Orbit Housing Association Limited (202224876)

REPORT

COMPLAINT 202224876

Orbit Housing Association Limited

31 May 2024

Our approach

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

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

The complaint

The complaint is about the landlord’s handling of:
1. The resident’s reports of structural issues to the property.
2. The resident’s reports of damp and mould.
3. The resident’s complaint.

Background and summary of events

Policies and procedures

The resident is an assured tenant of the landlord, having succeeded the tenancy on 1 October 2021. The property is 2-bedroom semi-detached bungalow. The landlord has advised the Service that the resident has vulnerabilities but has not disclosed them to it. The resident lives in the property with her partner, although for simplicity’s sake this report will only refer to her. The resident’s rent at the time her complaint commenced was £89.47.
The landlord’s damp, mould and condensation (DMC) policy (April 2022) confirms that “Orbit has a zero-tolerance approach to damp and mould. We take a proactive approach … and we ensure that support is offered by us to our customers to ensure that any issues are resolved satisfactorily. The policy further states that the landlord “will ensure accurate records are kept when reports of damp and mould are made. An assessment of risk will be made with details recorded.”
In April 2023, the landlord introduced a DMC procedure. This states:
1. The DMC team will “review new cases within 5 working days and raise a mould treatment, complete the initial triage, and allocate to a Technical Surveyor/team. The initial consideration should be whether an immediate mould treatment is required, this should be raised, if necessary, by the DMC admin team and confirmation of this provided to the customer via an update which should include details of whether a follow-on inspection is required. Mould treatments should be raised on a 7-calendar day DMC repair priority.
2. Inspectors should contact the customer to arrange an appointment and the inspection should take place within 20 working days, (28 calendar days).
3. On inspection the Technical Surveyor should then complete the following checks:
  1. Checks for external bridging.
  2. Checks for any hidden leaks.
  3. Checks of external wall condition e.g. spalling brickwork allowing penetrating damp.
  4. Visual checks of rainwater goods and drains for potential penetrating damp.
  5. Checks of any basements or adjoining rooms to affected areas.
  6. Record wall and floor surface moisture levels.
  7. Record internal wall moisture levels (if required).
  8. Record floor moisture levels (if required).
  9. Perform checks to determine any blockages within cavity walls.
  10. Thermal imaging to identify any potential cold spots/uninsulated areas (as required).
  11. Humidity monitoring – if structural issues are ruled out.
  12. Temperate monitoring – if structural issues are ruled out.
4. It will “ensure accurate records are kept when reports of damp and mould are made”. A “risk rating will be determined in line with current regulations (e.g. Housing, Health and Rating Safety System, Decent Homes Standards etc)”.
5. The procedure refers to a “3 stage mould treatment” which is carried out by the landlord’s contractor.
The landlord also 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. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
The landlord’s Repairs Procedure states:
1. Orbit prioritises responsive repairs within the following categories:
  1. “Emergency repair (4 & 24 hour) – any repair that is required in order to sustain the immediate health, safety or security of the customer at risk, or that affects the structure of the building adversely.
  2. Routine repair (within 28 calendar days) – any responsive repair that is not an emergency.
  3. Major repair (within 90 calendar days) – any responsive repair that will take longer than four hours to complete, needs several different types of trades or a specialist contractor or needs scaffolding.
  4. Nonresponsive repair – repairs (non-emergency) that are grouped together and included within stock investment programmes in order to deliver value for money, for example roof replacements or (non-boundary) fencing replacements.”
2. “Damp and Mould – In the event that a customer reports damp and mould, we will conduct a risk assessment with them before determining whether a repair is required. Should a repair be required this will be raised on the relevant priority in line with our Damp, Mould and Condensation Policy.”
The landlord’s Management Moves Procedure states that “Management Moves are defined as being an option available to Orbit, which allows customers to move home permanently outside of the normal lettings process.” A management move may be considered if “a customer’s property is uninhabitable and this is supported by the Property Management team” and “all other possible routes for rehousing the customer have been considered”.
The landlord’s Decant Policy/Procedure states that “A reactive or planned decant is a short-term arrangement where customer(s) are housed in alternative accommodation with the intention they will return to their home with no changes to the tenancy agreement. A permanent move can be considered if a long-term arrangement is needed, this should be requested via the Management Move Procedure.” Reactive decants can be made “where there is an emergency situation” while planned decants can be made when the landlord is aware of a situation and a need for the customer to move out on a temporary basis.
The landlord has a 2–stage complaints procedure. At stage 1 it will acknowledge the complaint within 5 working days and send the response within 10 days of acknowledging the complaint. At Stage 2 it will acknowledge the complaint within 5 working days and send the response within 20 working days.
The landlord’s Compensation Guidance states payments up to £400 may be made in recognition of time, distress and inconvenience of a service failure. Payments of up to £150 may be made in recognition of time, trouble and inconvenience of a service failure in complaint handling:

