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Sheffield City Council (202403208)

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REPORT

COMPLAINT 202403208

Sheffield City Council

23 January 2025


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

  1. The complaint is about the landlord’s handling of damp and mould, and concerns about the structural safety of the property.
  2. This Service has also investigated the landlord’s complaint handling.

Background

  1. The resident is a secure tenant of the landlord. The tenancy started on 24 October 2022. The property is a 3 bedroom house. The resident has COPD and heart problems, his wife has health issues, including asthma, and his daughter has autism and physical disabilities.
  2. The resident and his family were moved into the property by the landlord due to the condition of their previous property. The resident reported concerns of damp shortly after moving in on 25 October 2022.
  3. The resident contacted his local councillor in November 2022 and made a complaint. The councillor contacted the landlord as they were concerned as to whether the property was habitable. They asked the landlord to arrange for an assessment of the property. The landlord did not log the councillor’s contact as a complaint, the concerns raised were dealt with as a councillor enquiry.
  4. The landlord arranged surveys, carried out investigations, and completed repairs. However, the damp, mould and structural concerns persisted.
  5. The resident raised a formal complaint on 8 April 2024. He said his family had moved from their previous property into the current property due to the level of disrepair. The landlord had told him that all work, including damp proofing, had been completed at the property before they moved in. However, the property was in substantial disrepair with damp, mould and structural issues.
  6. The landlord sent the resident a stage 1 complaint response on 25 June 2024. It said it had visited the resident’s home on 19 June 2024 and found some damp concerns within the property. Although it was uncertain as to the underlying cause. It said it would need to carry out further investigations to clarify whether there was moisture rising through the floor, along with other issues that could be contributing to the dampness.
  7. The landlord sent the resident a further stage 1 response on 18 July 2024 following contact from this Service. It said it had arranged to visit the resident on 19 June 2024. However, the resident had denied access. It said it had attempted to rearrange the visit unsuccessfully. It said it was committed to resolving the issues, but it was unable to progress further without access to the resident’s home.
  8. Following escalation to stage 2 the landlord sent the resident a stage 2 complaint response on 19 September 2024. It said it had contacted the resident on 25 June 2024 to arrange a further appointment/inspection to investigate his concerns. However, the resident sent an email on 29 June 2024 refusing access. It said it remained committed to resolving the issues, including assessing the request and possible need for rehousing. It said it hoped the resident could appreciate it was unable to progress further without access to his home to carry out the necessary investigations.
  9. The resident referred his complaint to the Ombudsman as he was dissatisfied with the landlord’s response.

Assessment and findings

  1. The Equality Act 2010 provides a legislative framework to protect the rights of individuals with protected characteristics from unfair treatment. Under the Act, the landlord has a legal duty to make reasonable adjustments where there is a provision, criterion or practice which puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. Although this Service cannot find that a landlord has breached the Equality Act, we can decide whether a landlord has properly considered its duties under the Equality Act.
  2. The resident has expressed concerns regarding the impact the situation has had on his health and the health of his family. This Service is unable to draw conclusions on the causation of, or liability for, impact on health and wellbeing. Claims for personal injury must be decided by a court, who can consider medical evidence and make legally binding findings. Where there has been a failing by the landlord, this Service may consider any general distress and inconvenience which the situation may have caused the resident.

The landlord’s handling of damp and mould, and concerns about the structural safety of the property

