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Welwyn Hatfield Borough Council (202217780)

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REPORT

COMPLAINT 202217780

Welwyn Hatfield Borough Council

30 April 2024


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

  1. The complaint is about:
    1. The landlord’s handling of reports of a leak, damp and mould, and remedial works at the property.
    2. Complaint handling.
  2. The Ombudsman has also considered the landlord’s record keeping.

Background

  1. The resident lived in a ground floor flat, situated in a larger block. The resident has health issues which means she has a weakened immune system. The resident had reported damp and mould in the property following a leak from the flat above in early 2014. The landlord attended and carried out repairs and mould washes. The damp returned in March 2015, which the landlord treated in May 2015. This process was repeated in late 2015, 2018, 2019, and 2021.
  2. On 26 June 2022 the landlord responded to reports of damp again by carrying out an inspection, after which it raised further works. On 19 July 2022 the landlord received a letter from the water company which supplied the block, notifying it of a major leak for which repairs were the landlord’s responsibility.
  3. On 27 July 2022 the resident complained over the phone. She stated that she had been living with mould since 2012 and complained that “all the landlord does is wash the mould which then returns”. As a result, she said that she could not prepare food in the kitchen due to the mould, shower in the bathroom or touch any of the walls in the property, due to the extent of the damp. On 5 August 2022, works began at the property, such as removing units in the kitchen and bathroom affected by damp and mould. The landlord returned regularly throughout August to conduct further works.
  4. On 22 September 2022, the landlord spoke to the resident on the phone who was reported as being “very distressed” and suffering from “health issues which had been exacerbated by the damp and mould”. The landlord suggested decanting the resident, which took place on 17 October 2022.
  5. On 10 November 2022, the resident called the Ombudsman. She had not received a response to her complaint and was seeking “compensation for distress”. On 7 December 2022, the Ombudsman instructed the landlord to respond to the resident’s complaint. On the same day, the resident’s doctor wrote to the landlord, explaining that her living conditions are likely to have a negative effect on her health. It issued a stage 1 response on 14 December 2022, which apologised for delays in complaint handling and communication. It added that the leak had now been fixed and that remedial works would be completed in the New Year.
  6. Later in December 2022, in agreement with the resident, the landlord took the resident’s case to the ‘Exceptional Circumstances Panel’ and secured “urgent priority banding” to move the resident. The landlord stated that it felt this was appropriate due to impact the condition of the property and the ongoing repairs were having on the resident’s mental health.
  7. A large amount of works were conducted at the property following the decant. The resident requested to escalate her complaint on 17 January 2023. The works at the property had not been completed before the resident was moved permanently on 30 April 2023. On 19 July 2023 the landlord issued its stage 2 response. It repeated what was said at stage 1 and added that “we do admit liability in this instance due to the damp and mould issue within your home” in relation to material damages the resident wished to claim for, which are not subject to this investigation, because the resident is pursuing a resolution to this matter via an alternative route.
  8. On 26 July 2023, the resident informed the Ombudsman that she remained dissatisfied with the landlord’s final response, because it did not offer the compensation she had asked for. She asked the Ombudsman to investigate.

Assessment and findings

Scope of the investigation

  1. The Ombudsman understands that the resident has reported issues with damp and mould at the property for a number of years. The Housing Ombudsman Scheme (the Scheme) sets out which elements of a complaint the Ombudsman may or may not investigate. Although it is likely that the resident formally complained to the landlord during that period, paragraph 42(b) of the Scheme states that the Ombudsman may not consider complaints which were brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure. Therefore, the Ombudsman’s assessment begins from June 2022, when the resident most recently reported a recurrence of mould. Events from before this date are referenced because they provide important context and because in this case, the landlord has acknowledged historic failing(s) which led to unnecessary adverse effect experienced by the resident during the period of this investigation. This has been considered by the Ombudsman when applying remedies, in line with what is fair and reasonable in all circumstances of the case.
  2. The resident also alleged that the landlord’s handling of mould at the property resulted in adverse health effects to the resident. The Ombudsman is not able to draw any conclusions about any alleged impact on the resident’s health, because there is no evidence, for example a medico-legal report, showing a proven impact on the resident’s health. The Ombudsman has however considered how the landlord responded to the resident’s concerns. If the resident wishes to pursue the matter further, it may be more appropriate to seek a remedy via the courts, who are best placed to assess such a claim.

