Optivo (202012148)

REPORT

COMPLAINT 202012148

Optivo

27 May 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:

a.     The works carried out by the landlord when the resident first moved into her property.

b.     The effect of damp and mould on the resident’s children’s health.

c.      The landlord’s handling of delays replacing the resident’s roof.

d.     The landlord’s handling of the resident’s reports of damp and mould in her home.

e.     The standard of repairs carried out in November 2020 and the administration of the resident’s rent account.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. 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.

The works carried out by the landlord when the resident first moved into her property.

3. The resident has complained that the landlord was aware of damp in the property when she first moved in, in March 2017, and that works to address the damp should have been carried out then. However, there is no evidence of the resident raising a formal complaint regarding this prior to August 2020.
4. In accordance with paragraph 39(e) of the Scheme, the Ombudsman will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to June 2019. The historical issues provide context and background to the current complaint, but this investigation focusses on the landlord’s actions in responding to the more recent events and, specifically, those leading up to the formal complaint made in August 2020.

The effect of damp on the resident’s children’s health.

5. The resident has complained about the effect of the damp on her child’s health. Unfortunately, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be usually dealt with as a personal injury claim through the courts. The courts can call on medical experts and make legally binding judgements. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident. This is an accordance with paragraph 39(i) of the Scheme, which says the Ombudsman will not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.

The standard of repairs carried out in November 2020 and the administration of the resident’s rent account.

6. Following the landlord’s final complaint response of 27 October 2020, the resident has raised several issues to the landlord and to this Service that did not form a part of her original complaint. These include: the standard of damp remedial works carried out by the landlord in November 2020, the effect these had on her decorations, the administration of her rent account, and any other issues raised after the end of the complaints process.
7. Paragraph 39(a) of the Scheme says that the Ombudsman will not investigate complaints which are made prior to having exhausted a member landlord’s complaints procedure. As there is no evidence of the above matters exhausting the landlord’s complaints procedure, this Service is unable to consider these aspects of the resident’s complaint. This is because the landlord needs to be given the opportunity to formally respond to these issues.

Background and summary of events

8. The resident holds an assured tenancy agreement with the landlord for a two-bedroom property, which commenced on 13 March 2017.
9. According to the landlord’s repair records, it raised a repair to the roof of the property on 21 June 2019, due to rain leaking through. The landlord noted that the resident reported that there was water damage and damp internally, so treatment and follow-on plastering works would possibly be needed. The landlord also noted that a decant may be required due to the resident’s concerns about the condition of the property. Finally, the landlord noted that the resident asked for a call back to discuss moving options for her family.
10. The resident called the landlord on 25 June 2019 and was given advice about her moving options.
11. According to the landlord’s later complaint response, dated 16 September 2020, an inspection was completed on 26 June 2019 and a roof replacement was recommended.  The complaint response explains that the contractor it instructed on 23 September 2019 to replace the roof had an accident, and could not start, so a new contractor had to be found.
12. Another work order was raised on 3 December 2019 for an alternative contractor to replace the roof.  According to the landlord’s complaint response, the start date for the roof replacement was then delayed due to bad weather, and this was completed in early March 2020.
13. On 10 March 2020, the resident called regarding the damp in the property, and the landlord arranged for a surveyor to visit on 17 March 2020.
14. From 16 March 2020 people across the UK were advised to work from home and avoid contact with others due to the coronavirus pandemic. The appointment for 17 March 2020 was cancelled by the resident because she was self-isolating.
15. ‘Lockdown regulations’ came into effect on 26 March 2020. Guidance was published on 28 March 2020, recommending that “access to a property is only proposed for serious and urgent issues” and acknowledging that “current restrictions may prevent routine and obligatory inspections. … Landlords should … not be unfairly penalised where COVID19 restrictions prevent them from meeting some routine obligations”.
16. On 18 May 2020, the Housing Minister wrote to all social housing residents via representative bodies to confirm that “landlords should be able to carry out routine as well as essential repairs for most households. There will be a backlog of repairs that they will need to address, so it may take longer than normal to carry out more non-essential work.” 
17. According to the landlord’s complaint response, on 29 May 2020 the resident contacted the landlord again about the damp. The landlord noted that the resident was aware of the coronavirus lockdown, and that only emergency repairs were being completed at the time, so the repair for the damp was closed.
18. Further Government guidance was published on 1 June 2020, reiterating the Housing Minister’s advice of 18 May 2020.
19. The resident called the landlord on 23 June 2020 asking for an inspection. An appointment was raised for 9 July 2020. The contractor visited the property on that date to assess the damp issues, and a damp survey was subsequently ordered. The survey was done on 7 August 2020.
20. On 25 August 2020, the resident complained to the landlord about:

a.     The length of time it took to replace her roof.

