London & Quadrant Housing Trust (202013213)

REPORT

COMPLAINT 202013213

London & Quadrant Housing Trust

1 July 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

The complaint is regarding the landlord’s response to the resident’s reports of damp and mould in her property.

Background and summary of events

Background

The resident is a leaseholder of a shared-ownership property. She purchased her share of the property in 2016.
The resident holds a lease with the landlord, but the landlord does not own the freehold of the building, which is managed by a management company on behalf of the freeholder. Neither the resident nor the landlord has a contractual arrangement with the management company. Through the period covered by the complaint, the management of the block changed hands so for clarity, this report will refer to Management Company A (the previous management company) and Management Company B (the company currently managing the building on behalf of the freeholder) where relevant.
Neither Management Company A or Management Company B are members of the Housing Ombudsman Scheme and as such have not been contacted by this Service during this investigation. If the resident has logged a complaint against either organisation and she remains unhappy with their response, she may wish to refer a complaint to the Property Ombudsman (www.tpos.co.uk) who have jurisdiction over property management companies.
In correspondence with the landlord and this Service, the resident has stated that she considers that, due to health issues, the damp in the property means she should not be residing there. In accordance with Paragraph 39(i) of the Housing Ombudsman Scheme it is beyond the remit and expertise of this Service to determine whether there was a direct link between any disrepair issues and reported health conditions. The resident may wish to seek independent advice on making a further personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord.

