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Clarion Housing Association Limited (202016007)

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REPORT

COMPLAINT 202016007

Clarion Housing Association Limited

21 January 2022


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 resident complains about:
    1. The landlord’s response to his reports of damp and mould in his property from 2017 to 2019, a complaint about which was escalated through the landlord’s complaint procedure in 2019.
    2. The landlord’s response to his reports of damp and mould in his property, a complaint about which was escalated through the landlord’s complaint procedure in 2020-21.

Jurisdiction

  1. 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.
  2. Paragraph 39 (d) of the Scheme states that this Service will not investigate complaints brought to the Ombudsman’s attention normally more than 12 months after they exhausted the member’s complaints procedure.
  3. In this case, the resident made formal complaints to the landlord in 2019, and received a final response in September 2019 that directed him to contact the Ombudsman should he wish to escalate the matter. The resident made contact with this Service in March 2021, some six months outside of the 12-month timeframe for bringing his case to the Ombudsman. There is no evidence of the resident being unable to raise a complaint with the Ombudsman sooner and within 12 months of the landlord’s final complaint response.
  4. In light of this and in accordance with paragraph 39 (d) of the Housing Ombudsman Scheme, this investigation will not consider complaint 1(i), which concerns events prior to September 2019. Events from early 2019 are summarised below to give context to the period being investigated.

Background

  1. The Housing Health and Safety Rating System (the HHSRS) is concerned with avoiding or, at the very least, minimizing potential hazards. Under this rating system the landlord has a responsibility to keep a property free from category one hazards, including damp and mould growth. This means taking preventative measures that could have a significant effect on harm outcomes relating to moisture production and ventilation.

