Southwark Council (202405416)

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REPORT

COMPLAINT 202405416

Southwark Council

20 December 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 impact of black mould on the resident’s health.
2. the landlord’s handling of:
  1. reports of leaks, damp and mould at the property.
  2. the complaint.

Background

The resident is a leaseholder of a 2 bedroom first floor flat within a block, where she lives with her son. The landlord is the freeholder.
The resident’s lease with the landlord sets out that it will keep in repair the structure and exterior of the building, including drains, gutters and external pipes.
The landlord’s guide for leaseholders and freeholders outlines how it will respond to leaks from above. It says:
1. its ‘leaks from above’ team will respond to leaks coming from another property.
2. after a leak from above is reported, it will arrange for a plumber to visit the resident and the neighbouring property.
3. if the leak is from another leaseholder’s flat, it is that leaseholder’s responsibility to ensure the necessary repair work is completed.
The landlord operates a 2 stage complaints process. It will acknowledge complaints within 5 working days and will respond to stage 1 complaints within 10 working days. It will respond to stage 2 complaints within 20 working days. The landlord has a compensation policy to recognise where there have been delays or distress as a result of poor service. Payments range from £5 to £20 per week or £250 to £1,000 per year depending on the level impact on the resident. It will also pay compensation of between £50 and £250 in recognition of a resident’s time and trouble pursuing their complaint.
The landlord raised a work order on 19 July 2023 following a report of a leak from above affecting the resident’s property. It raised an appointment on 24 July 2023 to inspect and remedy this and noted it had found no plumbing leak from above. On 21 August 2023 the landlord raised a damp and mould inspection at the resident’s property following an enquiry from her local councillor.
The landlord inspected the resident’s property on 1 September 2023. Its subsequent report noted:
1. damp had been identified across the external facing wall of bedroom 1 and this was believed to be caused by the joint between the property’s rendering and the walkway.
2. evidence of a water leak from drainpipes.
3. a drainage issue in the communal walkways on the first and second floor of the block.
4. cracks in the concrete on the bottom side of the walkway, near and above the resident’s property.
5. damp water stains in the second bedroom, caused by a leak from the property above (property A).
The landlord noted it would contact its leaks from above team. Records show it raised work to repair damage to asphalt above the resident’s property on 11 September 2023. It attempted access to property A on 11 and 18 September 2023, noting that it had left a card. On 19 September 2023 it attempted a drain survey. However, it was unable to complete this and recorded it needed a specialist contractor. The landlord told the resident in early October 2023 that it was looking at external issues with the property and had commissioned a CCTV survey of the drains.
During October 2023 the landlord recorded that it had completed work to the walkway above the resident’s property. It also noted that it had attempted access to another property above (property B) several times. Internally it requested assistance gaining access. Later in October 2023 the local councillor for the resident contacted the landlord. They said that she could not sleep in her bedroom due to damp issues and there were issues in her son’s bedroom. At the beginning of November 2023, the landlord told the local councillor that work to the balcony above had been completed. Following this, the resident queried with the landlord why it had not told her directly that the repairs had been completed. She said she was having to run a dehumidifier daily. She raised concerns about a waterproof coating the landlord installed over asphalt several years before. She questioned if this could be contributing to issues she was experiencing.
In early November 2023 the landlord noted it had attended a drainage issue on the walkway above the resident’s property and this work had been completed. Later in November 2023 the landlord wrote to the resident’s local councillor. It said:
1. the CCTV survey was not yet complete, and this had been arranged as a precaution to rule out issues.
2. there had been issues with the waterproof coating over the asphalt cracking, but this would not lead to the condensation/mould growth the resident was experiencing. It said that it understood the resident had said there was no leak.
3. a crack in the balcony above the resident’s property had been repaired but this would not remedy any condensation/mould issues the resident was experiencing.
The resident raised further concerns with the landlord about the waterproof coating on the asphalt. She said she had experienced damp in her property since this had been installed, and disputed that issues were due to condensation. Following this, the landlord told the resident it would raise her concerns at stage 1 of its complaints process. It said it would ask its surveyor to contact her about repair queries.
On 27 December 2023 the resident sent a further complaint to the landlord. She said:
1. issues with the waterproof coating the landlord had applied in 2016 needed to be investigated as she considered this was causing damage to her property.
2. there was an ongoing leak into her son’s bedroom.
3. the landlord had failed to keep her adequately updated about the progress towards resolving issues.
The landlord provided the resident with a stage 1 response to her complaint on 11 January 2024. In this it noted the findings of its inspection of September 2023. It said it had referred the matter to its leaks from above team and had raised a CCTV survey of the drains. It said that a specialist contractor had attended to complete the survey on 8 January 2024 but had been unable to do so as access needed to be cut into the soil and rainwater pipe.
In respect of the leak affecting the second bedroom, the landlord noted that it had previously inspected property A on 24 July 2023 and had not traced the source of the leak. It said that, after the inspection in September 2023, it had attended property B but was unable to gain access. It said its operative had reported on 4 January 2024 that the resident had advised there was no ongoing leak.
The landlord apologised for the delay in the CCTV survey. It said that this work had been quoted for and sent for approval. It said it was sorry for the delay resolving issues and it would continue to monitor work.
The resident escalated her complaint on 28 January 2024. She said the landlord’s response had failed to address issues, that it was inaccurate and that it had provided no action plan or timescales for resolving the ongoing problems she was experiencing with damp and mould. Amongst other things she said:
1. it had not addressed her concerns about the potential impact of the waterproof coating on walkways.
2. she had not said the leak was resolved. She said that a plumber attended unannounced in earlier in January 2024 but left when she said the leak was in her bedroom rather than her bathroom.
The landlord provided its stage 2 complaint response on 11 March 2024. It said that once the CCTV survey had been approved, it would contact the resident to arrange an appointment. It set out attempts it had made to gain access to property A, which it said had been unsuccessful. However, it said the resident had reported there was no further leak from above and no plumber was required. It said, given these findings, it believed there was no longer a leak into the property.
In responding to the landlord on 25 March 2024, the resident raised concerns that it had failed to respond to her concerns or her request for compensation. She said again that she had not reported the leak was resolved. Following this, the landlord arranged to attend the resident’s property again. It attended on 26 April 2024. Subsequently, the landlord raised further work to repair a leaking downpipe outside the resident’s property. It identified asphalt skirting above the property was also defective.
The landlord said it had also managed to meet the resident’s neighbour, who had reported experiencing water ingress issues from a third property above (property C). The landlord said:
1. after an inspection of property C, it considered it was “highly probable” that water ingress issues within the resident’s property were related to this.
2. it would take repair work forward.
3. it would highlight the resident’s concerns about the waterproof coating on walkways and provide a response.
The landlord’s repair records note that repair work was completed to asphalt skirting on 10 June 2024. After booking to complete remedial work to the property above on 2 July 2024 the landlord noted this appointment did not go ahead due to access issues. Later it noted that it had booked to complete this work in September 2024. It is unclear whether the leak from the property above was ongoing or affected the resident’s property during the whole period. However, the resident reported experiencing issues with damp and water ingress throughout.

