Phoenix Community Housing Association (Bellingham and Downham) Limited (202218933)

REPORT

COMPLAINT 202218933

Phoenix Community Housing Association (Bellingham and Downham) Limited

27 June 2024

Our approach

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

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

The complaint

The complaint is about the landlord’s handling of:
1. Reports of a leak and subsequent repairs, damp and mould in the resident’s property.
2. The associated complaint.

Background

The resident has an assured tenancy with the landlord which began on 7 April 2014. The property is a 4-bedroom terraced house. The landlord said it has no vulnerabilities recorded for the resident. However, the resident informed the landlord during the complaint procedure that her daughter was residing with her. The resident said her daughter was pregnant and has asthma.
On 15 October 2021, the resident reported that a wall inside the property was wet. On 16 November 2021, the landlord inspected the resident’s property and noted:
1. the cause of the water ingress was due to a leak coming from a neighbouring property (property A) which was causing water to penetrate through the party wall into the resident’s home.
2. the occupier of property A was a freeholder and not a landlord tenant. The landlord advised the occupier of property A to carry out repairs to avoid further damage to the resident’s property.
3. once property A had resolved the leak, the landlord would complete remedial works to the resident’s property.
On 6 April 2022, the landlord raised a repair request to attend and inspect the resident’s property, following reports of damp and mould. On 1 August 2022, the resident contacted the landlord and advised that the leak from property A was ongoing.
On 14 October 2022, the resident raised a complaint to the landlord. In her complaint she said:
1. she was unhappy with the length of time taken for the landlord to address reports of damp and mould in her property. The resident said she had been experiencing these issues for the last 7 years.
2. she was unhappy with the level of communication received from the landlord concerning the issue. The resident also said she had asked the landlord to contact the neighbouring property about the ongoing leak, but it had not followed this up on her behalf.
3. although the landlord had resolved some of the damp and mould, there was still an issue in the bathroom and kitchen.
4. she wanted compensation for the issues with the damp and mould, alongside subsequent disrepair issues, incomplete repairs and repairs not being carried out to a satisfactory standard.
5. the issues were having an impact on her health.
On 23 December 2022, the landlord provided its stage 1 response. It explained:
1. while its repair records showed previous damp inspections and remedial works in 2014 and 2016, it would only respond to the issues the resident had raised within 6 months of the date of her complaint.
2. it raised an inspection of the property on 6 April 2022.
3. a Technical Inspector attended the property on 21 November 2022 to assess the scope of works required.
4. it upheld the resident’s complaint.
On or around 17 August 2023, the resident contacted the landlord and requested an update on her complaint. The resident said she had asked the landlord to escalate her complaint in January 2023. The resident also said:
1. there was an unresolved leak coming from property A.
2. she was unhappy with the level of communication from the landlord.
3. her daughter was residing in the property, and she was pregnant and asthmatic.
4. the issue had caused her significant distress and inconvenience.
On 2 November 2023, the landlord provided its stage 2 response. It explained:
1. the damp and mould were caused by water penetration from property A. The landlord said it would arrange a mould wash in the property within 7 working days and it would assess whether areas with mould also required redecoration. The landlord acknowledged that it should have identified the cause of the leak more quickly and contacted property A to take action.
2. it had cancelled an appointment on 7 June 2022 due to an internal issue. The landlord apologised that it did not contact the resident about the cancellation.
3. a surveyor attended the property on 22 November 2023. The landlord accepted that the resident did not receive any contact from it regarding the remedial works required after the inspection. The landlord also acknowledged that it had not returned some of the resident’s telephone calls requesting an update on the repairs.
4. it had arranged a further inspection of the property on 17 November 2023. The landlord said it had also asked for permission from property A to inspect the leak and any repairs. The landlord said if it felt there was still an active leak, it would seek legal advice to ensure the issue was resolved.
5. it had failed to progress the recommended repairs relating to the damp and mould in a reasonable timeframe and its communication with the resident concerning the repairs fell below the standards it expected.
6. it had introduced a new damp and mould policy. The landlord also offered the resident a point of contact for the ongoing repairs.
7. its stage 1 was not sufficient in addressing the outstanding issues and setting out a resolution. The landlord said an error also meant that it did not log the resident’s escalation request until October 2023. The landlord also acknowledged delays in its complaint handling.
8. it had offered the resident £650 compensation, which comprised of:
  1. £250 for delays.
  2. £300 for inconvenience and distress.
  3. £100 for complaint handling.
In referring her complaint to the Ombudsman, the resident said:
1. she was unhappy with the time taken for the landlord to address the damp and mould in the property.
2. she wanted the landlord to identify and remedy the source of the leak.
3. she wanted the landlord to resolve the damp and mould in her property.
4. she was unhappy with the level of communication and level of compensation from the landlord.
On 12 January 2024, the landlord contacted the resident and increased its offer of compensation to £1,175 to account for additional delays in it completing the repairs, which comprised of:
1. £775 for delays in completing the works.
2. £300 for distress and inconvenience.
3. £100 for complaint handling delays.

