London Borough of Hillingdon (202012171)

REPORT

COMPLAINT 202012171

London Borough of Hillingdon

16 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 reports about:

a)     Mould in the property.

b)     Her application for re-housing.

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.
3. After carefully considering all the evidence, in accordance with paragraph 39i of the Housing Ombudsman Scheme, the complaint about the resident’s application for re-housing is outside of the Ombudsman’s jurisdiction.
4. Paragraph 39i of the Scheme states that the Ombudsman will not investigate complaints which, in his opinion ‘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’. It is evident that this aspect of the complaint has been raised separately with the Local Government and Social Care Ombudsman (LGSCO), who made a decision on the case in April 2021. The LGSCO is the appropriate body for assessing matters involving a Local Authority’s housing obligations under sections 6 and 7 of the Housing Act 1996 and as such, this investigation will focus on the mould growth issue as this is within the Ombudsman’s remit.

Background and summary of events

Background

5. The resident is a secure tenant of the landlord at the property, a two-bedroom first floor flat. The tenancy agreement confirms the resident’s responsibility to keep the property in a ‘good’ condition. The tenancy agreement also confirms the landlord’s responsibility to maintain and repair the structure and exterior of the property, reflecting its obligations under the Landlord and Tenant Act 1985. If the resident requires re-housing on a temporary basis whilst works are carried out at the property, the tenancy agreement confirms that the landlord will attempt to arrange suitable temporary accommodation, with the resident normally required to return to the property upon the completion of works.
6. The landlord’s repairs policy confirms that tenants have responsibility for ‘wiping down condensation and mould’ and temporarily moving furniture whilst repairs take place.
7. Under the Housing Health and Safety Rating System (HHSRS), the landlord has an overall responsibility to ensure that properties are free of any ‘category one’ hazards, including extensive damp and mould growth.
8. The landlord’s social housing allocation policy includes a section relating to allocation outside the choice-based lettings system. This section highlights the criteria for the landlord considering a household for a management transfer, including cases ‘where vulnerable applicants are unable to participate effectively in the bidding system, or where they have specific accommodation needs’. In cases where a management transfer is agreed, any property offered will be of the same size as the previous accommodation, or a size that meets their needs under the other criteria outlined in the policy, whichever is smaller. Where the move takes place due to an immediate need (such as major repairs), one direct offer of suitable accommodation will be made.

