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Stevenage Borough Council (202210496)

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REPORT

COMPLAINT 202210496

Stevenage Borough Council

22 February 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 a leak which caused damp and mould in her property.
  2. The Ombudsman has also considered the associated complaint handling.

Background

  1. The resident was a leaseholder of the property, which is a ground floor flat.
  2. The resident contacted the landlord in July 2021 and reported damp in her home, which was believed to be caused by a leak from the upstairs flat. Plumbers attended the flat in October 2021 and no leaks were identified.
  3. On 27 July 2022 the resident complained that the leak had not been resolved. She said that at least 30 operatives had attended her property but had been unable to find the source of the leak. The resident stated that her health was suffering, and the issue was causing her distress and anxiety. She requested a full investigation into the cause of the damp.
  4. The stage 1 response was issued on 2 September 2022. The landlord upheld the complaint in part due to the number of staff members that had been nominated as the resident’s point of contact at various times. It stated that establishing the cause of damp could be a lengthy process, but at times, this was made more difficult due to reports about the resident’s behaviour towards staff members and contractors. The landlord said that it had arranged a CCTV survey of the drains which found no faults. However, it said that the resident’s patio had a stone border against the external wall which was bridging the damp proof course by a few inches, which could cause damp inside the property. The landlord said it was not clear whether this was the reason for the damp, and that it would progress with a structural survey.
  5. The resident escalated her complaint on 15 December 2022 and the stage 2 response was issued on 6 January 2023. The landlord again upheld the complaint in part because there had been confusion regarding repairs that had been carried out that were unconnected to the damp and mould issue. The landlord said that it was proving difficult to diagnose the source of the damp in the resident’s home and that in order to conclude this, it had approached a firm of RICS surveyors to request an independent investigation.
  6. The resident contacted the Ombudsman in February 2023 and said that the landlord had appointed an external company to do the survey and that it would not allow her to be there, but a representative for the landlord would be attending. In a further email, the resident said that the landlord had cancelled the surveyor’s appointment and had threatened to charge her for the cancellation fees. The resident stated that she had never refused entry to her property and that she had only raised concerns about the impartiality of the landlord’s representative. She said that a third party should attend instead.
  7. In September 2023 the resident emailed the Ombudsman stating that the landlord had submitted an extra service charge invoice amounting to over £1500 for the whole block for investigation into the damp. In November 2023 the resident informed the Ombudsman that the landlord had sent her a bill for £2000 for the repair and investigations of the leak.
  8. On 29 January 2024 the landlord contacted the resident and stated that it had conducted a further review of the complaint and offered £315 compensation. This was made up as follows:
    1. £50 for the length of time it took to formally respond to the stage 1 complaint.
    2. £15 for the missed appointment by the contractor on 8 July 2022.
    3. £100 for time and trouble the resident spent progressing her concerns.
    4. £75 for poor communication and lack of empathy shown.
    5. £75 due to the impact on health conditions.
  9. The resident responded and described the impact that the matter had on her. In response, the landlord said it would offer an additional £500 compensation for the impact caused by having to raise a complaint. The landlord also stated it would waive the charges for the cancelled surveyor’s appointment.

 

Assessment and findings

Scope

  1. The resident reported that her physical health had deteriorated and that this may have been affected by the damp and mould in her property. The resident also stated that her mental health had been affected due to the landlord’s handling of the reported issue. The Ombudsman does not doubt the resident’s comments about her health; however, we are unable to determine whether this was directly affected by the landlord’s action or inaction. It is however the role of this Service to assess how the landlord responded to the reports made by the resident regarding how this was affecting her health and wellbeing, and whether its response was reasonable and proportionate in all circumstances of the case and in line with its own policies and procedures.

