Norwich City Council (202201741)

REPORT

COMPLAINT 202201741

Norwich City Council

23 February 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s:
1. Handling of the resident’s reports of damp and mould in her property.
2. Complaint handling.

Background

The resident has been a secure tenant of the landlord since June 2021. The property is a 2-bedroom ground floor flat. The landlord has recorded that the resident has a long-term illness and mobility difficulties. She lives with her child who has asthma.
On 17 September 2021, the resident emailed the landlord to report damp and mould in her property. She then completed an online complaint form on 27 September 2021 with the following complaint points:
1. When she moved into the property, she was not aware that she would have to use the Positive Input Ventilation (PIV) unit every day to help with condensation. She could not afford to use the equipment and asked for help with the electric costs.
2. The flat was ventilated by keeping the windows and trickle vents open, but the flat was still damp throughout. Her bedroom was not habitable which left her having to sleep in the living room.
3. The damp in the property had made her child’s asthma worse. She did not want her daughter to live in the property. The resident was also coughing and sneezing more.
4. Mould was present in the property which was damaging her belongings. She wanted the landlord to fix the issue as it was getting worse.
The landlord sent an email to the resident on 29 September 2021 titled ‘corporate complaint’. It said:
1. The resident reported damp and mould on 21 September 2021 and made a complaint about the same on 27 September 2021.
2. It had arranged a damp survey for the 4 October 2021 and would communicate the results and any remedial action when the inspection was complete.
3. If she felt it had not fully investigated her enquiry, she could escalate her complaint.
On 4 October 2021, the landlord conducted a damp survey. The resulting report stated that the property had PVC double glazing, cavity insulation, a combination boiler and extractor fans in the kitchen and bedroom. The property was also fitted with a PIV unit. In addition the report listed the following points:
1. The surveyor did not find significant evidence of damp during the survey.
2. They found mould in the corner of a built-in wardrobe in the daughter’s bedroom, on the wall behind the heating pipes in the living room and in a kitchen cupboard on an external wall.
3. The moisture readings taken from the walls which had exhibited mould showed that these were dry.
4. There was a hole in the floor covering of the bathroom causing damp in the wall adjoining the resident’s bedroom. The surveyor did not think this defect was associated with the mould growth in the other parts of the flat.
5. The surveyor had not identified any other areas of penetrating damp or leaks in the property. They informed the resident they were of the opinion that the mould growth was the result of condensation.
6. It told the resident it would return to install data loggers to monitor indoor humidity and arrange for core samples of the concrete floor to check it was not wet.
The resident emailed the landlord the same day. She said:
1. The mould in the bedroom had gotten worse and her bedroom furniture had mould on it. The damp survey was inconclusive. She wanted further tests carried out.
2. She was not able to sleep in her room because of the mould, having arthritis and recent surgery. She was struggling to cope.
3. The landlord had not provided information on the running costs of the PIV unit she had to use. With the increased electric prices, she could not afford the costs.
4. The property was not good for her or her daughter’s health.
The landlord installed data loggers in the property on 6 October 2021. On 18 October 2021, the resident contacted her local councillor and informed them of the issues she was having in the property. She said that her daughter had asthma and was having to use her preventative inhaler to cope with the increase in her symptoms. She confirmed she had been told to use the PIV unit but that it was too expensive.
On 19 October 2021, the landlord wrote to the resident about the survey on 4 October 2021. It said:
1. The surveyor had visited on 4 October 2021 and advised the damp was likely due to condensation.
2. It had arranged for its contractor to attend and take 2 core samples from the floor, to ensure the concrete slab was not wet above the damp proof membrane.
3. It enclosed a leaflet about controlling condensation and mould in the home. It also reminded the resident that clause 8.5 of her tenancy agreement said that the home must be kept at a reasonable temperature and ventilated to minimise condensation.
The landlord returned to the property on 21 October 2021 to collect the data loggers. It wrote to the resident on 26 October 2021 outlining the following points:
1. It had raised the order for the contractor to attend and obtain core floor samples.
2. It had installed a PIV unit as the flat had previously been affected by condensation. It understood the resident was concerned with the running costs of the unit. It said it would contact the manufacturer to obtain the running costs.
3. The surveyor believed that the mould growth was caused by condensation. Once it obtained the results from the floor samples it would have a better understanding of the issue.
4. Once it had looked at the information collected on the data loggers, it would provide a further update on the week commencing 1 November 2021.
On 1 November 2021, the resident emailed her councillor. She said that she had not had any repairs carried out and that nobody had come to take the floor samples. The landlord’s contractor attended and obtained the samples on 9 November 2021. There were a number of emails between the councillor and the landlord between 12 November 2021 and 17 December 2021. In the last email to the councillor the landlord clarified its findings and its position on the issue, stating:
1. The survey in September 2021 had not shown evidence of damp other than in the bathroom.
2. The results from the data loggers were not conclusive as the weather at the time they were installed was mild. The analysis of the floor samples had shown the floor to be dry.
3. The PIV unit had been installed because of condensation being experienced by a previous resident. It was part of a trial to deal with internal condensation, and did not indicate a fabric defect.
4. All practicable improvements to the building had been made. It could not find any defects such as, leaking pipes, roof leaks or rising damp, and was unable to advise on any further remedial actions.
5. It had conducted the necessary investigations and concluded that the condensation and mould were a result of lifestyle issues.
On 10 February 2022 an independent damp contractor visited the property to conduct a damp survey. It provided its report on 15 February 2022, it found:
1. The property was in reasonable condition with no building defects highlighted that would lead to the mould experienced by the occupier.
2. Accordingly, it would appear that on the balance of probabilities the mould was the result of occupational factors, rather than a building defect.
3. It noted elevated damp readings in the bathroom wall which appeared to be the result of damage to the sheet vinyl on the bathroom floor.
4. The fan in the kitchen was electrically isolated. The PIV unit had been electrically isolated due to cost (the surveyor advised a cost of 1-2p/day). The thermostat was set to 0OC. The tumble dryer was located in the living room with an extract pipe placed out the window.
5. It recommended:
  1. Repair or replacement of the vinyl sheeting in the bathroom.
  2. Relocation of the existing tumble dryer and connection of the extract pipe to a permanent outlet.
  3. That the resident uses the PIV unit and the landlord provide further details on the running costs.
On 26 April 2022, the resident raised a complaint using the online form. She reported outstanding repairs in relation to damp and mould as well as the shower pump. She wanted the landlord to do the repairs or change the bathroom. It acknowledged the complaint on 23 May 2022 and provided the stage 1 response on 7 June 2022. It said:
1. The resident’s complaint was about its delays in dealing with damp and mould in the property.
2. The main concern highlighted by the independent survey was condensation. However, it also highlighted a defect in the floor of the wet room that had to be repaired.
3. On 31 March 2022, it had stopped working with its main contractor. It had identified a new contractor, who had attended the property on 31 May 2022, to assess what works were required in the bathroom. Once it heard from the contractor, the landlord would approve the work order and contact her to arrange the works appointment.
4. It had raised a work order for an electrical repair to the shower pump which should have been completed on 27 May 2022.
5. It always aims to provide the best service possible and was sorry it had not met her expectations.
The resident escalated her complaint on 14 June 2022. She said:
1. A contractor had visited to measure for repairs to the bathroom. She had told them the bathroom repairs would not deal with the actual problem of damp and mould in the property.
2. The contractor told her he would investigate this and get back to her, which he had not.
3. She had been in touch with the Housing Ombudsman Service.
4. The repairs required to the bathroom had still not been completed.
The landlord’s contractor conducted an asbestos survey on 30 August 2022, and issued the report on 14 September 2022. It noted that there were no asbestos containing materials present that would interfere with the works to the bathroom.
On 28 September 2022, the resident contacted this Service to report that the landlord had not responded to her stage 2 escalation request. This Service then wrote to it asking that it acknowledge the resident’s stage 2 escalation by 13 October 2022 and respond within it published timescales. Having received no communication, the resident contacted this Service again on 17 October 2022. The Ombudsman wrote an additional letter asking it to acknowledge the complaint within 5 working days and provide the response as required.
The landlord provided the following information in its stage 2 response on 18 October 2022:
1. It always aimed to provide the best possible service and was very sorry that it had not done so on this occasion.
2. The contractor visited and inspected on 31 May 2022 and realised an asbestos survey was going to be required before they could arrange the work.
3. It issued the asbestos report to the contractor on 14 September 2022, but there were further delays due to a subcontractor being unavailable.
4. The materials were due to be delivered on 18 October 2022. The work would take 2 days to complete. The contractor had contacted the resident on 14 October 2022 to schedule the works.
5. It was aware the resident was refusing to have the flooring carried out as she wanted the problem with damp and mould fixed first. The surveyor had highlighted that the main cause of the damp was condensation but also noted that repairs to the bathroom were necessary. As the previous repair had not worked it had decided to replace the flooring.
6. In addition to the flooring works it could arrange for its contractor to wash down any mould affected areas. It said it would contact the resident to discuss how to proceed.
The resident called the landlord on 31 October 2022 to inquire about the ongoing damp investigations at her property and to ask about the core samples from the floor. She was told someone would call her back. She contacted the councillor on 15 November 2022 saying she had still not heard from her landlord. She informed the councillor she had stripped wallpaper off the wall in her bedroom and found it to be covered in black mould.
The resident formally brought her complaint to this service on 23 November 2022.

