports of damp and mould since 2021 and that the property was not habitable.
3. Having been hand-delivered a letter offering a £1,400 reduction off the purchase price for her right to buy application which did not compensate her for the condition of the property.
4. Repairs outstanding including installing the PIV.
5. The landlord not taking her dyslexia and mental health into consideration and failing to make reasonable adjustments, such as sending all correspondence to her by email and post. She also asked it to stop using its secure email system as she found this difficult to access.
The following day the external contractor sent a quote for works to the landlord. On 25 May 2023 the resident emailed the landlord to make a new stage 1 complaint (the second complaint) which was about:
1. Rent arrears.
2. The property remaining in disrepair which she had been reporting since 13 January 2023 and wanting repairs carried out.
3. Wanting correspondence to be sent via ordinary email and post as a reasonable adjustment for her dyslexia.
On 31 May 2023 the landlord provided its stage 1 response to the first complaint in which it said:
1. It was standard practice to provide a quote as a reduction of sale price when repairs were needed but a right to buy application had been made. It had also offered the alternative option of completing the repairs. It said it had sent the quote to her on 27 April 2023 and 3 May 2023.
2. It sent emails using its secure email system for data protection. However, it had sent this response by ordinary email and post as she had requested.
3. As the resident had rejected the quote it would arrange the repairs but had been waiting for a quote which it had received on 26 May 2023. It said it would contact her to arrange the repairs.
The landlord raised a repair to inspect insulation the same day. On 13 June 2023 the resident’s expert inspected and provided a report which noted mould growth, possible causes, and repairs required. The landlord provided its stage 1 response to the second complaint on 19 June 2023 and said it had responded to her complaint about disrepair in its previous complaint response.
On 21 June 2023 in an internal email the landlord detailed its inspection on 14 June 2023. It said there was damaged plaster in the hallway, mouldy kitchen cupboards, a rusty bath, and there had been leaks into the property. It recommended repairs related to ventilation and that the PIV should be installed. It inspected for water penetration on 26 June 2023 but did not record the outcome or if it completed any repairs.
The resident wrote to the landlord on 14 July 2023 to escalate the first complaint. She said the presence of damp, leaks and mould had negatively affected her health and her children’s health. She said the property was a risk to them and the landlord had not done anything to repair the issues. She also said it had failed to respond to her safety concerns in its stage 1 response. She asked it to permanently rehouse her into a suitable property and for compensation. The landlord acknowledged the escalation on 17 July 2023.
On 20 July 2023 the landlord offered to ‘decant’, or temporarily move, the resident into hotel accommodation and to assist with a transfer application. The resident replied and asked what repairs were going to take place and if the PIV was going to be installed. She also said hotel accommodation was not suitable due to her health needs and family composition and suggested some private properties for rent instead. The landlord replied that this was not possible.
There was a no access on 24 July 2023 when the landlord was to repair the bathroom extractor fan and survey if one could be installed in the kitchen. It raised a repair to inspect the balcony above for a leak the same day, but did not state the outcome in its records. The following day the resident asked why it had not arranged to remove the mould and said she was concerned about air quality in the property. The landlord said in an internal email that it had raised all repairs identified during its inspection. The resident emailed her councillor, who asked the landlord to prioritise removing the mould.
On 1 August 2023 the resident emailed the landlord to chase repairs. She said it had told her it would contact her to arrange the mould removal, but it had failed to do so. She said it had attended unannounced to check the roof. She reiterated the affects the condition of the property was having on her and her family’s health. The landlord and resident exchanged emails between 2 and 10 August 2023 to arrange an inspection and the landlord explained the repairs it had raised. During this period:
1. The resident arranged her own private survey which concluded that the damp and mould was due to condensation and poor ventilation.
2. The landlord arranged a repair for the hallway walls, but the resident asked to reschedule.
3. The landlord confirmed in an internal email that it would not complete works which increase the value of a property with an active right to buy application.
4. The landlord offered to decant the resident permanently or temporarily into an alternative 3-bedroom property, but she refused the property.
In an internal email on 14 August 2023 the landlord said it should go ahead with the repairs. The same day it overhauled the bathroom extractor fan and said it would install a kitchen extractor hood.
On 22 August 2023 the landlord provided its stage 2 response in which it:
1. Said it had offered the resident a temporary hotel decant and had offered a temporary or permanent decant to a different property, both of which she had refused.
2. Said it had previously emailed her with details of the repairs it would complete and set these out in detail with appointment dates. These included installing the PIV which had been delayed by the landlord and its contractor.
3. Apologised that it had not been able to offer the alternative property the resident wanted but said it had tried to help her move despite very limited options.
4. Apologised that she had “not been satisfied with previous communications” from it and for its delays in response. It also apologised if “previous responses did not take full and proper account of your disability”. It said it would provide additional staff training and had sought advice on training specific to dyslexia.
5. Offered £3,000 compensation for delays in completing repairs since January 2023 and the distress and the potential impact on her family’s health caused. It also said this was compensation for repairs not having been completed due to its policy of only completing urgent repairs for properties with an active right to buy application.
6. Confirmed it had asked for a review of its policy on only completing urgent repairs when there was a right to buy application. It said it had been following government guidance but that this was open to interpretation. It said its policy had contributed to the delays in completing repairs and it apologised for this.