  1. It should be noted that the landlord has made significant improvements to its processes and its response to damp and mould since the start of this case. It has introduced a repairs policy, and it is in the process of training its staff in the diagnosis of causes of damp and mould. However, these improvements have been relatively recent and have not, therefore, affected the overall outcome of this case.
  2. The landlord has provided evidence that shows the property was diagnosed with rising damp following an inspection in August 2022, prior to the resident moving in. This was due to the absence of an efficient damp proof course (DPC) in the walls and the solid floor to the adjoining property being higher. It was recommended that the landlord insert a DPC, remove and renew the plaster, seal the concrete floor cracks with a flexible waterproof compound, and seal the floor. It is unclear from the evidence provided whether the recommended work was fully completed. However, the resident believes that the work was never carried out.
  3. The resident raised concerns of damp as soon as he moved in on 25 October 2022. He also reported various leaks to the roof and radiators, and water ingress under the front door. The local councillor raised a complaint with the landlord on or around 18 November 2022, following a visit to the resident’s property. He told the landlord that he was “appalled” by the condition of the property. He said the amount of work needed to make the property liveable was “quite staggering”. The contact was not logged as a formal complaint by the landlord, it was dealt with as a ‘councillor enquiry’. This has been considered under the complaint handling section of this report.
  4. The records show that the landlord attended the resident’s property on 21 November 2022 following the concerns raised. The records note that condensation was a factor and show that a dehumidifier was offered to the resident. The landlord also recommended a mould treatment and a fungal wash. It is unclear from the evidence provided why the landlord concluded that the issues were due to condensation when the property had previously suffered from rising damp. There is no evidence to suggest that the landlord made any enquiries or checked whether the damp related work, carried out prior to the resident’s tenancy, had been satisfactorily completed. This was unreasonable in the circumstances, particularly given the high level of dampness within the property and the councillor’s observations.
  5. The landlord’s specialist damp contractor inspected the property on 7 December 2022. The resulting report said that they had carried out a full DPC and replastering works to the ground floor in September/October 2022. However, it said damp plaster had been noted to three areas of the ground floor. It said the dampness around the doors appeared to be due to condensation forming and soaking into the plaster skim. The dampness in the front left-hand corner appeared to be due to severe condensation forming on the cold-water pipe and dripping on to the plaster and concrete floor. It said high levels of moisture would still be present within the property as several wet trades had carried out work in the past month. It said it was clear that condensation was a major cause of dampness in the property in most areas.
  6. The report recommended the removal and renewal of wall plaster to control future dampness, insulation of the external gable wall in the left-hand bedroom, and insulation of the loft to the current recommendations. It also recommended treatment with an anti-condensation paint, which would reduce the level of condensation, and the installation of a positive air pressure unit.
  7. A landlord is entitled to rely on the expertise of its contractors. However, in this case, it is unclear why the landlord did not question the level of work required to control the condensation. Particularly as the property had already undergone major damp works just months before. It also appears from the report that the specialist contractor was suggesting that some of the condensation could be attributed to the “wet trades” that had carried out work to the property prior to the resident moving in. Yet the property had been considered ready to let by the landlord soon after the work had been completed.
  8. Under s9A of the Landlord and Tenant Act 1985, landlords must ensure that properties are fit for human habitation on the day of letting and throughout the tenancy. A property might be considered unfit because of damp and mould. Damp and mould is also one of the 29 ‘matters and circumstances’ that give rise to hazards under the Housing Health and Safety Rating System (HHSRS). HHSRS is a risk-based evaluation tool designed to help local authorities identify hazards that pose a risk to the health and safety of tenants. A hazard is any risk of harm to the health or safety of an occupier that arises from a deficiency in the property.
  9. The landlord has not provided any evidence to suggest that it considered the potential detrimental effect of the damp and mould on the resident and his family. Neither is there evidence that it questioned the property’s suitability for letting before the tenancy.
