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Southwark Council (202221985)

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REPORT

COMPLAINT 202221985

Southwark Council

30 April 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. This complaint is about the landlord’s:
    1. Response to the resident’s complaint about damp and mould in her home, and the amount of compensation it offered.
    2. Decision regarding renewing the resident’s bathroom.
    3. Complaint handling.

Jurisdiction

  1. What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.

Decision regarding renewing the resident’s bathroom

  1. Part of the resident’s complaint to the Ombudsman is that the landlord changed its mind in regard to renewing her bathroom. This issue was raised by the resident in her escalated complaint to the landlord in October 2022. In its final complaint response the landlord explained that it would deal with her complaint about this issue as part of a separate complaint.
  2. The Ombudsman’s complaint handling code (the Code) explains that when additional complaint issues are raised with the landlord after it has issued its first complaint response, the landlord should log the issue as a new complaint. The bathroom issue was raised after the landlord had issued its first complaint response, and so its decision to raise a separate complaint was in line with the Code. The landlord subsequently addressed the issue in a separate complaint response in May 2023.
  3. Paragraph 42(a) of the Scheme states that the Ombudsman may not consider a complaint which is made prior to having exhausted a landlord’s complaints procedure. As this issue was not considered by the landlord as part of the complaint being investigated in this report, and it is not apparent if it has currently exhausted the landlord’s complaints process, it cannot be considered here. If the resident has now had a final complaint response in regard to this issue and remains dissatisfied, it is open to her to ask the Ombudsman to investigate it.

Background and summary of events

  1. The resident is a tenant of the landlord. She started her tenancy in 2017.
  2. The resident has explained that she started reporting damp problems in her home soon after moving in. The landlord has prepared a timeline of events showing its earliest remedial actions started in October 2018. The resident explained in her own account of events that a range of repair work was done by the landlord to the brickwork, gutters and drains, but that a neighbour built a raised planter in their garden and damp problems resulted from that. The landlord’s timeline confirms that it identified the planter as a potential cause in 2019 because it was located flush against a wall, allowing a route for damp to enter the resident’s home.
  3. The timeline shows that various works were done on the property to address damp over the subsequent years, but a note in March 2022 states the landlord’s operatives were unsure what to do about the planter.
  4. The resident raised a complaint with the landlord in September 2022 about the ongoing damp in her home. The landlord sent its response in October. It acknowledged that remedial work for the damp issues had been hampered by the presence of the planter, and said it had contacted the neighbour to arrange for the issue to be resolved. It hoped that would then allow the walls to dry and remedial work could be completed.
  5. The resident remained dissatisfied and asked to escalate her complaint in October 2022. Not having received a further response from the landlord she approached this Service. We passed her concerns to the landlord and asked it to give her a final complaint response. In her escalation the resident explained in detail the issues she had faced with damp in the property since she moved in. She sought significant compensation from the landlord for its delays resolving the issue, and a commitment to identify the causes and resolve them. Some of the issues raised in the resident’s escalation were new, such as her request for the landlord to renew her bathroom.
  6. The landlord undertook a damp survey of the resident’s home in February 2023. It identified several issues which could be contributing to the damp problem.
  7. The landlord sent its final complaint response in April 2023. It provided a detailed consideration of how it had handled the damp issues going back several years. It acknowledged it had missed opportunities to take more robust action since at least 2020, becoming fixated on the planter as the cause of the damp at the expense of considering additional sources. It apologised, and offered the resident compensation of £3340 for its poor handling of the damp issue, plus £250 for the inconvenience caused to the resident having to chase the landlord to act, and £50 for its delayed final complaint response (£3640 in total). It explained that the other issues raised by the resident would be considered separately as a new complaint.
  8. The resident remained dissatisfied with some aspects of the landlord’s response and brought her complaint to the Ombudsman. She disputed the level of compensation it had offered, and complained it had not provided repair information about the damp she had asked for. She also complained about the landlord’s bathroom renewal decision. Accordingly, these are the issues considered in this report.

Assessment and findings

Investigation scope

  1. The resident has described her complaint about the landlord’s handling of the damp problems in her home as going back to the start of her tenancy in 2017. Her dispute about the level of compensation it offered is partly based on the period of time it used to base its calculation on, which she said should have included an earlier period.
  2. The Scheme sets out that there are time limits for complaints which the Ombudsman may investigate. Specifically, the Ombudsman may not investigate a complaint which was not raised with the landlord as a formal complaint within a reasonable period, which would normally be within 6 months of the matters arising. In this case, the resident formally complained to the landlord in 2022 about its handling of damp since the start of her tenancy in 2017. The grounds for her dispute of the compensation it offered is based on her view it should provide compensation from 2017. In line with the Scheme, this investigation will not consider the landlord’s handling over that whole period. Rather, it centres on the overall reasonableness of the landlord’s response to the resident’s complaint, especially in regard to the compensation it offered.
  3. The resident has also told this Service that she disputes some of the observations in the landlord’s damp survey done in February 2023, a copy of which she obtained after the end of the landlord’s complaints process. Such concerns need to be raised with directly with the landlord as part of its efforts to resolve the problem. If she remains dissatisfied about the information in the survey, the resident may want to consider approaching the Information Commissioner’s Office (ICO) for advice. The ICO is the organisation responsible for addressing concerns about data accuracy in the information held by organisations like landlords. ICO contact details can be found online at their website. This issue will not be considered in this report.