Events after the end of the landlord’s complaints process

The landlord overhauled trickle vents on 23 August 2023. The resident paid for her own independent damp survey, dated 28 August 2023, which said the PIV had recently been installed. There was broken guttering and possible penetrating damp because of this. It noted areas of previous damp were now dry except for in the bathroom. The following day the resident’s solicitors sent a letter of claim to the landlord alleging disrepair.
On 20 September 2023 the landlord said, in an internal email, that it had inspected following the letter of claim. It said there were outstanding repairs to remove mould from behind kitchen units, mould wash the bathroom, replaster the hallway walls and fit a cooker hood. Its records say it repaired the guttering and replastered the hallway following this. There was a no access for a bathroom mould wash on 10 October 2023.
The resident contacted this Service on 13 February 2024 and said repairs had not been completed, but that she had also started to refuse access. On 17 November 2024 she told the Ombudsman that despite the repairs the landlord completed she did not believe these had been effective. She said she still had mould, and the property was still humid. The landlord has told this Service that at the date of this report a claim for disrepair has not been issued at court.

Assessment and findings

Jurisdiction and scope of investigation

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this Service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Under paragraph 41(d) of the Scheme, the Ombudsman cannot consider complaints which, in the Ombudsman’s opinion, concern matters in respect of Local Housing Authorities in England which do not relate to their provision or management of social housing. As the landlord is a council, its processing of a right to buy application and sale are those of it as a public authority and are not part of its role as a landlord. Therefore, the resident’s complaint about the landlord’s handling of her right to buy application is outside of the Ombudsman’s jurisdiction. The resident may wish to contact the Local Government and Social Care Ombudsman for assistance with this element of her complaint.
The resident has also raised in her complaint that damp and mould have caused personal injury to her and her children. The Ombudsman is unable to investigate matters of personal injury as we cannot determine liability or causation, or award damages like a court can. Under Paragraph 42(f) of the Scheme, the Ombudsman may not consider complaints where it is quicker, fairer, more reasonable or more effective to seek a remedy through the courts. While this Service can consider distress and inconvenience more generally, if the resident does wish to pursue a personal injury claim, she may wish to seek independent legal advice.

