South Tyneside Council (202405769)

REPORT

COMPLAINT 202405769

South Tyneside Council

22 November 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

1. The complaint is about the landlord’s handling of the resident’s reports of damp, mould, and the associated repairs.

Background

2. The resident is a tenant of the landlord in a house, and the landlord does not have any recorded vulnerabilities for her.
3. The resident contacted the landlord on 4 January 2023 to report a concern about her windows, and issues with damp and mould in her property. The landlord completed an inspection on 20 January 2023. The notes from the landlord’s inspection stated the property was cold and the resident kept cleaning away condensation on the walls. It raised a service to the positive input ventilation unit (PIV). A PIV is a type of fan that is designed to reduce condensation in a property. It also raised repairs to install trickle vents on the windows, upgrade the bathroom extractor fan, and to re–lay the loft insulation. The evidence indicates the resident refused the repair to the windows.
4. The landlord sought to replace the bathroom fan on 31 January 2023, but recorded the visit as a “no access” appointment. The landlord completed the loft insulation works around 9 March 2023, the exact date is unclear.
5. The landlord completed a further inspection of the property on 3 April 2023. It raised a repair to “overhaul” the PIV, renew the fans in the kitchen and bathroom, and fit trickle vents to the windows. The landlord replaced the kitchen and bathroom fans on 11 May 2023. It also completed works to the PIV unit in May 2023, but the exact date is unclear from the evidence available.
6. The landlord completed another inspection of the windows on 15 January 2024. The notes from the inspection advised to “renew/upgrade” the windows due to their “age and no trickle vents”. The resident made a complaint on 20 February 2024, and said she had been reporting an issue with the windows for over a year. She said the last surveyor said they needed replacing, but the landlord had not done so. She asked the landlord to add her property to its window replacement programme.
7. The landlord sent the resident its stage 1 complaint response on 1 March 2024. It did not uphold the complaint, and said it had followed its procedures. It said it would carry out a further inspection of the windows. The resident was unhappy with the landlord’s complaint response, and asked the complaint to go to stage 2 of its procedure on 7 March 2024. She said that she was told new windows were needed by “numerous” officers that inspected, and was frustrated that it wanted to inspect the windows again.
8. The landlord completed another inspection of the windows on 15 April 2024. It identified that it needed to renew the sealant around the window frames inside and out, and to renew the pointing near the kitchen window. Its notes state the windows were in working order.
9. The landlord sent its stage 2 complaint response on 18 April 2024. It gave a history of repairs it had completed related to damp and mould, including a history of the window inspections. It explained the resident had refused to let it fit trickle vents to the windows, and it was of the view the “minor repairs” it had identified would help reduce the condensation in the property. It explained how trickle vents worked, and encouraged the resident to get in touch to book in the identified repairs needed.
10. The resident contacted this Service on 5 May 2024 and asked us to investigate her complaint. She raised a concern that an operative for the landlord had said the windows needed replacing, but it was not prepared to do so. She said the damp conditions in the property were affecting her son’s health.

