Midland Heart Limited (202328128)

REPORT

COMPLAINT 202328128

Midland Heart Limited

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 the landlord’s response to the resident’s:
1. Reports of damp and mould throughout her property.
2. Request to move properties.
3. Complaint.

Background

The resident holds an assured tenancy with the landlord, a housing association. She lives in a 2-bedroom house with 2 young children.
On 28 August 2021 the resident reported that several walls in her property were wet. The landlord arranged an appointment for a plumber to attend on 21 September 2021 to assess for any potential leaks. An assessment was conducted on 21 September 2021 and the plumber recommended that a full damp and mould survey was carried out as no leaks had been identified.
The resident reported a leak and damp above her garden door on 7 February 2022. The landlord replied to the resident on 11 February 2022 and advised that before any treatment could be agreed it would need to arrange an inspection to find out the cause. On 24 February 2022 the landlord sent an internal email and asked for a new damp and mould survey to be completed by the appropriate team as it had failed to complete the follow up action from September 2021.
The resident chased the landlord on 9 May 2022 as no further updates had been provided. On 10 May 2022, the landlord sent internal correspondence to various teams before it confirmed to the resident that an area surveyor would contact her to provide an update.
On 26 August 2022 the resident raised her first formal complaint about the delays and lack of repairs to her property.
The landlord’s area surveyor completed a damp and mould survey of the property on 20 September 2022 and booked several follow-on jobs.
On 26 September 2022 the landlord provided its stage 1 complaint response. It accepted that after the initial visit by the plumber in September 2021 the recommendation for a damp and mould survey had not been followed up. It also accepted that after the resident had called on 24 February 2022 about damp and mould it had made a number of administrative errors in raising the survey with the correct team, and that there had been a lack of communication and action taken until the area surveyor completed the survey on 20 September 2022.
The landlord upheld the complaint and offered a total of £604 in compensation, broken down as:
1. £300 for reoccurring issues from August 2019.
2. £70 for administration and process errors.
3. £134 for the delay in inspecting the resident’s home.
4. £100 for inconvenience.
A drainage contractor completed a CCTV survey of the properties drains to identify the potential cause of the damp on 27 September 2022. The contractor conducted further works on the drains in October 2022, completing the work on 25 October 2022.
The resident escalated her complaint on 10 October 2022. She said that since discovering the walls were wet in her home it had affected her and her children’s health. She advised that the landlord had not shown any empathy or professionalism when dealing with the damp and mould issue, and she was unhappy with the amount of compensation offered.
The landlord provided its stage 2 response to the resident’s first complaint on 11 November 2022. It apologised for the delay in providing the response and explained that it had wanted to ensure all the works were completed before giving its final response. It said that it had identified the cause of some of the damp was the drains and that a contractor had repaired this successfully on 25 October 2022. It had also identified issues with the guttering and fascia and work to correct this had been scheduled for 18 November 2022. It acknowledged that the resident had experienced some health issues and explained the process for personal injury claims.
The landlord upheld the complaint and increased the compensation to £924, broken down as:
1. £450 for reoccurring issues since August 2019.
2. £70 for errors in process causing delays to inspections.
3. £234 for a delay in the surveyor inspection and booking repairs.
4. £170 for delays and inconvenience.
Work to replace the facia board and refit and adjust the guttering at the resident’s property was completed on 25 November 2022 by the landlord.
Shortly after this the resident contacted her local council to express concern about the outstanding repairs. The local council contacted the landlord about this, and the landlord inspected the resident’s property. Following the inspection the landlord contacted its contractor to raise work that the inspection had identified. The landlord chased the contractor on 7 and 22 March 2023 to ask if they had been able to book the job with the resident. On 29 March 2023 the contractor said that they had provisionally booked the work for 1 May 2023 and asked the landlord to speak with the resident. The landlord replied to the contractor the same day and said that the resident was unwell and could not confirm a date she would be available for the repair.
On 30 March 2023 the landlord confirmed with the council that there was no open disrepair case as the resident’s complaint was closed in November 2022. The contractor confirmed they had attempted to speak with the resident again on 12 April 2023 but there was no answer. The legal disrepair team then closed its case and passed outstanding works back to the day-to-day repair team.
Between 8 and 15 March 2023 the resident contacted the landlord to ask for a letter about whether her property was safe to live in, and what category hazards there were. This request was passed to the senior management housing team to respond to.
On 24 March 2023 the landlord’s area surveyor confirmed that while a Housing Health and Safety Rating System (HHSRS) inspection was not undertaken, no category 1 hazards existed. It was the surveyor’s opinion that the property was safe to live in.
On 17 April 2023 the resident raised her second complaint with the landlord. She said that despite some work being completed, there was still a problem with rising damp and mould in her living room. She explained that she had been contacted by a contractor with a request to start work to eliminate the damp and mould. However, she had consulted some third parties and believed that staying in her house when the work was carried out would have a significant effect on her and her children’s health. She advised that the only resolution would be for the landlord to offer her a new property.