The landlord’s handling of reports of a leak, damp and mould, and remedial works at the property

  1. The Ombudsman’s Dispute Resolution Principles (DRPs) are to ‘be fair’, to ‘put things right’, and to ‘learn from outcomes’. The landlord did not appear to have a specific damp and mould policy in place during the time period assessed in this investigation.
  2. Although inspections of the resident’s property took place in the summer of 2022, the extent of the damp and mould which was present remains unclear, because the relevant reports have not been provided to this Service. The Ombudsman has relied on the limited evidence available to gauge the general condition of the property, in which the landlord described mould as “serious” and the resident called it “severe”.
  3. The extent of the works which were required in 2022, after a mould wash had been completed in May 2021, suggests that the condition of the property was affected by considerable damp and mould. Although the condition of the property appears to have been poor, the landlord does not appear to have completed any risk assessments during the time in which the resident was still living at the property, despite the health conditions the resident had.
  4. The repair records show that the landlord attended frequently between 2014 and 2022 to complete damp inspections, look for leaks, and conduct mould washes in response to reports made by the resident. However it failed to identify or complete lasting repairs to address the root cause of the damp and mould. It is likely that the landlord’s failure to address the cause over a 10-year period resulted in the eventual condition of the property in 2022, which required extensive works to put right. The landlord was right to acknowledge this in July 2023 by “accepting full responsibility” for any damaged items (caused by the damp and mould) in response to an insurance claim made by the resident. It did so “after reviewing the repairs history at the address”, in which it presumably identified that there had been missed opportunities which constituted service failure(s).
  5. The cause appears to have been a “pinhole leak in a stopcock in the flat upstairs”. There is no evidence that the landlord searched for a leak when conducting a damp inspection on 20 June 2022 in response to the resident’s reports. As the repair records show a history of leaks at the property, an opportunity was missed to inspect its own records which may have provided a suitable starting point to inform its investigation of the cause of the damp.
  6. The landlord’s repairs policy states that “an uncontainable leak from a water pipe” should be attended within 24 hours. However, after receiving a letter from the water supplier advising of a leak at the block amounting to “400 litres of water an hour” on 19 July 2022, the leak remained ongoing when an internal email was sent on 22 September 2022. There were some mitigating factors in the time taken for the landlord to address the leak. The evidence shows that plumbers were delayed in their investigations due to the extensive amount of piping which needed to be inspected, some of which was encased in asbestos, requiring specialist removal.
  7. By the time of the resident’s phone call to the landlord on 22 September 2022, it was clear that the condition of the property and the extent of the works which were ongoing, were causing her significant distress. The resident advised that she was “sleeping on a friend’s sofa”, adding that this was also due to frequent periods of ill health she reported to be suffering as a result of the mould. The landlord rightly made the decision to encourage the resident to accept a decant, which was enacted on 17 October 2022. It would have been preferable for the landlord to consider whether a decant would be appropriate prior to the works starting, based on the expected disruption caused and considering the findings of any risk assessment relating to the mould, as above. There is no evidence the landlord did this, even though intrusive works such as “the removal of kitchen units” were to take place.
  8. The resident’s distress was not alleviated by the decant, and she contacted the Ombudsman shortly after this on 10 November 2022 for help progressing her complaint. She sought financial compensation for the distress caused by the condition of the property and that she had been required to be decanted, which the landlord had noted the resident had “not been keen” to do. Where a decant happens in order to complete works, the Ombudsman would not usually expect a landlord to compensate a resident unless its policies and procedures require it to do so. However in this case, there were a number of missed opportunities by the landlord to rectify the issues prior to the resident requiring to be decanted. Therefore, just as the landlord accepted responsibility for avoidable material damages caused by the damp and mould, it is appropriate in this case that the landlord pay compensation to the resident to ‘put right’ the distress experienced, including the distress of being avoidably decanted.
  9. In total, the resident was decanted from 17 October 2022 to 30 April 2023, when she moved permanently into a new property (the repairs remained ongoing at this point). She had been absent from the property from at least 22 September 2022, but likely earlier. The repairs and associated disruption began on 1 August 2022, after being reported in June 2022. These delays were excessive and significantly exceeded the 60 days required by the landlord’s repairs policy to complete ‘major works’. However, there were a number of mitigating factors to consider, including:
    1. That the landlord took a multifaceted approach by supporting the resident to achieve a permanent move, as well as trying to repair her original property, to ensure the move did not prejudice the timescales in which she could leave the decant property. The landlord demonstrated good practice as its ‘decants team’ met weekly to discuss the resident’s case and sometimes made appropriate interventions (such as chasing works or requesting information on the resident’s behalf).
    2. That a small portion of the delays were because the resident had chosen for a wet room be installed as part of the remedial works.
    3. That there were incidents which caused delays beyond the landlord’s control. Examples include unexpected recurrences of the leak, access issues at other parts of the block, and the presence of hazardous materials.
  10. In conclusion, there was maladministration in the landlord’s handling of reports of a leak, damp and mould, and remedial works at the property, for which some mitigating factors have been considered in calculating compensation. The evidence shows that the resident had experienced significant distress and inconvenience as a result of these failings and went to significant time and trouble to have the issues addressed. The resident suffered unnecessary worry for her health, due to the damp and mould that was present. Although the landlord acted fairly in its handling of these issues, it failed to ‘put things right’, as it offered no financial compensation for the distress and inconvenience caused. The Ombudsman’s remedies guidance states that where there has been maladministration which has had a “significant impact” on the resident and where the redress needed to put things right is substantial, compensation of up to £1,000 is due. Orders are made below.
  11. In October 2021, the Ombudsman produced its Spotlight Report into Damp and Mould, which contains a number of recommendations which landlords should follow. Since then the landlord has developed a damp and mould policy, which is a positive step and should mean that the failings identified in this case are avoided in the future. Therefore, the Ombudsman has not made any learning-oriented orders in this case.