Handling of reported leak

  1. The resident’s lease states that the landlord is responsible for repairs to the structure of the building, and the resident is responsible for repairs inside her property, including fixtures and fittings.
  2. In July 2021 the resident reported that there appeared to be a leak coming from the upstairs flat which was causing damp and mould in her property. In the stage 1 response, the landlord stated that it engaged with the upstairs leaseholder between July and October 2021. The evidence therefore suggests that there were initial delays in the leaseholder arranging for a plumber to attend.
  3. The leaseholder reported that plumbers had attended their property and had not been able to identify any leaks. Following this, the landlord arranged for contractors to attend both properties on 29 October 2021, but no leak was found. The landlord took an appropriate step in arranging this inspection, and appeared to do so in a timely manner after the leaseholder informed it of the plumbers’ findings. However, the landlord has not provided the Ombudsman with any records to reflect the contractor’s inspection.
  4. There is no indication that the landlord considered making any further enquiries to try to establish the cause of the damp in the months following the October 2021 inspections. Given that the landlord was responsible for the structure of the building, it would have been reasonable to undertake further investigations at this stage.
  5. The landlord confirmed that it has no record of any further communication with the resident until March 2022. Call notes reflect that the resident contacted the landlord on 10 March 2022 and provided a report which advised there was a potential leak from the property above.
  6. There is no evidence that the landlord took any further action until it carried out a survey of the property on 3 May 2022. This found that there were no obvious faults with the structure of the building and that internal leaks were the probable cause of the damp. On 11 May 2022, the landlord’s damp and mould surveyors assessed the exterior of the property and found that there was no fault with the structure of the building which would cause damp inside. It is noted that, in her response to the stage 1 complaint outcome, the resident said that no thorough investigation was undertaken in May 2022.
  7. The landlord took appropriate steps in arranging for its damp and mould surveyors to attend. However, the Ombudsman is unable to comment on the thoroughness of their investigation. While appropriate action appears to have been taken, it is noted that several months had elapsed since the October 2021 visits, and the landlord ought to have considered undertaking these surveys at an earlier date.
  8. The evidence indicates that a further damp and mould inspection was due to take place in the resident’s property in May 2022. The resident was asked to remove plinths in the kitchen so that checks could be carried out underneath the units. The damp and mould manager reported that he had a discussion with the resident during which she refused to remove the plinths, and the inspection therefore did not go ahead. The resident refutes that she refused to comply, but states that she informed the damp and mould manager that she did not know how to remove the plinths. The resident raised that she had always previously provided access to her property so that inspections could take place.
  9. When there are two different and conflicting accounts of an event, and no evidence either way, often it is not possible for the Ombudsman to decide exactly what happened. In this case, given the conflicting accounts of whether or not the resident refused to remove the plinths, it is not possible for the Ombudsman to determine what happened. As such, a conclusion cannot be reached about whether it was reasonable for the landlord to have cancelled this inspection.
  10. The landlord arranged for an independent contractor to carry out a survey at the resident’s property on 8 July 2022. Given that the landlord’s own surveyors had been unable to identify the cause of the damp, it was appropriate to appoint an independent contractor. However, the appointment did not go ahead. The landlord said that the contractor reported that the resident was not at home when they attended. The resident disputed this and stated that she was in her property all day and that she had called the landlord to find out where the operative was. The resident stated she received a call from her housing officer at around 3pm advising that the operative would still be attending. However, the operative did not attend. There is no indication that the landlord asked the housing officer for her recollection of events. This would have been a reasonable investigative step.
  11. Again, it is not possible for the Ombudsman to reach a determination on whether the contractor attended the property on this date or whether the resident was at home. However, within the landlord’s offer of compensation on 29 January 2024, it included £15 for a missed appointment on 8 July 2022. The landlord said that this was offered because it could see no evidence to contradict the resident’s account that the contractor had not attended. The amount offered was in line with the landlord’s compensation policy for missed appointments. While this ought to have been offered within its complaints process, the landlord has now taken steps to put things right. 
  12. The appointment was re-scheduled for 15 July 2022. Within the stage 1 response, the landlord stated that it received reports that the resident was rude to the operative and did not allow them to conduct a full investigation. The resident disputed this version of events and said that the operative attended without proper equipment and only stayed at the property for a brief period. The resident stated that the operative left after she questioned him about why he had failed to attend the appointment scheduled for 8 July 2022. The landlord has not provided the Ombudsman with any contemporaneous emails or notes from the operative relating to this visit. However, as stated previously, when there are two versions of events and no clear evidence to support either, it is not possible for the Ombudsman to reach a determination on what happened.
  13. The landlord stated that following the 15 July 2022 appointment, it advised the resident to undertake her own investigation into the cause of the damp. In the absence of any clear evidence as to what happened during the July 2022 appointment, it is difficult for the Ombudsman to reach a determination on the reasonableness of the landlord’s refusal to take any further action at that stage.