Summary of Events

On 2 February 2021 the landlord’s contractor attended the resident’s property after a report of a crack along the length of a wall. The operative determined that there was a hairline crack. Following another report of a crack in the wall and a chunk of plaster falling, the contractor attended on 29 September 2021. The landlord’s records say that the resident refused works.
On 15 December 2021 the landlord carried out pointing works to the brickwork on the outside of the property, although its repair records state that it did not consider there to be subsidence.
On 5 July 2022 the resident again reported a crack in the living room wall, which appear to be getting worse. A plasterer noted cracks in every room and in the brickwork outside. The landlord commissioned a structural surveyor who inspected on 22 July 2022. It concluded:
1. “The cracking evident to the gable wall on the rear right-hand corner may be result of the adjacent tree in the neighbouring garden extracting moisture from the sub-soils, and particularly if the soils are of a clay consistency, it may have shrunk in volume resulting in slight rotational and downward movement of the foundations, causing the fractures evident.”
2. “The cracking to other areas may be the result of a fractured drain, as there is a manhole adjacent to the area of the fractures. As the water discharge washes away the fine particles of the sub-soils it may have caused the foundations to settle slightly.”
However, the structural surveyor advised that it needed to confirm its findings “by undertaking site investigations in the form of testing drains, determining the make-up of the sub–soils, foundation depth, moisture content and analysis of roots if they are present adjacent to the foundations.”
The landlord raised an order for the structural surveyor to return to complete relevant investigations with a target date of 1 September 2022 later changed to 19 September 2022 after the surveyor missed an appointment on 19 August 2022.
While making arrangements for the structural surveyor to return, on 30 August 2022 the landlord recorded that the resident had “advised of worsening issues today, where she witnessed a loud audible crack, rumbling, and the property wobbling/shaking”.
The structural surveyor returned on 20 September 2022. It found that a tree in the property’s front garden had extracted moisture from the sub-soils. This was allowing the foundation to rotate slightly causing the front wall to lean out and pull on the party wall, resulting in cracks in the bedrooms on the party wall. It also concluded that the tree in a neighbouring garden may have also extracted moisture allowing the foundations, which were shallow, to settle. This had caused fractures in the gable wall. It recommended the removal of the trees and works to restore the structural stability of the property.
On 11 October 2022 the landlord raised a major works order for “structural and drainage amendments” and sought quotes from contractors. The landlord obtained a quote for the removal of the tree on its land but noted that it could not remove the other tree on the land that it did not own.
The matter was referred to the landlord’s insurer in December 2022 as the quote for structural works to the building, which included underpinning, exceeded its £20,000 excess. This was because the neighbouring landowner had not removed the tree. A loss adjustor was appointed. The loss adjustor carried out a visit on 21 December 2022. On 18 January 2023 the landlord and loss adjuster decided to further investigate the foundations and drainage issues before deciding if any tree works were required. The correspondence shows that they noted the tree at the front of the property was over 10 metres away and had low to moderate water demand while there were no photos of another tree which appeared to be 15 metres away.
On 16 January 2023 the resident’s MP forwarded an email from her in which she said “In the last year we had 3 surveyors, and engineering company and an insurance accessor and they all tell us that the house needs major work due subsidence caused by 2 trees that went under the house and we shouldn’t be in here while the work is being done. The resident advised she thought the landlord was “dragging its feet” as it had advised her “another surveyor another engineering company and more people” would need to inspect.
The resident also stated in the email that subsidence had caused doors and windows to shift. This raised difficulties in keeping the property warm which in turn led to mould which she had to clear every few days. The landlord’s internal notes said that structural assessments to determine what works should be completed were being undertaken and it was not in a position to provide any dates yet. The landlord subsequently registered a formal complaint.
The landlord’s records indicate that its loss adjustor requested that it inspect the mould as a separate issue. On 19 January 2023, the landlord raised an order to wash down mould in the lounge, kitchen, bedroom and bathroom. Its records indicate that the mould wash works were completed on 13 March 2023.
In the interim, on 27 January 2023, the resident emailed the landlord stating that she was awaiting an inspection of the mould with a view to a management transfer. She added that its contractor did not attend to carry out a mould wash on 26 January 2024 nor had it rebooked the appointment. The landlord’s internal correspondence dated 30 January 2023 indicates that it was wating for loss adjusters to inspect structural issues at the property, with a view to a management transfer.
On 31 January 2023 a structural engineer appointed by the loss adjustor inspected. It found that the structural damage fell within category 2 of the Building Research Establishment (BRE) Digest 251. This states “Cracks easily filled. Recurrent cracks can be masked by suitable linings. Cracks not necessarily visible externally; some external repointing may be required to ensure weather-tightness. Doors and windows may stick slightly and require easing and adjusting. Typical crack widths up to 5 mm.”
On 16 February 2023 the landlord sent the stage 1 response addressed to the MP. It advised that:
1. Its Major Works team were dealing with the subsidence and structural surveys were ongoing. The residents had been and would be kept updated and would be informed when works had been identified. It was unable to provide a definitive timeframe for these works to be completed as this was dependent on the results of the structural surveys and the scale of the works required.
