Peabody Trust (202127329)

REPORT

COMPLAINT 202127329

Peabody Trust

28 March 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:
1. The landlords handling of the residents reports of ongoing damp and mould in her property.
2. The landlords handling of the residents complaint about the issue.

Background

The resident has held an assured tenancy, on a 2-bed house, with the landlord since 26 September 2005.
The maximum occupancy for this property is 4 people. The resident currently lives there with her 5 children.
The landlords overview to us stated no vulnerabilities recorded in the household. The resident reported in an email in relation to the proposed work on 18 June 2022, that 2 of her children had autism. One child also has respiratory problems and has been prescribed an inhaler.

Summary of events

On 25 February 2022 the landlord’s contractor attended for a report of reoccurring mould and damp and the resident had advised the children have become poorly. The operative notes stated:
1. In Bathroom mould wash walls, ceiling, and tiles 15 sqm. The ongoing issues with mould in the closed bathroom was due to a lack of ventilation and no windows.
2. Follow on work required was for a vent to open in the wall which was plasterboard and covers to be fixed on both the inside an outside. An appointment was booked for the 18 March 2022 at 3.22 pm.
3. Also tenant had bad problems with black mould in bedrooms, again no ventilation. Would recommend air bricks be fixed in front and back bedrooms, and that a tower was required to access the area approx. 7m high x 170m wide, needed to be referred back to landlord.
The resident contacted this service 29 September 2022, because she wanted to complain about the landlords handling of her reports of leaks, damp, and mould in the property. The resident stated that she had complained to the landlord, but had not yet received a response. This service wrote to the landlord and asked it to raise a stage 1 complaint for the resident and respond within its published timescales.
On 30 September 2022, landlords email, asking its contractor if the above information “had been referred to SW, please advise”.
The landlord logged the complaint on 4 October 2022 and set the response date as 18 October 2022.
The landlord completed its investigation into the stage 1 complaint and provided its response on 21 October 2022. The landlord apologised for the time it was taking to resolve the damp and mould and inconvenience caused. In summary it said:
1. It noted that the resident had no current water leaks at the property, its contractor had previously attended and carried out a mould wash to the bathroom walls, ceilings and tiles and made recommendations to help good ventilation.
2. Its complaints officer had not been able to contact the relevant staff in the organisation to progress the matter, but would update the resident as soon as it had.
3. It committed to paying compensation for any service failings identified in line with its compensation policy. However the priority was to ensure the necessary repairs were completed.
4. It had set out an action plan where the complaints officer would be the residents central point of contact and monitor progress with repairs. It sent a leaflet to her on managing condensation and ventilation. At the point the required works were complete the officer would check on the residents satisfaction, then it would confirm compensation that could be offered and advise of any lessons learnt.
On 7 February 2023 the resident reported to the landlord that the contractor had cancelled the job to install new extractor fans as none would be in stock until the end of the month. She had also had no further progress on the brickwork. She said the bathroom ceiling was dripping with black mould and the issue just kept getting pushed back. She asked how long the landlord had to do the repairs at stage 1.
The landlord responded on 13 February 2023, stating it was sorry to hear that part of her bathroom was dripping in black mould, legally the landlord had 28 days to complete non-urgent repairs. The brickwork was scheduled for 27 February 2023. Regarding her previous request for a stage 2 complaint, this officer only dealt with stage 1 complaints.
The resident contacted this service on 14 February 2023 seeking advice as the mould problem had not been resolved, she said:
1. Although the landlord had, completed minor works to the mould in the bathroom, this had been done before and the problem reoccurred every time.
2. The landlord had provided no solution to fix the recurring problem. The bathroom was not properly ventilated, the extractor had already been changed once and was clearly not enough to resolve the problem.
3. This was causing her children to be unwell time and time again. The issues had been ongoing for a number of years and the mould was continuing to get worse throughout the whole property.
This Service wrote to the landlord on the 15 March 2023, requesting that the residents complaint be escalated to stage 2 of the landlords complaints procedure.
On the 11 April 202,3 the resident emailed the landlord in relation to its advice to open windows, she did not find this advice an acceptable solution to her damp problem, she said her windows were open throughout the year, and regardless of how often she cleaned the mould it re-appeared.