Summary of events

  1. The evidence available indicates that the resident had been reporting damp and mould for a number of years. A formal complaint was raised by the resident in March 2019 and the property was inspected on 1 April 2019. A stage one response was provided on 10 May 2019 which noted that the April 2019 inspection found no damp or mould in the property. The resident had been advised that the extractor fans in the toilet and bathroom were blocked and required an upgrade and an appointment was arranged for 9 April 2019 for this, however the resident declined to have the works carried out.
  2. The resident made another complaint on 16 May 2019. Due to the resident’s dissatisfaction another surveyor attended on 20 May 2019 to inspect and came to the same conclusions as the April 2019 inspection. The report from this inspection recommended that the existing extractor fans located within the bathroom, toilet, and kitchen should be replaced with de-humidistat extractor fans. The landlord provided a stage one response dated 3 June 2019 which confirmed that no damp had been identified.
  3. The resident made an insurance claim around this same time for alleged damage to health caused by damp, which was not upheld. In its letter dated 22 July 2019 the insurer stated that reports of damp had been investigated in 2014, 2015, 2018 and 2019 and it had been concluded by different surveyors that the cause of the issue was condensation due to a failure to ventilate. It concluded ‘As the matter stands however it is not accepted that any illness in/around April 2019 was caused by a damp building issue and/or a failure by our Insured to repair any reported defect/fault because the property records demonstrate any report is taken seriously, investigated and advice or remedy provided as appropriate around your availability/access to the property.’
  4. The resident continued to contact the landlord about the matter throughout 2019, and the landlord encouraged the resident to agree to new fans being fitted. The resident continued to refuse this. The landlord also offered to fit a data logger for one week to monitor any damp, which the resident also declined.
  5. The landlord provided a stage two complaint response in September 2019 in which it noted that the resident did not consider that upgrading the extractor fans would solve the issue in his home which he believed to be caused by damp. The landlord said that a number of surveyors had inspected previously, and none had found any symptoms of damp in the property. To assist with reducing moisture the first step it would normally take was to upgrade the fans, which it had found in most cases did improve the situation. The landlord advised the resident of his right to approach the Ombudsman should he remain dissatisfied.
  6. A further inspection was carried out on 13 January 2020 due to the resident’s ongoing concerns, which found the following:
    1. Bathroom: Some flaking paint and light surface mould in the corners of the room where there was low air movement. No evidence of no water ingress was present, and the conclusion was the issue was caused by high humidity causing leading to condensation.
    2. Bedroom and living room: Surface mould was present in areas of low air movement. No evidence of water ingress was present, and the conclusion was the issue was caused by high humidity leading to condensation.
    3. Kitchen/larder room: Condensation was visible on the windowpane and no visible signs of water ingress.
  7. The conclusion was the same as that at previous inspections: A lack of ventilation was causing high humidity levels leading to condensation related mould. The resident had been advised during the visit that the bathroom extractor fan was partially blocked with dust and should be cleaned.
  8. The resident had also been asked by the landlord to allow it to leave monitoring equipment to check humidity levels, but the resident had refused.  The landlord emailed the resident with these findings and said ‘I would again advise you to allow us to fit humidistat fans to your bathroom and kitchen to assist with the management of condensation. We are also happy to leave the ‘data logger’ at your home for a longer monitoring period.’
  9. In response on 21 February 2020 the resident said ‘I totally reject your response regarding the damp in my flat. Every single person that visits me in my flat, says it damp, after they smell it when they walk in, and observe it on the walls…I demand that you deal with this, this is professional negligence…’
  10. In response to ongoing reports made by the resident about damp, the landlord emailed him on 15 July 2020 stating that the matter had already been investigated and the resident informed of the outcome of the January 2020 inspection. Offers had been made to install humidistat fans to assist in managing the condensation. Regarding a request the resident had made for a dehumidifier to be used instead, the landlord said that the best long-term solution would be humidistat extractor fans. If the resident wished to purchase a dehumidifier himself, he could do so. In response the resident declined to do so and asked the landlord to address the damp issue.
  11. The landlord reiterated its position over the following months in response to the resident’s ongoing communication on the matter.
  12. On 14 October 2020 the resident contacted the landlord with a complaint about the damp (and other issues at the property). On 29 October 2020 the resident spoke with the landlord and said that there had been damp in the property for several years, extractor fans were already fitted and that fitting another two wouldn’t work and a dehumidifier was required. The resident advised that due to health issues he was prone to chest infections and the damp was exacerbating this risk. The resident referred to an insurance claim he had made, saying that the insurers were corrupt. To resolve the matter the resident wanted a dehumidifier, to make a new insurance claim, and financial compensation.