Response to the resident’s complaint about damp and mould in her home, and the amount of compensation it offered

  1. The landlord’s compensation policy states that it will provide compensation where its actions or inaction have caused distress to a tenant or their family. The amount is based on circumstances such as the severity of the failing, and the length of time. The policy sets out compensation of up to £20 per week for the worst cases with a major impact. It also suggests a separate compensation scale for time and trouble incurred by a tenant, ranging from £50 to £250.
  2. In its response to the resident’s complaint the landlord considered its handling  the damp issue since at least 2018. It fully acknowledged it was responsible for significant delays and that its handling had not been as robust and thorough as it should have been. It provided details of its actions from October 2018. That date is supported by the landlord’s repair records, which show it as the first time damp problems are noted, although a range of other repair issues are listed dating to the start of the tenancy. The resident explained that she started reporting damp problems earlier than October, but those reports do not appear in the repair logs.
  3. The landlord explained that, based on its records, it believed it should have identified in January 2020 there was a need for deeper investigations of the resident’s damp reports. It did not specifically say so, but it appears to have used that month as the basis for its compensation calculation, because the final amount if offered broadly equates to approximately £20 per week from January 2020 to the month of its final complaint response. If so, that was the highest rate of compensation available to it in line with its compensation policy. It was also in line with the Ombudsman’s remedies guidance for complaints which have involved serious delay and inconvenience to a tenant, but where there is no permanent impact.
  4. Likewise, the additional £250 the landlord offered for the resident’s time and trouble was at the maximum limit of its policy, and showed that the landlord recognised the impact from her needing to chase up repairs and her complaint.
  5. It was reasonable for the landlord to use January 2020 as the start point for its calculations, because that was where it determined its service had become poor. It was also appropriate for it to use the highest level of compensation, given its acknowledgement of the lengthy period of time its poor service had continued, and the frustration caused to the resident. It was reasonable for it to use an end point, rather than when the damp is finally resolved, because it has no knowledge of when that might be. It would not be reasonable for a landlord to say in its final complaint response that its compensation was dependent on an undefined future date. As such, if the resident has cause to complain about the landlord’s efforts to resolve the damp problem following its final 2023 complaint response, she is entitled to raise a new complaint with it, and ask for compensation.
  6. In her complaint the resident explained she wanted the landlord to confirm the source of the damp problem, and complained to the Ombudsman that it had not done so in its response. However, while a complaint about a landlord’s failure to resolve an issue is entirely valid and appropriate, actual resolution of the underlying problem is not always achievable within the limited time the landlord has to respond to the complaint. Nothing in the evidence indicates the landlord knew clearly what the cause of the problem was at the time, and the survey in February 2023 shows several possibilities. In its complaint response the landlord recognised its failings identifying the cause and resolving the problem. It then committed to further work to resolve it. That was the appropriate response in the circumstances, because it acknowledged the situation and committed to rectifying the previous mistakes.
  7. The resident asked the landlord for repair details to her home prior to her tenancy. She said in her complaint to the Ombudsman this request was because she had reason to believe the previous tenants had also had damp problems. The landlord explained it could not comment on previous tenant’s repair records due to data protection issues. The resident was entitled to ask for such information, but nothing has been seen which obligated the landlord to provide it, particularly as it related to different tenants. Its response was therefore reasonable.
  8. In her complaint the resident asked the landlord to refund a percentage of her rent for the period of her tenancy until the damp problem was resolved. It explained in response how it used its own compensation policy to consider the appropriate level of compensation. There are some situations where a partial rent rebate may be appropriate, especially cases of damp problems and when parts of the property are undisputedly and literally unusable. In this case, the landlord’s compensation policy appropriately provides for the scale and nature of the landlord’s service failings. It was therefore reasonable for the landlord to rely on it.

Complaint handling

  1. The landlord acknowledged in its final complaint response that it received the resident’s escalation request at the end of November 2022. It did not send its response until late April 2023, after intervention by this Service. That was clearly well outside the 25 day response timescale set out in its complaints policy at the time (it has since updated its timescales in line with the Code). During that period this Service issued the landlord with a Complaint Handling Failure Order (CHFO) for its delays.
  2. In its final complaint response the landlord acknowledged the delay, apologised, and offered £50 compensation. It did not explain why the delay occurred, or what it intended to do to avoid repeats of its poor service, both of which were relevant remedies it should have offered, in line with the Code. The compensation it offered was also not proportionate to the scale of the delay, which had impacted on the resident’s opportunity to escalate her complaint to the Ombudsman. Accordingly, while the landlord’s complaint response thoroughly addressed the primary issues, it did not reasonably remedy its poor complaint handling.

Determination (decision)

  1. In line with paragraph 53(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about its response to the resident’s complaint about damp and mould in her home, and the amount of compensation it offered.
  2. In line with paragraph 52 of the Scheme, there was service failure in the landlord’s complaint handling.

Reasons

  1. The landlord appropriately acknowledged and apologised for the significant delays and potential missed opportunities to resolve the resident’s long running damp issues. The compensation it offered was the highest it could in line with its policy, and was proportionate to the scale and nature of its mistakes.
  2. There was a significant delay by the landlord responding to the resident’s escalated complaint. The remedies it offered were not of the level needed to be reasonably considered to have resolved its poor complaint handling.

Orders

  1. In light of the landlord’s poor handling of the resident’s escalated complaint it is ordered to pay her compensation of £150. This is inclusive of the amount already offered in its final complaint response.

Recommendations

  1. A recent investigation of a complaint brought by a different resident of the landlord (case number 202210574) also identified delays in its complaint handling. A wider order was made in that case for the landlord to review how to improve its services in this regard, which removes the need to make a specific order or recommendation in this case.