  10. The resident’s local councillor contacted the landlord again on 9 January 2023. He asked when the repairs to the suspected leaks, installation of loft insulation, and damp and mould treatment would be completed. The landlord said there was an appointment booked for 10 January 2023 to install a positive air pressure unit and re-insulate the loft. It said the suspected leak on the stop tap was a result of condensation. It said the mould and damp treatments would follow the plan to thoroughly dry out the property.
  11. The evidence shows that the planned work for 10 January 2023 did not go ahead as the resident refused to allow the landlord to carry out the work. This appears to be related to the cost implications of running the positive air pressure unit. It is understandable that the resident would be worried about the running costs. However, as a condition of their tenancy residents must allow landlords access to remedy defects, provided that the landlord gives reasonable notice.
  12. The landlord’s surveyor completed an inspection of the resident’s property on 16 March 2023. He noted the moisture levels and temperatures in the property. He also noted a leaking gutter, and the required renewal or repair of the kitchen and bathroom extractor fans. At the time of this complaint the landlord did not have a repairs policy (a new policy has been in place since February 2024). This meant that there were no service standards for repair.
  13. The landlord’s tenancy conditions said it would decide how quickly a repair needed to be completed when the repair was reported. This was unreasonable as the resident had very little reference upon which to assess or challenge the fairness of the landlord’s response. The lack of service standards also contributed to a lack of urgency by the landlord to complete the repairs. This was also unfair to the resident as he had not been given any reasonable expectation as to when the repairs would be completed.
  14. The local councillor contacted the landlord again on 6 April 2023 as the issues with damp and mould were continuing. They asked the landlord to investigate the matter further. The landlord responded and said it would revisit the idea of fitting the positive air unit with the resident. It said any further investigation would require the resident to be decanted to another property so it could dig up the floors at a considerable cost. The landlord said this option was likely to only prove that there were no other issues than the levels of moisture within the property.
  15. The landlord’s response implies that cost was the key factor in its decision making. Furthermore, it is unclear upon what expert opinion it had formed the assumption that further investigations were unlikely to identify any further problems.
  16. The resident’s MP contacted the landlord on 22 May 2023, following a visit to the resident. He said he had seen significant mould and damp in the living room. He said both the internal and external walls were affected. He questioned whether the property needed a DPC. The landlord responded on 23 May 2023. It said it had ordered damp treatment works, checked the roof, and completed a survey. It said it believed that the issues were related to condensation. However, it did say it would raise a repair for the DPC to be checked.
  17. The landlord contacted the resident’s MP and councillor on 3 July 2023. It confirmed that the work to the bathroom, extractor fans, and ‘working at height’ repairs had all been completed. It said the DPC had been checked on 30 June 2023. It said the operative had recommended that it excavate the front and back of the property to find out where and how the water was getting in. It confirmed that the work was with its minor works team. However, it provided no timeframe for the completion of the investigations.
  18. The landlord visited the resident’s property on 4 August 2023. It noted that there had been some improvements, although it suggested this was because it was summer. The landlord recommended the resident allow it to fit the positive air unit. This was fitted on 9 August 2023.
  19. The resident reported further issues with damp and mould in the corner of the living room on 16 August 2023. The resident sent his MP pictures of his living room floor and walls on 10 September 2023. He said there was water coming up through the floor. The MP escalated the matter to the landlord. The MP told the landlord that the property clearly needed work. He asked the landlord to look into the issues urgently and to offer the resident compensation.
  20. The landlord responded on 12 September 2023. It said the repair had been passed to its drainage contractors to carry out a camera survey. It also confirmed that a surveyor from its damp team was due to visit the resident that day.
  21. During his inspection the surveyor noted water on the concrete living room floor in various places. The damp meter readings ranged from 64-87%. He said he would be making a referral to the landlord’s specialist damp contractors as a result. He said he had not noted any subsidence or mine shafts. However, he said he could not see a DPC. He also noted that the last third of the kitchen seemed to slope to the kitchen sink and the damp meter reading was red in that area.
