Thurrock Council (202101890)

REPORT

COMPLAINT 202101890

Thurrock Council

20 December 2021

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 response to the resident’s report of mould in the property, and his request to replace kitchen units.

Background and summary of events

Background

2. The resident is a tenant of the landlord, a local authority. The tenancy commenced in 2011. The landlord notes on its records that the resident is vulnerable.
3. The Landlord and Tenant Act 1985, tenancy agreement and the landlord’s repairs policy confirm its responsibility for the structure of the property; while the tenancy and repairs policy confirm a tenant’s obligation to make the landlord aware of any repairs that need doing.
4. The landlord’s website explains mould in homes can be caused by condensation or damp, which condensation can often be mistaken for but is very different. It explains condensation is provided by normal activities such as cooking, while damp is caused by defects in the structure such as leaking roofs or issues with damp courses. It explains there is likely to be problems with condensation mould unless action is taken such as wiping surfaces with a dry cloth, leaving trickle vents open, using kitchen extractors, and keeping homes warm.
5. The landlord’s ‘damp and mould management process’ details that on receipt of reports, information will be reviewed to assess if an inspection by a surveyor is required. A report is completed after an inspection and if works are identified these will be specified. If lifestyle of a tenant is identified as a cause, a course of action will be agreed with a tenant and monitored over six months. If more simple works are required these are referred to the landlord’s day to day repairs contractor. If only ‘capital works’ will resolve a problem with a property’s structure, it will be explored if the work can be accommodated under a major works programme, or referred to an appropriate contractor.
6. The landlord operates a two stage complaints procedure in which it responds at stage one within 10 working days, and at stage two within 20 working days. It normally looks at complaints about service which occurred within the past 12 months.

Summary of events

7. The resident has previously made reports of mould at the property:
   1. In April 2013, the landlord carried out mould treatment to three areas including kitchen walls, and kitchen units were renewed around this time.
   2. In May 2014, works were raised following a survey, to remove some kitchen units to allow for mould treatment. The landlord advises these were cancelled and a separate contractor carried out works and fitted a new kitchen, as part of the landlord’s home improvement programme.
   3. In January 2016, an inspection was carried out by a surveyor. The report states there was no signs of penetrating or rising damp and the property had “a minor amount of condensation mould” due to lack of heating and ventilation. The report recommended works that were later completed in March 2016, including installation of trickle vents in the kitchen and a mould treatment. The report noted that at the visit, extractor fans were isolated, heating was off and curtains were closed, and recommendations were made for the resident to take steps to ensure sufficient airflow and heating.
8. On 18 December 2020, the resident complained to the landlord via a councillor that mould had been found again, on pans and crockery at the back of a cupboard, and behind a washing machine. He complained that this was the fourth time in nine years this had occurred, during which three new kitchens had been fitted and a number of works had been done. He explained both he and his wife had vulnerabilities and that he wanted issues to be resolved “once and for all.”
9. On 5 January 2021, the landlord issued a stage one response to the resident’s complaint. It acknowledged there had been previous works carried out which related to mould. It advised that as works in relation to mould were not reported or completed in the last three years, a new inspection was needed in line with its approach for dealing with such issues. It advised its contractors would arrange this and any required remedial works identified would be scheduled for completion.
10. The information provided advises contractors attended on 8 January 2021 and scheduled mould treatment to be carried out. The landlord advises that after the resident disputed the works raised, a further inspection was carried out by a surveyor on 22 February 2021, which found:
    1. The mould was limited to behind a washing machine and, potentially, behind kitchen units, which were stated to have no particular damp odour. The presence of mould behind all the kitchen base units could not be confirmed as they had hard backs, and reported mould in an under-stair cupboard was not evident. The damp readings of external walls were normal and there were no signs of penetrating or rising damp. The mould was concluded to be the result of condensation from a lack of air circulation.
    2. It was recommended to install air bricks to encourage air circulation behind the kitchen units and prevent cold spots forming, due to there being no signs of air bricks at the rear and side elevation. The resident was recommended to wipe down and clean the shelving.
    3. The kitchen units were not considered to require renewal and would be re-fixed following works.
11. On 27 February 2021, the resident escalated the complaint via the councillor. He was unhappy at being informed kitchen units would be fitted back and not replaced. He reported that when the kitchen was previously replaced, he was told cleaning the units did not remove mould from inside the wood/chipboard, which was why they were replaced. He detailed vulnerabilities he and his wife had and queried the different approach being taken.
12. On 18 March 2021, the landlord issued its final response to the resident’s complaint:
    1. It acknowledged the resident’s concerns about the proposed treatment of mould in his kitchen. It acknowledged there had been previous works and explained that as these were not recent, a new inspection had been required to inspect current concerns.
    2. It explained the outcome to inspections on 8 January and 22 February 2021, and that current issues with mould behind kitchen units was a result of condensation due to a lack of air circulation, for which fitting of air bricks behind the units was recommended.
    3. It acknowledged the resident’s preference for the kitchen units to be replaced, and explained this would not be considered as its surveyor had confirmed the units did not require removal. It advised that the units were not found to display any damp odour and that a recommendation was made to wipe down and clean shelving inside the units.
13. The landlord reviewed the case as part of attempted mediation with the Ombudsman’s involvement, and while it did not agree to the resident’s desired outcome, it confirmed that any units damaged by mould or the works would be replaced with new matching units, and that units would only be reinstated if they were in a clean and serviceable condition.
    1. It explained it needed to make best use of its limited resources, and that it would not be appropriate to replace a reasonably modern kitchen with a significant amount of serviceable life remaining, and which its last survey had identified was not warranted.
    2. It explained that there were no mould-related repair reports and associated works between 2016 and 2020, so previous works were considered to have been effective. It has noted that while there was visible surface mould at the inspection in February 2021, there was no deterioration/damage to the building fabric or damp meter readings to evidence damp.
    3. It confirmed its commitment to carry out works to the kitchen wall such as plastering, installation of airbricks and any required supplementary works, and advised that a surveyor would be assigned to manage the repairs and to keep the resident updated.
14. The resident referred the complaint to this Service in April 2021, advising that the outcomes he sought were replacement of the kitchen and a survey by a ‘mould specialist.’ The resident raises concern to this Service about mouldy kitchen units being fitted back because there would still be mould in the wood, and that the mould relates to issues with the foundations and the impact of floods almost 70 years ago. The resident also refers to subsidence at a property a few doors away from his and raises recent concern about cracks at his own property. He expresses dissatisfaction about recurrence of issues at the property and his desire for the landlord to resolve these once and for all.