Assessment and findings

Reports of damp, mould, and the associated repairs

11. Section 11 of the Landlord and Tenant Act 1985 obliges the landlord to keep in repair the structure and exterior of the property. For the purpose of the Act the windows are considered to be part of the structure of the property.
12. Landlords are required to consider the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not specify any minimum standards, but it is concerned with avoiding, or minimising potential health hazards. Damp and mould are potential hazards that fall within the scope of HHSRS. Landlords should be aware of their obligations under HHSRS. Where potential hazards are identified, improvement works are typically the starting point and additional monitoring is expected.
13. The landlord’s repairs and maintenance policy states that it attends to routine repairs within 20 working days and it completes “planned repairs”, which it defines as damaged items that do not affect use of a property, within 3 months.
14. The resident’s concerns about damp and mould were mainly centered around her request to replace the windows in the property. The landlord addressed other repairs it had done in relation to damp and mould in its complaint response, as well as its position on the window replacement. We have therefore deemed it appropriate to assess the landlord’s handling of the repairs in relation to damp and mould more generally, as well as considering its response to the window issue. This approach has been decided based on what is reasonable in all the circumstances of the case.
15. Throughout her complaint, and when she brought her complaint to this Service, the resident raised a concern that the condition of the property had affected her son’s health. The serious nature of this is acknowledged, and we do not seek to dispute the resident’s comments. It is widely accepted that damp and mould can have a negative impact on health. However, this aspect of the resident’s complaint ultimately requires a determination of liability for personal injury.
16. Claims of personal injury, including damage to health, can be considered via a landlord’s public liability insurance (if it has it), or in a court of law. Such claims will take into consideration medical evidence and allegations of negligence. These matters fall outside of the Ombudsman’s remit. The resident may wish to seek independent advice on making a personal injury claim, if she considers that her, or her son’s, health has been affected by any action or lack thereof by the landlord. The Ombudsman consider any general distress and/or inconvenience caused by errors by a landlord as well as the landlord’s response to the resident’s concerns about her family’s health.
17. When the resident reported a concern about her windows the landlord inspected within the timeframes set out in its repairs policy. This was appropriate in the circumstances and evidence the landlord took the resident’s concerns seriously.
18. The evidence shows that when the landlord inspected in January 2023, it considered other possible causes of damp within the property, despite the resident only raising concerns about the windows. This was appropriate in the circumstances and evidence the landlord adopted the approach recommended in our spotlight report on damp and mould (published on our website). Our spotlight report states landlords must ensure “investigations are thorough” to identify “root causes” of an issue. The landlord not only inspected the windows, and identified a repair to install trickle vents, but also identified other issues which were possibly causing the damp and mould. That it also raised repairs to re–lay the loft insulation, renew the bathroom fan and service the PIV unit is evidence it investigated thoroughly.
19. It is noted the resident did not want it to install trickle vents at the time and wanted the landlord to replace the windows. We note an operative for the landlord told her the windows needed replacing. However, the landlord was entitled to attempt a repair rather than replacement in the first instance if it is reasonably possible that a repair may resolve the problem. If the landlord has attempted repairs, which have not proved successful, it should consider replacement. The landlord was entitled to rely on the opinion of its operatives that identified a possible remedy to the issue with the windows. That the resident did not allow it to progress with the repair can reasonably be concluded to have impacted on the landlord’s ability to resolve the issue.
20. The landlord’s damp and mould inspection of 15 January 2024 identified that the windows were likely contributing to the condensation levels within the property. The notes reflect an “advisory to renew/upgrade the windows”. It is not possible to determine how the landlord communicated these findings to the resident. But, considering the content of her complaint, it is reasonable to conclude the resident was left with the impression the landlord would replace the windows.
21. The landlord raised a repair to renew the bathroom fan in January 2023, and the evidence shows it recorded a “no access” visit on 31 January 2023. That it was unable to get access to complete the repair also impacted on the landlord’s ability to resolve the issue. However, we have seen no evidence it was proactive in rebooking the repair with the resident, which is a shortcoming in its response. Given what was reported, it is reasonable to expect the landlord to have followed up with the resident to try and attend to the repair. The resident was inconvenienced by this.
22. This raised the resident’s expectations, and we have seen no evidence the landlord formally communicated its position that it would not replace the windows until 28 February 2024. It is noted the landlord was entitled to decide whether or not the windows needed replacing. However, the evidence shows its communication about the issue lacked clarity. This inconvenienced the resident and increased the disappointment she experienced.
23. After the resident complained in February 2024, the landlord promptly outlined its position that it would repair but not replace the windows. This went some way to putting right its poor communication about the issue before. That it did not apologise for the confusion caused was inappropriate. It is also noted that the landlord’s position was consistent after this point. We note the resident’s disappointment with its decision. However, the landlord was best placed to decide on whether the windows needed replacing and was entitled to rely on the findings of operatives when reaching the decision
24. There is also no evidence the landlord progressed with any works to the PIV unit in January 2023. It appropriately identified this as a possible remedy. That it did not progress with the matter at that time caused the resident a disappointment of it not doing something it said it would. The resident was inconvenienced by the need to raise concerns again in April 2023.
25. The evidence shows the landlord replaced the fans in the kitchen and bathroom, and “overhauled” the PIV unit in May 2023. That the repair to the bathroom fan and PIV unit were completed 4 months after the landlord first identified them amounts to an unreasonable delay. It is noted a no access visit contributed to the delay, which was somewhat outside of the landlord’s control. As set out above it is reasonable to expect it to have been proactive in rebooking the bathroom fan repair. The delay to the works to the PIV unit was also unreasonable. The resident was evidently distressed at the conditions she described in the property. The unreasonable delays increased the distress and inconvenience she experienced.
26. The landlord used its stage 1 complaint response, of March 2024, to further outline its position on the windows. That it arranged a further inspection to identify any issues was appropriate, considering what the resident continued to report. However, the complaint response failed to assess its handling of the matter up to that point, which lacked transparency and learning. The landlord also failed to acknowledge the disappointment caused by its communication about replacing the windows after its visit in January 2024. This was inappropriate and the resident was inconvenienced by the landlord not showing learning. The landlord missed an opportunity to build trust with the resident.
27. The landlord’s stage 2 complaint response went some way to putting right the above shortcomings of its stage 1 response. It gave a detailed explanation of its position on the windows, and a detailed history of the repairs it had completed in relation to damp and mould. Again, it failed to acknowledge its poor communication about the window replacement in January 2024, which was inappropriate. It also failed to acknowledge or apologise for the delay in replacing the fan and renewing the PIV unit. This was inappropriate, as the landlord did not show learning about delays in completing repairs it had identified. This inconvenienced the resident.
28. Considering the above failings, we have determined there was maladministration in the landlord’s handling of the matter. Our remedies guidance sets out that for findings of maladministration an order of compensation between £100 and £600 may appropriate to put things right for the resident. The guidance states that a finding of maladministration is appropriate when there is a failure which adversely affected the resident, and the landlord failed to acknowledge its failings and/or has made no attempt to put things right. We have determined an order for £200 would put things right for the resident in this case.

Determination

29. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s reports of damp, mould, and the associated repairs.

Orders

30. Within 4 weeks the landlord is ordered to:
    1. Apologise in writing for the failings identified in this report. The apology should be in line with the Ombudsman’s guidance on apologies, available to view on our website.
    2. Pay the resident £200 in recognition of the distress and inconvenience caused by its handling of the issue.