On 21 April 2023, the landlord completed its stage 2 review of the residents complain and sent its response. In summary it said:
1. It identified her complaint to be about the ongoing mould throughout her home, (front door bathroom and bedrooms) and outstanding works installing airbricks to the bedrooms which were due to be completed Feb/Mar 2023.
2. It apologised and said it understood the importance of identifying the root causes of damp and mould. Although progress had been made identifying the repairs necessary, it had failed to monitor progress and completion.
3. The organisation had taken lessons and introduced a new damp and mould policy and established a dedicated team. In line with this new policy a surveyor had been assigned to her case, and would be conducting a full damp survey on 27 April 2023. It estimated the resulting work would be completed in 4 weeks.
4. The monitoring, support and guidance provided to the resident living with damp and mould had been lacking and this was made known to the relevant teams.
5. It offered the resident compensation of £850, broken down to £250 for a complaint handling failure and £600 for time, trouble, and inconvenience. It also committed to considering, compensation for losses of items disposed of, if the resident provided them with the details.
Having been invited to give feedback on the complaint response, the resident wrote back to the landlord on 1 May 2023. She said an inspection from the surveyor had been completed, which raised many issues with the property, including the front door, the guttering pipe in the garden and the roof, all of which were connected to the damp and mould, and required a damp assessment. She said she had reported the guttering and the front-door on a number of occasions without resolution. She detailed the items of clothes she had, had to dispose of, and included photographs. Her contents insurance was with the landlord and as far as she was aware did not cover mould.
The residents email continued to highlight the issues had been ongoing since 2017, she could provide GP records to support the impact on her children’s health if needed. Her children were sleeping next to mould covered walls, and photos provided showed mould growing under her sofa and on her flooring. She felt this was a matter of urgency. She put the landlord on notice that an Occupational Therapist was attending the next week, to assess the environmental health factors affecting her sons health.
An internal email from the landlord dated 9 May 2023, was arranging a damp survey, from an order raised on 1 May 2023. The email highlighted that the resident had 5 children and was overcrowded in a 2-bed property (for a maximum of 4 people), which was an additional challenge in managing the damp and mould.
On 11 May 2023, an order raised for a full damp survey met some resistance from the contractor it was requested from, as they did not consider overcrowding a reason to progress. The landlord clarified that the property was cluttered which made it difficult to determine exactly what the causes of mould were, a damp survey was being requested to assist in finding the causes.
The contractor complained if the property was that cluttered it could not carry out the survey, clear access to all walls was needed. It instructed the landlord to let them know when the property was in a cleared condition.
On 18 June 2023, the resident emailed the landlord to advise that she was told work was commencing that week, she had not received the compensation offered in the complaint response and she had had to buy storage, for works to be done so as not to unsettle two of her children who have autism. She also said it was difficult for her to arrange access as she had to work.
The landlord was unaware that works were due to commence, and requested information from the resident as to who told her and what dates she had been given. It also advised she should not expect to hear from the officer dealing with the complaint until all repairs were completed, at which point compensation would be discussed then.
On the 11 July 2023, the landlord completed an asbestos survey on the property. No action was considered necessary following the survey.
An email from one of the landlords contractors confirmed on 21 July 2023, that all damp works had been completed by the damp specialist.
The landlord keeps a complaint open until all actions agreed in the stage two complaint response are completed. On 6 October 2023, the landlord provided a follow-up response to its stage 2 complaint. In summary it said that all actions agreed had now been completed. It acknowledged that there had been unreasonable delays in completing the actions since the stage 2 response was issued. It apologised for this and said that in addition to the £850 that it had already offered in compensation at stage 2 it was offering a further £700 for the time trouble and inconvenience, and a further 250 for failures in complaint handling.

Post Complaint Information

In an update to this Service, the resident has advised that the damp and mould problem in the bathroom has re-occurred, and she has had to make a further formal complaint in order to get the landlord to re-address the issue.