Summary of events

9. The resident complained to the landlord on 6 January 2021. She said that the mould in the property had reached such a condition that she and her three children were using just one of the rooms. She said that a recent landlord inspection had identified the state of the property and recommended significant remedial works, including re-plastering. The resident registered her concerns that these works, which would take some time, would result in significant distress and inconvenience for her household as they would be restricted in their use of the property. She also said that possessions had been damaged by the extensive mould growth, including her sofa, bedroom blinds, a mattress, a chest of drawers and curtains.
10. The landlord responded to the resident on 13 January 2021. It said that its maintenance team had inspected the previous week and arranged for immediate mould treatment in addition to requesting quotations for further works to be carried out. It acknowledged that there would be ‘a few days’ of inconvenience whilst works progressed and that the ongoing lockdown situation might exacerbate this inconvenience but hoped the works themselves would result in the long–term resolution that the resident was seeking.
11. The resident was not satisfied with this response, referring to further mould growth in her response to the landlord of the same date (13 January 2021), her concerns for her son who was on anti-biotics for a chest condition, the disruption caused to her daughter (undergoing testing for autism) and her overall concerns for her family given that they would be confined to one room with no real idea as to how long this would be for. She also asked for a response in relation to the damaged possessions she had detailed.
12. The landlord sent its stage one complaint response on 5 February 2021. It acknowledged that the resident had reported mould on ‘several’ occasions and confirmed the findings of its inspection of 5 January, which identified works. It said that it had returned to the property on 6 January with a contractor so that the contractor could quote for ventilation, plasterboarding and mist coat painting works throughout the property. It also said that an operative from the same contractor had washed down the walls on that same date (6 January).
13. The landlord confirmed that the quote for the contractor works had been approved and that the contractor would contact as soon as possible to arrange the works, though it also informed the resident that the pandemic meant works were taking longer than usual due to additional safety precautions. The landlord acknowledged the temporary inconvenience that would be caused by the works though it hoped that the works, once complete, would result in a long-term improvement. The landlord also noted the resident’s responsibility in ensuring the property remained condensation free, including not blocking up or obscuring vents.
14. Regarding the resident’s reports about damaged possessions, the landlord referred the resident to her contents insurance. If she did not have such a policy in place, the resident was asked to direct her enquiry to its insurer for consideration; providing her with an information leaflet in this regard.
15. The landlord also responded to the resident’s reports that overcrowding was causing the mould growth and gave her information about her ongoing re-housing application (not referenced further here as this issue is not within the Ombudsman’s jurisdiction). In relation to the possibility of a decant whilst the above works took place, the landlord said that it would sometimes arrange a short term decant whilst repairs take place, but that this would be to a similar sized property, or to B&B accommodation if the decant was for a short duration. However, it confirmed that it did not believe that a temporary decant was appropriate in this case.
16. The resident requested escalation of her complaint on 10 February 2021. She was not satisfied that a temporary decant had been refused, referring to the significant disruption she would experience – moving furniture plus her and her three children being confined to a single room for an extended period. She also raised concerns that the works identified by the landlord might not resolve the issue; saying that the mould had already returned following the previous actions to wash it away. In addition, she said that she had not retained receipts for damaged items but could provide photos if they helped.
17. The landlord sent its stage two (final) response on 23 February 2021. It said that it had reviewed its previous decision to refuse the decant whilst works took place and would now look for alternative accommodation, though it informed the resident that this may take the form of B&B accommodation during the two weeks it anticipated it would need to complete the works.
18. The landlord said that it had referred to the possibility of the mould returning following works to raise awareness of the resident’s role in ensuring that it did not. It explained how everyday living can cause condensation and whilst it was appropriate that a landlord take steps to minimise the impact by completing works such as those scheduled for the property, it remained the case that the ventilation and heating systems had to be used properly by those occupying the property.
19. The LGSCO made a decision on the resident’s banding related complaint on 20 April 2021. This decision also included confirmation that the LGSCO considered the decant and mould growth issues to be outside of their remit.
20. The resident emailed the Ombudsman, on 23 April 2021, with an in-depth overview of the circumstances of her case. She said that she had first reported her concerns about the property condition in 2018 and had then reported mould and faulty windows in November 2019. The landlord had carried out some repairs but those same issues remained outstanding. Window repair works had taken place following her further reports in November 2020, but again this did not result in an improvement, she said that the mould growth remained ‘uncontrollable’ despite her best efforts.
21. The resident went on to confirm that the landlord has inspected on 5 January 2021 (as detailed above), with works identified the following day. The landlord’s final response had confirmed that it would source temporary accommodation whilst these works took place, though the resident had expressed her dissatisfaction with this option due to the disruption it would entail for her family. She said that she had discussed this with her Housing Officer (HO) following the landlord’s final response as she did not understand why she could not be offered permanent alternative accommodation and also had concerns about dual rent liability whilst temporarily decanted.
22. Despite her concerns, the resident said that she had reluctantly accepted the need for a temporary decant for the works to take place and. Following a lengthy wait, had been offered a stay at a two-bedroom property. She had queried whether the property came with parking as this was a facility she required and this had been confirmed. However, it had subsequently come to light that this was not the case and when she had raised her objection to the property on this basis, the landlord had informed her that it considered her to have refused its offer and that it would not make any further offer to her.
23. The resident emailed the Ombudsman on 4 June 2021 to say that she had been offered a new property which appeared to meet her needs, with a move expected shortly. However, she made further contact in August 2021 to say that this move had fallen through as the landlord had to offer the tenancy elsewhere due to an emergency. It is reasonable to conclude from the absence of any further updates on the case that the resident remains at the property, with the works identified in January 2021 remaining outstanding.

The landlord’s repairs log for the property

24. The following information is contained within the landlord’s repairs log provided to the Ombudsman on 10 June 2021:

a)     24 March 2015 – Resident unable to open and close bedroom window (no completed date detailed).

b)     1 May 2015 – bedroom window pivot broken (completed 6 May 2015).

c)     23 June 2015 – check bedroom window, advised that new window required (completed 6 October 2015).

d)     9 May 2016 – difficulty with three windows in front room (completed 10 May 2016).

e)     10 November 2016 – mould around bedroom window/ceiling – treatment for mould provided at inspection (completed 7 December 2016).

f)       7 December 2016 – lock requires fixing to bedroom window (completed 14 December 2016).

g)     1 September 2017 – bedroom window not shutting properly (completed 12 September 2017).

h)     11 November 2019 – general property inspection, works identified including vents to hallway cupboard, renewal of bedroom window.