Summary of Events

On 20 August 2020, the resident emailed the landlord to advise she had “found damp in several areas of my shared ownership property”. She advised she had contacted Management Company A regarding this, and they had enquired whether the landlord would investigate the matter. The resident advised that Management Company A had arranged for a damp specialist to attend the property in July 2020, who had identified rising damp in the property and made recommendations for required remedial work.
The report noted there was rising damp in the resident’s cupboards which the damp specialist believed was “due to defective works carried out by main contractors. The damp is coming up through the floor and timber stud into plasterboard.” It further noted that, although it could not “thoroughly” investigate the reported damp in the resident’s kitchen without removing units, it “assumed” it was similar to that found in the cupboards and was therefore also rising damp. Regarding reported damp in the bathroom, the report concluded this was “caused by defective sealant around bath and bath panels” and that a “non-rust fixing should have been placed inside the bath and sealed correctly.” It advised this had allowed water to penetrate behind the bath and affect plasterboard.
Based on the report’s findings, the resident requested that the landlord organise its own further inspection for a second opinion and to confirm the presence of rising damp in the property. The resident stated she understood that, as a shared ownership leaseholder, she was responsible for internal repairs at the property, such as those related to the bath, but she asked whether the landlord would agree to “repair/replace the damage incurred” as the issue was reportedly caused by alleged deficiencies in the initial building work. She also clarified that she understood the repairs would not be covered by the landlord’s property insurance as she had already been advised of this by the landlord’s insurer (she provided the landlord a copy of this email).
On 15 September 2020, the Senior Property Manager for Management Company A responded to the resident and advised that “any damp that is caused by an external factor…will need to be flagged with myself. Any faults inside of the demised (property), are the responsibility of the leaseholder.”
Records show the landlord carried out an inspection of the property on 16 September 2020. The results of the inspection (which were not fed back to the resident, landlord or Management Company A until 13 October 2020) noted that the affected walls were tested via moisture meter and were found to be dry and “not really a cause for concern”. The surveyor’s report noted the mould “could be as a result of a leak from the bath where its slightly corroded by the overflow and this had got into the floor.” Following the inspection, the surveyor made the following recommendations:
1. To carry out a leak detection test between the resident’s property and the one next door “to rule out any leaks”.
2. To “hack out and renew the mould ridden plasterboard in the kitchen” and do the same with the “mould ridden plasterboard in the 2 hallway cupboards”.
3. To “renew the damaged bath.”
4. To upgrade the extractor fan in the bathroom to a more powerful fan.
5. To redecorate the new plasterboard on completion.
Following receipt of the surveyor’s report, the landlord emailed the resident the same day to clarify it did not insure the property and that, “if the leak has come from a pipe then there should be cover under the (Management Company’s) policy for resultant water damage and possibly trace and access”. Management Company A were copied in and asked to “discuss with the (resident) how they want to move forward.”
Correspondence seen by this Service shows the resident chased Management Company A several times for an update, also emailing the landlord directly to request help with liaising with Management Company A as she was receiving no response. This Service has not seen evidence that the landlord acted on this. However, Management Company A did then respond to the resident and landlord on 5 November 2020 to advise that they did hold a buildings insurance policy which they “believed” covered trace and access. The Management Company’s insurer was copied into the email.
Records show Management Company A followed-up with the resident and landlord by email on 23 November 2020 to advise that its own insurer had denied the resident’s claim regarding repairs. Management Company A stated, therefore, the landlord “will need to initiate the trace and access investigation” and once they had received a further report, it “may be able to present this to the insurer again, dependant on findings”.
On 15 December 2020, the resident emailed the landlord again, copying in Management Company A, asking when it would “assess the damp in my property” and querying what their surveyor was “putting into place to move forwards with investigating the damp in and around my property”. She advised that the smell of damp had got worse and was “spreading” in the bathroom and that she had ongoing ill health. She accused the landlord and Management Company of “passing the baton” on the issue for months.
The landlord responded the same day and advised that it “believed there is some confusion” regarding the case. It clarified that its surveyor had inspected the property for rising damp but “could not find any signs of damp within the property.” It included photos of the damp meter readings taken at then time. It noted the surveyor’s comments regarding a leak from the resident’s bath and clarified that it would “only be able to undertake trace and access works if the leak is a communal or an external issue” and that internal issues remained the responsibility of the resident as a shared owner. The landlord asked Management Company A to confirm whether the resident could make a claim for the leak under the bath via their building insurer.
Management Company A responded the same day and advised the landlord resident that they no longer managed the building on behalf of the freeholder and directed them to contact Management Company B. The landlord emailed Management Company B on 18 December 2020 and asked them to comment.
The resident emailed the landlord and Management Company B on 15 January 2021 to again query if she should be responsible for repairing damage caused by the bath leak, when she stated this had been caused by poor installation by the developer. She also invited both the landlord and Management Company B to come to her property and “see for yourselves what I perceive as damp entering my home”.
On 26 January 2021, the resident emailed the landlord and Management Company B to advise she was lodging a formal complaint against both parties.
On 1 February 2021, the resident contacted this Service to ask for advice regarding her situation, advising that mould was continuing to affect the property and new coats of paint were peeling off the walls. She advised she had twice made insurance claims with Management Company A which were declined and had now logged a complaint with the landlord.
Records show the landlord emailed the resident on 3 February 2021 to clarify that works regarding her bath and an extractor fan in the bathroom, referred to in the surveyor’s report from the September 2020 inspection were a “flat issue” and “would need to be rectified by the owner”. Regarding the reported rising damp, which it noted the resident believed to be coming from a car park, it advised it would investigate and “report back once we have more information on this.” However, it clarified that, based on the information it had available, and the report from its surveyor, it believed the “damp in the flat is more than likely to be condensation”, noting the resident had confirmed that the bathroom extractor fan was not working and that she did not “open the windows regularly to ventilate the flat”.
On 21 April 2021, the landlord emailed the resident a complaint response, headed “Final Decision Letter”. In its email, the landlord:
1. Clarified that it was not the freeholder of the resident’s property and therefore it would “not be able to help you any further with an insurance claim.” It stated that any claims the resident may make regarding “damp and mould and enamel on the bath” would need to be submitted to her own home insurer or the management company.
2. Referred to an insurance claim made by the resident in September 2020 and noted that during the process it had advised her that she would be responsible for “any damage internally to (the property)” as she was a shared owner. It copied the text of an email sent to the resident which highlighted that a surveyor had attended in October 2020 and made recommendations, although it “was not sure who advised (the resident) that their bath will be replaced” and that, on 13 October 2020, the surveyor had reiterated to the resident that “(the landlord) will not be undertaking these works”.
3. Recognised that the situation was “frustrating” and apologised for any inconvenience caused, but further clarified that it “wouldn’t be able to carry out any internal works to your property.” It offered the resident advice on how to escalate her complaint if she remained unhappy with its response.
The resident contacted this Service to advise that, having requested an escalation of her complaint on 23 April 2021, she had not had a response. However, the landlord then issued the resident its Stage Two complaint response the same day. It advised it had reviewed the case and considered the resident’s concenrs regarding reported rising damp, internal repairs needed in her home and it not responding to her complaint escalation request. The landlord made the following findings:
1. It clarified that, as shared owner of the property, internal repairs would be the resident’s responsibility to resolve. It noted her claim that the repairs were required due to “poor materials on installation from when the property was built” but stated that “this would still fall under your responsibility to address.”
2. It was not the freeholder of the property and did not insure the property. It clarified this was the reason the resident had been referred to the relevant management company and her own home insurance provider.
3. The resident could seek legal advice regarding the refusal of an insurance claim she had lodged in September 2020 (and declined in February 2021) as the landlord’s insurance team was “unable to assist any further with this claim.”
4. Addressing queries raised by the resident regarding correspondence from the landlord’s insurance team, the landlord stated these fell “outside the complaints process” and provided an email contact for the insurance team.
5. The resident had requested an escalation of her complaint on 23 April 2021 and the landlord advised it had “working days to be able to respond”.
Following the landlord’s Stage Two response, the resident referred the complaint to this Service for investigation.