Assessment and findings

Landlords legal and policy context

The landlord had repairing obligation under section 11 of the landlord and Tenant Act 1985 to repair and maintain the structure of the home including any shared parts of the building which the home is a part of. This is set out in the residents tenancy agreement. Any repairs must be completed within a reasonable period of time.
The operation of the Homes (Fitness for Human Habitation) Act 2018, implied a term into the resident’s tenancy agreement from 20 March 2020 that the landlord must ensure its dwelling was fit for human habitation at the beginning of, and throughout, the tenancy. The existence of a hazard as defined by the Housing Health and Safety Rating System (HHSRS) is one of the factors that may be considered when assessing fitness. Hazards arise from faults or deficiencies that could cause occupants harm, which includes damp and mould.
The landlord has a responsive repairs policy which it applies to all homes and communal areas where the landlord has a responsibility for repairs under statute, regulation, or contractual obligation e.g., tenancy and lease agreements. If there is any variance between the policy and individual leases or tenancy agreements, then the lease or tenancy agreement will take precedence. The policy states it has a general responsibility to maintain and repair tenants’ homes.
A non-urgent repair required to rectify a fault is to be completed within 28 calendar days. Specialist works that fall outside the time frame of a responsive repair, are complex in nature and require either a specialist contractor and/or a technical lead in diagnosing and managing the works through to completion, are to be completed within 60 calendar days.
The landlord has a damp mould and condensation policy which commits to:
1. investigate all reports of damp, mould, and condensation within residents’ homes where it has responsibility for repairs. It will make sure it carries out, and completes, any necessary repairs that would help tackle the issue.
2. monitor all of the work it carries out to tackle the issue for a year afterwards. To allow it to make sure that any work carried out, and advice that has been given, have been effective and resolved the issue,
3. It states it expects residents to have contents insurance in place for their furniture, decorations, and any other personal possessions. and can suggest a provider of a low-cost Tenants Home Contents Insurance Scheme that is available to residents.
The Ombudsman’s Spotlight Report on Damp and Mould (published October 2021) provides recommendations for landlords, including that they should:
1. Adopt a zero-tolerance approach to damp and mould interventions. Landlords should review their current strategy and consider whether their approach will achieve this.
2. Ensure they can identify complex cases at an early stage and have a strategy for keeping residents informed and effective resolution.
3. Ensure that they clearly and regularly communicate with their residents regarding actions taken or otherwise to resolve reports of damp and mould.
4. 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.
The landlord has a 2 stage complaints policy:
1. new complaints are logged within 5 working days as a stage one complaint and a response will be provided within 10 working days, unless an extension is notified and agreed with the complainant to fully complete the investigation before the response is provided. The stage one investigation will be carried out by a case manager who is fully trained to handle complaints.
2. If a complaint is raised to stage two of the process, an independent review of the complaint will be carried out by the Customer Experience Team. All requests for escalation to stage two must be received within 10 working days of receiving the stage one response. The stage two response will be provided within 20 working days of the request being received. This time limit will only be extended if more time is needed to complete the review fully. This will be communicated to, and agreed with, the complainant.
3. Most complaints at stage two are reviewed in the process as described above. However, at stage two the case will sometimes be judged as needing to be reviewed by the stage two complaints panel.
4. There are some things that it will not deal with as a complaint and this includes, insurance claims and appeals including damage to personal belongings and property.
The landlord has a compensation policy whereby compensation payments and other remedies are considered when a customer has experienced a delay or has incurred additional costs because of a service failure on the landlord’s part, or if it failed to carry out a service within its published guidelines. Examples include, if it has not met agreed standards of service and it has not handled a complaint properly.

Scope

The Ombudsman acknowledges that the resident had reported problems historically with damp and mould in her property as far back as 2017. The Ombudsman, however, in accordance with the Scheme, may not consider complaints that were not raised formally with the landlord within a reasonable time period of them occurring. A reasonable time period is usually considered to be six months. This means that the historical events 6 months prior to the residents formal complaint cannot be included in this investigation. The Ombudsman will however take into consideration the context that the problem has been historical and re-occurring when looking at the landlords response to the matter.