  13. The landlord provided a stage one response dated 19 November 2020. In relation to the damp issue, it said that the property had been assessed for damp and mould in January 2020 and the findings were shared with the resident: The lack of ventilation was causing high humidity levels leading to condensation related mould. The resident had refused the offer of the fans being replaced and a monitor to be installed. The landlord said, ‘Should you decide to have these works completed in the future to assist with the management of the humidity and condensation, Clarion will be more than happy to arrange the works.’
  14. Regarding the insurance claim, the letter noted that the insurance company wrote to the resident on 26 February 2020 detailing their findings and outlining the reasons for declining liability. It said, ‘You may wish to seek independent legal advice in relation to this if you remain dissatisfied.’ The complaint about damp was not upheld, as there had been no failings. The landlord advised the resident of the option to escalate his complaint to stage two should he remain dissatisfied.
  15. The resident contacted the Ombudsman in March 2021 to ask that it investigate his complaint, and was advised that he would need to complete the landlord’s complaint process first.
  16. The resident made a stage two escalation request on 22 April 2021, saying that he was unhappy with the stage one response, and wanted a dehumidifier rather than humidistat fans, and compensation for mental and physical damage to his health and personal items. In an email dated 23 April 2021 the resident said that the damp issue had been ongoing for three to four years, there was black mould around the bottom of his bed, and that he had been caused mental and physical damage. He stated ‘…the damp has been rampant in my flat.’
  17. The landlord provided a review stage response on 21 May 2021. It noted the history of the matter and the findings in April 2019 and January 2020 that the issue was caused by a lack of ventilation, and the recommendation that new humidistat fans were fitted in the bathroom and kitchen to assist with the management of condensation, and a data logger left to monitor humidity levels. The resident had declined these and said he wanted a dehumidifier. The landlord said that while a dehumidifier could assist with bringing down the humidity levels, it would require regular maintenance, and the resident would need to empty the water draw. It said that this would not be a permanent solution, stating ‘We believe that humidistat fans do offer a permanent solution to controlling condensation within your home, if used correctly.’ The landlord said that should the resident want to use a dehumidifier these could be purchased from a number of retailers.
  18. In relation to the insurance claim, the letter set out that insurers concluded that the conditions within the property were not due to any defect but were due to high humidity levels due to inadequate ventilation. There was no proven link between the resident’s ill health and the conditions within the property. The landlord said ‘Should you wish to challenge the manner in which [the insurers] have handled the claim you can do so in writing to the person who was handling your claim…’
  19. In light of ongoing concerns and emails from the resident, which also contained requests for compensation for damage to health and possessions, on 23 August 2021 the landlord emailed him again explaining that all investigations indicated that the mould growth in the property was due to high humidity levels and a general lack of ventilation. It still considered that the best option to address this was to fit humidistat fans in the bathroom and kitchen. It said ‘I understand you are not happy with this suggestion, but again, I would urge you to let us carry out this work. If condensation and mould persist once we have installed the fans, we can discuss further options with you.’ It had also suggested fitting a data logger to allow it to remotely assess the conditions with real-time data around humidity levels, air pressure and temperature. This would allow it to evaluate mould risk.
  20. The landlord noted that the resident had stated that he required a dehumidifier, and repeated that while this could assist with bringing down humidity levels, the resident would need to empty the water container, which the landlord did not view as a permanent solution. It said, ‘We believe that humidistat fans do offer a permanent solution.’ However, it said that it would provide the resident with a dehumidifier. The resident would be responsible for maintenance and any additional running costs. Alternatively, if the resident did not agree to any of these options, the landlord could arrange for a further independent surveyor visit and report on the cause of the condensation and mould.
  21. The resident replied that same day stating ‘I’m extremely unhappy, that you have just ignored my request for compensation, it’s totally unacceptable…’ He said that he did want a dehumidifier and concluded ‘Once again I demand compensation for the damage to my physical health and my belongings. I will take you to court, unless there is a fair resolution.’
  22. In response the landlord noted that the resident had submitted a claim in April 2019 for personal injury due to living conditions, and the insurers advised in July 2019 that they were rejecting the claim. Should the resident wish to challenge this he could contact the insurers. The email stated that compensation was reviewed as part of the final stage complaint but as there had been no service failure and resolutions had been offered, no compensation offer was made.
  23. In September 2021 a further damp survey was carried out, which concluded that no damp was present, with relative humidity just over government guidelines. It stated, ‘the flat would benefit by installing passive vents…’.