2. The DMC team had inspected the property and recommended that the residents were decanted whilst works took place. The works had been added to the works to be carried out by the Major Works team. However, its Lettings team has stated that there were no suitable properties at that time, so would continue to search its portfolio.
3. It upheld both complaints and offered £570 compensation comprising:
  1. £50 – failed or missed appointments.
  2. £70 – for a failing in the service provided.
  3. £400 – for the distress and inconvenience caused.
  4. £50 – for a failure to complete agreed installations.
On 2 March 2023 the loss adjusters’ structural engineer attended the site to obtain evidence of the causation of cracks and to monitor the cracks and building level. Measurements were to be taken on a bi-monthly basis while it awaited confirmation of tree works. There is evidence that it returned to take further measurements on 5 May 2023, 4 July 2023, 4 September 2023, 6 November 2023, 1 February 2024 and 2 April 2024.
On 27 April 2023 the landlord raised orders to overhaul all windows paying particular attention to trickle vents. Its records indicate that the works were completed on 27 July 2023.
Also, on 27 April 2023 the landlord raised orders to overhaul the extractor fan in the wet room and renew the extractor fan in the kitchen. Its records indicated that the jobs were completed on 19 May 2023.
An arboriculturist appointed by the loss adjustor produced a report dated 10 May 2023 after a visit on 27 April 2023. It concluded that there was subsidence damage to the resident’s property “consistent with shrinkage of the clay subsoil related to moisture abstraction by vegetation”, from the tree outside the bounds of the property. It recommended the removal of the tree and management/pruning of a tree also outside the property’s boundary and the tree at the front of the property which the landlord did own. On 23 May 2023 the loss adjustor’s structural engineer forwarded the report to the landlord and recommended that it take legal action to ensure the owner of tree carried out appropriate works.
On 10 May 2023 a building pathologist carried out a damp inspection of the resident’s property. It recommended:
1. “Washing down mould affected surfaces and applying a mould stain blocker in areas of the wet room, kitchen and living room.
2. Upon completion of the investigations and monitoring of the structural engineer, consider installing a thermally drylining system to improve the thermal performance of:
  1. The rear wall to the rear left-hand bedroom.
  2. Front wall to the front left-hand bedroom.
  3. Rear and left walls to the rear right-hand living room.
3. Replace a section of timber rail in the rear right-hand living room window.
4. Reseal defective external sealant around the frame of the rear right-hand living room external door.”
In an email to the MP on 15 May 2023 the resident made reference to the visit on 10 May 2023 by an “independent mould expert”. The resident also referred to a visit by a senior member of staff at the landlord to inspect dampness in the property. The resident stated that the member of staff had equipment that was not charged properly and told her it was a cold house, and she should wipe the dampness and mould each day. The landlord has not provided a contemporaneous report of the visit although its repair notes indicate that the staff member did not identify mould at the visit.
In the email to the MP the resident also raised concern that she had not been decanted following the complaint response of 17 February 2023. On chasing the matter up, the landlord said it would not be doing this as she was not in immediate danger. The resident also stated that the Major Works team had advised her that the cracks in the property were only hairline cracks, which she had disagreed with. Furthermore, as she had accepted the compensation, she had to remain in the property until the cracks were fixed. On 17 May 2023 the MP confirmed that he had written to the landlord about these issues. The landlord has advised the Service that it registered a new complaint in June 2023 under a different reference number.
On 17 May 2023 the landlord spoke to the resident to advise her that monitoring readings taken so far had shown little to no movement. It advised her that it was expecting the report from the arboriculturist the following week and would contact her again after.
On 7 June 2023 the landlord raised an order to replace the timber rail in the living room window and reseal the external sealant as recommended by the building pathologist. The works was completed on 22 June 2023.
There is no evidence that the landlord sent a stage 1 response to the new complaint. However, its internal notes indicate that it did not uphold the complaint as it did not consider a decant was required due to structural issues and an inspection had not identified DMC. The notes indicate that the landlord spoke to the resident about the complaint on 13 June 2023 and that it escalated the complaint to Stage 2 on the same day. However, there are no details of the conversation.
On 21 June 2023 the arboriculturist on behalf of the landlord’s buildings insurer wrote to the owner of the owner of the tree asking it to carry out works.
The landlord’s internal repair records indicate that on 21 June 2023 it raised an order to carry out a 3 stage mould treatment works, although it does not say what this entailed. The records further indicate that the works were completed on 10 July 2023
On 5 July 2023 the landlord noted that the resident had reported worsening internal cracks in the property. It noted “structural engineer required for a survey deep cracks in every room even the coving has cracks brick work on the outside has been pointed and has cracked again kitchen/lounge/bedrooms.”
On 12 July 2023 the landlord informed the resident that it anticipated responding by 2 August 2023 to the complaint received on 13 June 2023. On 7 August 2023 the landlord advised it would now respond by 21 August 2023.
On 22 August 2023 the landlord sent the stage 2 response. It noted that its inspection found no trace of damp and mould, therefore it could not uphold the complaint.
The resident responded on the same day stating that:
1. When the landlord’s staff member attended to carry out a mould inspection his equipment was not working.
2. The report of independent mould expert was lost and not considered.
3. The project manager for the major works did not stay in touch every week.

