Stonewater Limited (202303707)

REPORT

COMPLAINT 202303707

Stonewater Limited

11 July 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 the landlord’s response to the resident’s:
1. Reports of damp and mould, and associated repairs;
2. Complaint.

Background and summary of events

The resident has been an assured tenant of the landlord, in a 1 bedroom, ground floor flat since June 1994. The resident has physical vulnerabilities and is registered disabled.
On 30 November 2022, the resident’s solicitor wrote to the landlord to state it was using the pre-action protocol for housing disrepair claims. It attached a copy of a triage housing disrepair report following an inspection the solicitor had commissioned on 22 November 2022. The report made a number of observations, which included:
1. Large cracks in the plaster above the front door;
2. Organic growth in the guttering;
3. High moisture on the windows and condensation between the double glazed panes;
4. Mould visible in window recesses and on the wall above the windows;
5. Corroded taps in the bathroom and damaged seal around the bath.
Having not received a response, the resident’s solicitor wrote to the landlord again on 5 January 2023 to advise it that it was “in breach of the timetable provided by the pre-action protocol”. It told it that it would delay making an application to the court as long as the landlord responded within 7 days. It is unclear what action the landlord took immediately following this letter.
The landlord inspected the resident’s property on 1 February 2023. The report made several findings, which included:
1. No issues with the damp proof course (DPC);
2. A hairline crack above the front door;
3. A leak from the overflow to the first floor, causing staining to brickwork;
4. Vegetation blocking the guttering, causing possible damp penetration to external walls;
5. Mould to window frames and silicone sealant, and high moisture content around windows;
6. Condensation between the double glazing.
The report also made several recommendations, which included:
1. Fixing the leak to the first floor flat overflow and clearing the blockages to the rainwater guttering;
2. Filling the crack above the front door;
3. Replacing the silicone sealants around the window frames;
4. Investigating “possible bridging” of the cavity to the window reveals;
5. Replacing the mechanical extractor fan in the bathroom;
6. Cleaning the mould from the window frames.
The records show that, after the resident contacted Environmental Health (EH) for assistance, an EH officer visited the property on 30 March 2023. According to the records, they were unable to observe any damp or mould.
On 2 May 2023, the landlord wrote to the resident with a list of repairs that had been scheduled for completion by 20 April 2023. The resident has told the Service that, out of the 11 jobs on the list, only 3 of these had been completed at the time. These were the replacement of the mechanical extractor fan, resealing of the bath and replacement of the bathroom taps.
The resident raised a stage 1 complaint with the landlord on 29 June 2023. She stated that:
1. Since the beginning of February 2023, her property had “major issues” with mould, which was “caused by penetrating/rising damp”.
2. The mould, which she believed had not been caused by condensation, had damaged some of her possessions.
3. The landlord had failed to fix the main issue, which she said was the damaged roof.
4. There were outstanding repairs within her property, including replacement of silicone sealant around her windows.
5. The landlord had only carried out “minimal work” to make the property “look pretty”.
6. She suffered from severe spinal pain and arthritis in both hips and it was “disgraceful” that the landlord expected her live in those conditions for nearly 6 months.
The landlord acknowledged the resident’s complaint on 30 June 2023 and summarised the issues it would investigate. It stated that it would aim to respond by 13 July 2023. It wrote to her again on 25 July 2023 to say it needed further time to complete its investigation and that it would send her its response by 8 August 2023. The resident contacted it on the same say to say that, as the landlord had failed to send her its stage 1 response on time, she wanted to escalate her complaint.
The landlord issued its stage 1 response on 1 August 2023. It stated that:
1. Her property had been inspected by a Royal Institute of Chartered Surveyors (RICS) surveyor, Environmental Health and one of the landlord’s own surveyors.
2. None of those inspections had found any evidence of rising or penetrating damp.
3. It had completed all the work recommended in the RICS surveyor’s report.
4. Damp and mould was a “common issue in many households”. It recommended that the resident opened her windows for short periods to allow moisture to escape and prevent the build-up of condensation.
5. If the resident needed any support with what steps she should take to tackle condensation, she should contact it so it could send her an information leaflet.
The resident responded to the landlord on 11 August 2023 and stated that:
1. It had taken 41 days to respond to her complaint. Despite having asked it on 4 August 2023 to escalate her complaint, it had still sent her a stage 1 instead of a stage 2 response.
2. In its response, the landlord had not mentioned the roof repairs. Furthermore, the only remedial work it had completed was replacement of the bathroom extractor fan and bath taps.
3. She rejected the outcome of its investigation but would give the landlord until 14 August 2023 to provide her with the outcome of her stage 2 complaint.
The landlord acknowledged the resident’s escalation request on 21 August 2023. It stated that:
1. Its investigation would include:
  1. The issues with mould in her property that had damaged her personal belongings;
  2. The cause of the mould, which the resident stated was as a result of the landlord’s failure to repair the damaged roof;
  3. Outstanding repairs, such as replacement of the silicone sealant around the windows;
  4. Why the only works completed were replacement of an extractor fan and bath taps.
2. It apologised for its failure to escalate her complaint following her request in August 2023 and wanted to offer her £50 compensation in recognition of this.
3. It would aim to issue its stage 2 response by 15 September 2023 but would let her know if it needed more time.
On 1 September 2023, the landlord issued its stage 2 response. It stated that:
1. In its stage 1 response, it had explained that both a RICS surveyor and Environmental Health has inspected her properly and found no evidence of penetrating or rising damp. It also advised that it had completed all recommended works.
2. The surveyor had told it that, while there were outstanding works to the roof at the time of the inspection, this did not have any impact on the resident’s property.
3. The surveyor advised that the damp and mould were caused by condensation and it had replaced both extractor fans in the property to improve ventilation.
4. It had completed all the roofing works and removed the scaffolding.
5. It would liaise with her and its contractor to “understand” whether any further works were required.
6. It had received a high number of stage 2 requests, which had resulted in delays. It apologised for these and reiterated its offer of £50 compensation for its poor complaint handling.
On 13 October 2023, the resident approached the Service for assistance. She stated her property had ongoing issues with damp and mould, and that the landlord had still not completed roof and guttering repairs. Furthermore, its complaint handling was poor and it had not kept to its promised response times.