Events since the resident brought her complaint to this Service.

The landlord’s internal records show that it requested a new damp enquiry to be raised on 16 February 2023.
The resident contacted the landlord on 31 July 2023. She said that mould was getting on anything that she left on the floor and asked if it could arrange a further damp survey. The landlord wrote to the resident on 4 August 2023 advising her it had arranged a survey, which would take place on 9 August 2023
The landlord conducted the survey on 9 August 2023. It made the following observations:
1. The trickle vents and windows were open at the time of the visit. The laser meter indicated the floors were close to condensation point in the living room and bedrooms.
2. There was mould growth on the wet room floor, mostly in one corner where the weld had failed.
3. The cupboards on external walls required lining with therma board where they form part of the internal walls.
4. Conclusion: cold spots on the floor were leading to condensation forming and transferring to beds and furniture.
Following the visit, the landlord wrote to the resident on 19 September 2023. It provided a leaflet on how to control condensation in her home and listed the following remedial works it was going to carry out:
1. All flooring to be replaced with grade V313 waterproof insulating chipboard.
2. All carpets treated with mould spray and steam cleaned.
3. Existing walls stripped. All mould and fungi removed. All skirting and dado rails removed and later re-fitted.
4. Thermal backed plaster board fitted to all walls.
The resident emailed the landlord on 9 October 2023 about the forthcoming works. She explained she was concerned about the disruption it would cause to her and her child, who was preparing for exams. The landlord advised it would decant the resident while the work was taking place.
The landlord conducted a further independent damp and mould survey on 15 December 2023. The surveyor found all walls in the property to be dry. There was mould present on mastic around pipe boxing in the bathroom and some mould on the external wall in the bathroom. Condensation and mould were present on the UPVC windows in the living room. Walls and ceilings in the kitchen, lounge and bedrooms were dry and free from mould. The resident informed the surveyor that she had only recently been advised on the importance of using the PIV unit, however she also said she could not afford to use it or the bathroom heater due to cost. The surveyor recommended that the landlord install air vents to both bedrooms and the living room. In the bathroom it recommended that the landlord use anti mould sealant, replace the extractor and apply a mould wash to the walls and ceiling.
The resident was decanted to another property on 18th December 2023.