The landlords handling of the residents reports of ongoing damp and mould in the property.

The landlord had 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 the landlord is required to consider whether any mould problems in its properties amount to a hazard that requires remedy.

The landlord attended to the report of damp and mould in February 2022, and met part of its responsibilities, by identifying the potential causes and recommended remedies. However, it failed to implement the recommended work, and no further updates were provided to the resident on the matter. It did randomly carry out a mould wash to the bathroom, an action which had been completed on its own many times before without resolving the problem. Without the root causes of the damp and mould being addressed the treatment again also failed to resolve the problem on this occasion. Legislation requires that landlords carry out repairs in a reasonable time, the landlord considers that a reasonable timeframe for non-urgent repairs is 28 working days, at the time of the residents complaint the works had been outstanding for 8 months, which significantly exceeded what could be considered a reasonable time, and its repairs policy timescales.
The delays in completing the repairs by the landlord during this time is concerning given the Ombudsman’s Spotlight on damp and mould was published in October 2021. The landlord had clearly been on notice that the resident was suffering with damp and mould in her property, and that her son was potentially considered vulnerable to the effects of it. The landlord’s unexplained delays and lack of clear communication was unreasonable and did not demonstrate the “proactive interventions” called for in the Spotlight report.
A landlords complaint handling process should be designed to identify where a service failure has occurred and provide a quick and speedy resolution. The Spotlight report implores landlords to ensure that their responses to reports of damp and mould are timely and reflect the urgency of the issue. Despite an 8-month delay, the complaint and subsequent investigation, generated no sense of urgency from the landlord and works still did not progress in a timely manner, which was unreasonable, and a failure of the landlords repairing obligations.
The stage 1 complaint response committed to a single point of contact who would keep the resident updated, engage with the repairs team and monitor works through to completion. There was no evidence that any of this was followed through.
The resident had to escalate her complaint to stage 2 of the landlords complaint process, as by March 2023, another 5 months since her stage one complaint and 13 months since the problems were diagnosed, the work had still not been completed by the landlord.
As a resolution the landlord said it would implement its new damp and mould policy in the residents case, allocating her a surveyor who was tasked with completing a full damp and mould assessment of the property. This was an appropriate course of action to take, however in this Services view it was a year overdue for a property with reoccurring damp and mould issues as advocated for in the Spotlight report. Works that had previously been identified should have been progressed immediately, which could have had an instant effect on improving the residents living conditions. It was not necessary or appropriate to wait for the outcome of a further survey before carrying out these works.
The stage 2 response, committed to all the necessary inspections and associated works being completed within 4 weeks. Despite the resident providing photographic evidence that her children were sleeping next to mould covered walls, and that it was now growing on the underneath of her sofa and her floor covering, it took the landlord a further 3 months to complete all the works necessary, which was not reasonable, and a further failing in its repairing responsibilities.
The residents property is designed for a maximum of 4 people, and she lives in it with her 5 children, so there are 6 of them using the rooms and facilities. This may not technically be classed as statutorily overcrowded, as this is dependent on the ages of the children and the number under 10 years old. However, more people living in a property, with their belongings and furniture, than it is designed for, can be a contributory factor in increased condensation and mould growth. Keeping damp and mould at bay under these circumstances is likely to be an ongoing challenge, particularly for the bathroom, which is small, without windows and experiences a 50% increase on its usage than it was designed for. The landlord normally only considers residents for a move if they are overcrowded by a lack of 2 bedrooms or more, which it is entitled to do. However the bathroom continues to present a problem with damp and mould as post complaint evidence has identified, even though a zero-tolerance approach is required. The Ombudsman acknowledges improved ventilation and mould treatments have been applied, but it is evident this is not working. It would therefore be appropriate for the landlord to now give consideration to whether the bathroom in this particular property is fit for purpose for the number of occupants having to use it.
Completing a damp survey in the residents property was noted to be a challenge for the contractor as a result of it being overcrowded. What was not acknowledged was how much of a challenge it would have been for the resident. She works, has five children, 2 who have autism and one with respiratory problems and she was required to ensure the contractor had access from floor to ceiling in the whole house. There was no evidence of any help or support offered by the landlord, to assist the resident with this, which was not reasonable, when this was a fault with its property and there were vulnerabilities within the household.
The landlord’s damp and mould policy has a commitment to monitor the issues for a year post any remedial works. It was not evident in the information provided that this part of the policy was implemented. This was further borne out by the fact that in an update from the resident, she advised the Ombudsman that the damp and mould had returned in the bathroom, and she had, had to make a further formal complaint to the landlord to get this resolved.