Events following conclusion of the complaints process

On 27 September 2023, the resident made a further report to the landlord of damp and mould. She stated that she had had to get the mould cleaned off because of her health. She added that the mould spores were “in the wood” and would “reappear” as the weather became worse.
The landlord carried out a damp survey on 8 November 2023. The report noted that the resident did not heat the flat that often because she stated that a warm dwelling was not good for her health. The surveyor had advised her that a small increase in heat would help control the humidity. The outcome of the survey was that no internal works were required as there was “no mould present at the time of the inspection”.
From 13 November 2023 to 7 February 2024, the resident continued to correspond with the landlord regarding her reports of damp and mould and the possible causes of the issue. This included a suspicion she had that low water pressure in her property was a possible sign of an underground leak.
On 19 February 2024, the landlord carried out a further inspection of the property. The report commented that a contractor had visited the resident’s home twice and could not find evidence of a leak. Furthermore, the surveyor tested taps and the toilet flush and did not experience any issues with water pressure. The inspection found that:
1. The seals to windows inside the property were “beginning to perish” and would need to be resealed;
2. Apart from the windows, which had black mould spots on the silicone seals, there was no other evidence of damp and mould;
3. There was no evidence of rising damp within the property;
4. The resident should maintain a “steady 18ºC within the property” to limit the risk of condensation;
5. The landlord should replace the silicone sealant around the windows.