Scope of the investigation

15. This Service understands the resident feels the landlord has failed to properly address issues which has impacted living in the property and health, and we recognise the concerns he reports have affected and caused distress to him.
16. In relation to the issues raised, it is not the Ombudsman’s role or expertise to assess whether a property has specific defects. This is because this Service does not make findings on technical aspects in relation to a property or repairs. It is also not the Ombudsman’s role to make a determination on matters such as the impact on health, as this is not in our expertise and jurisdiction. The Ombudsman’s role when considering complaints is to assess whether the landlord appropriately considered matters within the timeframe of the complaint, and reasonably applied its policy and procedure, complied with any relevant legislation and followed good practice when reaching decisions.
17. When assessing a complaint, this Service considers the timeframe of a complaint to be of note, because the Ombudsman’s remit in relation to complaints is set out by its Scheme. Paragraph 39(e) of the Housing Ombudsman Scheme advises that the Ombudsman will not investigate complaints which, in its opinion, “were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within six months of the matters arising.” The landlord’s complaints policy similarly sets out that it does not consider incidents that occurred more than 12 months before the complaint was made.
18. The resident complains about the landlord’s handling of matters in relation to mould issues over a timeframe of nine years and provides detail about previous works. Whilst this information provides important background and context to the resident’s dissatisfaction with the landlord’s position on this matter, there is no evidence that he made a formal complaint and exhausted the landlord’s complaints procedure prior to December 2020, when the landlord raised a complaint. In accordance with the Scheme as well as the landlord’s complaints policy, the Ombudsman does not usually consider complaints that go back over nine years, because the longer time goes on, the more the ability to conduct an effective investigation may be impacted.
19. This means that this investigation primarily focuses on events from December 2020, when the formal complaint was made, up until 18 March 2021, when the formal complaint exhausted the landlord’s complaints procedure. Events that pre and post-date the complaints procedure have been mainly referenced for contextual purposes only.