Assessment and findings

Jurisdiction

The impact of black mould on the resident’s health

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to the Service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
The resident said that black mould at the property has had a negative impact on her health. We are sorry to learn of this, and the resident’s comments are not disputed. However, paragraph 42.f of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
While the resident’s concerns are acknowledged, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health. This is a matter which is most appropriately decided by a court following a claim for damages. It could also be considered by way of a personal injury claim through the landlord’s insurer, and it would be appropriate for the landlord to provide the resident with details of how she can make such as claim.
It follows that the resident’s complaint about this matter is not within the Ombudsman’s jurisdiction to consider in line with paragraph 42.f of the Scheme. However, this investigation has considered the landlord’s response to the resident’s concerns about the impact on her health and well-being when considering her complaint. We have also considered any distress and inconvenience which the resident experienced as a result of any failings by the landlord.

Handling of reports of leaks, damp and mould at the property

As noted earlier in the report, the resident’s lease with the landlord sets out its obligation to keep in repair the structure and exterior of the building. In addition to this, its guide for leaseholders sets out how it will act on reports of leaks from above. We have assessed the landlord’s actions in line with its obligations under the lease, including its ‘leaks from above’ process.
The resident reported a leak from above affecting a bedroom at her property on 19 July 2023. The landlord’s actions in inspecting the property above on 24 July 2023 were reasonable. However, it is apparent that the issues the resident experienced continued. The landlord took appropriate steps by arranging to further inspect issues following contact from her local councillor. The subsequent condensation assessment found a number of potential repair issues that could be contributing to the damp and mould problems the resident had reported.
The landlord took appropriate action during September 2023 by making repair referrals in respect of the leak from above, the cracks in the walkway and the drain survey. But it failed to communicate adequately with the resident about the steps it was taking. Her concerns and frustration about this are evident from the email she sent it in mid-October 2023. She said then that the situation continued to be stressful and disruptive and raised concerns about having to sleep in a damp room. Providing a clear plan about the actions it was going to take to investigate the matter would reasonably have reassured the resident that it was taking appropriate action to resolve the issues. While the landlord told her in early November 2023 that work had been completed to the walkway above, it did not update her about what was happening about the drain survey, or about steps it was taking to identify any leak from above. That it did not do so amounted to a communication failure.