Assessment and findings

Scope of the investigation

The resident said she has experienced issues with leaks, damp and mould in the property for several years.
In accordance with paragraph 42(c) of the Scheme, this service may not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within 12 months of the matters arising.
The resident also raised previous complaints with the landlord in 2019 and 2020. In accordance with paragraph 42(b) of the Scheme, this service may not consider complaints which were not brought to the Ombudsman’s attention within 12 months after they exhausted the landlord’s complaints procedure. Accordingly, the resident’s previous complaints in 2019 and 2020 followed a separate complaint procedure to the complaint which was brought to the Ombudsman’s attention for investigation.
Therefore, while the Ombudsman has referred to previous issues with damp and mould to provide context to the resident’s complaint, the scope of this investigation is limited to considering events from October 2021 onwards, which was 12 months prior to the resident’s complaint in October 2022.
The resident said the issues in her property impacted her physical and mental well-being. When there is an injury or a pre-existing medical condition has been exacerbated, the courts often have the benefit of a medicolegal report. This will often set out the cause of the injury and the prognosis. That evidence can be examined and cross-examined during a trial. In this case, while the Ombudsman has no reason to disbelieve the resident, it would be difficult for us to arrive at firm conclusions on the cause of the resident’s health conditions, based on a review of the documentary evidence available in this case. These matters are likely better suited to consideration by a court as personal injury claim. However, we have considered the distress and inconvenience caused by the condition of the property.

The landlord’s handling of reports of a leak and subsequent repairs, damp and mould in the resident’s property