  14. The resident arranged a survey of her property which took place on 12 August 2022. The report found that there was a low probability of plumbing leaks, but that moisture readings indicated that there may have been moisture trapped within the structure of the building, possibly caused by construction defects. The report recommended that consideration should be given to instructing a RICS or PCA surveyor. A drainage inspection was also recommended.
  15. The landlord acted appropriately by arranging a CCTV survey of the drains. This took place on 1 September 2022, which was within a reasonable timeframe from when the resident provided the landlord with the leak detection report. Within the stage 1 response, the landlord advised that this survey found no faults with the drains. It stated that it would proceed with a structural survey of the building to identify whether there were any construction defects.
  16. Following the stage 1 response, the landlord informed the resident that a surveyor within its structural team was capable of establishing whether there were any construction defects, and that it would therefore not be instructing a RICS survey. It is unclear whether the landlord had previously considered engaging its own structural surveyor to inspect the building. It is noted that the landlord’s damp and mould specialist surveyors had attended in May 2022 and found no defects to the building.
  17. The surveyor undertook a visit to the resident’s property on 5 October 2022. The notes of his visit state that the internal wall between the kitchen was likely to have been affected by damp penetration historically. He also identified salts present on the wall surface and recommended that a salt analysis was undertaken.
  18. The Ombudsman acknowledges the resident’s dissatisfaction that an external company was not appointed to conduct the structural survey. While it may have been prudent to appoint an external surveyor at this stage, the landlord did not act unreasonably by engaging its own appropriately qualified surveyor in the first instance, as he may have been able to identify any defects.
  19. It is noted that the landlord’s surveyor found that the results of the leak detection report arranged by the resident were inconclusive. The Ombudsman is unable to comment on the merit of the findings of any inspection reports that were arranged by either the resident or the landlord. However, it is acknowledged that the landlord’s surveyor’s assessment is likely to have been particularly frustrating for the resident given that it had instructed her to undertake an investigation at her own cost, which the resident reported was £700.
  20. The landlord appointed a PCA accredited company to conduct a survey of the damp, which took place on 5 October 2022. This action was in accordance with the recommendation made within the leak detection report. The survey found that there were high moisture readings to the internal wall between the kitchen and the bathroom and concluded that this was likely to have been caused from the flat above. It was recommended that a plumber attend to inspect the above flat.
  21. Further to this, on 25 October 2022 the landlord’s damp and mould manager visited the upstairs flat and reported that he had found a leak in the incoming mains water pipe, which could have been the cause of the damp. The upstairs leaseholder arranged for a plumber to attend on 4 November 2022, who identified no leaks.
  22. Given that the independent damp survey suggested that the leak was coming from the upstairs flat, the landlord acted reasonably in arranging a further visit to the property. However, there were conflicting findings regarding whether there was a leak. Given that the possibility of a leak from the upstairs flat had been discounted almost a year previously, this finding was likely to have caused significant frustration to the resident. It is noted that within the resident’s emails to the landlord, she expressed dissatisfaction that it was no closer to identifying the source of the problem which had been ongoing for over a year.
  23. The resident raised concerns that the landlord had taken various actions that were unrelated to the damp issue. She said that the landlord had sent roofers to the property despite the resident’s flat being on the ground floor, and that it repaired the skylight in her neighbour’s flat which was identified because of one of these visits. The landlord also identified and repaired cracking to an external wall which was not connected to the damp in the kitchen or bathroom. The Ombudsman cannot criticise the landlord for conducting repairs identified as a result of inspections that did not identify the cause of the damp. However, it is clear that various visits occurred that did not identify the cause of the damp issue, and that the resident was not always informed of these visits in advance.
  24. It is also noted the landlord suggested that the damp may be caused due to the stone border on the resident’s patio bridging the damp proof course. The resident said that the patio had been the same for the 16 years she had lived in the property, and she had not previously had an issue with damp. While it was reasonable for the landlord to explore possible causes of the damp, it is recognised that distress was caused to the resident as the damp and mould problem remained ongoing and there was a lack of clarity about what could have caused this.
  25. In November 2022 the landlord arranged for an independent survey to inspect the potential cause of the damp. In the stage 2 response, the landlord informed the resident that it had approached a firm of RICS surveyors to request an independent investigation. Within an email to the resident on 24 January 2023, the landlord advised that it received a proposal from a company of RICS surveyors. However, on 31 January 2023, the landlord told the resident that the surveyor was not RICS accredited. It said that the company had been recommended by a contractor already known to the landlord. The landlord should have ensured accurate information was provided to the resident from the outset about whether the surveyor was RICS accredited. Further, while the landlord considered that the surveyor did have the correct skills and experience (and we have no reason to believe that this was incorrect), it is likely to have been more reassuring to the resident had a RICS accredited surveyor been used.
  26. Within correspondence to the landlord on 16 January 2023 and 27 January 2023, the surveyor stated that the visit would be fairly intrusive to the resident’s privacy and requested that the flat should be unoccupied for the survey to be conducted. The resident raised concerns about being asked to vacate her home, and the landlord stated that this was so that the surveyor could be impartial when reaching findings.