i)        15 November 2019 – bedroom window renewal, with vents (completed 19 December 2019). Also, works to fit vents to hallway cupboard completed 25 November 2019.

j)        19 February 2020 – check bathroom extractor fan as resident reports moisture build up – inspected and no defect/mould identified 3 March 2020.

k)     6 November 2020 – front room windows not closing properly (completed 18 December 2020).

l)        26 November 2020 – inspection required regarding moisture within the property – inspection carried out 5 January 2021 – inspection notes that bunk bed takes up most of the space within the small bedroom, with ‘really bad’ mould. Also ‘bad mould’ in the lounge around windows. Rooms not being ventilated, resident given moisture leaflet.

m)   6 January – mould treatment carried out. Works identified to both bedrooms and lounge (yet to be completed according to the repairs log).

n)     8 February 2021 – works to install kitchen extractor fan cancelled due to no access.

o)     4 March 2021 – repair to lounge window – job ‘paused’ as the window handle issue identified not considered to offer a resolution by the resident.

p)     18 March 2021 – install new kitchen extractor – completed 14 May 2021.

q)     6 April 2021 – refix lounge window – not yet done.

r)       7 May 2021 – mould has returned in the bathroom and the bedrooms – appointment set for 7 June 2021.

Assessment and findings

Scope of the investigation

25. It is clear that the resident’s concerns with mould at the property commenced some time before the complaint under investigation. Whilst these previous reports have been referenced here, this investigation will not assess the landlord’s response to these earlier reports as they sit outside the remit of the investigation. It remains relevant to reference these previous reports however as the Ombudsman expects landlords to look at mould growth issues within a property in a holistic manner, including appropriate consideration of the property history.
26. The jurisdiction section above has confirmed that the resident’s re-housing complaint is outside of the Ombudsman’s jurisdiction. It is noted however, from the resident’s communication with the Ombudsman dated 23 April 2021, that there were significant developments with her re-housing attempts following the completion of the complaints process. It is not clear from the resident’s comments whether the landlord was acting in accordance with the management transfer provisions of its social housing allocation policy when it offered her a property in or around June 2021, or whether this related to its attempts to find her suitable temporary accommodation whilst repairs took place.
27. As this occurred following the completion of the complaints process under investigation, no findings have been made in relation to the possible management transfer. It is recommended however that the landlord confirm its position to the resident in this respect. Her circumstances appear to fit into the category of a vulnerable household with specific accommodation needs for the purposes of the landlord’s policy and it would provide reassurance to the resident, and transparency to the landlord’s decision making if it outlined its views here.
28. It should be noted however, that management transfer decisions come within a landlord’s discretionary powers and are very much separate to a Local Authority responsibility to re-house under the Housing Act 1996. If a landlord accepts a household for a management transfer, it remains that a suitable property will need to be identified from what is usually a very limited resource, with most properties allocated through housing needs provisions.