The landlord’s repairs policy states it will respond to emergency repairs within 4 hours and all other repairs within 28 calendar days.
On 15 October 2021, the resident contacted the landlord and advised that there was water ingress and damp in the property. A surveyor attended the property on 16 November 2021 and identified the source of the leak, as detailed at paragraph 3 of this investigation.
It is important to note here that as the resident’s landlord is not the landlord of property A, its actions were limited. In these circumstances, the Ombudsman would expect to see that the landlord:
1. contacted and written to the owners and/or occupiers of property A.
2. that it obtained suitable evidence about the cause of the leak and whether the owner or occupiers of property A were responsible.
3. that where the owners or occupiers of property A were not responsive, that it sought legal advice about the potential damage being caused to its asset and the infringement on the enjoyment of the property by its resident.
4. created and maintained adequate records of its actions and interactions with the neighbours to demonstrate it was dealing with the matter promptly.
The evidence shows that the landlord did not review the progress of the repairs until 5 April 2022, which was 5 months after its inspection in November 2021.
On 5 April 2022, the landlord said it was unable to locate the contact details for property A. The Ombudsman is not able to accept this. HM Land Registry notes the property as being registered. A simple search with the Land Registry in this case would have provided the details of the freeholder. Moreover, the landlord could have left a notice at property A for both the legal owner and occupiers to give notice of the leak and the action required.
In any event, the landlord also did not attempt to contact the resident to discuss the progress of the repairs neither did it attempt to contact property A by letter in April 2022 as it could have done. Given the length of time that had passed since the landlord’s inspection in November 2021, the landlord’s response was not appropriate.
On 14 October 2022, the resident said property A had completed the repairs and asked for an update on when the landlord would start repairs in her property. On 22 November 2022, the landlord’s notes showed it raised a repair request for works to the property. The resident contacted the landlord on 23 November 2022 with a list of outstanding works.
It is not clear from the evidence provided whether the landlord completed any works between November 2022 and October 2023. The Ombudsman is therefore unable to determine if the landlord responded within a reasonable time to the resident’s request for repairs to commence at the property. This was a failure in the landlord’s record keeping.
In October 2023, the resident reported that the leak from property A was ongoing. The landlord wrote to property A on 19 October 2023 and asked for permission to inspect the property for any ongoing leaks. The landlord sent a further letter to property A on 28 November 2023 and asked the occupier to contact it in attempt to resolve the outstanding issues.
While the landlord’s decision to send a letter to property A showed its intention to try and resolve the ongoing leak, it is not clear why it did not contact the occupier of property A sooner. The landlord was aware of the leak from property A in November 2021, but it did not contact property A until almost 2 years later. It is accepted that while the resident said the repairs in property A had been completed in October 2023, the landlord ought to have made reasonable attempts to contact the owners or occupiers of property A much sooner to satisfy itself of this. The landlord’s approach here was not appropriate.
The landlord prepared a schedule of works for the resident’s property in November 2023. The evidence suggests that the leak from property A was resolved on 20 December 2023. The Ombudsman cannot categorically conclude with certainty that the leak would have been resolved sooner had the landlord contacted the owners or occupiers of property A sooner. However, the Ombudsman is able to say that, on the balance of probabilities, it is more likely than not the resident would not have felt the same level of upset and distress had the landlord demonstrated it was taking a proactive response.
In February and March 2024, the landlord started works in the resident’s property. The landlord’s notes suggest it completed all works, including any snagging issues, on or around 10 May 2024. However, the Ombudsman has been unable to confirm this with the resident. As such, an order has been made for landlord to contact the resident and confirm that all repairs have been completed.
The Ombudsman acknowledges there was a lack of clarity whether property A had fully resolved the leak given the issues in accessing property A to complete an inspection. However, there were unreasonable and avoidable delays between October 2021, when the resident reported water ingress in the property, and May 2024, when the landlord completed the works in the property. The landlord accepted that it should have identified the cause of the leak more quickly and contacted property A to take action.
As already acknowledged, as property A was a freeholder property, the Ombudsman recognises that there were limitations to the actions the landlord could take to resolve the matter. However, where there are health and safety concerns or damage caused to the resident’s property, the landlord has a responsibility to investigate and determine whether it should take further action to prevent additional damage. There is no evidence that the landlord explored any legal options available to it, in order to ensure the repairs in property A were completed within a reasonable time. This was not appropriate.
Throughout the complaint, the resident had to repeatedly chase for updates and on multiple occasions explained the impact that the leaks, damp and mould had on her and her family. While the Ombudsman understands that complex repairs may require additional time for the landlord to complete them, there is an expectation that the landlord keeps in communication with the resident and updates them on the progress of the repairs.
There is no evidence that the landlord considered any interim solutions to mitigate the impact of the housing conditions on the resident, such as dehumidifiers or a temporary decant. The landlord asserts that the property was habitable and therefore a decant was not required. However, there is no reference to this in the inspection reports the landlord has provided. Given the resident’s concerns about damp and mould in the property and the impact this was having on her and her daughter, it would have been reasonable for the landlord to have considered whether a temporary decant or the installation of dehumidifiers was necessary.
The landlord said it carried out mould washes in the property in November 2023. The landlord’s notes also show that it arranged a damp and mould follow-up to ensure the mould washes were effective. However, the outcome of the follow-up was not evident. It is also not clear from the landlord’s repair records if it carried out any mould washes prior to November 2023. The Ombudsman is therefore unable to determine if the landlord’s response to reports of damp and mould was reasonable. This was a failure in the landlord’s record keeping.
The landlord acknowledged its failures in its stage 2 complaint response and attempted to put this right through an offer of compensation of £650, later followed with a revised offer of £1,175 to account for additional delays (£1,075 excluding the compensation for complaint handling). The landlord also apologised for the distress and inconvenience caused to the resident, explained to the resident that it had introduced a new damp and mould policy and offered her a point of contact for the ongoing repairs.
While the offer of compensation showed the landlord acknowledged some distress and inconvenience caused to the resident by the delays in it resolving the leak and subsequent damp and mould, it perhaps does not reflect that the resident’s enjoyment of her home was affected from at least October 2021 to 10 May 2024. It is accepted there were difficulties with property A being a freehold, but the landlord has to recognise its ongoing failures will likely have resulted in some considerable distress and inconvenience over this period.
Additionally, it does not appear to have a completion report confirming the repairs were completed. Therefore, it is the opinion of this service that the £1,075 offered is not likely to reflect the level of distress and inconvenience caused by the landlord’s delays. There is service failure because the level of compensation is too low to recognise the impact of the failures identified.