Assessment and findings

Scope of investigation

The resident has stated that the damp and mould in her property has negatively impacted her health. The Ombudsman does not doubt the resident’s comments regarding her health but the Service is unable to draw conclusions on the causation of, or liability for impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurer (if it has one), as a personal injury claim. We have, however, considered whether any failings by the landlord have been the cause of distress and inconvenience to the resident.
The resident has requested compensation for damage to personal belongings. We can consider the impact of the outstanding repairs, and damp and mould on the resident and whether the landlord acted reasonably. However, we cannot determine liability or issue a binding decision about awards for damages. As above, this matter is better suited to an insurance claim or the courts.
The resident has also advised that she has been reporting some of the issues to the landlord for a number of years. The Ombudsman encourages residents to raise complaints with their landlords at the time the events happened. This is because, with the passage of time, evidence may be unavailable and personnel involved may have left an organisation. This makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Taking this into account, and the availability and reliability of evidence, this assessment has focussed on the period from November 2022 onwards. The records indicate that this was the beginning of the events that led to the resident raising a formal complaint.

Policy and legal framework

As per Section 11 of the Landlord of Tenant Act 1985, the tenancy agreement states that the landlord agrees to maintain and repair the structure and the outside of the property. This includes drains, gutters, the roof, outside walls and windows. The law says that a landlord should repair a housing defect “within a reasonable amount of time”. This is not specific but depends on the circumstances and levels of urgency.
The landlord also has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying. Section 9a of the Landlord and Tenant Act 1985 implies an obligation into the tenancy agreement that the landlord must ensure the property is “fit for human habitation” in relation to, by virtue of Section 10 of the same act, ventilation.
The landlord’s damp and mould policy states that, as part of its process, it assigns properties one of the following categories:
1. Stage 1 cases are where households need support and guidance to treat and/or avoid mould occurring, and low level interventions such as damp mould and condensation “wipe downs”.
2. Stage 2 cases relate to minor repairs or the replacement of components and treatment of mould, and where additional forms of ventilation are needed.
3. Stage 3 and 4 cases include larger scale repairs such as new roofs and large scale plumbing works.
The landlord’s responsive repairs policy lists 3 categories of repair. Emergency repairs are those that pose a threat of safety to both the resident and property. The landlord will attend to these within a maximum of 24 hours after receiving the resident’s report. The landlord commits to delivering all non-emergency repairs within a maximum period of 28 days. Major repairs are completed within 42 days, where there is a “significant amount of work required beyond the original repair”. The policy states that the landlord will ensure vulnerable residents are given priority appointment times so that repairs are carried out as soon as practicably possible.
The landlord’s compensation policy states that it pays discretionary compensation and goodwill payments. However, it does not provide details of any minimum or maximum amounts it will pay in recognition of poor service.
The landlord’s complaints policy outlines a 2 stage formal complaints process. It will acknowledge stage 1 complaints within 5 working days and respond within 10 working days. If the investigation takes longer, the landlord will notify the resident of the revised timeframe. If it requires longer than a further 10 working days, it will agree an extension with the resident. The policy states that it will usually respond to stage 2 complaints within 20 working days.