  22. The MP contacted the landlord on behalf of the resident on 2 October 2023 and asked it to raise a formal complaint. This was because the resident had told him that his COPD had worsened due to the damp and mould conditions. It does not appear that this request was logged as a formal complaint.
  23. The landlord contacted the resident on 6 October 2023. It said the resident and his family would need to be decanted from the property due to the failure of the DPC. It confirmed on 2 November 2023 that it was looking for a ‘direct let’ rather than a temporary decant.
  24. The landlord contacted the resident on 23 January 2024 as it had identified a suitable 3 bedroom property. The resident told the landlord that he would not consider a property in the area offered and that he would only accept a property in his current area. The landlord suggested that the decant could be on a temporary basis, so the resident could move back to his current property once the work had been completed. It said if he was refusing to move out of the property after a reasonable offer had been made, it could look at taking legal action. It said it could apply for an injunction to remove him from their property.
  25. The landlord’s response was heavy-handed, insensitive, and unreasonable in the circumstances. It is reasonable to conclude from the evidence provided that it was premature of the landlord to introduce the prospect of legal action as a means to move the resident at this point. This was insensitive as it had only made 1 offer of alternative accommodation and when considering the context of how the resident came to be in the position where such disruptive works were necessary. It also demonstrates the landlord’s overall unempathetic approach to the resident’s situation. This was particularly the case as the family had been reporting their concerns to the landlord and living in poor conditions for a significant period of time. The family also had health concerns and specific requirements that needed to be considered when moving to a different property.
  26. The landlord contacted its specialist damp contractor on 1 February 2024. It asked whether the work could be carried out one room at a time, or whether the resident would need to move out given his health issues. The contractor confirmed that it could do the work in 3 stages. They said they would require the residents to ensure they remained downstairs, that they ventilated the rooms, and allowed clear access to all walls prior to its attendance.
  27. The resident told the landlord on 7 February 2024, that it was not suitable for the work to be carried out whilst the family were still living in the property. He said this was because of their health issues and because their daughter was home schooled. He said the work would disrupt her routine and learning.
  28. Under the Equality Act 2010 (the Act), the landlord has a legal duty to make reasonable adjustments where there is a provision, criterion or practice which puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. As the resident and his daughter are disabled, the landlord had an obligation to consider their specific needs because of their disabilities, and to make reasonable adjustments to its practices to facilitate them.
  29. However, there is no evidence that, with knowledge of their protected characteristics, it considered the implications of carrying out the work whilst the residents were living in the property, instead of providing a decant. Therefore, in the circumstances, the landlord has not demonstrated that it properly considered its duties under the Act, and its actions were inappropriate in the circumstances.
  30. The landlord carried out a further inspection of the resident’s property sometime in early March 2024. It contacted the resident on 8 March 2024 and said it had concluded that the property was “in a much better condition”. This appears to be because the resident had used the fire in the living room, which had dried out some of the moisture. It said, as a result, the work could be carried out whilst the family were living in the property. It is unclear from the evidence provided how the landlord came to this conclusion considering that none of the recommended damp works had actually been carried out.
  31. The resident informed the landlord that he wanted to raise a formal complaint on 8 April 2024 due to the ongoing outstanding repairs in his property. He said his family had been moved from their previous address due to disrepair and their health conditions. He said he had been told that all work had been completed in the new property prior to them moving in. However, he believed that this was not true.
  32. He said the house was in a state of disrepair and it had serious subsidence issues due to a mine shaft below the neighbouring property. He said the property was surveyed at the beginning of 2023 and several jobs and further investigations were raised. Then, after no work had been completed, a second survey was conducted which revealed that the property was in a much better condition. The resident said this was because they had been using the fire. The resident also said he had been told that they would be moved to another property. However, only 1 offer had been made, and the property was unsuitable.
