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Welwyn Hatfield Borough Council (202233915)

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REPORT

COMPLAINT 202233915

Welwyn Hatfield Borough Council

28 November 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 handling of the resident’s reports of damp and mould and the associated repairs.

Determination (jurisdictional decision)

When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.

After carefully considering all the evidence, I have determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction.

Summary of events

The resident is a secure tenant of the landlord, a council. He lives in the 3-bedroom property with his wife.

In late July 2021, the resident reported the plaster in his living room was damp. According to the resident, the landlord’s surveyor initially inspected and observed a possible cause from the construction of the neighbour’s garden, but we have seen no records of this visit. The landlord appointed an independent surveyor who inspected the damp in September 2021. Their report identified possible causes from penetrating damp and recommended a range of works. There was no reference to the neighbour’s garden causing damp in the independent surveyor’s report.

In August 2022 the resident complained that, despite works being undertaken, damp remained a problem. He said the landlord was lacking urgency to deal with one of the possible causes of the damp in addressing a problem with his neighbour’s garden. The landlord’s surveyor inspected the property in September 2022 and reported finding the wall dry. They observed that the resident’s patio was positioned below the damp proof course (DPC) and advised he was responsible for addressing the problem.

The resident made a further complaint in late September 2022 because he disagreed with the surveyor’s findings. He included a report from an independent surveyor who recommended, in addition to other works, to “reduce the ground levels at the party wall juncture within the neighbours garden to…below the damp proof course”.

In the landlord’s stage 1 response of 13 January 2023, it gave an apology for the delay in responding and referred to a visit from a week earlier, although records of this have not been seen. The landlord set out work that had been agreed at that visit, which included installation of drainage along the party wall. In mid-February 2023, the resident escalated his complaint because he said he had not heard anything about the works commencing.

Between March and May 2023, the resident submitted 2 claim forms through the small claims court. These were for costs he said he had incurred for increased energy use and redecorating. He also claimed for loss of enjoyment of his living room. In the claim forms, he explained his reason for issuing proceedings were:

  1. There had been a delay in addressing a problem with his neighbour’s garden which had led to an ongoing damp problem in his home.
  2. The work the landlord subsequently undertook on the neighbour’s garden, in January 2023, was substandard and it had ignored his concerns about this when raised.
  3. The landlord had not responded promptly to his request to be compensated.

In late May 2023, the landlord arranged for a further survey, which recommended a new DPC and replastering with a “salt retardant system.” The landlord and resident arrived at a settlement in June 2023 of £3600 and to complete an agreed schedule of works within 56 days.

The landlord’s stage 2 response from 17 May 2023 acknowledged that there were communication problems between departments about works to the neighbour’s garden. It said learning had been shared to improve its service where there was a combination of repair and tenancy issues.

After contact via this Service in June and September 2023 about the resident’s further issues, the landlord sent a stage 2 response on 3 November 2023. It acknowledged that some works had not been carried out, but did not specify what these were. The landlord said that it had raised works that were agreed at an inspection in October 2023. It said it would monitor the works to prevent any further delays.

Following the end of the complaints process, the resident advised that there were delays in some of the agreed works being completed. The available repair records show that the majority of works were completed in April and May 2024. This includes a new drain system.

The resident made a further claim via the small claims court in April 2024. The reasons he cited for initiating proceedings were:

  1. There had been an ongoing damp problem since mid-2021.
  1. The landlord had not engaged with him since December 2023 about a list of outstanding repairs.
  2. He had notified it of his intention to recover his costs for running a dehumidifier but the landlord had not advised him about how to do this.

According to the landlord, it settled on a payment with the resident in May 2024, but the records shared did not cover this period.

The resident referred his complaint to this Service in October 2023 because he was unhappy the landlord had not kept to an agreed timescale for repairs. He was also dissatisfied with the level of communication he received. The resident advised he was seeking for the landlord to learn from his complaint to improve its repair service, particularly where damp and mould was concerned.

Reasons

Paragraph 42.e. of the Scheme states that the Ombudsman may not consider complaints which, in his opinion, concern matters where a complainant has or had the opportunity to raise the subject matter of the complaint as part of legal proceedings.

It is the Ombudsman’s view that a matter does not become ‘legal’ until proceedings have been issued. According to the Civil Procedure Rules, proceedings are issued when the claimant submits a claim form via the court that includes the details of a claim. The court will then serve this on the respondent for them to answer.

The resident submitted 3 claims via the small claims court. The reasons given relate to the same matters that he referred to this Service to investigate. As the landlord was served via the court, it was given set dates by which it should respond to avoid a County Court Judgement. The resident and landlord instead settled without going to court. However, based on the evidence available, the resident has had the opportunity to raise the subject of his complaint as part of the proceedings. In accordance with 42.e. of the Scheme, the Ombudsman will not therefore investigate the complaint.

It is recognised that this decision is likely to be disappointing to the resident. Jurisdiction can be a complex issue, and in this case a thorough assessment of the evidence and facts was needed before reaching a decision.