Hammersmith and Fulham Council (202127040)

REPORT

COMPLAINT 202127040

Hammersmith and Fulham Council

13 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

1. The complaint is about the landlord’s handling of:
   1. The resident’s reports of a leak into her property and the remedial works required.
   2. The remedial works to the resident’s bedroom from 12 November 2021 to date.
   3. The associated complaint.

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 39(a) of the Housing Ombudsman Scheme, the landlord’s handling of the remedial works to the resident’s bedroom from 12 November 2021 onwards is outside of the Ombudsman’s jurisdiction to consider. Paragraph 39 (a) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a landlord’s complaints procedure.
4. The resident has raised a separate complaint with the landlord regarding its handling of the ongoing remedial works to her bedroom. The landlord appears to have responded at stage one of its complaints process on 6 April 2022, however, it is unclear whether this complaint has exhausted the landlord’s internal complaints procedure. This is not something that this Service can adjudicate on at this stage, as the landlord needs to be provided with the opportunity to investigate and fully respond to this aspect before the Ombudsman becomes involved. As such, this investigation will not consider events following the landlord’s stage two complaint response to the initial complaint on 12 November 2021. The resident will need to contact the landlord and escalate her complaint about the bedroom repairs if she has not already done so.  She may then wish to contact the Ombudsman for further investigation if she remains dissatisfied with the landlord’s final response to the new complaint.

Background

5. The resident is a tenant of the landlord. The property is a flat within a block of similar properties owned by the landlord. The resident has advised that she suffers with asthma and has mental health issues.
6. The resident initially reported to the landlord that there was a leak into her property in September 2020 which was believed to be coming from a vacant flat above. The resident asked for an update in October 2020, she was informed that the works to resolve the leak were due to be completed on 26 October 2020 and that she should call back if she continued to experience the leak. The resident continued to pursue updates from the landlord between December 2020 and February 2021 where a repair was raised to assess the ceiling, flooring and tiling in the resident’s bathroom, kitchen and bedroom which had been affected by the leak. The evidence provided suggests that the leak caused by a toilet in an upstairs property was resolved on 10 February 2021.
7. The resident raised a complaint with the landlord in March 2021 as the remedial works to her bedroom and bathroom remained outstanding. She explained that there was damp and mould in the property which was affecting her mental and physical health, due to her asthma. She said she had asked to be moved to temporary accommodation until the issue was resolved in view of her medical conditions and was dissatisfied that no one had taken ownership over her request or provided a response. The resident later escalated her complaint in June 2021; she had been informed that the leak had been resolved but the remedial works remained outstanding and she had not heard anything since 10 May 2021 where a contractor had advised that they could not complete plastering works as the walls were still damp. She added that she had not been staying in the property as she believed it was uninhabitable due to the impact on her medical condition and she expressed concern that she had needed to pay rent during this period. She was also dissatisfied with the level of communication from the landlord and said that she was not kept updated on the progress of the works and had to call repeatedly for updates and explain the situation to a new member of staff on each occasion.
8. Following this, several inspections and surveys took place in July and August 2021. Tiling work in the resident’s bathroom was completed on 13 September 2021 and it was established that the flooring needed to be replaced. Decoration works were booked for 7 October 2021, but the ceilings were found to be damp and further works were required to determine if there was a another leak before works could continue. The resident continued to contact the landlord between September 2021 and October 2021 to seek updates on the progress of the works and her complaint. A new work order for the decoration of the bathroom and bedroom was raised on 2 November 2021 as the resident had confirmed that the area had dried out. Contractors attended on 3 November 2021 and found that further work to strip the wallpaper in the bedroom was required. The work to decorate and mould wash the bathroom was completed on 11 November 2021. The landlord confirmed that it was awaiting information regarding the resident’s availability before arranging the outstanding bedroom works.
9. In response to the resident’s complaint, the landlord apologised for the distress and inconvenience caused by its poor service, including the delay in completing the remedial works and its poor communication. It detailed the actions it had taken and offered the resident £300 compensation in view of the delays and poor communication. It also provided a liability insurance claim form if the resident wished to pursue a claim for the medical problems she said she had experienced as a result of the issues within her property. The landlord explained it was not able to award compensation for any effect on health through its complaints procedure.
10. The resident referred her complaint to this Service as she remained dissatisfied with the length of time it had taken for the landlord to resolve the leak and address the follow-on repairs following her reports of damp and mould. She was also dissatisfied that the works to her bedroom were not yet completed and the level of communication from the landlord throughout the course of her complaint had been unsatisfactory. She was dissatisfied with the landlord’s offer of compensation and previously noted that she had been paying rent for a property which she did not feel she was able to live in due to the impact the damp and mould had on her asthma.