The landlords handling of the residents complaint.

In July 2020, the Housing Ombudsman published a new complaint handling code (amended October 2022), with the purpose of enabling landlords to resolve complaints raised by their resident’s quickly and to use the learning from complaints to drive service improvements. All member landlords were required to complete a self-assessment against the Code and take appropriate action to ensure their complaint handling was in line with the Code by 31 December 2020.
The Code requires that the landlord should raise a formal complaint when the resident raises dissatisfaction with the response to their service request, and the landlord must accept a complaint unless there is a valid reason not to do so. The resident had to approach this service, for assistance, in order for the landlord to take the residents complaint at stage 1 and stage 2 of the complaint process. In response to her request for her complaint to be escalated, she was told by the landlords complaint resolution case manager, that he was “only dealing with stage one cases” which was inappropriate. Even if he did only deal with stage 1, he should have offered her guidance on how to escalate the complaint, or offered to pass on her complaint to the officers who did deal with stage two complaints. The failure of the landlord to take the complaints at both stages of the process without the Ombudsman’s intervention was not compliant with the Code or the landlords complaint handling policy.
The Code sets out clearly what should be included in a stage 1 response, the landlords stage 1 response was not Code compliant. It confirmed it had not been able to investigate with the departments concerned, as a result it could provide no decision, no updated information, or any resolution to the complaint. It committed to being a single point of contact and monitoring the works to completion, but provided no timeframe. It also committed to paying compensation, but without any information, could not say for what or how much, which was not reasonable.
The Code allows landlords to negotiate an extension of time if required, if the landlord was unable to contact the relevant staff within the 10-day timescale, an extension should have been discussed with the resident in order for the landlord to carry out a proper and thorough investigation. Instead it provided a response which did not address the complaint. In addition there was no evidence of follow-up to the commitment to provide further information or monitor the repairs through to completion which was not reasonable. This unsurprisingly led to an escalation of the complaint, which might have been avoided if this process had been done thoroughly and followed through.
In its stage 2 response the landlord acknowledged its failings in addressing the residents damp and mould problem. It had identified in its investigation that while the repairs had been identified the landlord had failed to properly progress, in a reasonable timeframe, which was a reasonable assessment.
In response the landlord offered the resident compensation, £250 for the failings in its complaint handling and £600 for the time trouble and inconvenience caused to the resident. This was a reasonable offer and was within the range that the Ombudsman would recommend for the failings for those two aspects of the complaint considered. However the landlord did not offer redress for the service failing and extensive delay identified, in resolving the substantive issue of addressing the damp and mould, which was not reasonable.
Although the landlords compensation policy states it will not compensate for insurance claims including damage to personal belongings and property. The residents declaration, that the policy recommended by the landlord did not cover damp and mould, was accepted, as the landlord agreed to consider a claim for her damaged belongings once she provided details, which was reasonable. However despite the resident providing a list of the damaged items there was no evidence the landlord followed through with this commitment, which was not appropriate.
The landlord provided a 3rd response to the resident which did acknowledge that the ongoing delays in completing the works to her property were unacceptable, it apologised to the resident and increased the offer of compensation, by a further £700 for time trouble and inconvenience and a further £250 for failures in complaint handling. The Ombudsman would not discourage a landlord to reflect on its original offer and reconsider increasing the compensation proposed. However a key aim set out in the Code, of the complaint handling process is to enable landlords to resolve complaints raised by their resident’s quickly and to use the learning from complaints to drive service improvements. A repeat of the same failings, requiring a further complaint response following the stage 2 outcome, did not demonstrate the landlord had resolved the complaint quickly or that the landlord had taken any learning from the complaint and improved its service, to prevent it happening again. In addition it again did not offer any redress for the substantive failing of tackling the damp and mould in the property which was not reasonable.
At stage 2 the landlords complaints policy commits to keeping the complaint open until all the actions are complete. While the Ombudsman can see this aspect of the policy is well intended, it is not necessary, the complaint can be closed, and the action plan monitored to completion. As the process stands it could cause confusion for residents, who might think they cannot escalate the matter to this Service, when they can, which would not be appropriate. Evidence also identified that this process meant the residents compensation agreed at the initial stage 2 response was not payable until all actions were completed. This was not reasonable, and was further compounded by the fact that there were significant delays by the landlord in completing the actions, it ended up being addressed in October for a complaint response in April. Additionally the resident had incurred added expenses for storage, that she could ill afford, so that works could be inspected and carried out by the landlord.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlords handling of the residents reports of ongoing damp and mould in the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlords handling of the residents complaint.