The landlord’s handling of the associated complaint

The Complaint Handling Code (“the Code”) states landlords must respond at stage 1 within 10 working days of the complaint and at stage 2 within 20 working days of a request for escalation. The landlord’s complaint procedure aligns with the Code.
The resident raised a complaint to the landlord on 14 October 2022. The landlord contacted the resident on 14 November 2022 and said it would need further time to respond to her complaint. The landlord said it would respond at stage 1 by 2 December 2022. The landlord sent a further update to the resident on 8 December 2022 and said it would respond to her complaint by 15 December 2022. The landlord provided its stage 1 response on 23 December 2022, which was 50 working days after the resident raised her complaint.
While the landlord updated the resident on the progress of its complaint response, it did so 21 working days after her complaint. The landlord’s failure to respond to the resident’s initial complaint in line with its complaint’s procedure, meant it missed an opportunity to address her concerns sooner and left the resident waiting for a resolution to her concerns. The landlord should have conducted a timely and appropriate investigation and response to the resident’s concerns.
In its stage 1 response, the landlord acknowledged that there had been delays in completing the repair works. However, it did not provide an adequate explanation about why these delays had occurred, did not offer any redress for the identified failures, particularly the delays in its initial response to the resident’s reports, or what it intended to do to resolve them. Where something has gone wrong a landlord must acknowledge this and set out the actions it has already taken, or intends to take, to put things right. This was a missed opportunity for the landlord to resolve the resident’s complaint.
The landlord also failed to respond appropriately to all elements of the resident’s complaint in its stage 1 response. For example, it did not refer to any of the outstanding works which the resident had raised and did not give her timescales for completion of the works. This was a complaint handling failure in accordance with the Code. Landlords must 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 resident said she escalated her complaint in January 2023. The landlord said it had no evidence of her escalation request. This was a failing because the Ombudsman cannot be satisfied the landlord adhered to its complaints policy, which caused avoidable time and trouble to the resident in pursuing his complaint. It also delayed the resident from seeking recourse from the Ombudsman.
On 17 August 2023, the resident contacted the landlord and asked for an update on her escalation request. The landlord provided its stage 2 response on 2 November 2023, which was 55 working days later. This was not appropriate.
The landlord should have conducted a timely and appropriate investigation and response to the resident’s concerns. The delay in responding to the resident’s complaint would have delayed the resident in progressing the complaint through the landlord’s process. It would have also prevented her from exhausting the landlord’s internal complaints procedure so that she could bring the matter to the Ombudsman for an independent investigation.
Overall, there were several failures in the landlord’s complaint handling. While the landlord has offered some compensation for the failures, the Ombudsman considers that the offer of compensation does not reflect the failings identified. The landlord failed to put matters right by addressing all the resident’s concerns at the earliest opportunity and taking steps to put things right. The Ombudsman has therefore ordered the landlord to pay compensation to the resident for the distress and inconvenience caused by the failures outlined above.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of reports of a leak and subsequent repairs, damp and mould in the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the associated complaint.

Orders and recommendations

Orders

The landlord must, within 28 calendar days of the date of this determination:
1. provide a full apology for the errors identified in this report.
2. pay the resident an additional £600 compensation for the distress and inconvenience caused by the failures identified in this report (£1,775 in total). This is comprised of:
  1. an additional £450 to recognise the impact of the loss of opportunities and failures by the landlord in the handling of the leak and subsequent repairs, damp and mould.
  2. an additional £150 for the failures in the landlord’s complaint handling.

The compensation must be paid directly to the resident. The total compensation can be reduced by any of the £1,175 already paid to the resident.

complete a post works survey to confirm that all the works have been completed. A copy should be provided to the resident and this service within 10 working days of the date of the property inspection.
provide evidence of compliance with all orders within 56 days of the date of this determination.

Recommendations

Within 28 days of the date of this determination, the landlord should consider re-training its staff on complaint handling, having regard to the Code.