Complaint Handling and record keeping.

  1. There are a number of key omissions in the records provided by the landlord as part of this investigation, in addition to those referenced earlier in this report. There are emails which are believed to have been sent by the resident or landlord, which do not appear in the records. Furthermore there are no records of any of the telephone calls which are known to have been made, including the resident’s initial complaint. It is unclear if all calls were recorded at the time. The absence of certain records has made it challenging to investigate elements of the complaint or corroborate certain allegations made by the resident. The landlord has a duty to keep and maintain accurate records, as well as to submit these records for inspection to the Ombudsman when requested.
  2. A finding of maladministration will only be made where a failing on the part of the landlord has negatively impacted a resident. In this instance, the landlord’s internal emails have provided enough detail that some gaps have been filled and the details contained in some correspondence can be reasonably guessed at. Therefore, there was no tangible adverse effect to the resident, and so no maladministration. However, recommendations are made below.
  3. The Ombudsman’s Complaint Handling Code (the Code), by which the landlord is bound, sets out what is expected of landlords when handling complaints. It defines a complaint as “an expression of dissatisfaction however made”. When an expression of dissatisfaction is made, the Code states that a stage 1 complaint must be raised and responded to within 10 working days. If the resident remains unhappy, the landlord must respond at stage 2 within 20.
  4. The resident’s complaint of 27 July 2022 was acknowledged in writing by the landlord on 1 August 2022, however no complaint response was forthcoming. The resident made a number of further expressions of dissatisfaction after this point, which the landlord failed to acknowledge. In internal emails of 22 September 2022 the landlord acknowledged that the resident “regularly complains about leaks from the flat above”, however there is no evidence that the landlord ever responded formally. The Ombudsman had to write to the landlord, instructing it to respond.
  5. On 17 January 2023 the resident stated that she was unhappy with the stage 1 response, but the landlord failed to escalate the complaint. On 2 February 2023 the resident explicitly requested to escalate the complaint, but the landlord failed to make any contact with the resident until 21 March 2023. The resident then engaged a legal representative to help progress her complaint. The landlord responded with strong opposition to any suggestion that it may be liable for legal costs, yet failed again to respond formally at stage 2. The Ombudsman was required to make a “final request for action” against the landlord before it finally responded.
  6. The evidence suggests that the landlord’s failure to respond formally to the resident, until an external organisation prompts it to do so, was thematic in this case. For example, when the water supplier wrote to the landlord about the leak, it added that “this needs addressing because the leak is causing distress to residents”. This evidence, when considered alongside the landlord’s later observation that the resident (and her neighbour) had “complained regularly” about the leak, suggests that residents had made little progress complaining to the landlord and instead had approached the water supplier. The landlord failed to utilise the internal complaints process to ‘be fair’ and to ‘put things right’. It failed in its obligations under the Code and caused significant time, trouble and frustration to resident. It also undermined the landlord tenant relationship and potentially caused the resident to incur unnecessary legal costs to provoke a response.
  7. The Code also states that the landlord must respond to all elements of a complaint. At stage 1 the resident complained about issues spanning over 10 years and about the landlord’s handling of these issues. The resident reported being unable to use her kitchen or bathroom due to the condition of the property, however the landlord did not respond to these elements except by outlining the works it would do. In its stage 1 response it pledged to install a new bathroom. It had already removed kitchen units, indicating that the resident’s reports may have been accurate. It is unclear from the evidence how long the resident’s use of these rooms were affected or to what extent, because the landlord did not investigate the resident’s concerns. The landlord’s compensation policy states that where a resident suffers a loss of the kitchen, 20% of the weekly rent should be paid in compensation. There is no evidence that the landlord considered if this payment was due in this instance. The policy states the same 20% is due in the event of a loss of the resident’s bathroom.
  8. The landlord’s failure to consider any compensation during the internal complaints process was a key failing, in part because it was a specific outcome requested by the resident and a key part of the request for action made to the landlord by the Ombudsman. The landlord’s compensation policy also requires it to respond to any request for compensation withing 10 days. Had it followed this aspect of its policy, it would have identified a number of elements of its compensation policy which require the landlord to compensate the resident in this case. For example, there is evidence that the landlord ran dehumidifiers at the property as part of the works for an unspecified but significant period of time from October 2022 onwards. The compensation policy states that where dehumidifiers are required to be in use, it will refund the resident at a rate of £2 per humidifier, per day, to reflect the energy costs. The landlord’s decant policy suggests that the resident would have remained liable for the energy costs at the property until 30 April 2023. Furthermore, the landlord apologised for delays in complaint handling and communication, but failed to investigate or put right the adverse effect experienced. In conclusion, there was maladministration in the landlord’s complaint handling, which negatively impacted the resident. The Ombudsman has made a number of orders below in order to put things right.
  9. A possible reason for this is a clause in the landlord’s compensation policy which states that the policy does not apply “where a claim for compensation is made via the Ombudsman”. This part of the policy is not adherent to the Code, which states that the outcome of a complaint must be provided “when the outcome is known”. The potential for an investigation by the Ombudsman does not negate the landlord’s responsibility to ‘put things right’ at the earliest opportunity. A further clause in the landlord’s complaints policy states that “where compensation is awarded by the Ombudsman and there is an outstanding housing related debt owed to the [landlord], where applicable, we will offset any compensation payment”. Orders made by the Ombudsman however should be treated as an award separate from any existing financial arrangements between the landlord, and should not be used to offset. Orders are made below to ensure the landlord updates its policy accordingly.
  10. Lastly, the Code requires that all complaint responses are clearly labelled, to show which stage of the complaints process the landlord is responding at. The stage 2 response however is not clearly labelled. This caused confusion, particularly because although it confirms in it the details of the stage 1 response, it contains a different complaint reference number. The landlord should ensure all future complaint responses are clearly labelled, in line with the Code.
  11. As a result of the failings highlighted in the landlord’s complaint handling, the resident expended significant time and trouble and experienced unnecessary distress from June 2022 until she was moved on 30 April 2023. This included asking for an intervention by her MP, approaching this service, and chasing the landlord regularly. Internal emails suggest that during calls made to it, the resident was greatly distressed and often “in tears” about the situation. The resident suffers from a number of mental health issues which she claims were significantly exacerbated by the failings identified. The landlord mitigated some of this adverse effect as above by supporting the resident in a move and the other positive actions highlighted earlier in this report, which has been considered. The Ombudsman’s remedies guidance states that where there has been maladministration which has adversely affected the resident and where the landlord has failed to put things right, compensation of over £100 is due. Orders are made below.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of reports of a leak, damp and mould, and remedial works at the property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s record keeping.