Leak from above

The inspection of September 2023 identified a possible leak from above affecting bedroom 2 in the property. Records we have seen show that the landlord attempted access to 2 flats (properties A and B) in September and October 2023. But it noted it was unsuccessful. Evidence shows it then took escalating action to attempt to gain access. But it did not do so until December 2023 and January 2024. That it did not take earlier action to escalate attempts was a failing given its knowledge of how the leak issues were affecting the resident’s property.
By the time of its stage 1 complaint response in January 2024 the landlord noted the resident said there was no leak. Its conclusion that the leak had been resolved was a misunderstanding, which appeared to be largely due to its poor communication. The resident told the landlord on 8 January 2024 that its plumber had attended unannounced about a leak in her bathroom. Repair records we have seen indicate the landlord attended that day to inspect a property above. The resident said that when the plumber attended, she was in the middle of an online meeting, and we acknowledge she would not have been well placed to discuss issues at length at that time. Nonetheless, the landlord should reasonably have communicated findings of any inspection in a way that avoided confusion. It could have done so either by providing the resident with some notice of its attendance on 8 January 2024 or by following up by sending details of its findings by email or post. That it did neither was a failing. It also made no records about what it had found during its inspection of the property above. Instead, it recorded only that it had attended and the resident had said there was no leak from above. That was a shortcoming in record keeping which means it is unclear whether it even inspected the property above at that time.
The confusion around the issue should have been apparent to the landlord from the resident’s correspondence of 8 January 2024. But instead of clarifying whether or not a leak remained, it took no further steps to investigate any leaks from above. It did not begin to do so again until the end of April 2024, after the resident repeatedly raised concerns about the inaccuracy of its stage 1 and 2 complaint responses. That was a failing. The resident should not have needed to spend so much time and effort before the landlord resumed its investigations of the leak from above. It is acknowledged that the source of any leak may not have been immediately apparent. It is often the case that landlords identify the cause of leak issues through a process of elimination. But it is clear the landlord delayed its investigation of this by erroneously noting the leak had been resolved.
The landlord inspected property C on 9 May 2024, but it is unclear whether it did anything to inspect properties A and B at this time. The landlord considered a leak may coming from property C. But it had earlier identified a leak could be coming from property A or B. Given this, it should reasonably have continued to explore and eliminate these properties as the source of any leak. That was particularly as the resident was experiencing issues in more than 1 location within her property. Given this, the landlord should reasonably have continued to explore and resolve the source of these. By not doing so until the end of August and beginning of September 2024, the landlord unnecessarily delayed fully investigating the leak from above. That was a failing.