After the complaints procedure

The resident has advised the Service she remains dissatisfied as the landlord did not address the structural problems. She also believes that the mould is in direct relation to cracks and subsidence issues with the house.
The landlord’s repair records indicate that on 9 January 2024 it raised an order after the resident reported very high levels of condensation with most surfaces covered in mould. The cavity walls were to be checked for insulation. It also noted that the overflow to the water tank in the loft was broken was wetting the external wall.
An internal email dated 22 January 2024 noted that all trees had been cut and pruned as recommended by the building insurer, therefore it needed to monitor until May/June to see if the cracks closed up. Therefore, no works were currently being considered.
On 21 March 2024 the resident again phoned to chase up works to remedy the damp and mould. The landlord’s notes indicate that it was to contact the resident to advise her of an inspection and actual repairs.
Following further readings taken on 2 April 2024, the loss adjustor’s structural engineer determined that the ground was recovering from the removal of the tree in January 2024 and that the cracks were gradually closing. However, it could only consider what repairs were necessary when it was confident that the movement had levelled out sufficiently. Its report stated that this was its seventh visit with one outstanding.
On 17 April 2024 in response to a further complaint by the resident made through the MP, the landlord advised that its inspection of 16 May 2023 and a “recent one” did not find damp and mould. It also said there was no need for the resident to be decanted whilst works were undertaken.