Assessment and findings

Scope of investigation

11. The resident has said she considers that the issues affecting her property have impacted her health. The Ombudsman does not doubt the resident’s comments.  However, it is beyond the remit of this Service to decide on whether there was a direct link between the repair issues and the resident’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord. The landlord has also provided its liability insurance information if the resident wished to pursue a claim directly to its insurer. It was reasonable for the landlord to provide its insurer’s details so the resident can pursue a claim for any damage to her health if she wishes to do so. The landlord would not be expected to consider a claim for damage to health outside the insurance process as it is entitled to refer such claims to its insurer as a way of managing the cost of liability claims.
12. Whilst The Ombudsman cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any errors by the landlord.

The landlord’s handling of the resident’s reports of a leak into her property and the remedial works required.

13. The landlord’s repairs policy states that the landlord is responsible for repairs needed to the structure of the property and the installations for sanitation and water supply, including pipes serving the property. It would also be responsible for repairs needed to the plastering within the resident’s property. The resident would usually be responsible for maintaining any internal decorations, unless damaged by other repair issues. The landlord’s repairs handbook is not specific in relation to who would be responsible for resolving issues such as damp and mould within the property. In line with best practice, following a report of damp and mould, landlords would be expected to carry out an inspection to determine the source of the issue and carry out remedial works such as a mould wash to the affected area in an attempt to resolve the issue. In line with the tenancy agreement, the resident would be responsible for allowing the landlord access to the property so that repairs can be carried out.
14. The repairs handbook states that emergency repairs, including those to resolve uncontainable water leaks should be attended to within 24 hours to make safe, following this, further works may then be required. Urgent repairs, including minor leaks, should be completed within three to five working days and routine repairs, should be completed within 20 working days. in some cases, it may take longer to complete repairs if the repair is more complex or if a series of works are due to take place which require planning. The landlord would be expected to provide regular updates to the resident in relation to the progress of the repair and provide an expected completion date in order to manage their expectations. Where a resident has a vulnerability or disability which may be affected by a repair issue, the landlord would be expected to prioritise the repair where appropriate. 
15. In this case, it is not disputed that there was a significant delay in repairs being carried out to the internal parts of the resident’s property following her reports of a leak between September 2020 to date. The landlord has acknowledged and apologised for its communication with the resident during this period and any inconvenience caused as well as offering £300 compensation.
16. Following the resident’s initial report of a leak in September 2020, the landlord took reasonable steps to investigate the cause of the leak which it believed to be caused by an overflow pipe in a property above. It remains unclear from the evidence provided by the landlord when the leak was resolved, however, it is noted that external work to the building was carried out in October 2020. In some cases, it can take more than one attempt to resolve issues such as leaks as it can be difficult to identify the cause of issue at the outset and different repairs may need to be attempted before the matter is resolved. This would not necessarily constitute a service failure by the landlord in and of itself. However, in this case it is evident that there was poor communication by the landlord and the resident spent significant time and trouble pursuing updates. There is no evidence to suggest that the resident was informed that the leak had been resolved until May 2021 when she received the landlord’s stage one complaint response which is likely to have caused uncertainty and inconvenience to the resident.
17. In relation to the remedial works to the resident’s bathroom and bedroom, the evidence shows that a work order to assess the ceiling, flooring and tiling was initially raised on 12 February 2021. Following this, works to the resident’s bathroom were not fully completed until 11 November 2021, approximately nine months later. There is a lack of evidence to suggest that the resident was adequately updated on the progress of the works during this period which is likely to have caused inconvenience. There were likely to be some delays in May and October 2021 as it was identified that certain areas of the resident’s property had not dried out as a result of the leak and it was reasonable that work to plaster and redecorate could not continue, this does not account for the entirety of the delay in this case and the evidence shows that the landlord had ample opportunity to rectify matters at an earlier date.
18. The resident advised that she needed to take time off work to be available to allow access for appointments and had experienced a loss of earnings due to multiple failed or missed appointments. In general, the Ombudsman would not propose a remedy of compensation to reimburse a resident for their time off work or loss of wages whilst repairs are carried out. Such works will inevitably cause some inconvenience to residents, but in line with the tenancy agreement it would be the residents responsibility to allow access for repairs to be carried out as needed. However, it is appropriate for landlord’s to pay compensation in recognition of the inconvenience caused where repairs appointments are repeatedly missed or fail to resolve the repair issue. In this case, it is unclear exactly how many missed or failed appointments there were, however, the impact of repeated appointments was likely to have caused significant inconvenience to the resident. As such, financial compensation was warranted in view of the inconvenience caused and the landlord acted appropriately by acknowledging the inconvenience caused by its poor service. 
19. The resident raised concerns that her request to be moved into temporary accommodation had not been addressed by the landlord and that she had been passed between different departments but did not receive a response. She also raised concern that the damp and mould in the property was affecting her asthma and later expressed dissatisfaction that she was paying rent for a property which she had not lived in as she believed it was uninhabitable. It is unclear from the evidence provided when the resident first requested to be temporarily re-housed, however, the landlord has not provided evidence which confirms that it made reasonable efforts to address her concerns once it was made aware of her request within her stage one complaint.
20. It should be noted that damp and mould would not automatically mean that a property is uninhabitable for a resident, however, if the issue was particularly bad or the resident was particularly sensitive as a result of her asthma, it may have been uninhabitable for this reason. In this case there is insufficient evidence to show conclusively that the property was uninhabitable and that as a result of this, the resident should have been offered alternative accommodation. However, given the resident’s claim that she was not able to live in the property due to her medical condition, it would have been appropriate for the landlord to have investigated her concerns and asked the resident to provide medical evidence specifically related to her ability to live in the property.
21. The landlord did not investigate the resident’s concerns or provide the resident with an opportunity to provide medical evidence to support her claim that the property was uninhabitable. Whilst the resident has provided medical evidence from her GP to this Service, this does not specifically relate to the effect of damp and mould on her asthma or whether she was able to live in the property due to this. As a result, there is not enough evidence to determine whether the resident needed to move from the property as a result of the impact of the damp and mould on her health. In addition, there is no evidence to suggest that the landlord carried out any specific action such as a mould wash in a timely manner once it was aware of her concerns which would have been appropriate in view of her complaint regarding the impact on her health.
22. In view of this, the landlord should carry out a review of the complaint and confirm its position retrospectively regarding whether the resident should have been offered temporary accommodation due to the impact of the damp and mould on her health. If the landlord concludes that the resident should have been offered alterative accommodation then it should consider offering her a refund of rent for the period when she was unable to live in the property due to the damp and mould. The resident should provide medical evidence to support her claim that she was not able to live in the property during this period and the landlord should write to both the resident and the Ombudsman to confirm its position regarding whether further compensation or a rent refund will be paid. If the resident is unhappy with the landlord’s response once she has provided medical evidence, she may wish to raise a new complaint with the landlord and may approach the Ombudsman if she remains dissatisfied following the landlord’s final complaint response to this issue.
23. Overall, the landlord’s offer of £300 compensation is not considered proportionate in view of the service failures identified. The landlord is to pay the resident an additional £200 compensation in recognition of the inconvenience caused by its poor communication, the delays in completing the remedial works to her property and its failure to investigate her concerns that the property was uninhabitable due to her medical condition or respond to her request to be temporarily rehoused. This brings the total level of compensation for this aspect of the complaint to £500. This amount is in line with the Ombudsman’s remedies guidance (published on our website) which states that amounts in the range of £250-£700 are proportionate where there has been considerable service failure or maladministration by the landlord but this may not have had a permanent impact on the resident. Examples include; failure over a considerable period of time to act in accordance with policy – for example, to address repairs, or a resident repeatedly having to chase responses and seek correction of mistakes, necessitating unreasonable level of involvement by that resident.