Assessment and findings

Records show the resident raised issues regarding damp in the property in August 2020. In an email to the landlord, she advised that Management Company A had arranged an independent inspection of the property. Although this Service has not seen correspondence regarding this, which was assumed to solely be between the resident and Management Company A, this investigation has seen a copy of the report and its findings. The report outlined that there was rising damp affecting the resident’s cupboards and, it assumed, her kitchen. The report also stated that damp and damage in the bathroom had been caused by a poorly installed bath. The inspection report contained a quotation for works to the resident’s cupboards, kitchen, and bathroom.
Following receipt of the report, the resident asked the landlord to carry out its own inspection of the areas of concern and, while she advised she was aware she was responsible for internal repairs (i.e. related to the bath) she queried whether the landlord would carry out the repairs as it was due to faulty installation when the property was built.
Records show the landlord arranged an inspection appointment the following month but did not identify any signs of rising damp but made a series of recommendations for possible works to be carried out in the bathroom relating to the bath leak. This appears to have caused the resident confusion and subsequent correspondence indicates that this was taken to be the landlord agreeing to carry out those works. However, this was not the case and, following the provision of the surveyor’s report, the landlord has maintained its position that it is not responsible for internal repairs, and these remain the responsibility of the resident under the terms of her shared ownership lease.
While the landlord was not unreasonable in deciding it was not responsible for the internal repairs related to the bath leak and subsequent damage, given the resident’s assertion that the leak was caused by poor workmanship when the property was built, the landlord could have used its discretion to investigate this matter further. However, that it did not do so was not a service failure and the difficulty in carrying out such an investigation is acknowledged, given the resident had been living in the property for over four years by the time the matter was brought to the landlord’s attention.
Based on the information available, while this Service fully understands the resident’s frustration over the issue, the landlord’s position was not unreasonable, and the terms of the lease make clear that internal repairs, such as to the bath and extractor fan in the bathroom, are the resident’s responsibility. After the resident contacted the landlord regarding the damp specialist’s findings and requested that it carry out its own report, the landlord acted reasonably by carrying this out in a timely fashion, although it is noted it then took four weeks to report back on its findings.
While the discrepancy between the findings made by the damp specialist and the landlord’s surveyor is recognised, this Service does not have the expertise to say which report is ‘correct’ and it is acknowledged that all such assessments leave room for different findings and outcomes. Based on the information available, there is no evidence the landlord’s inspection was deficient, and it is noted that it made further recommendations for potential follow-on works which suggest a certain degree of thoroughness. As the landlord’s inspection did not find evidence of rising damp, it was not unreasonable it clarified its position that it was not responsible for carrying out any further repairs. However, it is noted the landlord did advise in March 2021 that it would be “investigating” the car park following further correspondence from the resident and that it would report back with its findings. This Service has not seen any information regarding this further assessment, or whether it has fed back its findings to the resident. A recommendation has therefore been made regarding this at the end of this report.
From the evidence available, the landlord acted appropriately in directing the resident to make an insurance claim and to contact the property management company regarding external repairs the resident believed to be necessary. Although this Service appreciates that the resident may feel this was unfair, its advice that she also arrange her own inspection, at her own expense, was not unreasonable, as it noted she would be able to claim the cost back via any insurance claim if further evidence of rising damp or defective building works (regarding the bath) were found.
It is also noted that, while the damp specialist survey made very different findings to the landlord’s surveyor, this would be a matter for the property management company to investigate further. Records show that Management Company B have declined to investigate further and are relying on the findings made by the landlord’s inspection in September 2020, prior to them managing the property. This Service acknowledges the resident’s frustration at this position, but the actions of Management Company B sit outside of the Ombudsman’s jurisdiction, and she may wish to seek further legal advice regarding this or contact the Property Ombudsman.
While this Service recognises the frustration experienced by the resident, and that she feels she has been passed between the landlord and the respective property management companies who have managed the property on behalf of the freeholder, the position the landlord has taken is not unreasonable. It has also been consistent in advising the resident of its stance, gave appropriate advice regarding who she should contact regarding insurance claims and that she may wish to seek further legal advice if she remained unhappy about the outcome of those claims.
In correspondence seen by this Service, it is noted that Management Company B have advised the resident they will no longer communicate with her, and that future correspondence should be done via the landlord. Going forward, while it is recognised that the landlord is not ultimately responsible for the actions or inactions of Management Company B, the Ombudsman considers the landlord should therefore act in the resident’s interests where necessary to ensure she is treated fairly and communicate with them on her behalf as and when appropriate.

Determination (decision)

In accordance with Paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration regarding the landlord’s response to the resident’s repots of damp and mould in her property.

Reasons

The landlord responded to the concerns raised by the resident in a timely fashion and carried out its own inspection at her request. While its findings differed from those made by a damp specialist, it was entitled to make its own conclusions and there is no evidence that its investigations were deficient. While there was some confusion caused by its set of recommendations for potential work in the resident’s bathroom, including replacing her bath and installing a new extractor fan, it ultimately clarified its position that it was not responsible for internal repairs, as per the resident’s lease, and it communicated this position consistently, including via its complaint responses.
The landlord also acted appropriately by signposting the resident to its insurer, and that of Management Company A where appropriate, and it provided reasonable advice regarding obtaining her own inspection reports.

Recommendations

The landlord should contact the resident, if it has not done so already, to clarify the findings of its investigation into rising damp potentially occurring in the adjacent car park and whether it took, or will take, any further action following its inspection.