External repairs

The landlord took appropriate and timely steps to arrange a drain survey. The progress of this work was delayed as the landlord subsequently identified it needed a specialist contractor. That was an unavoidable delay, and the landlord took reasonable steps to update the resident about this work in October and November 2023. The specialist contractor contacted the resident in December 2023 to arrange a time to complete the CCTV survey in January 2024. It was unfortunate this work was further delayed as the contractor identified it needed to cut in access to the soil and drainpipes. However, this could not reasonably have been anticipated by the landlord. The CCTV survey was completed at the end of February 2024, identifying that the drainage required cleaning. Records show this work was completed on 13 March 2024. Overall, the action the landlord took to progress the drain survey was reasonable.
Records show that some work to address issue with the walkway was completed on 2 October 2023. But the landlord failed to maintain sufficient oversight of work that remained outstanding. It noted in early November 2023 that the only work remaining was the CCTV drain survey. But that was not the case. Other work to skirting in the walkway was not completed until January 2024. While the contractor noted at this time that weather conditions had delayed work, there was more the landlord could reasonably have done to keep the resident updated about the work. When she was informed work was to be completed in January 2024, she was unclear about what the work was and there is no evidence she had even been made aware it was outstanding. Had the landlord set out from the outset a clear plan of work to address issues identified, this could have been avoided.
The inspection of September 2023 had also identified evidence of a leak from drainpipes, and it is unclear from records what work was completed to address this. The landlord should have taken steps to resolve or investigate all issues identified in September 2023. But it is apparent an ongoing leak from the drainpipe was identified by the external contractor in January 2024. The resident’s local councillor outlined on 10 January 2024 that this issue needed to be resolved. But despite this, the landlord did not set out in either of its subsequent complaint responses any work it would complete in respect of this. Records show that a pipe outside the resident’s property was still found to be leaking in April 2024. This repair was completed in May 2024. Given that the landlord’s records do not demonstrate it took any steps to remedy the leak identified in September 2023, this is a failing. This work was unreasonably delayed.
Since October 2023 the resident has repeatedly raised concerns to the landlord about a waterproof coating it had previously applied to external walkways. She questioned whether this may be causing or contributing to the damp and mould issues she was experiencing in her property. Yet the landlord is still to respond appropriately to the resident about this. It told her in November 2023 that there had been issues with this waterproof coating “splitting” in places. It said it did not consider this would lead to the “condensation related mould growth” the resident was experiencing. But the resident responded stating that she did not believe the damp in her bedroom was due to condensation. She said there was no mention of condensation in the inspection of September 2023 and asked the landlord to confirm what investigation it had conducted of the cracks in the waterproof coating. The landlord said in November 2023 that it would ask a surveyor to her repair concerns. But there is no evidence it did so. Nor did it address this point in either of its subsequent complaint responses. That was despite the resident and her local councillor continuing to raise questions round this. The landlord should reasonably have done so. As such we have ordered that it investigate and fully respond to the resident’s concerns about the potential impact on damp, mould and leak issues of the waterproof coating previously applied to walkways.
In September 2024 the landlord noted that staff, including a communal repairs technical officer and a plumber, attended the resident’s property on 13 September 2024. It noted it had inspected 2 properties above and had found leak issues which had affected bedroom 1 in the resident’s property had been resolved. It said that it could not find any leak issues affecting bedroom 2. It believed the issues the resident reported in this room to be caused by condensation/ventilation. The landlord also noted it had checked communal balconies, drains and asphalt and found no issues.
We acknowledge that the resident disputes the landlord’s findings on this. She said she continues to experience damp and mould issues within her property. However, it is reasonable for the landlord to rely upon the advice of its experts and the outcome of its inspections. But as noted above, it should also have provided her with a full response to concerns she raised about the possible impact of the waterproof coating. The landlord told us it should also have provided the resident with further advice about steps she could take in respect of ventilation. We agree that this would have been appropriate. It is clear the resident was distressed by ongoing issues she was experiencing with damp and mould. She told the landlord she had not been sleeping in her bedroom as a result of this and that she was concerned about the impact these issues may be having on her health. Her concerns about this are understandable. As noted in the Ombudsman’s spotlight report on damp and mould it is important for landlords to provide meaningful advice that supports residents. While we have found that the landlord has now taken appropriate action to address external repair issues and leaks from above, we have recommended that it contacts the resident to review any ongoing concerns she has about this.
Overall, we have found maladministration in the landlord’s handling of reports of leaks, damp and mould at the property. While it took appropriate steps to inspect the property in September 2023 it delayed in investigating and remedying the leak from above. It also delayed in completing external repairs and failed to keep the resident appropriately updated about the progress of work. We acknowledge the landlord has found some of the issues the resident is experiencing are not as result of leaks from above or from external repair issues. However, we consider that its delay in resolving external repairs and leaks from above impacted on the resident’s use and enjoyment of the property since September 2023.
We have calculated the equivalent social rent for a property of the same size in the same area (based on data from the regulator of Social Housing) to be £118 per week. Taking into account all the circumstances of this case, we have calculated the loss of enjoyment to be 15% from September 2023 to September 2024. As such we have ordered the landlord to pay the resident £938 in respect of this. We acknowledge it is not a precise calculation. But we consider it to be a fair and reasonable amount of compensation taking all the circumstances into account. We have also ordered a separate award to recognise the time, trouble and distress and inconvenience caused to the resident during this time.
The resident told us that she needed to run a dehumidifier during this time due to the issues with damp and leaks. Records we have seen show she told the landlord of this in October 2023. At this time she raised concerns about the costs she was incurring as a result. We acknowledge the landlord has since concluded not all issues with damp and mould were due to leaks from above or external issues. It is therefore unclear to what extent the issues the resident experienced were caused by its failure to complete repairs it was responsible for. Nonetheless, it should reasonably have responded to her when she expressed her concerns about running a dehumidifier. That it did not do so was a failing as it was an opportunity for it to set out its position on this.
The resident has requested that the landlord take steps to address internal repair issues within her property. However, it has previously directed her to make her claim for any internal repairs via the leaseholder building insurance. That is appropriate and in line with the occupancy agreement, and we note the landlord has previously offered her assistance in doing so. That was reasonable. We have recommended it repeat its offer to assist the resident in making such a claim through its building insurance.