b.     A lack of action on her reports of damp and water damage inside the property. She said that the landlord said it would provide her with a dehumidifier and undertake some works, but she had not heard anything since.

c.      A lack of updates and responses to calls regarding the damp.

d.     She was not happy to stay in the property while damp remedial works were carried out.

e.     She incurred extra costs trying to heat the property, due to damp.

f.        She wanted to be rehoused to a three-bedroom property, as her current property was too small for her family, as a resolution to her complaint.

21. On 7 September 2020, the landlord received the damp survey inspection report, which identified mould in several rooms of the property. The contractor recommended works to improve the ventilation.
22. Also, on 7 September 2020, the landlord raised work orders to fit an air pressure unit, as recommended by the damp specialist, and damp remedial works. The landlord’s notes say that it attempted to book an appointment with the resident for damp treatment, but the resident refused. The landlord therefore intended to consider temporarily decanting the resident while remedial works were completed. On 16 September 2020 it spoke with the resident, who refused a temporary decant, and said she did not work to be done while she was in the property.
23. The landlord sent its response to the resident’s complaint on 16 September 2020. It confirmed that it had raised works to improve ventilation within the property, and for interior damp remedial works to be undertaken. This would include mould treatment, and repairs to plastering and a bedroom ceiling. The landlord explained that it was unable to offer the resident a permanent move, but could temporarily decant her while the works were done, which it expected to take no longer than four days. The landlord explained that it did not have an internal transfer list, so it was unable to offer direct assistance to help the resident move home. It said that it could, however, provide her with information on other options available to help her move home, which were outlined in its ‘housing options’ booklet.
24. The landlord said that the change of contractor, and bad weather contributed to delays in the roof replacement, and the contractor who completed the works had said that the resident was kept informed of start date changes at the time. The landlord explained that non-emergency repairs were affected by the coronavirus lockdown, and it had to wait until normal service resumed before proceeding with damp remedial works. In recognition of the delay, the landlord offered to compensate the resident £50.
25. The resident sent through a review panel request form on 13 October 2020. She explained that she remained unhappy with the landlord’s explanation for the roof replacement delays; that the landlord did not address its delays responding to her reports of internal damage; and that it closed the remedial damp work of 29 May 2020 without carrying out any works. The resident also remained unhappy that the landlord did not address that she spoke to different staff members, calls were not returned, and that she had not received any communication regarding the installation of the air pressure unit.
26. The resident also said that she refused damp remedial works while she was in the property as she was concerned that this would affect her children. She did not want to be decanted because the hotels the landlord said it usually used were not in a suitable location for her to take her children to school, and she wanted to be rehoused to a suitable property.
27. On 27 October 2020 the landlord sent its final complaint response. It reiterated its earlier explanations for the roof delays and said again that its contractor had kept the resident informed of any start date changes at the time. The landlord also said that it found no evidence of calls from the resident not being responded to. The landlord said that the roof needed to be replaced before internal works were arranged and, following the resident making contact in March 2020, access was arranged to inspect the property internally.  The landlord apologised that the subsequent repair work was closed on 29 May 2020 but confirmed that it was aware of the internal issues and was attempting to arrange access with the resident. The landlord acknowledged that, even if works could not be completed until the roof was fixed, it would have been reasonable for it to inspect the internal damage sooner. It apologised for its delay in doing this.
28. The landlord offered the resident £200 for the inconvenience its delays in completing the roof repair and raising damp remedial repairs caused her. It confirmed that it was trying to arrange access to complete the outstanding works.
29. The landlord advised that the contractor carrying out the damp treatment would be willing to work over a weekend to help reduce the number of days that the resident would need to be decanted. It would also reimburse the resident for reasonable taxi fares for her children to attend school while she was decanted, as well as provide a subsistence allowance. Finally, the landlord reiterated its position on the resident’s request to be rehoused.

Assessment and findings

Delays in the landlord replacing the property’s roof.