The resident’s reports of damp and mould, and associated repairs

The Ombudsman wishes to acknowledge that the resident has experienced a great deal of distress over a lengthy period of time, while reporting damp and mould within her property. It is not the role of the Service to reach a decision on whether there was damp or mould within the resident’s property. Instead, the Ombudsman’s role is to consider whether the landlord has taken reasonable and appropriate steps to respond to the resident’s reports. This report will focus on whether the landlord acted in line with its policies and procedures, and if it took proportionate action and followed good practice.
The Ombudsman’s spotlight report, ‘Damp and Mould – It’s not lifestyle’, published in October 2021, states that damp and mould should be a high priority for landlords. They should take a zero-tolerance approach, be proactive in identifying potential problems and clearly communicate to residents about actions. Where inspections result in recommended works to tackle condensation, damp or mould, landlords should ensure they act on the recommendations in a timely manner. Any deviations from the recommendations should be clearly documented and explained to the resident.
It is evident from the records that the resident first reported damp and mould, and other outstanding repairs through her solicitor on 30 November 2022. The records show that the landlord carried out its first inspection 2 months later, on 1 February 2023. It was appropriate that the landlord instructed an independent, accredited surveyor to inspect the property. Although it is reasonable for the landlord to use its own qualified surveyors to carry out inspections, it is acknowledged that using an independent party would have helped reassure the resident the findings of the inspection were impartial.
However, the landlord was at fault for not ensuring a timelier response to the pre-action protocol letter. Given the landlord was aware of the resident’s vulnerabilities and that its response time for non-emergency repairs is 28 days, it would have been reasonable in the circumstances for the landlord to have inspected the property much sooner. It was also inappropriate that the resident’s solicitor had to chase the landlord a month after it had put in on notice, on 5 January 2023. The evidence does not suggest that the delay was avoidable and as such the landlord’s initial handling was inappropriate. Furthermore, there is no indication the landlord had carried out any kind of risk assessment in line with its policy of assigning each damp and mould case either a category 1, 2, 3 or 4. In failing to categorise this case, the landlord departed from its policy.
The evidence shows that, between February 2023 and February 2024, the landlord was unable to find evidence of rising or penetrating damp to the property, despite having carried out 3 separate inspections. The landlord acted appropriately and demonstrated it had properly listened to the resident’s concerns by completing more than 1 inspection. Its efforts to try and rule out rising or penetrating damp as the cause of damp in her property were on the whole reasonable.
It is noted that, although disputed by the resident, the surveys concluded that the damp and mould around the windows were caused by condensation. The landlord is entitled to rely on the outcomes of inspections and the findings of suitably qualified professionals. It was therefore appropriate that it told the resident how she could help prevent the build-up of condensation in her property and the steps she should take to do so. It is evident that, during inspections, the landlord had provided advice on minimising condensation, such as keeping the property at a constant temperature and opening windows for short periods of time. This was reasonable.
However, it is noted that the landlord had asked the resident in its stage 1 response to let it know if she needed any support on tackling condensation, and, if so, it would send her a leaflet. It would have been reasonable for the landlord to have already provided her with a leaflet once the cause of the damp and mould was identified, which was during the initial inspection. This would have demonstrated a more proactive and customer-focused approach in supporting the resident. That the landlord put the onus on the resident to request an information leaflet rather than providing one at the outset was an oversight.
The resident has stated that the landlord had attributed the cause of the damp and mould in her property to her “lifestyle”. The spotlight report states that, “it is crucial that landlords avoid paternalistic attitudes, automatically apportioning blame or using language inferring blame on the resident. The report makes a recommendation that landlords review their damp and mould procedures in order to emphasise the importance of not apportioning blame for damp and mould on residents and avoids using terms such as ‘lifestyle’, which suggest that mould and damp are caused by the way people live their everyday lives. Although we would not seek to dispute the resident’s assertion that the landlord had referred to her lifestyle, we could not find any record of this. Without any supporting evidence, the Service is therefore unable to determine whether or not the landlord had mentioned lifestyle as a contributing factor. However, while we do not dispute what the resident has said, the landlord’s actions at the time to inspect the property were appropriate and proportionate in the circumstances.