  27. The survey was scheduled to take place on 9 February 2023, and the landlord booked a hotel for the resident on this date. A member of the landlord’s staff informed the resident that she would attend the property with the surveyor. However, the resident raised that the staff member was not impartial, as the landlord was the client of the surveyor. The resident was concerned that the surveyor would be biased and find in the landlord’s favour, resulting in the resident being billed for the survey.
  28. The emails show that the surveyor contacted the landlord and raised concerns about being in the property alone, without a staff member accompanying him. The surveyor’s concerns were passed to the resident on 6 February 2023, and the landlord said that the survey would not go ahead if either the staff member or another impartial individual could not be in attendance for the whole day.                              The staff member said that various emails went back and forth with the resident, but she did not provide agreement for the survey to go ahead.
  29. On 8 February 2023 the landlord wrote to the resident and stated that the survey had been cancelled. It said that the surveyor was not prepared to carry out a survey as the resident did not believe this would be done impartially. The landlord said that if any costs were incurred in relation to cancelling the surveyor and the hotel, the resident would be recharged these costs along with an administration charge.
  30. It is understandable that the resident raised concerns about not being present at the property during the survey, particularly given that she would have been best placed to explain the damp and mould issue. However, given that this request was made by the independent surveyor and not the landlord, the Ombudsman cannot consider whether this request was reasonable. It is also clear that the surveyor requested that someone attend the property with him while the survey took place. The landlord acted appropriately in relaying the surveyor’s message to the resident, however, it is noted that this was at short notice prior to the date the survey was due to take place.
  31. As the independent survey was not carried out, the resident’s expectations were not met in terms of the action the landlord stated it would carry out in its stage 2 response. It is noted that the resident later reported that she was unwell and would have needed to cancel the 9 February 2022 appointment.
  32. The resident was entitled to raise any concerns about the survey. The emails indicate that, although she had raised dissatisfaction with the landlord’s staff member being in attendance, she had previously agreed to this, albeit reluctantly. Given the resident’s concerns regarding the surveyor’s requests, it may have been reasonable for the landlord to have organised a survey with an alternative company.
  33. The email sent to the resident is likely to have caused significant distress regarding the potential costs of the cancelled survey. It is noted that the landlord had previously advised the resident that she would be liable for any costs if the cause of the damp was found to be within her home. However, there is no evidence to indicate that the landlord warned her that she would be charged for the cost of cancelled appointments. The landlord ought to have informed the resident if it intended to charge her for this.
  34. The resident contacted the Ombudsman on 6 November 2023 and said that the landlord had sent her a bill for £2000 for the investigations of the leak. It is noted that in February 2024, the landlord confirmed that it would waive these charges. In accordance with paragraph 42(a), the Ombudsman is unable to consider complaints about matters which have not yet exhausted the landlord’s internal complaints procedure. This is so that landlords have the opportunity to respond to complaints and resolve issues before the Ombudsman becomes formally involved. As the decision to charge the resident for the cancelled appointment was made several months after the stage 2 response, the Ombudsman is unable to consider this matter as part of this investigation. If the resident wishes to pursue this matter further, she can complain to the landlord about the decision to charge her. She may be able to refer her complaint to the Ombudsman once it has exhausted the landlord’s complaints process.
  35. The landlord acted appropriately in arranging various inspections to try to determine what had caused the damp and mould. The various conclusions that these came to demonstrate that such matters are not straightforward and a determination on cause can be difficult to come to. However, there were also failings by the landlord in terms of the lack of action between October 2021 and May 2022 and delays in arranging a structural survey. It is evident that the landlord was unable to identify the cause of the damp, despite multiple visits by its own operatives and external contractors. While it was appropriate to explore all possibilities to identify the cause of the damp, the numerous inspections by different people appeared to result in some confusion and contradictory findings about what may have caused the issue.
  36. Where there are failings by a landlord, the Ombudsman’s role is to consider suitable remedies in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right, and learn from outcomes.
  37. The resident experienced significant distress and inconvenience due to the delays in dealing with the issue, as well as the failure to identify the cause of the damp, despite investigations taking place over several months The resident incurred significant time and trouble in pursuing the matter with the landlord and in making her complaint.
  38. The landlord offered the resident £815 compensation. The amount of compensation offered is in line with the Ombudsman’s remedies guidance for when there has been a significant impact on the resident. As such, this amount is reasonable redress for the failings identified. However, this ought to have been offered as part of the final complaint response. This has been addressed in more detail below. 
  39. There is no evidence that the landlord has taken learning from the outcome of the complaint. The landlord should conduct a review of its handling of the issue and consider whether it is necessary to put in place a procedure setting out what investigations it will undertake in circumstances where a leaseholder has reported issues that the landlord may be responsible for repairing.
  40. The resident informed the Ombudsman in February 2024 that the damp in her property has now dried out. As such, there is no requirement to make any orders or recommendations for the landlord to carry out any further work to investigate the matter.