  33. The landlord’s records show that there was further confusion around whether the resident and his family needed to be decanted whilst the required work was carried out. This appears to result from the inconsistencies between the issues found during the 2 surveys carried out by the landlord. The evidence shows that following the second survey, the landlord concluded that the floor issue had “fixed itself”. Therefore, the work required was assessed to be of a minor nature. The landlord does not, however, have any explanation as to how the floor had fixed itself other than the resident’s use of the fire.
  34. The landlord visited the resident on 19 June 2024 to carry out an inspection. Following the visit, it sent the resident a stage 1 complaint response on 25 June 2024. It said its officers had highlighted some damp concerns within the property during the visit of the 19 June 2024. Although it said it would need to carry out further investigations to clarify whether there was moisture rising through the floor. However, it would be restricted in doing this if the resident would not allow it to carry out the necessary investigations.
  35. The landlord sent the resident a further stage 1 complaint response on 18 July 2024. It said to allow it to progress the case, it was essential that it visited to assess the required work and discuss options. It said that the resident had refused the landlord access on the grounds that he had no confidence that it would investigate the issues satisfactorily, given its previous involvement in the case. It said it was committed to resolving the issues he was experiencing, which included assessing his request and possible need for rehousing. However, it was unable to progress further without obtaining access to his home.
  36. The resident felt that the landlord had sufficient information, following the previous inspections by its own surveyors and specialist surveyors, to carry out the required repairs. However, it is reasonable that the landlord would need an up to date assessment of the property before it could undertake any work. It is a condition of the resident’s tenancy to allow the landlord access to remedy defects with reasonable notice. Therefore, it was appropriate of the landlord to request access to enable it to resolve the outstanding issues through its complaints process. However, the resident’s reluctance to provide access does not change that there had already been a number of significant failings by the landlord prior to this point. Although, as the delays at this stage were not entirely attributable to the landlord, the amount of compensation ordered reflects this position.
  37. The resident escalated his complaint to stage 2 on 18 July 2024. The landlord sent the resident a stage 2 response on 19 September 2024. It said, as it had not received any contact from the resident, its findings remained the same.
  38. Although the resident was being uncooperative at this point in relation to allowing a further inspection, it was inappropriate that the landlord did not provide a full complaint response at stage 2. It is reasonable to assume that if the landlord had full repairs records and information stored on its systems, it should have given it insight into the resident’s issues. The evidence shows it had access to the previous inspections carried out by both the landlord’s surveyors and its specialist contractors. Therefore, it is reasonable to conclude it should have been able to form a satisfactory conclusion about its handling of the resident’s complaint.
  39. It is clear that the relationship between the landlord and the resident had broken down over the 2 year period. However, the landlord made no attempts within its complaint responses to repair the relationship. Its responses were unempathetic and it took no responsibility for the breakdown in the relationship with the resident. It also did not acknowledge the conditions the resident and his family had been living in for a period of 2 years, or the potential detrimental effect of the damp and mould.
  40. The resident has confirmed to this Service that the situation is still the same. The work is still outstanding and the issues with damp and mould remain.
  41. In summary, the landlord showed no urgency in carrying out investigations into the resident’s reports of damp and mould. It did not carry out effective repairs within a reasonable timeframe, and as a result, the problems still persist. It was unempathetic towards the resident and it was heavy-handed in its approach when it told the resident it could take legal action against him. It did not adopt a resolution based approach to the resident’s issues. Its conclusions were contradictory and inconsistent at times, and it did not demonstrate that it properly considered its duties under the Equality Act 2010. As a result of these failings, and the level of detriment caused to the resident and his family, the Ombudsman finds that there was severe maladministration by the landlord in this case.