Assessment and findings

The resident’s reports of structural issues to the property

The landlord has a statutory obligation to keep the structure and exterior of the resident’s property in good repair. Therefore, after she reported cracks in a wall in July 2022 it was prudent that it arranged a structural survey, especially as the resident had made previous reports. The structural surveyor identified 2 trees and damage to the drainage system may be causing the foundations to move. It was therefore appropriate that the landlord raised an order for structural and drainage amendments in order to remedy these issues.
Given the cost of repairs the landlord took up its option to refer the matter to its building insurer in December 2022 as it provides cover for subsidence. It is entitled to do so although the options remained for it to complete works outside of a loss adjustor determining financial liability. Thereafter contractors appointed by the loss adjustor began to monitor the cracks and building level. Having referred the matter to its building insurer It was reasonable for the landlord to rely on the approach and expert opinion of the appointed contractors. The monitoring of cracks over time and the identification of movement trends can help inform maintenance decisions, and in this case, monitoring is still ongoing.
However, given the length of time taken to investigate the structural issues without works carried out, it was important that the landlord keep the resident updated and be clear about the action being taken. It is not evident that it has consistently done this. The first structural surveyor recommended the removal of the tree at the front of the property, in September 2022. After the matter was referred to the loss adjustor the landlord decided not to cut the tree down. However, there is no evidence that it explained this decision to the resident. The first structural surveyor also recommended that the tree on the neighbouring land be removed. However, again there is no evidence that the landlord advised the resident whether it would be pursuing this action. It is also not evident that the landlord advised the resident of the findings of the arboriculturist appointed by the loss adjustor. This was important as the arboriculturist reiterated that the tree on the neighbouring land needed to be removed.
The resident’s complaint of 16 January 2023 also indicates the landlord had not made clear why works had not yet been carried out to the property, such as underpinning, and to the trees, and why further investigations were required. This contributed to her uncertainly and perception that the landlord “was dragging its feet”. It is also not clear that the landlord consistently updated her on the progress of the monitoring of her building. This was particularly important given that the landlord could not say exactly when it would be in a position to identify and carry out works. The resident’s reports to the landlord indicated that she considered the cracks were getting worse therefore detailed updates to the resident by the landlord may have alleviated her concerns about the condition of her property and its intentions.
In summary, the landlord has not consistently updated the resident on the action it is taking in response the structural issues at her property. This includes updating her on the progress of the monitoring of the building.

The resident’s reports of damp and mould.