The evidence shows that, following recommendations made as part of the February 2023 survey, the landlord replaced mechanical extractor fans in the property within its target timescale of 20 April 2023. This showed the landlord was taking reasonable steps to improve the ventilation within the property. As the survey had identified a number of different repairs, it was reasonable in the circumstances that the landlord had scheduled for them to be completed within a month and a half. It is acknowledged that due to the practicalities in arranging a number of different appointments for the same property, involving different contractors, the landlord may require additional time to complete all required works. Furthermore, completing numerous repairs within a short space of time can be disruptive to a resident, particularly if they are vulnerable, as in this case. However, although it was appropriate that the landlord provided the resident with a specific completion date, there is no evidence it had updated her about any delays or provided an explanation of why some of the repairs had not been completed on time. This demonstrates poor communication by the landlord and a lack of effective contract monitoring to ensure its contractors were delivering a service that was in line with its repairs policy.
The landlord has a legal obligation to complete repairs it is responsible for within a ‘reasonable’ timescale. Various factors can affect what constitutes a reasonable timescale, such as volume and complexity of required work or the need for additional parts to be ordered and delivered. The landlord should be able to demonstrate that any delays were unavoidable, and that it did everything it reasonably could to resolve issues appropriately.
The records show that many of the repairs were delayed beyond the scheduled completion date. In addition, there are some recommendations from the survey that the landlord could not demonstrate it had followed. The records indicate that the roof and guttering repairs were completed on or around 12 May 2023, which does not represent an excessive delay. Furthermore, the evidence suggests the outstanding roof repairs had no impact on the resident’s property or contributed to any of the damp or mould around her windows.
However, there is no evidence the landlord had investigated possible bridging of the cavity to the window reveals. While there was no obligation to take action in respect of every recommendation, it would have been reasonable in the circumstances for the landlord to have made some record as to why it did not feel it was necessary to follow a particular recommendation. As this action would have helped rule out penetrating damp as a possible cause, and given the resident’s ongoing concerns, it would have been reasonable for the landlord to have explained why it felt it did not need to carry out this investigation.
It is evident that one of the main issues the inspections had picked up was the presence of mould around the windows. The surveyor’s report of February 2023 had recommended works to replace the silicone sealant around the windows, and to complete a mould wash. There is evidence that contractors were experiencing difficulties in accessing the property to complete those works. For example, the records show the landlord cancelled appointments booked for September 2023 at the resident’s request. The landlord’s repair log also notes that the resident had cancelled further appointments in March and April 2024 because she did not want the contractor to carry out any work to her property. The record states that she felt the landlord was “covering up” the rising damp in her property and that she would get her own surveyor and operative to fix any issues.
The resident is an assured tenant of the landlord. This means the landlord has a contractual obligation to let employees or the contractors working for it to do any repairs to the property during reasonable hours of the day. It must adequately respond to reports of repairs within a ‘reasonable’ timescale. Under the resident’s tenancy agreement, one of her responsibilities is to provide the landlord and its contractors with reasonable access to the property, to enable it to meet its repairs obligations. The Ombudsman accepts that there can be many reasons why it may not be convenient for the resident to allow work to go ahead. However, delays to the damp and mould being resolved because of issues with gaining access to the property cannot be considered to be within the landlord’s control. Unless the landlord could gain reasonable access to the property, it would have been unable to carry out required works in a timely manner. Therefore, the Service cannot find that any delay removing mould from the resident’s windows due to lack of access was as a result of any failure by the landlord.
However, it is noted that, despite the survey recommending this work in February 2023, the records show that it was not until September 2023 that the landlord had raised the repair. It is therefore evident that the reason these works remained incomplete was not wholly due to lack of access but also to a delay of around 6 months in raising them. The reasons for the delay are unclear from the evidence that has been provided. However, given the resident’s vulnerabilities and the undertaking made in the landlord’s repairs policy to prioritise vulnerable residents, its delay in raising the repair to remove mould from the resident’s windows was a failing.
In its stage 2 response, the landlord stated that its survey did not find any evidence of rising or penetrating damp. However, it did not acknowledge that it had failed to investigate possible bridging between the cavity and window reveals, as recommended by the surveyor. Without further investigation, it is unclear how the landlord could conclude that there was no evidence of penetrating damp. Furthermore, its response omitted to acknowledge the delay in carrying out its initial investigation or that it had failed to attended a number of the works it had scheduled to complete by 20 April 2023. The failings identified in this report, the lack of accountability in the landlord’s stage 2 response for those failings and the cumulative impact this would have had on the resident amounts to maladministration. For this reason, the Ombudsman will order that the landlord pays the resident suitable redress in line with our remedies guidance.