The landlord’s handling of damp and mould and related repairs

Under the tenancy agreement the landlord is responsible for keeping in repair the structure of the property including the roof, walls and gutters, as well as the installations for the supply of services. This is in line with section 11 of the Landlord and Tenant Act 1985. It categorises repairs under its repairs policy as either emergency (attend within 24 hours), urgent (repair within 5 working days) or routine (repair within 30 working days). It defines emergency repairs as where there is a risk to safety or security. It defines urgent repairs as ones which “cause some inconvenience or would lead to further difficulties if not rectified.”
The landlord has provided an undated damp and mould strategy although it is unclear if this was in use at the time of the complaint. Within its strategy it states it aims to carry out repairs quickly to resolve damp. If damp is reported, and not believed to be due to condensation, the landlord will arrange an inspection and raise any repairs needed within 5 working days of the inspection.
When the resident reported damp and mould in January 2023 the landlord promptly inspected the property and raised repairs in line with its strategy. It completed some of these repairs within its 5 working day urgent timeframe. It also raised a repair to install a PIV which was solution focused. The landlord also requested an external survey which was positive and completed within a reasonable time. The landlord has failed to provide copies of both survey reports to the Ombudsman and so this Service does not know what repairs were recommended. It is not known why it took nearly 2 months for it to receive the external survey report, and there is no evidence that it chased its contractor for it, which was a failing.
Once it received the report the landlord then asked internally whether it should carry out repairs due to the resident’s active right to buy application. It questioned in an internal email whether it would install a PIV as this would be an improvement which would add value to the property. The landlord has told the Ombudsman that its approach when there is a right to buy application was to only carry out “essential” repairs. It said this is in line with government guidance. Government guidance states “once a Right to Buy application has been submitted there may be certain repairs and maintenance work that a landlord does not need to carry out anymore”.
The landlord offered a reduction in the purchase price if the resident agreed to pay for the repairs herself. It said in its stage 1 response on 31 May 2023 this was standard practice, but it had also offered to complete the repairs in the alternative and sent her the quote which she had rejected. The landlord has failed to provide evidence of this or the date on which she asked it to carry out the repairs. There had been a delay in it receiving the quote, which it said it had received after it had sent it to her, which was contradictory. It said this was the reason for its delay, but it would arrange the repairs. This also calls into question how and why it offered a sale price reduction without a quote for the price of the repairs.
Despite saying it would complete the necessary repairs and having inspected the property, and received a report from a recent contractor’s inspection, the landlord decided to inspect again. By the time it wrote its report nearly a month had passed which was a failing. It recommended installing the PIV, which it had originally raised a repair for in February 2023. The landlord noted the contractor had experienced high demand but there is no evidence it chased the contractor which was a further failing. A further 3 weeks passed with the landlord not taking any action before the resident escalated her complaint which was a continuing failing to complete repairs.
Positively the landlord did offer to decant the resident when she requested this. It offered hotel accommodation, as it explained it did not have any available properties to offer, which was reasonable. It was for the resident to balance the inconvenience of the offer against remaining in the property, which she decided to do. The landlord also went on to offer a temporary or permanent decant to an alternative property, which was solution focused, but delayed in progressing with the repairs until after she refused this which was a failing.
The landlord was slow to start repairs, and failed to arrange any mould washes or removal, including when asked to by the resident. While a mould wash does not resolve the causes of damp and mould, it can reduce the health risks associated with mould. This was despite the resident having provided independent expert reports and medical letters to it and reiterating the effects the mould was having on her family.
While the landlord set out a full list of repairs within its stage 2 response, by this date almost 7 months had passed since it had first inspected the property. This was an unreasonable delay, in breach of its repairs policy and damp and mould strategy, and a significant failing. However, it accepted this failing and apologised for it within its response and offered £3,000 compensation. It also explained that it had requested a review of its repairs policy with right to buy applications which demonstrated it wanted to learn from the outcome of the complaint.
In relation to the failures identified, the Ombudsman’s role is 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.
One month after its stage 2 response the landlord noted, following a disrepair inspection, that some repairs remained outstanding including completing mould removal which was a continuing failing. Under the HHSRS one of the 29 identified hazards is damp and mould. Landlords have an obligation to minimise or remove the identified hazards, and their presence can be used to help determine whether a property is fit for habitation. The landlord had continually failed to remove the mould present in the property which was a significant failing.
While the landlord’s failings were significant and numerous, it accepted these within its stage 2 response. It apologised, said how it would learn from the complaint and review its policy. It set out a plan to complete the repairs. It also offered reasonable compensation which was in line with the Ombudsman’s guidance on remedies. However, the resident has told this Service that she still has damp and there is insufficient evidence to show that all repairs have been completed or that the landlord has put things right. Therefore, there was maladministration. To reflect the distress, inconvenience, time and trouble caused an order has been made that the landlord pay directly to the resident the £3,000 it offered within its stage 2 response, if it has not already done so.