Several internal emails were sent by the landlord on 20 April 2023. In these emails it confirmed that there had been contact from the local council about potential disrepair in the resident’s property. However, the landlord’s legal disrepair team had closed its case and outstanding repairs were passed to the day-to-day repair team. The landlord’s head of maintenance advised that a surveyor would be sent again to the resident’s property to establish if the works were extensive and disruptive, and to consider whether a decant was required.
The surveyor attended the resident’s property on 2 May 2023, and on 9 May 2023 they sent a schedule of work to the relevant department for completion. The schedule included work to:
1. Clean, treat and paint mould in the living room, bathroom and kitchen.
2. Treat rising damp in the dining room, kitchen, and lobby.
3. Check the roof above one of the bedrooms for leaks. Once completed, to clean, treat and redecorate the ceiling in the bedroom.
4. Redecorate the ceiling area at the bottom of the stairs once a suitable drying out period had been observed.
The landlord provided its stage 1 response to the second complaint on 9 May 2023. The response acknowledged that the resident’s ideal resolution would be to move home. It apologised for how it had dealt with the resident’s concerns. It advised that there had been a delay in raising repairs after contact from the council. It advised that the surveyor had attended and provided a schedule of works and that the resident would be contacted with appropriate appointments. It said that it upheld the resident’s complaint and that once the repairs had been carried out, it would assess the complaint and award appropriate redress.
On 22 May 2023 the resident escalated her complaint to stage 2 of the landlord’s process. She advised that the landlord had not given an answer to her request for different accommodation. She noted that she had had the same issues happen since 2021 and her and her children’s health had suffered. She also said that the landlord had consistently failed to follow through with actions and this was the reason she had originally contacted the council about a disrepair case. She advised the landlord that she considered the delays to deal with the damp and mould were unacceptable.
The roof contractor completed the relevant repairs on 12 June 2023 when it made an unannounced visit to the resident. This was because the contractor had been unable to contact the resident and an earlier attempt on 31 May 2023 was unsuccessful.
The internal repairs for damp and mould were recorded as no access on 22 May, 1 June and 9 June 2023. The repair was rebooked for 26 June 2023, but the resident was unavailable for this appointment and the landlord recorded that it had no availability to rebook the work. A final attempt at carrying out the internal damp and mould work was made on 24 August 2023. However, the resident told the landlord that she did not want the works carried out due to the hazardous solutions used. The landlord closed the repair at this point.
The landlord acknowledged the resident’s escalation request on 7 March 2024 after being prompted by this Service. It then provided its stage 2 response on 15 March 2024. The stage 2 response said that:
1. It had carried out repairs to try and rectify the damp and mould in good faith, but this did not provide a permanent solution.
2. It had arranged for a member of its damp and mould team to complete a new survey to investigate and identify all possible root causes of the damp and mould. This survey was arranged for 24 March 2024 and would be attended by the surveyor and liaison manager.
3. It acknowledged the resident had said the situation had impacted her and her children’s health. However, the area surveyor had confirmed the home was safe and habitable. It would check whether this was still the case on 24 March 2024.
4. It would consider whether temporary accommodation was appropriate once the full extent of the works was known, and apologised that the request for alternative accommodation had not been considered at stage 1.
5. It had arranged a meeting between the director of lettings and the director of repair and maintenance to discuss if it was possible to offer alternative accommodation.
6. It apologised for the resident’s experience and offered £2,000 compensation as redress for all the issues identified.
The survey originally scheduled for 24 March 2024 was rearranged at the request of the resident. The surveyor attended on 12 April 2024 but could not gain access to the resident’s property. This was rebooked and the survey was carried out on 25 April 2024.
The results of the survey were passed to the appropriate team to raise the internal works which were sent to the contractor on 10 May 2024. The works to resolve the damp and mould were to the living room, dining room, kitchen, bathroom, 2 bedrooms and some external work to the front of the property. There was also a roof check recommended.
On 13 May 2024 an appointment letter was sent to the resident for the damp and mould works to be completed on 5 and 6 June 2024. However, the resident responded to the landlord on 23 May 2024 and cancelled the appointment. She advised she did not want the works to take place due to the hazardous substances and the health impact on her and her children. She advised that she was still waiting on a response relating to her request for a new home, despite the 10-working day deadline expiring.
On 24 May 2024 the landlord provided some general information to the resident on how to apply for a new home using either its own or the council’s website. It also provided information on how to advertise the property for a mutual exchange.
It is the understanding of this Service that the damp and mould works are yet to be completed, and the landlord is working with the resident to find temporary accommodation for her and her family while the work is completed. In addition, the landlord has contacted the resident to discuss areas of interest for a new property and has committed to supporting her in finding new permanent accommodation.