Complaint

The evidence shows that it took the landlord 23 working days to respond to the resident’s stage 1 complaint. It is accepted that the delay was not excessive. However, it was not until 18 days following receipt of her complaint that the landlord advised the resident of a revised response date. If a delay was anticipated, the landlord should, in line with its policy, have contacted the resident within the initial 10 working day period. It should then have agreed a new timescale with her if it required more than a further 10 working days. That it failed to do so was a departure from its policy and also the Ombudsman’s Complaint Handling Code (the Code). It is also noted, and not disputed, that the landlord failed to respond to the resident’s initial request to escalate her complaint.
The Service acknowledges there can sometimes be challenges in responding within timescales, particularly during busy periods. However, landlords should always maintain reasonable contact with residents when delays are expected, in order to update them and agree revised timescales. That the landlord’s communication was lacking would have caused the resident additional and avoidable frustration.
The landlord’s stage 1 complaint response was brief and failed to fully address the resident’s concerns. It made no mention of repairs that remained outstanding. This was a further departure from the Code, which states that landlords must address all points raised in the complaint and provide clear reasons for any decisions. Furthermore, both stage 1 and stage 2 reports were misleading and contain incorrect information. For example, the stage 1 response states that “all preventative work has been completed” as per the surveyor’s report. The landlord had reiterated this at stage 2
It is evident some of the recommended repairs had not been attended to by this point. According to the landlord’s repairs log, the work to replace the sealant around the resident’s windows had not been raised until September 2023, which was when the landlord issued its stage 2 response. In addition, the landlord had failed to carry out any investigations into possible bridging between cavity and window reveal. This demonstrates that the landlord’s investigation was insufficient and that it had not properly checked its records prior to issuing its responses. That the landlord could not demonstrate that it carried out a satisfactory investigation into the resident’s concerns was a failing.
Although the landlord offered £50 compensation for its mishandling of the resident’s escalation request, it has failed to acknowledge its poor communication at stage 1 or demonstrate that it carried out a proper, fully researched complaint investigation. For this reason, the Ombudsman has made a finding of maladministration for the landlord’s complaint handling, and will order additional redress to put things right.

Determination (decision)

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

Reasons

The landlord took steps to investigate the cause of damp and mould in the resident’s property and it completed works and provided advice to the resident on how to improve ventilation and minimise condensation. However, it delayed inspecting the property after the resident reported damp and mould, and either significantly delayed raising works or failed to follow the recommendations of its survey.
Although delays in responding to the resident’s complaint were not excessive, the landlord’s communication was lacking. In addition, it failed to properly investigate her complaint or address her concerns, and it provided incorrect information in its responses.

Orders

Within 4 weeks of the date of this report the landlord must:
1. Apologise to the resident for the failings identified by this investigation. The apology should be made in line with the Service’s guidance that:
  1. An apology should acknowledge the maladministration or service failure; accept responsibility for it; explain clearly why it happened; and express sincere regret;
  2. Where appropriate, an apology should include assurances that the same maladministration or service failure should not occur again and set out what steps have been taken to try to ensure this.
2. Pay the resident compensation of £700, calculated as follows:
  1. £500 in recognition of the landlord’s failure to respond appropriately to the resident’s reports of damp and mould, and associated outstanding repairs, and for the distress and inconvenience caused as a result;
  2. £200 in recognition of the distress and inconvenience caused by the landlord’s poor complaint handling.

This replaces the offer of £50 compensation the landlord made in its stage 2 response.

It is the Ombudsman’s position that compensation awarded by the Service should be treated separately from any existing financial arrangements between the landlord and resident and should not be offset against arrears, where they exist.

Contact the resident and the Ombudsman within 4 weeks to provide a schedule for when it will carry out any outstanding works, and to continue to provide her and us with progress updates until completion.

Within 8 weeks of receiving this determination the landlord to:
1. If it has not done so already, carry out an investigation, as recommended in its February 2023 inspection report, into any possible bridging between the cavity and window reveals. The landlord should satisfy itself that it has ruled out water penetration as a possible cause of any damp and mould within the property. If water penetration is present, the landlord to take appropriate action in line with its policies and procedures. The landlord to provide the Ombudsman with details on the outcome of its investigation.
2. Review its complaint training to staff, with emphasis on ensuring all complaints are properly investigated, fully addressed and that responses contain the correct information. The training should also emphasise the importance of following the landlord’s complaints process, providing timely responses and communicating appropriately with residents whenever there are likely to be delays.