Assessment and findings

20. In accordance with the Landlord and Tenant Act 1985, the landlord is responsible for the repair and maintenance of the structure of the property. As a result, it is necessary for it to investigate reports such as mould and to take appropriate steps to resolve issues it identifies.
21. Following the resident’s complaint in 2020, the landlord inspected and then raised repairs to treat the mould. When this was disputed, another inspection was carried out which concluded the mould was a result of condensation from a lack of air circulation, for which airbricks were recommended. The landlord considered a request for the kitchen units to be renewed, and concluded these did not require renewal and would be re-fixed following works.
22. When the resident escalated the complaint, the landlord explained how a new inspection had been required for current concerns, as previous works were not recent. It explained the new inspection had identified current issues were a result of condensation due to a lack of air circulation, and detailed works and recommendations identified. The landlord later clarified that it would replace kitchen units considered to have been damaged by mould or the works, and committed to also carry out any necessary supplementary works.
23. This investigation notes the resident’s disagreement with the findings; his view that there are wider structural issues which remain unaddressed; and his desire for an independent inspection. To assess a landlord’s response to a complaint, this Service considers whether it is in accordance with policies and procedures, as set out at paragraph 16 of this report, and whether it is reasonable based on the evidence available.
24. The landlord’s ‘damp and mould management process’ reflects that mould is not automatically due to a severe structural defect, and that causes may vary from property to property. The process confirms the landlord approaches reports of damp and mould in a number of ways, and that it considers potential steps such as tenant lifestyle agreements, minor works or more major works. The process provides scope for issues to be investigated further or for major works to be arranged, where these are identified to be necessary.
25. In accordance with this process, the landlord has taken steps to identify that the mould was a result of condensation due to a lack of air circulation, and taken steps to rule out damp issues. These were similar findings to 2016, when the landlord carried out works that led to no further reports for almost five years. The landlord therefore appears to have investigated and made findings about the current reported issue in a reasonable way. This is because in repairs decision making, it is reasonable for a landlord to consider evidence such as first-hand inspection and damp meter readings, and the opinion of staff and contractors.
26. This investigation sees insufficient evidence that the landlord’s current suggested courses of action are disproportionate to the current reports of mould. The resident’s suspicions are unsupported by expert views to contradict the landlord’s findings; and he has the option to commission his own independent report if he continues to disagree with the landlord’s findings and its decision not to commission an independent surveyor. The infrequent reports since 2016, and the current reports/findings, do not suggest there are repeated or severe structural issues for which the landlord would have reasonable cause to seek the view of an independent surveyor, which means this investigation can see no evidence of fault in the landlord’s decision not to commission an independent specialist.
27. This investigation understands the resident’s reluctance to allow works, however the landlord’s suggested course of action would allow it to progress matters in a reasonable way. The landlord would have the opportunity to commence repairs it believes would improve condensation and mould in the kitchen, and the opportunity to monitor the effectiveness of these. If the works were not successful in resolving the issue in a timely manner, the landlord could then consider any further courses of action. It is not uncommon for some issues to require various attempts to address and resolve them before an effective solution is found, and it is understandable the landlord’s actions may be limited without first being able to carry out works it initially believes will reduce issues. This investigation understands the resident’s desire for issues to be resolved once and for all, however the nature of mould means it may not be possible for any repair to be ‘permanent’ and prevent mould reoccurring at some point. The 2016 repairs, and absence of further reports for almost five years, shows the landlord has previously provided an effective solution given the opportunity, in that has it resolved issues for a reasonably lengthy period of time.
28. The landlord has concluded that kitchen units do not require replacement and that wiping mould from surfaces of the units would be sufficient. It therefore clearly does not consider the units to be affected by mould to such an extent that they require permanent replacement, as the resident believes. This position appears reasonable, as it follows the landlord’s first-hand inspection of the units and is in line with its advertised guidance that mould may be removed by wiping surfaces. It is reasonable for the landlord to be unwilling to commit to full replacement if it considers units to be in a serviceable condition, and as a social landlord it has an obligation to make best use of limited funds. The landlord does not appear obligated to replace the units, because as long as they are considered to be fit for purpose, replacements would class as ‘improvements’ and go beyond its repair obligations.  However, the landlord’s commitment, to replace units considered damaged by mould or the works, appears to be reasonably in line with its repair obligation and appears a reasonable solution for units found not to be in a serviceable condition during or after works.
29. Overall, in the Ombudsman’s opinion, the landlord has taken reasonable steps to investigate the repairs issues the resident raised, and has sought to address and resolve these in a customer and resolution focused way. The landlord has responded reasonably and in accordance with its policies and procedures, and there is insufficient evidence to show that its approach to the mould, kitchen units and the resident’s request for an independent surveyor is unreasonable.

Determination (decision)

30. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s report of mould in the property, and his request to replace kitchen units.

Reasons

31. The landlord took steps to investigate the resident’s reports and to arrange repairs. Its conclusion that the mould was a result of condensation due to a lack of air circulation was based on first–hand inspection, an assessment supported by previous inspection. The landlord’s offer to replace any kitchen units it considers to be damaged by mould or works appears reasonable, proportionate and in line with its obligation to make best use of its funds. While it is acknowledged the resident may have different views, there is insufficient evidence to show that the landlord’s approach to the mould, kitchen units and his request for an independent surveyor is unreasonable.

Orders and recommendations

Recommendations

32. The landlord to re-offer to carry out the works it proposed, and to monitor the mould at the property if and after the resident agrees for it to carry out the works – to ensure an effective solution to the current reported mould is reached.
33. The landlord should provide information to this Service about steps it has taken in relation to the above, within four weeks of this decision.