Assessment and findings

Scope of investigation

While this Service is an alternative to the courts, we are unable to establish legal liability or whether a landlord’s action or lack of action has had a detrimental impact on a resident’s health. We also are unable to calculate or award damages based on any potential personal injuries. Therefore, we are unable to consider the personal injury aspects of the resident’s complaint. These matters are better suited to consideration by a court or via a personal injury claim with the landlord’s own liability insurance.

Damp and mould

The landlord’s published repairs timescales include a target period to attend non-urgent repairs within 28 days. An emergency repair will be conducted within 24 hours. The landlord has a specialist team which deals with disrepair cases received from the local council.
The Ombudsman published a spotlight report on damp and mould in October 2021 which is available on our website. This recommended that landlords strengthen their approach to tackling damp and mould issues and improve communication with residents.
The landlord implemented a specific damp and mould policy in February 2023. This includes a 2-stage approach to dealing with reports of damp and mould. Stage 1 is to arrange for a team to visit and treat mould. A wash down is to be completed within 14 days and any repairs within 28 days. Resident’s are also asked to take photos of the affected area so the landlord can assess how serious the issue is and whether an escalation to stage 2 is appropriate. Stage 2 is to undertake a full damp and mould survey within 7 days and complete any follow-on works within 90 days.
The landlord’s initial action in sending out a plumber to investigate the report of damp in the resident’s property was reasonable and timely. The resident reported an issue on 28 August 2021 and the landlord’s plumber attended the property on 21 September 2021. This was within the 28-day timescale set for non-urgent repairs.
Following this the landlord failed to organise a damp and mould survey as recommended by the plumber. The resident had to chase the landlord in February, May and August 2022 before an area surveyor eventually attended the property to complete a survey on 20 September 2022. This delay of over 1 year was unreasonable. The landlord failed to apply its own policies and there was a failure to apply the areas of best practice recommended in the spotlight report of October 2021. This failure to take quick and efficient action caused the resident significant distress and inconvenience.
The landlord promptly arranged for follow–on works recommended by the area surveyor and these were completed on 25 October and 25 November 2022. It also recognised that its service had fallen below a reasonable standard as part of its stage 2 response to the resident’s first complaint. The landlord offered a total of £924 for the delays and impact on the resident. It was appropriate for the landlord to acknowledge the service failure at this stage. However, its actions after this complaint response showed it did not learn from its errors as the delays continued.
The resident contacted her local council before the follow-on works were completed as she was unhappy that the landlord had taken a long time to act on her report of damp and mould. The landlord passed the case to its legal disrepair team and arranged for a further inspection. Further works to the property were then identified in relation to damp and mould. The landlord’s actions were reasonable and in line with its policy on disrepair cases received from the council.
There was an unreasonable delay of 5 months in completing the additional works identified by the landlord between December 2022 and May 2023. During this period the landlord’s legal disrepair team contacted the council and found that the disrepair case had been closed in November 2022. The case was then transferred back to its day-to-day repair team, which did not take any action on the case until the resident made a second complaint about the outstanding work on 20 April 2023. This lack of action was unreasonable and caused the resident unnecessary distress and inconvenience.