Reasons

The landlord did not meet its legal repairing responsibilities or adhere to its repairs policy, or its damp and mould policy in the handling of the residents reports of damp and mould. Despite the landlords acknowledgement of its presence and the identification of works required to resolve, the landlord failed to act to address the problem, for an unacceptable amount of time. In addition it provided no explanation for the delays and failed to communicate with the resident. The landlord acknowledged in its stage 2 investigation its failings and agreed actions to resolve the issues, but the failure to repair and resolve the issue continued for a further 3 months post the internal complaint process. While the landlord appropriately acknowledged the impact of the failings on the resident and offered some redress, it did not offer any redress for its actual repairs failings in treating the damp and mould. It also failed to address the issue of the residents damages to her belonging, as a result of the damp and mould present in her property. As a result the offer was not considered fully proportionate to the complaint.
The landlord did not comply with the complaint handling Code or its complaint handling policy, when dealing with a number of aspects of this complaint. It required the Ombudsman’s intervention for the landlord to accept the complaint and agree to escalation. The stage 1 complaint was not investigated properly, and the response did not contain the information compliant with the code, resulting in a lack of resolution for the resident, in addressing the damp and mould. Keeping the complaint open and reviewing its award for compensation until all actions are resolved, in essence created a third stage to the complaint process, which negates a core aim of the Code to resolve complaints quickly. The payment of the landlords offer of redress to the resident was also unnecessarily delayed.

Orders and recommendations

The Ombudsman orders that within 4 weeks the landlord apologises to the resident for the failings identified.
The Ombudsman orders that within 4 weeks the landlord pays the sum of £1200 in addition to the compensation the landlord has already awarded. This is broken down as follows:
1. £600 for the ongoing repairing failures identified in the landlords treatment of the damp and mould.
2. £600 for the failures identified in the landlords handling of the complaint.
The Ombudsman orders that within 4 weeks the landlord reviews the residents claim for damage to her belongings, as previously agreed, and advises the resident what it is prepared to assist her with.
The Ombudsman orders that within 4 weeks the landlord assesses the damp and mould reported to have reoccurred in the residents bathroom. This is in accordance with its damp and mould policy, which commits to monitor the outcome for 12 months following completion of works to ensure no reoccurrence. To consider further alternative measures to treat the root cause of the problem and provides a copy of the assessment to this service.
If the assessment determines that nothing further can be done to address the damp and mould in the bathroom, the Ombudsman orders that within 6 weeks, the landlord should review whether this property is suitable for the resident and her five children with the bathroom facilities it has. A copy of the review should be provided to this service.
The Ombudsman orders that within 6 weeks the landlord reviews the residents case against its complaint handling policy to identify what went wrong and what can be done to improve the service and prevent these failings happening again. A copy of the review to be provided to this service.
The landlord should reply to this Service within 6 weeks of the date of this report to evidence of compliance with these orders.