Complaint handling

  1. The landlord’s complaint handling policy states that it will acknowledge a complaint within 5 working days of receipt and provide a written response within the following 10 working days. The policy says that complaint escalations will be acknowledged within 5 working days, and the landlord will provide a stage 2 response within 20 working days.
  2. The resident raised her complaint on 27 July 2022 and the stage 1 response was issued on 2 September 2022. No evidence has been provided to indicate when the complaint was acknowledged. However, the response was provided 26 days after the complaint was made which is 11 days in excess of the 15-day timeframe for acknowledging the complaint and providing the response. While the delay is not excessive, the timeframes were not complied with which was a shortcoming. The stage 2 response was provided within the required timeframes.
  3. In January 2024 the landlord contacted the resident and offered £815 compensation, which included £50 for the stage 1 delays. While it is positive that the landlord reconsidered its position and made an offer of redress, it is not clear why the landlord did not make this offer when considering the complaint within its own complaint procedure, rather than a year after its stage two reply. In line with the Ombudsman’s Complaint Handling Code, a complaint should be resolved at the earliest possible opportunity, having assessed what outcome would resolve the matter for the resident.
  4. The Ombudsman does not consider the landlord’s overall offer of £815 as reasonable redress because the offer was made after the Ombudsman accepted the resident’s complaint for investigation. Paragraph 53b of the Housing Ombudsman Scheme states: “The Ombudsman may determine the investigation of a complaint immediately if satisfied that [the landlord] … has offered redress to the complainant prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily. This will result in a finding of reasonable redress”.
  5. The Ombudsman has therefore found that there was a maladministration in terms of the landlord’s complaint handling due to failing to provide reasonable redress within the complaint handling process. This Service has not ordered additional compensation in relation to the handling of the reports of damp and mould as it considers the £815 offered by the landlord to be proportionate to put things right. However, an additional amount of compensation is awarded to ‘put right’ the time and trouble the resident spent pursuing her complaint to obtain a remedy.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in relation to the landlord’s handling of the resident’s reports of a leak which caused damp and mould in her property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s complaint handling.

Orders

  1. The landlord should pay the resident a total of £965 compensation, comprised of:
    1. the £815 compensation offered.
    2. an additional £150.
  2. The landlord should conduct a review of its handling of the reported leak and damp and mould and consider whether it is necessary to put in place a policy and procedure setting out what investigations it will undertake in circumstances where a leaseholder has reported issues that the landlord may be responsible for repairing. Consideration should also be given to timeframes for conducting such investigations.
  3. The landlord should provide the Ombudsman with evidence of compliance with these orders within 28 days.