The day-to-day repair team arranged for a new survey to be completed in May 2023 which identified a schedule of work to treat damp in multiple rooms throughout the resident’s property and some external works to the resident’s roof. This was the fourth time the resident’s property had been surveyed or inspected for damp in 2 years and there is a lack of evidence to show clear communication with the resident about the issues identified and the causes for the damp within this time. The failure to take prompt action during this period increased the resident’s distress.
In the resident’s 20 April 2023 complaint, she raised concerns that any potential damp treatment may affect her and her children’s health. However, there is no evidence which shows these concerns were addressed or acknowledged by the landlord at the time. This meant the landlord missed an opportunity to consider the resident’s circumstances and clearly explain its stance on whether a decant would be appropriate.
The landlord has accepted that it failed to follow its own ‘no access’ procedure when attempting the internal damp and mould repairs between May and August 2023. It attempted and failed to complete the repairs on 4 separate occasions, with the final attempt made on 24 August 2023. While the resident told the landlord that she did not want the works conducted as she was concerned about how the repairs may affect her health, the failure to follow the no access policy caused an unnecessary delay.
No further action was taken by the landlord until this Service prompted the landlord to complete its stage 2 complaint process for the resident’s second complaint in March 2024. This again shows the landlord failed to act efficiently in dealing with the damp and mould issue that the resident first reported in August 2021 and caused further delay.
As part of the landlord’s stage 2 response to the second complaint it offered £2,000 on top of the £924 to acknowledge the delays and inconvenience caused to the resident. It also arranged a new damp and mould survey, and post stage 2 it is working with the resident to complete the appropriate repairs. This includes decanting the resident and her family while the works are carried out. It was appropriate for the landlord to acknowledge the significant failings in its service, distress, and inconvenience this had caused the resident.
To resolve the complaint the resident has asked for £5,960 in compensation, which includes a partial refund of her rent. The Ombudsman has considered this request but does not consider a refund of rent to be appropriate in the circumstances of this case. The evidence does not show that the resident was unable to use her home, instead the impact to the resident was the frustration, inconvenience and distress caused by the delays and the landlord’s poor communication in managing the damp and mould reports.
The Ombudsman considers that the offers made by the landlord across the resident’s 2 complaints, which total £2,924, are proportionate and in line with our guidance on remedies. Therefore, no further compensation will be awarded in respect of this complaint.
The Ombudsman has considered whether the compensation figure and steps outlined in the second stage 2 response amount to reasonable redress. In this instance, a finding of reasonable redress would not be appropriate. This is because the substantive issue of damp and mould has yet to be resolved despite the first report being made in August 2021. This has led the resident to lack confidence that the landlord can assist her in a meaningful way. In addition to this, while it recognised that there were errors in its handling of the case when dealing with the resident’s first complaint, it then repeated some of these same mistakes again which caused the resident to complain for a second time. This failure to take learning from its first complaint response continued to cause avoidable delays in its handling of this repair. The evidence also does not show the landlord was proactive in its approach to resolving this issue for the resident.
The Ombudsman also considered if a finding of severe maladministration was warranted. However, this was avoided as the landlord has accepted its failings, tried to take some steps to resolve the issue and has committed to take learning from this case. Therefore, taking all the circumstances into account the landlord’s actions amount to maladministration.