Orders

  1. Within 4 weeks of the date of this determination, the landlord must:
    1. Pay the resident £1,250 compensation, made up of:
      1. £1,000 for distress, inconvenience, time, and trouble.
      2. £250 for the adverse effect caused by the landlord’s complaint handling.
    2. Calculate how many dehumidifiers were in use at the property and for how many days, until 30 April 2023. It should then compensate the resident in line with its policies, if it has not done so already. It should provide the Ombudsman with evidence to support its calculation. Should the evidence not sufficiently provide clarity, the Ombudsman may amend this order to reflect a notional amount.
    3. Provide evidence to the Ombudsman which demonstrates the condition of the kitchen and the bathroom during this period, alongside an assessment against the resident’s claims that these rooms were “unusable”. If it cannot satisfy the Ombudsman that these rooms were in a usable condition, it should pay compensation to the resident in line with its policies, from the date of the resident’s first report in June 2022, until she was decanted.
  2. Within 8 weeks of the date of this determination, the landlord must:
    1. Amend its compensation policy to ensure it is compliant with the Code, if it has not done so already. It should then submit this to the Ombudsman.
    2. Conduct training in complaint handling for all relevant staff members. If this has been done since the date of the stage 2 response, it should provide evidence of this to the Ombudsman.

Recommendations

  1. To conduct a review of its record keeping practices. The landlord should refer to the Ombudsman’s report on Knowledge and Information Management (KIM).
  2. The landlord should satisfy itself that its damp and mould policy follows the recommendations made in the Ombudsman’s Spotlight report on damp and mould.