Assessment and findings

  1. In his complaint to this Service the resident has said that he is completely dissatisfied with the landlord’s response to his concerns, and its refusal to supply a dehumidifier or to pay him compensation. He said that its proposal to fit extractor fans would not help as there are already fans in the property. To resolve the matter, he would like the landlord to provide a dehumidifier and to pay him a minimum of £2500 compensation for ‘…the damage done to my health, by living in a damp flat and the mental damage done to my health.’ He also seeks compensation for ‘…the damage to my personal items, clothes, damaged by the damp in my flat.’ He said ‘…every human being that visits my flat can smell the damp…’
  2. When considering complaints the Ombudsman applies its Dispute Resolution Principles, which are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes
    2. Put things right
    3. Learn from outcomes
  3. It can sometimes be the case that landlords blame ‘tenant lifestyle’ for problems with condensation and mould growth (for example drying clothes on radiators, not opening windows), with no further action taken to assist.
  4. In this case, the evidence available shows that the landlord did not do this. It treated the resident fairly by listening to and investigating his concerns on a number of occasions. The landlord did not ‘blame’ the resident or put the issues down to ‘lifestyle’. Rather, it inspected the property several times to determine whether there was a defect (such as a leak or water penetration) causing damp. When it was determined that there was not, and the issue was caused by condensation and poor ventilation, rather than simply advising the resident to change his behaviour (for example by not drying clothes on radiators) the landlord attempted to identify factors that may be leading to condensation and mould. Instead of simply cleaning the mould away, it offered options to monitor conditions and improve ventilation.
  5. Despite the fact that all investigations that had taken place in 2019 and previously had come to the same conclusion that no damp was present, and the issue was ventilation, the landlord continued to investigate in light of the resident’s ongoing concerns and dissatisfaction. It also continued to investigate despite the resident’s refusal to accept its findings or the solutions offered. This shows the landlord making considerable efforts to ‘put things right’ for the resident.
  6. The January 2020 inspection again determined that that there was no water ingress into the property and that a lack of ventilation was causing high humidity levels leading to condensation related mould. The September 2021 inspection found the same, and again recommended humidistat fans.
  7. The landlord had by this point offered on many occasions since 2019 to fit humidistat fans to the bathroom and kitchen to assist with the management of condensation, which was a reasonable action to take in light of the findings of all of the inspections that had taken place. The landlord was evidently attempting to find a long-term solution to the problem which would not inconvenience the resident in the manner a dehumidifier would, which would require emptying on a regular basis. Further, it is not generally the responsibility of a landlord to provide items such as a dehumidifier to its tenants to manage day to day condensation issues. Such items would usually need to be purchased by tenants themselves, and indeed the landlord directed the resident to do so if he wished in its 15 July 2020 email. Nevertheless, in an effort to try and resolve the resident’s concerns, it purchased a dehumidifier for him.
  8. While the resident has stated that humidistat fans would not help as there were already fans in the property, the humidistat fans were to be an upgrade to those already in place, and considered to provide enhanced ventilation and better assist with the condensation problem. It was reasonable for the landlord to rely on the majority opinion of the various individuals that had carried out inspections of the property and their recommendations for humidistat fans to be used. The landlord had also asked the resident to allow it to leave monitoring equipment to check humidity levels, but the resident declined this.
  9. Under the HHSRS the landlord has a responsibility to keep a property free from category one hazards, including damp and mould growth. The evidence available shows that the landlord took action in line with this obligation. In light of the resident’s rejection of the landlord’s findings and refusal to allow the proposed actions to go ahead, there was little further action that the landlord could take within the boundaries of its obligations as a landlord. However, it did eventually agree to provide the resident with a dehumidifier, which was outside of its obligations and demonstrates that it was taking steps to ‘put things right’ for the resident despite there being no indication of a service failure on its part.
  10. In relation to the resident’s request for compensation for damaged belongings and impact on health, it is noted that he made an insurance claim in relation to impact on his health in 2019, presumably having been directed to do so by the landlord.
  11. Where a landlord disputes that it is at fault for alleged damages it is reasonable to direct a tenant to make a claim to its insurers, who would then establish negligence or liability to pay. Further, issues such as a landlord’s action or inaction and any impact on health are better dealt with as a personal injury claim through the courts, or via an insurance claim, where appropriate professional medical evidence can be properly reviewed. 
  12. In this case, the resident’s insurance claim had been declined. The landlord appropriately advised the resident to seek legal advice or contact the insurers should he wish to pursue the matter. In terms of taking action in relation to the reported mould and damp, which the resident considered was the cause of ill-health, the landlord acted appropriately. The landlord’s comment in its 23 August 2021 email that no compensation had been offered as no service failure had been identified was reasonable and in line with the findings of this investigation.

Determination (decision)

  1. In accordance with Section 54 of the Scheme, there was no maladministration on the part of the landlord in relation to the complaint 1(ii).

Reasons

  1. The landlord carried out a number of inspections at the property, all of which found that there was a lack of ventilation leading to humidity and condensation. Reasonable plans were made to address this through the installation of humidistat fans, as well as monitoring of moisture levels, but these were refused by the resident. The landlord eventually provided a dehumidifier as the resident requested.