Assessment and findings

The landlord’s handling of reports of damp and mould

The resident’s tenancy agreement and landlord’s repairs information states that it is responsible for the structure and exterior of the property.
The landlord has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. A property with dampness and/or high humidities can lead to threats to health from associated mould or fungal growths resulting in the presence of a category 1 or 2 hazard. The principle underlying the HHSRS is that any residential premises should provide a safe healthy environment for any potential occupier or visitor. To satisfy this principle the landlord must ensure the dwelling is free from both unnecessary and avoidable hazards.
The Ombudsman’s spotlight report on damp and mould published in October 2021 said landlords should have zero-tolerance to damp issues; communicate effectively internally and with residents; consider the vulnerabilities of households; and deal with such issues in a timely manner.
In its response to the Regulator of Social Housing letter, seeking assurances on addressing risk related damp and mould, dated 22 November 2022, the landlord said that when a resident reported damp and mould it would:
1. On the first occurrence, raise an order for a contractor to attend and carry out a washdown and report back. If concerns were identified a damp surveyor would attend, and if remedial works were required these would be carried out.
2. On the second occurrence, again raise an order for a contractor to attend and carry out a washdown. If a survey had not already been carried out, an inspection would be arranged and, if identified, remedial works carried out.
3. On the third occurrence, again raise an order for a contractor to attend and carry out a washdown. It would also arrange for an independent third party damp consultant to attend and specify any remedial works required, which it would then carry out.
The landlord did not submit a repairs policy or procedure with its evidence. As part of the investigation this Service made an additional request for a repairs policy to be submitted. In response it sent an internet link to its repairs webpages. The information was of limited use as it only summarised its responsibilities under Section 11 of the Landlord and Tenant Act 1985. There was no information on what it considered a routine or emergency repair, nor what response times it worked toward. The absence of this information is a failure, which was identified in a previous case ( 202234907). However, the landlord has committed to updating the information on its website and repairs booklet by 1 March 2024 to include repair categories and timescales. Had this not been the case a wider order for compliance would have been made in this report.
The property was previously affected by damp and mould, which led to the installation of the PIV unit. This would suggest the problems were due to the property rather than the resident’s lifestyle. The resident first reported she was having issues on 17 September 2021. After 10 calendar days had passed without communication, she logged a formal complaint. The landlord made contact 2 days later to acknowledge the complaint and provide an appointment. It was unreasonable for the resident to have to make a formal complaint in order to draw attention to her report of damp and mould. This Service would have expected the landlord to have responded within a reasonable period of the original report and provide timescales for its proposed actions. However, it did arrange for a surveyor to visit which was in line with its process.
The damp survey that took place on 4 October 2021 identified limited areas of mould in the property. The only damp within the structure was on an internal wall caused by a defect in the flooring of the bathroom. The surveyor listed this as “awaiting repair” in the post survey notes. Other than the core samples of the floor, which came back dry, they had not identified any other remedial works. The moisture readings taken during the survey demonstrated that there was no risk of internal condensation at that time. Despite this, the surveyor informed the resident that the mould growth was a result of condensation, which was unhelpful.
The landlord reiterated this message in its written communications to the resident on 19 and 26 October 2021. It also included a leaflet on how to control condensation and reminded her of her tenancy obligations to ventilate her home and keep it at a reasonable temperature to minimise condensation. This language was unhelpful as it insinuated that she was not complying with her tenancy agreement and her behaviour had resulted in the presence of the mould. The spotlight report on damp and mould expects landlords to be mindful that they are not automatically apportioning blame or using language inferring blame on the resident. In its communications it did not offer any reasons why it thought the resident was not heating or ventilating her property. After analysing the results from the data loggers left in the property, the landlord told the councillor: “The loggers do not really give us any clues as to why there has been mould growth within the dwelling.”
The councillor asked the landlord a number of times to provide details on what aspect of the resident’s lifestyle it considered unreasonable and was contributing to the condensation. No answer was provided to them on this particular point, which was unhelpful as it left the councillor unable to advise the resident further. This was a missed opportunity to engage with the resident to identify action that she could implement.
After repeated interventions by the local councillor, a second survey took place on 10 February 2022. Similar to the previous survey, the only damp detected in the property was in the wall between the bathroom and bedroom due to a failed repair to the flooring. The report said: “On the balance of probabilities the mould was a result of occupational factors as opposed to a building defect.” This was despite acceptable moisture levels measured within the property at the time of the inspection. In this case, the landlord concluded that the mould was the result of the resident’s ‘lifestyle’. However, it made no attempt to inform her what specific measures she could take to address any factors it believed was contributing to the alleged condensation in the property. This was a missed opportunity to engage with the resident to identify action that she could implement.
The Ombudsman’s spotlight report on damp and mould, made recommendations that landlords should consider what mitigations can be put in place to support residents in circumstances where structural remedies, related to the property age and design for example, are not appropriate. It highlighted the importance of clear unambiguous advice and specifically mentioned the messaging around mechanical ventilation.
Of concern to this Service is that the independent damp surveyor’s report had to make a recommendation for the landlord to provide the resident with detail on the running costs of the PIV unit. At the very start of this process, she was clear she could not afford to run the equipment and had asked for help with the electric costs. She had also reminded it on 4 October 2021 that she was still waiting for it to provide the information on the running costs of the unit. In its email on 26 October 2021, it said it would be obtaining this information from the manufacturer. The landlord has not provided any evidence to show it fulfilled this obligation. This was a significant omission as provision of these important details may have had a positive impact on reducing damp and mould growth.
The landlord has not provided evidence to show it communicated the results of the independent survey to the resident. This was in addition to its failure to provide the results from the installation of the data loggers and the results of the floor samples. This Service expects landlords to clearly communicate its diagnosis, sharing any relevant information to ensure that residents have confidence in it and understand the next steps. Failing to pass on this information led to the resident not having key information of her case, which would have helped her better understand the situation.
In her complaint the resident referred to works to the bathroom that had still not been completed. The landlord did undertake a repair to the flooring, although it has not submitted any evidence to identify when this happened. In its stage 1 response it acknowledged that the repair was not effective (as highlighted in the independent survey on 10 February 2022). It is not clear from its evidence when the second attempt to repair the floor was completed. The resident reported to this Service on 5 December 2022 that the flooring had been lifted and the concrete underneath was wet. An internal email from the landlord reiterated this and said that it had installed dehumidifiers to dry the floor out. In its complaint responses it blamed the repair delays on changes in contractor, long term sickness and having to conduct an asbestos survey. Whatever the reason, a period that extended to over 12 months to adequately repair a defect that was creating damp conditions was unacceptable.
There was a period of no contact between the parties from December 2022 to 31 July 2023, when the resident again contacted the landlord. She said that mould was getting on anything left on the floor and asked it to conduct another survey. This survey took place on 9 August 2023. The surveyor noted mould in the bathroom where the floor weld had broken down, indicating a further failure to rectify the issues with the bathroom floor. The surveyor found cold spots on the concrete floors that were allowing condensation to develop, which was then transferring to beds and furniture. This resulted in the landlord scheduling significant remediation works to the property.
This Service is aware that the resident was decanted on 18 December 2023 to allow the work to take place. As of 5 January 2024, the work had not yet started.
The landlord initially conducted the investigation in line with its process for resolving damp complaints by conducting a survey and then following this with an independent survey. However, it came to the conclusion that the condensation and mould were down to the resident’s lifestyle, without ever providing any substantive evidence to support this claim. The significant remedial work it identified in its survey on 9 August 2023, nearly 2 years after the resident’s original report, is evidence that it did not adequately investigate the cause of damp and mould in her property. This left the resident and her daughter living with an unnecessary and avoidable hazard and the subsequent risk to health it posed. Overall, the landlord’s handling of the resident’s reports of damp and mould amounts to severe maladministration.