The resident initially raised concerns of damp and mould in her complaint of 16 January 2023. The landlord has a legal responsibility to ensure that the resident’s property remains in good repair. It also has a responsibility to assess hazard and risks, including damp and mould in the property. The landlord DMC policy and procedure reflects the Service’s Spotlight Report on damp and mould which states landlords should adopt a zero approach to damp and mould interventions, and it outlines steps the landlord should take.
Following the initial report the landlord arranged a mould treatment. However, it took over 7 weeks for the wash to take place which was a significant and unreasonable delay. There is also no evidence that the landlord carried out an inspection. This was a significant omission because inspections by appropriately qualified staff are crucial to the diagnosis of issues. This can involve the use of instruments and photographs and writing a report with clear findings. The resident also attributed mould to movement of the property, therefore it was unreasonable that the landlord did not consider to what extent the windows and doors were weatherproof and what measures it could take at that time. Furthermore, the landlord failed to carry out a risk assessment.
The landlord’s communications with the resident at this time was also unclear. The resident stated she understood she was being considered for a management transfer due to the mould while the landlord in Stage 1 response advised that she would be decanted. However, there is no corroborative evidence that the landlord had determined a risk rating as required by its procedure. There is also no evidence that the landlord considered moving the resident on either a temporary or permanent basis. Furthermore, the Stage 1 response advised that the Major Works team would be carrying out mould works; however, there is no evidence that any works had raised at this point, and, in any case, the Major Works team were not dealing with damp and mould issues. This indicates that the landlord’s internal communication was unclear leading to staff members having different understanding of the resident’s case. This caused frustration to the resident and a loss of trust in the landlord.
The landlord arranged for a consultant building pathologist to inspect in May 2023. The consultant recommended a further mould wash and repairs. The landlord raised orders for works on 7 June 2022 and 21 June 2023. However, there is no good reason for the delay in ordering these works after the inspection. The recommendation to install thermal drylining depended on completion of the structural monitoring and was an improvement, therefore it was reasonable that this work was not completed at this time.
The resident stated she was not notified of the outcome of the building pathologist’s survey. This was not in line with guidance in the Spotlight Report which states “Landlords should identify where an independent, mutually agreed and suitably qualified surveyor should be used, share the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps. Landlords should then act on accepted survey recommendations in a timely manner.” By not informing the resident of the outcome the landlord exacerbated her perception that the landlord was not doing enough to tackle damp and mould.
The parties both say the landlord also carried out a damp and mould inspection in May 2023. By this time the landlord had introduced its DMC procedure. However, once again there is no contemporaneous record of the inspection despite the procedure stipulating that it will “ensure accurate records are kept when reports of damp and mould are made”. It is therefore not evident that the landlord carried out the checks outlined in the procedure. Furthermore, it did not determine a “risk rating in line with current regulations”, as required.
The response of 17 April 2024 indicates that the inspection took place on 16 May 2023. The landlord’s internal notes say that it did not identify damp and mould at the inspection but without an appropriately detailed record of the visit to rely on it could not justify its findings. Furthermore, its finding differed from that of the building pathologist.
The landlord has relied on the findings of its surveyor in its responses to the resident’s complaint. The Spotlight report states that “landlords should consider their current approach to record keeping and satisfy themselves it is sufficiently accurate and robust”. It is concerning that the landlord’s position on the resident’s reports of damp and mould is based on an inspection for which records are not available. Furthermore, the resident’s recollection of the inspection of May 2023 differed greatly as she stated she was told that she should wipe mould every day. Taken together with her concerns that the property moved and was not weatherproof it was unreasonable that the landlord was not proactive in making further ongoing investigation into damp and mould instead of relying on a sole undocumented inspection in summer.
Given the absence of records, and the further reports of the resident, it cannot be concluded that the landlord has taken all reasonable steps to deal with damp and mould at her property. For this reason, the landlord is ordered to pay the resident £1,232.07 compensation in respect of the loss of enjoyment of her property. This is calculated at 30% of the resident’s rent of £89.47 from 16 January 2023 to 22 August 2023 and takes into account the fact that some works have been completed. The Service also offers a further £400 for distress and inconvenience caused to the resident.
The Service’s compensation award is calculated to the end of the complaints procedure. The resident has made further reports of damp and mould and the landlord has registered a new complaint. In responding to the complaint, the landlord should consider the ongoing condition of the resident’s property and offer redress for the period after 22 August 2023 when the complaint procedure completed.
In summary, following the resident’s initial report of damp and mould the landlord has carried out mould washes and some works identified by its building pathologist. However, there have been significant failures in its response. It has delayed in carrying out the works. There is no evidence that it has carried out inspections and the checks required under its damp procedure or determined a risk rating. It has failed to make further ongoing investigations into the damp and mould. Ultimately it cannot be concluded that it took all reasonable steps to deal with damp and mould at the resident’s property. There have also been failures of communication. This relates to justifying its findings that there was no damp and mould, in managing the resident’s expectations as to whether she would be moved, and in updating her on the findings of the building pathologist. Taken altogether, this amounts to severe maladministration.