Complaint handling

  1. It should be noted that the landlord brought its complaints policy in line with the Housing Ombudsman’s Complaint Handling code in April 2024. Its policy says it will respond to stage 1 complaints within 10 working days of the complaint being acknowledged. Stage 2 complaints are responded to within 20 working days of the complaint being acknowledged.
  2. Prior to April 2024, the landlord missed a number of opportunities to log and investigate the resident’s concerns as formal complaints. The local councillor raised a complaint with the landlord on or around 18 November 2022, following a visit to the resident’s property. However, the contact was not logged as a formal complaint by the landlord, it was dealt with as a ‘councillor’s enquiry’.
  3. On 14 December 2022 the councillor raised a further complaint about the resident’s property. However, this was closed the following day without any contact with the resident.
  4. A further complaint was raised on 18 July 2023 following contact from a third party representative. This was closed on 31 July 2023 as ‘resolved’ because the landlord was aware of the issues and was dealing with them. It did not contact the resident or complete an investigation.
  5. The Housing Ombudsman’s Complaint Handing Code (the Code) (April 2022) says a landlord must accept a complaint unless there is a valid reason not to do so. It also says that a complaint submitted via a third party or representative must still be handled in line with the landlord’s complaints policy.
  6. Therefore, as the landlord did not log the resident’s complaints formally, or complete a full investigation, it did not act in accordance with the Code. This was inappropriate in the circumstances. This not only delayed a resolution for the resident, but it also delayed the resident’s ability to escalate his complaint to this Service for investigation.
  7. The resident raised a formal complaint on 8 April 2024. The landlord acknowledged the complaint on the same day. The evidence shows that the landlord sent the resident a stage 1 response on 25 June 2024. This was 56 working days from the date of acknowledgement and significantly outside of the timeframe of 10 working days set within the landlord’s complaints policy. However, it is unclear as to whether the resident received the response as he contacted this Service for assistance.
  8. We wrote to the landlord on 1 July 2024 and asked it to provide a stage 1 response. Instead of providing the resident and this Service with a copy of the response dated 25 June 2024, it provided a further response dated 18 July 2024. The resident escalated his complaint to stage 2 on the same day.
  9. The landlord sent the resident a stage 2 response on 19 September 2024. It is unclear from the evidence provided when the landlord acknowledged the stage 2 complaint. However, the response was 45 days from the date of escalation and significantly outside of the timeframe of 20 working days from the date of acknowledgement set within the landlord’s complaints policy. The landlord also failed to recognise its complaint handling failures within its response.
  10. In summary, the landlord’s complaint process was confusing and protracted. It sent two stage 1 complaint responses and failed to comply with the timeframes set within its complaints policy. It also failed to act in accordance with the Code and it did not recognise its complaint handling failures within its stage 2 response. As a result of these failings and the level of detriment caused to the resident and his family, the Ombudsman finds that there was maladministration by the landlord in this case.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in its handling of damp and mould, and concerns about the structural safety of the property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its complaint handling.

Orders and recommendations

Orders

  1. Within four weeks of the date of the report, the landlord must:
    1. Apologise to the resident for the failings identified in this report.
    2. Pay the resident total compensation of £1,250. This is made up of:
      1. £1,000 in recognition of the delays to repairs, the level of detriment caused, and the distress and inconvenience caused to the resident and his family.
      2. £250 in recognition of the complaint handling failures and the time, trouble, and inconvenience caused to the resident and his family.
    3. Pay the compensation directly to the resident.
    4. Complete a mould wash of the resident’s property to remove any mould currently within the property.
    5. Evaluate and offer to the resident the options available to decant, either on a permanent basis, or if this is not possible, on a temporary basis whilst the work is carried out. The landlord should seek to be as flexible as is reasonably possible to meet the needs of the resident if a temporary decant is the option undertaken to allow for the situation to progress.
  2. Within eight weeks of the date of the report, the landlord must:
    1. Arrange a suitably qualified independent structural survey of the property. Following the survey, the landlord must compile a full schedule of works with proposed dates for completion. The landlord must provide the resident and this Service with a copy of the report and schedule of works.
    2. Arrange an independent damp and mould survey of the property. Based on the recommendations made within the report the landlord must compile a schedule of works with proposed dates for completion. The landlord must provide the resident and this Service with a copy of the report and schedule of works. The surveys can be combined if the surveyor is suitably qualified and must be independent due to the conflicting opinions of different surveyors used to date by the landlord.
  3. The landlord should conduct a review of the key failures highlighted in this report. Within 8 weeks, it should present this review to its senior leadership team and provide the Ombudsman a report summarising its identified improvements. The review should focus on, but is not limited to the following:
    1. How it will ensure that the causes of damp and mould are identified promptly and the required repairs are carried out within a reasonable timeframe, particularly where the resident has vulnerabilities that can be exacerbated by damp and mould.
    2. What changes it will make to ensure there is adequate oversight, management, and quality checks of repairs, including work undertaken on its behalf by contractors.
    3. How it can improve its service offer to residents in relation to the decant process with emphasis on dealing with situations where potential health, safety, and wellbeing issues affecting its residents are a factor. This should include how it will ensure it meets its obligations under the Equality Act 2010.
  4. The landlord should reply to this Service with evidence of compliance with these orders within the timescales set out above.