The landlord’s complaint handling

When the resident raised her 2 stage 1 complaints the landlord failed to acknowledge these in breach of its complaints policy. It responded to the first complaint after 13 working days, which was in line with its complaints policy timeframe of 15 working days. However, this was in breach of the Housing Ombudsman’s Complaint Handling Code (the Code) in use at the time. Under paragraph 5.1 a landlord should respond to a stage 1 complaint within 10 working days. It responded to the second complaint after 16 working days in breach of both its policy and the Code.
The landlord correctly acknowledged escalation of the first complaint within its 3 working day policy timeframe. It provided its stage 2 response after 27 working days, in breach of its 25-working day policy timeframe, and the 20 working days allowed under paragraph 5.13 of the Code. The landlord also failed to recognise, apologise for, or offer a remedy for its failings within its stage 2 response.
There was service failure in the landlord’s complaint handling, which caused further inconvenience, time and trouble for the resident. To reflect the impact an order has been made that the landlord pay £75 compensation to the resident, which is in line with our guidance on remedies.

The landlord’s knowledge and information management

A landlord should have systems in place to maintain accurate records of repair reports, responses, inspections, investigations, and communications. Good record keeping is vital to evidence the action a landlord has taken and failure to keep adequate records indicates that the landlord’s processes are not operating effectively. The landlord’s staff should be aware of a landlord’s record management policy and procedures and adhere to these.
As detailed in this report the landlord has failed to produce, retain, or provide copies of inspection reports to this Service. It has also failed to provide evidence as detailed which has hampered the Ombudsman’s investigation. In addition, while the landlord provided evidence of repairs in a schedule, this was difficult to understand and did not contain full information on appointment dates and the dates work was completed.
There was service failure in the landlord’s knowledge and information management.

Determination

In accordance with Paragraph 52 of the Scheme, there was maladministration in relation to the landlord’s handling of damp and mould and related repairs.
In accordance with Paragraph 52 of the Scheme, there was service failure in relation to the landlord’s:
1. Complaint handling.
2. Knowledge and information management.
In accordance with Paragraph 41(d) of the Scheme the resident’s complaint about the landlord’s handling of her right to buy application is outside of the Ombudsman’s jurisdiction.
In accordance with Paragraph 42(f) of the Scheme the resident’s complaint about the landlord’s handling of her reports of personal injury cause by the presence of damp and mould is outside of the Ombudsman’s jurisdiction.

Orders

Within 4 weeks of the date of this report, the landlord is ordered to:
1. Provide a written apology to the resident for the maladministration detailed in this report.
2. Pay directly to the resident £3,075 compensation made up of:
  1. The £3,000 it offered within its stage 2 response for the impact of its repairs handling failings, if it has not already done so.
  2. £75 for the additional inconvenience, time and trouble caused by its complaint handling failings.
3. Carry out a survey of the property to include, but not be limited to, an assessment of whether any damp remains and whether further repairs are required to resolve the issue. The landlord is to provide a copy of the report to the resident and this Service.
Within 8 weeks of the date of this report the landlord is to complete any repairs recommended within the survey report ordered above.
The landlord is ordered to confirm compliance with these orders to this Service within the stated deadlines.

Wider order

The Ombudsman previously ordered the landlord to carry out a review of its policy or practice in relation to its knowledge and information management in case 202222538. As the events in this case occurred before that wider order was made, no new orders have been made as part of this case which would duplicate those already made.