Complaint

The landlord delayed in providing the resident a stage 1 response to her initial complaint. It told her in November 2023 that it would log her complaint at stage 1. But it did not provide a response until nearly 2 months later. That was considerably outside its 10-day target set out in its complaints policy. The resident made a further complaint during this time. But it is unclear why the landlord delayed responding to her initial concerns. Its stage 2 complaint response was also delayed by around a week and a half. While this was a relatively short delay, it should still have acknowledged and apologised for it. In line with the Ombudsman’s Complaint Handling Code (the Code), it would also have been appropriate for it to agree any extensions in advance. That the landlord did not do so or acknowledge and apologise for the delays were complaint handling failings. It was contrary to its own policy and the Code.
The landlord’s complaint responses were inadequate. Both concluded that the leak from above had been resolved. But, as noted earlier, it should have been clear from the resident’s correspondence that this was not the case. The landlord also failed to provide any clear plan of action or timeframe for resolving the outstanding issues. It is apparent it had failed to establish what work was outstanding.
The landlord acknowledged to us that its stage 2 response was a “poor review of the complaint and did not fully investigate the issues nor did it provide [the resident] with any substantial answers to her complaint”. We agree with this assessment. The resident was clearly left frustrated that it had failed to provide her with a clear plan of action for resolving her damp and leak concerns. She should not have needed to spend more time and trouble pursuing matters. As noted above, the landlord also failed to respond to her concerns about the waterproof coating, despite the resident clearly raising her concerns in her complaint. As per the Code, the landlord should reasonably have ensured that it had responded to all complaint points. The resident queried the landlord’s response to her request for compensation. As noted earlier, any claim for the impact of issues on the resident’s health would be more appropriately addressed through the court or by way of a personal injury claim. But the landlord should reasonably have provided her with details of how she could make such a claim through its insurer. That it did not do so was a failing. In addition, it should reasonably have considered an award of compensation to the resident, in line with its compensation policy. That it did not do so was a further failing.
We have found maladministration in the landlord’s handling of the resident’s complaint. Its failings caused the resident frustration and meant she had to spend more time and trouble before it took appropriate action to resolve issues. Its failings meant it missed the opportunity to take timely action to address and resolve the resident’s concerns. With reference to the Ombudsman’s remedies guidance, we have ordered an award aimed at recognising the impact of these failings.

Determination

In accordance with paragraph 42.f of the Housing Ombudsman Scheme, the complaint about the impact of black mould on the resident’s health is outside the Ombudsman’s jurisdiction to consider.
In accordance with a paragraph 52 of the Housing Ombudsman Scheme, there was:
1. maladministration in the landlord’s handling of reports of leaks, damp and mould at the property.
2. maladministration in the landlord’s handling of the complaint.

Orders and recommendations

Orders

Within 4 weeks of the date of this report the landlord should:
1. apologise to the resident in line with the Service’s remedies guidance.
2. pay the resident compensation of £1,538, made up of:
  1. £938 for the loss of enjoyment of her property between September 2023 and September 2024.
  2. £350 for the distress and inconvenience as a result of failings in its handling of reports of leaks, damp and mould at the property. This includes an amount to recognise its failure to respond to the resident’s concerns about the cost of using a dehumidifier.
  3. £250 for the impact of failings in its handling of the complaint.
3. contact the resident to provide her with information and guidance about addressing condensation/ventilation issues within the property.
4. provide the resident with details of how she can make a personal injury claim through its insurer, should she wish to do so.
Within 6 weeks of the date of this report the landlord should:
1. provide the resident with a full response to the concerns she raised about the potential impact of the waterproof coating previously applied to external walkways.
2. review complaint handling failings identified in this report and take steps to ensure training and guidance is in place to prevent these from being repeated.

Recommendations

Within 4 weeks of the date of this report the landlord should:
1. contact the resident to review any ongoing concerns she has about leaks from above/external repair issues.
2. repeat its offer to assist the resident in making a claim via the building insurance for internal repairs.
3. provide the resident with details of its insurer should she wish to submit a claim for any damaged possessions.