Complaint handling

The landlord has a 2 stage complaint process, it commits to acknowledging stage 1 and 2 complaints in 5 working days and providing responses in 10 and 20 working days respectively. If further time to investigate is required, it will provide residents with an explanation. In its complaint responses, the landlord aims to include the complaint stage and definition, its complaint decision along with any reasons, remedies offered and outstanding actions.
The landlord responded to the resident’s first complaint in an email titled, ‘corporate complaint’. There was no indication that the communication represented a stage 1 response. It acknowledged the complaint was about damp in her property and that it had called the same day to arrange an appointment for a damp survey on 4 October 2021. The response did not answer a number of the complaint points, such as the resident not being aware she had to use the PIV unit or costs associated with the unit. It did not make comment on the health impacts the property was having or the fact that she was sleeping in the living room. Rather than investigating the resident’s complaint, the landlord used a repair acknowledgement letter as a complaint response. It did not investigate the resident’s complaint and did not provide the information required by its policy. This meant the resident was denied access to the complaints process set out in the landlord’s policy.
The resident made a second complaint on 26 April 2022 which was acknowledged on 23 May 2022. This was 14 working days longer than required by the complaints policy. The complaint acknowledgement advised it would provide a response within 15 working days. The stage 1 response was sent on 7 June 2023, 28 working days after it was made. There was no indication in the letter that it was a stage 1 response. The landlord did provide reasons for the delays and provided an update on forthcoming actions, but did not provide a decision on whether it upheld the complaint, as required by its policy.
The resident escalated her complaint on 14 June 2022. After receiving 2 requests to do so from this Service, the landlord provided its stage 2 response on 18 October 2022. The response detailed the action it had taken to have the repairs carried out and listed the reasons for the further delays it had experienced and apologised. It did not clarify that it was a stage 2 response or provide a decision on whether or not it upheld the complaint. It did not explain why it had taken 89 working days to provide a stage 2 response or apologise for the delay. It did not consider the impact on the resident or offer any redress for the delays associated with the repairs or its poor complaint handling. Overall, in the Ombudsman’s opinion the landlord’s handling of the resident’s complaint amounts to maladministration.

Determination

In accordance with paragraph 52 of the Scheme, there was severe maladministration in the landlord’s handling of the resident’s reports of damp and mould in her property.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the associated complaint.

Orders and recommendations

Orders

Within 4 weeks from the date of this report, the landlord is ordered to:
1. Provide a written apology to the resident from Chief Executive for the failures detailed in this report.
2. Pay the resident a total of £1,200 compensation, made up as follows:
  1. £800 for the distress, inconvenience, time and trouble associated with its handling of the resident’s reports of damp and mould.
  2. £400 for the distress, inconvenience, time and trouble associated with the landlord’s complaint handling.
3. Contact the resident to clarify if any additional redress is required to cover possessions destroyed by mould growth or out of pocket expenses associated with the decant.
4. Provide evidence showing the changes made to the repairs information on its website and repairs booklet by 1 March 2024.
Provide the Ombudsman with evidence of compliance with these orders.