Complaint handling

The resident submitted her complaint through her MP of 16 January 2023. The landlord did not meet its 10-working day timeframe for responding. With regards to the content of the response, the Service’s Complaint Handling Code states “a landlord should address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate”. The landlord addressed the resident’s complaints about structural issues and damp and mould. However, it mismanaged the resident’s expectations by stating that the Major Works team would be carrying out works at that time and that the resident would be decanted when accommodation was found. Furthermore, while it sought to remedy the complaint by offering compensation, it did not make clear what service failures its award reflected. Therefore, the award, whilst well intentioned, was arbitrary.
The resident sought to escalate her complaint by writing to her MP on 15 May 2023. The Code states “A landlord must not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons for taking that course of action. Reasons for declining to escalate a complaint must be clearly set out in a landlord’s complaints policy and must be the same as the reasons for not accepting a complaint”. The landlord did not escalate the complaint on the basis that the resident accepted the complaint response and compensation offer of 16 February 2023. This is not a good reason for refusing to escalate a complaint nor set out in the landlord’s complaint procedure. By not escalating the complaint the landlord unnecessarily prolonged the complaints process and added to the resident’s time and trouble.
The landlord registered a new complaint after receiving correspondence from the MP in May 2023. The Code states that “a full record must be kept of the complaint, any review and the outcomes at each stage”. Its notes indicate that it spoke to the resident about the complaint on 13 June 2023. However, it did not send a written response that addressed the complaints raised as required by its complaints procedure and the Code. The response would also have been outside the 10-day timeframe for stage 1 complaints.
The landlord also escalated the complaint on 13 June 2023. The Code states that “On receipt of the escalation request, landlords must set out their understanding of issues outstanding and the outcomes the resident is seeking”. The landlord did not do this which compounded the failure to send a complaint response and added to lack of clarity and focus within the complaint process.
The stage 2 response was again late, outside the 20-day timeframe for Stage 2 response. Landlords should ensure they treat residents reporting damp and mould with respect and empathy and reflect this in its complaint handling. Here, its response was cursory, simply stating that its inspection had found no damp or mould without stating the date of the inspection or what the inspection had involved. The response also did not mention the resident’s complaint about the handling of structural issues. There is no good reason for this omission as this complaint was raised in the MP’s correspondence of May 2023 and discussed on 13 June 2023. The failure to address all points raised in the complaint and provide clear reasons for any decisions exacerbated the resident’s perception that the landlord was unempathetic and dismissive of her concerns.
In summary, the landlord has not met its timeframes for responding to complaints and failed to provide a written response after registering a new complaint. It has not addressed all points raised in the complaint and provided clear reasons for its decisions. It has also provided incorrect information There have also been failings in the escalation of the complaint. The landlord failed to do so initially. When it did escalate the complaint, it did not confirm the basis why and the outcome the resident was seeking. These failures have meant that the landlord did not provide a clear framework for the resolution of the substantive issues. In fact, the landlord’s complaint handling has exacerbated the resident’s uncertainty, distress and inconvenience. Taken altogether, this amounts to severe maladministration.

Independent review of the landlord

The Ombudsman has found maladministration (including severe maladministration) following several investigations into complaints raised with the landlord involving damp and mould. As a result of these an independent review in accordance with paragraph 54(f) of the Housing Ombudsman Scheme was ordered by the Ombudsman into how the landlord has handled damp and mould. The review has made 15 recommendations to the landlord. Some of the recommendations made are relevant to this case. These are:
1. Orbit should provide more information within the KIM self-assessment about projects that have been undertaken to create a ‘good data culture’.
2. Orbit should consider enhancing its self-assessment against the Ombudsman Spotlight on damp and mould to provide more detail such as policies, process maps and practices for handling damp and mould cases.
3. It is recommended that in addition to the case analysis, Orbit seeks to understand how and where cases are reported, to:
  1. Ascertain if employees, contractors and other third parties are utilising the methods put in place for reporting damp and mould cases. If they are not, seek to understand why.
  2. Ascertain and understand any blockers that might prevent residents from reporting damp and mould cases.
4. Orbit should take steps to consider further long-term plans to address issues identified through Ombudsman determinations as well as broader complaints’ learnings.
5. Orbit should take steps to increase the scope of learnings to the case management of responsive repairs and other repair types beyond cases of damp and mould.
6. Orbit should broaden the current approach for complex damp and mould cases to other cases of complex repair.
7. Orbit should consider how it communicates the outcomes of surveys to its customers.
The power to make a wider order goes beyond providing redress on individual complaints and extends fairness and protection to other residents. Given some of the issues identified in this case are similar to the previous cases in the review, we have not made additional orders or recommendations, which would duplicate those already made to landlord. However, the learning from this complaint should be incorporated into the wider learning.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s reports of structural issues to the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in its handling of the resident’s reports of damp and mould.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in its handling of the resident’s complaint.