Request to move properties

The landlord’s allocations policy says that existing tenants who are adequately housed would not be eligible for a transfer unless they can provide evidence additional needs are not being met. Tenants without additional needs are expected to seek a mutual exchange. Examples of additional needs include under-occupying, overcrowding, and specific medical needs.
The policy also sets out that advertised properties are usually given to the person who has been waiting the longest, unless a direct offer is made. A direct offer can be made in several circumstances, including where a tenant requires an adaptation or where severe overcrowding is leading to an immediate and significant health and safety risk.
The resident first asked about moving property due to her worries about her health on 17 April 2023, and chased a response to this on 22 May 2023. However, this was not fully addressed until the landlord’s stage 2 response on 15 March 2024. This was an unreasonable delay of around 10 months in responding to the resident’s request and was a missed opportunity to discuss her concerns about her and her children’s health.
When the landlord did address the resident’s request to move on 15 March 2024, it advised that it would speak with its lettings manager and provide a response to the resident within 10 working days. However, this did not happen and the resident had to chase the landlord on 23 May 2024 for an update. The landlord then provided some general information on obtaining a new property on 24 May 2024. This was a further 36 working day delay in providing any information to the resident which was unreasonable.
The landlord has confirmed to this Service that at no point did it undertake a specific assessment to establish if there were risks to the resident’s health. The landlord’s area surveyor confirmed that no HHSRS assessment had been conducted. It is accepted that the landlord relied on its area surveyor stating that his opinion was that there were no category 1 risks, and has explained that on each occasion a surveyor visited no category 1 risks were identified. However, given the resident’s concerns and the ongoing issues she was facing, it could have carried out a more formal assessment in line with the HHSRS. This would have shown the resident it was taking her request to move due to health issues seriously and had the landlord done this it would have gone some way to alleviate the resident’s concerns at an earlier point.
The landlord has since confirmed to this Service that it is working directly with the resident and is committed to supporting her in finding a new property that is suitable for her circumstances. While this approach is welcomed, it does not detract from the initial unreasonable delay of over 10 months in dealing with the resident’s request to move. Therefore, this amounts to maladministration.
To recognise the delays both before and after the stage 2 response on 15 March 2024, the landlord should pay the resident £250 compensation. This fairly remedies the inconvenience caused as a result of the landlord’s actions.

Complaint handling

The landlord has a 2-stage formal complaints procedure whereby it aims to respond to complaints within 10 working days at stage 1 and 20 working days at stage 2. Where these timescales are not possible, this will be communicated to the resident.
The landlord failed to follow its own policy timescales when responding to the resident’s first complaint. It took 20 working days to respond at stage 1 and 25 working days at stage 2. There is no evidence to show that the landlord communicated these delays to the resident.
The Ombudsman’s complaint handling code at the time said, “A complaint response must be sent to the resident when the answer to the complaint is known, not when the outstanding actions required to address the issue are completed.” However, when responding to the resident’s complaint at stage 2 the landlord advised that the delay was due to it wanting to wait for the completion of repair works. This was unreasonable as it was at odds with the best practice actions set out in the complaint handling code.
The landlord again failed to follow its own policy timescales when responding to the resident’s second complaint. The stage 1 response was sent after 15 working days. As part of its stage 1 response the landlord said, “Once your repairs have been carried out, I will assess your complaint in its entirety and award redress”. This again was at odds with the complaint handling code. While it may have been appropriate for the landlord to award further compensation once the repairs were completed, it could have made a partial award to reflect the delays and impact to the resident up to that point. It could also have demonstrated transparency by explaining how the compensation would be calculated so the resident had an expectation of what she was likely to receive.
The resident escalated her complaint on 22 May 2023, but the landlord did not provide its stage 2 response until 15 March 2024. This was an unreasonable delay totalling 190 working days.
Taking all the circumstances into account, this amounts to maladministration. The landlord should pay the resident £350 in compensation for the delay in providing its complaint responses, the time and effort taken by the resident and the inconvenience that this caused.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s:
1. Reports of damp and mould.
2. Request to move property.
3. Complaint

Orders and recommendations

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 failings identified.
2. Pay £3,540 compensation to the resident which is broken down as:
  1. £2,940 for the impact to the resident in its handling of her reports of damp and mould, if it has not already paid this.
  2. £250 for the handling of the request to move properties.
  3. £350 for its poor complaint handling.
3. Arrange to complete the works currently outstanding. The landlord should provide this Service and the resident with a schedule of work outstanding and evidence the works have been scheduled. The landlord also should provide this Service with evidence that contact has been made with the resident to arrange a decant.
Within 12 weeks of the date of this report the landlord is ordered to review its offer of training for staff involved in complaint handling. It is also ordered to consider whether it should provide refresher training or additional guidance on when and how to offer resolutions. Evidence of its review and considerations should be provided to this Service within 12 weeks.