Mould growth within the property

29. Damp and mould growth continues to be a significant issue for a significant proportion of social housing tenants. The Ombudsman’s experience of investigating such issues over an extended period has led to specific recommendations as to how a landlord should consider its response to such reports, both in terms of individual cases, but also across their entire portfolio. Housing Ombudsman Spotlight report on damp and mould (housing-ombudsman.org.uk)
30. These recommendations include a requirement that a landlord act proactively with mould/damp issues, that it ensures that it plays its part in mitigating the impact of condensation issues within properties, that it stops short of apportioning blame to residents for lifestyle issues unless there is clear evidence. It is also recommended that landlords are able to identify complex cases at an early stage, ensuring that vulnerable households are temporarily moved from a property if major works are required and that, in all cases, residents are treated with respect and empathy.
31. In this case, it is not disputed that the property was significantly impacted by mould growth at the time of the resident’s complaint to the landlord. The resident’s communication with the Ombudsman, together with the property history detailed by the repairs log also demonstrates that this was an issue the landlord was aware of and had attempted to resolve previously.
32. The January inspection of the property identified ‘bad mould’ in at least two areas of the property and also identified the bunk bed in the smaller bedroom (categorised as a ‘box room’ throughout by the resident, with two of her children using the room) taking up most of the space available there. The repairs log, together with the resident’s reports also detail significant and continued concerns with the windows in the rooms most affected by the mould growth.
33. The landlord acted promptly to the inspection completed in early January 2021. The day after the 5 January 2021 inspection its contractor attended with a landlord officer, identified remedial works and completed washing down of the mould growth that had materialised. However, whilst these actions demonstrated timely action on the landlord’s part, it is of significant concern that, at the time of this investigation, there is no evidence that the remedial works identified have been completed, beyond the kitchen fan installation in May 2021.
34. The landlord initially refused the resident’s request for a temporary decant, though no reason was provided for this decision in its stage one response. This decision was of concern given the difficulties the resident had expressed in relation to her ongoing occupation of the property and the potential impact on her from the works as they progressed. The works identified might not have presented as significantly disruptive in the normal course of events, however, the resident has explained the specific concerns she had about her children; the landlord was also aware of the size of the property, including the concerning lack of space in the smaller bedroom. The landlord’s initial decision therefore presented as ill considered, with the customer not placed at the centre of the process.
35. The landlord reviewed this decision at stage two of its process and agreed that a temporary decant should take place. Whilst this was a welcome development, the resident remained dissatisfied as she wanted permanent alternative accommodation. Her contact with the Ombudsman however has confirmed that she reluctantly accepted the need for her to move temporarily, with a further requirement to return to the property once works were completed. Whilst the resident’s concerns were understandable, the main focus for both parties was to raise the standard of the property and a temporary decant was the only option that would allow that to happen. Temporary accommodation will often not 100% meet the needs of the household as a landlord is limited in the options it has available, though it is expected that a landlord will do all it can to secure the best option available.
36. The landlord’s complaint responses clarified its view that the resident’s reports about possessions damaged by the mould growth should be treated as an insurance matter. It is not clear whether the resident had progressed this aspect of the case through either her contents insurer or the landlord’s insurer. The Ombudsman does not consider issues concerning liability, in the way that an insurer might and any Ombudsman investigation will exclude from the findings it makes any issues that have been considered under such a process. In this case given the lack of clarity as to whether an insurance case had progressed, the Ombudsman will consider whether there has been an overall service failure by the landlord and if so, whether this warrants a compensation payment to reflect the distress and inconvenience experienced by the resident in relation to items lost or damaged. Whilst this would be unlikely to meet the cost of these goods, it would at least reflect the landlord’s role in their becoming damaged.
37. Given the circumstances of the case, the Ombudsman does not find that the comments it made in its complaint responses in regard to lifestyle issues were inappropriate or lacking in empathy. It made general comments that ventilation units should not be obscured and provided technical information (including its guidance leaflet) about how condensation forms and what can be done to help this as a resident. Having reviewed the nature of these comments, it is clear that the landlord was not seeking to apportion blame to the resident, but to make her aware that both parties had a role to play in reducing the levels of moisture within the property.
38. Given that this investigation is taking place in December 2021 and there is no evidence that the identified recommended works have taken place, the Ombudsman is not satisfied that the landlord has acted in a sufficiently proactive manner in this case. Irrespective of the resident’s reluctance to vacate temporarily, the landlord retained a responsibility to ensure that the property was free of extensive mould growth. In the circumstances, an overall finding of maladministration has been identified on the basis that the landlord’s initial decision to refuse a temporary decant was unreasonable and that having identified the need to arrange this temporary decant, there is no evidence of it having taken place.
39. To remedy the situation, an order has been included below to ensure that the remedial works are completed within a reasonable timeframe, together with an apology and an award of compensation reflecting the distress and inconvenience experienced during this period of delay, with a further amount to reflect the distress and inconvenience of any personal items damaged by the mould growth within the property.

 

 

Determination (decision)

40. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration with respect to the landlord’s response to the resident’s reports about mould growth within the property.
41. In accordance with paragraph 39i of the Scheme, the complaint about re-housing is outside the Ombudsman’s jurisdiction.

Reasons

42. The landlord acted promptly in response to the January inspection that identified significant mould growth within the property. However, having identified the need to complete remedial works, it is of concern that these works remain outstanding at the time of this investigation. In addition, the landlord’s unsupported decision to refuse a temporary decant at stage one of the complaints process presents as unreasonable.

Orders and recommendations

Order

43. The landlord to pay the resident, within 4 weeks of this investigation, £400 in compensation, reflecting the delay in completing the remedial works at the property and any contribution that its overall failure made to damaged goods/possessions resulting from the mould growth.
44. The landlord to ensure that the full extent of the remedial works identified in January 2021 are completed within two months of the date of this investigation.

Recommendation

45. The landlord to clarify its position regarding a possible management transfer to the resident.