30. The landlord’s repairs policy states that if a repair is not an emergency, it will arrange an appointment for as soon as possible, and at a time that suits the resident. It defines an emergency repair as “anything causing immediate risk to the health, safety and security of any occupants and/or visitors’ to [the resident’s] home, or causing immediate damage to a property’s structure, fixtures and/or fittings.” There is nothing to indicate that the roof repair would be classed as an emergency, and no further guidance has been provided on repair timeframes for non-emergency repairs.
31. Roof replacements are major works, and can take longer than typical reactive repairs. There will sometimes be instances, such as here, where large scale work may take longer than expected. A landlord would be expected to manage residents’ expectations, by providing an estimated timescale, and keeping them updated on the work. In this case, the landlord has explained that the roof works were impacted by the weather and issues with its contractor, which were outside of its control.
32. In the landlord’s complaint response, it said that its contractor had kept the resident updated on the changing start dates (caused by bad weather). The resident disputed that she received updates, and no evidence supporting the landlord’s explanation has been provided, nor is there evidence of the landlord explaining the delays, or managing the resident’s expectations of when the work would be completed, until the complaint had been made. This indicates service failure in the landlord’s handling of the issue, specifically in its communication with the resident and management of her expectations.

The landlord’s handling of the resident’s reports of damp and mould in the property.

33. It was reasonable and practical for the landlord to decide to wait until the roof was replaced, before it investigated and remedied any inside damp issues caused by the roof leak. However, when the landlord realised that the replacement would not be resolved quickly, the reasonable thing to do was to take steps to investigate the damp reports, and consider any potential interim measures it could take. There is no evidence of the landlord having done so, and so the damp reports went unaddressed for a year. 
34. It was understandable that the landlord’s remedial work for the damp was delayed following March 2020, due to the government’s coronavirus guidance, and the subsequent backlog of repairs once restrictions were eased. However, if the landlord had completed an interim damp investigation while awaiting the roof replacement, this would have been completed before the coronavirus lockdown. It was for the landlord to decide how to manage its work, and so closing the damp work order in May 2020 was not unreasonable, provided it did not then let the issue lapse. However, the landlord only appears to have taken action again after the resident pursued the matter in June 2020.
35. Between June and August 2020, the landlord inspected the interior of the property, and commissioned a damp survey. It is reasonable, and usually necessary for a landlord to inspect works to understand what repairs are required, and the landlord raised the necessary repairs as a result of the inspection. The landlord’s offer to decant the resident, and compensate her for travel costs while she was decanted, was a reasonable attempt to resolve her concerns about occupying the property during the works. The landlord also provided appropriate advice to the resident about her rehousing options. These actions by the landlord were reasonable, in contrast to its handling of the reports of damp in the prior 12 months.
36. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord was reasonable. In this case, the landlord has completed the roof repair and raised the necessary damp remedial works. It has also acknowledged and apologised that it did not inspect the interior of the property before the roof was fixed and that the repair for this in May 2020 was closed without action. It considered these aspects of the case in its offer of compensation.
37. In its complaint response, however, the landlord did not fully consider or acknowledge the extent of its delays in acting on the damp reports. This is reflected in the level of compensation it offered the resident. The landlord also did not respond to all the points the resident had raised in her complaint, including that she was spending more on heating the property, due to the damp, and that she was not contacted regarding a dehumidifier.

Determination (decision)

38. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of delays replacing the resident’s roof.
39. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s reports of damp and mould in her home.

Reasons

40. The landlord has provided partial redress for its delay in inspecting the interior of the property before the roof was replaced. It has also completed the roof replacement and arranged for the necessary damp remedial works.
41. However, the landlord failed to keep the resident updated on the roof replacement, and did not appreciate the extent of its delays in acting on the reports of damp. It also did not address all of the points in the resident’s complaint, including her request for compensation for additional costs in heating the property, and that the landlord did not provide a dehumidifier.

Orders and recommendations

Orders

42. The landlord is ordered to, within four weeks of the date of this decision, pay the resident £400. This is comprised of:

a.     £150 for the inconvenience and frustration caused to the resident by its poor communication during the roof replacement,

b.     £250 to properly reflect the excessive time taken to investigate the resident’s reports of damp in her home, the frustration and distress caused, and for the inconvenience caused by not responding fully to the issues in her complaint.

43. These payments are in addition to the £200 already offered by the landlord in its complaint response, which the landlord should now pay if it has not already done so.
44. The landlord must update this Service when payment has been made.

Recommendation (recommendations are not orders. Compliance with them is at the landlord’s discretion)

45. Given that it did not respond to this matter in its complaints process, the landlord is also recommended to consider any evidence the resident can provide in support of her complaint about increased heating costs, because of the damp issues she was experiencing. If, due to the passage of time, the resident is unable to provide such supporting evidence, the landlord should consider whether to make a fair and proportionate discretionary payment to her.