Reasons

The landlord has not consistently updated the resident on the action it is taking in response the structural issues at her property. This includes updating her on the progress of the monitoring of the building.
There have been delays in the works carried out by the landlord. There is no evidence that it has carried out inspections and the checks required under its damp policy and procedure or determined a risk rating. It has failed to make further ongoing investigations into the damp and mould. Ultimately it cannot be concluded that it took all reasonable steps to deal with damp and mould at the resident’s property. It has also failed to justify its findings that there was no damp and mould, manage the resident’s expectations as to whether she would be moved, update her on the findings of the building pathologist.
The landlord has not met its timeframes for responding to complaints and in fact failed to provide a written response. It has not addressed all points raised in the complaint and provided clear reasons for its decisions. There have also been failings in the complaint escalation.

Orders and recommendations

Orders

Within 4 weeks of the date of this report the landlord is ordered to:
1. Apologise to the resident. A member of the senior leadership team must provide the apology to the resident taking into account the Service’s guidance on apologies.
2. In addition to the compensation awarded in the stage 1 response, the landlord must pay the resident a further £1,932.07 compensation. This is broken down as:
  1. £400 for the distress and inconvenience caused to the resident by its handling of structural issues.
  2. £1,232.07 for the loss of the enjoyment of the property, as well as the distress and inconvenience caused to the resident as a result of the failures in its handling of the resident’s reports of damp and mould.
  3. £300 for the distress and inconvenience caused to the resident by its complaint handling failures.
3. Based on the most recent survey results the landlord is to review the matter with its Major Works team and provide a clear action plan with the resident to bring the works to completion. This should include but is not limited to:
  1. an assessment of risk to the resident.
  2. assessment of habitability of the property, taking into account the resident’s vulnerabilities and consideration whether a decant is required.
4. Carry out a damp and mould inspection and a risk assessment. It should then share the outcome with the resident and provide a clear action plan. This should include but is not limited to:
  1. outlining works to treat and clear areas of mould.
  2. making clear whether it will be carrying out other repairs in the property and whether any are contingent on resolution of structural issues.
  3. confirming whether it will be carrying out the thermal drylining works identified by the building pathologist.
In accordance with paragraph 54(g) of the Housing Ombudsman Scheme, within 10 weeks of the date of this report the landlord should conduct a senior management review of the case. The review should be presented to its senior leadership team and provided to the Ombudsman. It should:
1. carry out a review of its practice in relation to resolving structural issues and other works referred to its building insurer. The review should include as a minimum (but is not limited to):
  1. its record-keeping practices and responses to the repairs.
  2. the circumstances when works should be carried out regardless of a loss adjustor determining liability for the costs.
  3. its practices for keeping the resident updated.
  4. if it has not done so already, consider implementing a knowledge and information management strategy, in line with the Ombudsman’s Spotlight Report on Knowledge and Information Management.
2. carry out a review of its staff’s training needs to ensure staff respond to formal complaints appropriately. Responses must address all issues raised by the resident. It should ensure all relevant officers do so in an efficient and timely manner, and in accordance with its relevant policies and procedures and the Ombudsman’s current complaint handling code.
3. carry out a review of its oversight processes of complaints through to satisfactory completion.

Recommendation

The Service recommends that the landlord when responding to the resident’s current complaint considers the condition of her property and offers redress for the period after 22 August 2023 which is when the complaint procedure completed.