The landlord’s handing of the associated complaint.

24. The landlord’s complaints policy states that the landlord has a two-stage complaints process. At stage one, the landlord should respond within 15 working days. If the resident remains dissatisfied, they can escalate their complaint to stage two. At stage two, the landlord should respond within 20 working days. If there are likely to be any delays, the landlord would be expected to contact the resident, explain the reason for the delay and provide a new complaint response timescale at the earliest opportunity.
25. The resident initially asked for a formal complaint to be raised on 19 March 2021. The landlord’s stage one complaint response was dated 9 April 2021 which was within its response timescales at stage one; however, the resident contacted the landlord on 27 May 2021 as she had not received this response. It is unclear from the evidence provided whether the landlord sent the response on 9 April 2021, but it acted appropriately by re-sending the response in a timely manner on the same day once it was aware that the resident had not received it.
26. The resident asked for her complaint to be escalated and provided her reasons for dissatisfaction on 14 June 2021. Following this, there was a significant delay and the landlord did not issue its stage two complaint response until 12 November 2021, which was significantly outside of its 20-working day timescale by approximately 89 working days. The evidence shows that the resident spent significant time and trouble pursuing the complaint response and was not provided with regular updates from the landlord regarding the reason for the delay or an expected timescale for a response. This unreasonably extended the timeframe of the complaint and is likely to have caused significant inconvenience to the resident. Furthermore, whilst the landlord had acknowledged its communication failures within its stage one complaint response to the resident, it failed to improve this throughout the rest of the complaint. It would have been appropriate for the landlord to have specifically addressed its complaint handling failures within its final complaint response and offered additional compensation in view of the inconvenience caused to the resident.
27. In addition, the landlord has not addressed certain aspects of the resident’s complaint, including her claim that the property was uninhabitable due to the impact on her health or her concerns that she was paying rent for a property which she felt she was not able to live in. As detailed above, the landlord’s failure to address this aspect of the complaint or provide its position has prevented the Ombudsman from considering this aspect of the complaint further in this investigation. This is likely to cause additional inconvenience to the resident as she may need to utilise the landlord’s complaints procedure again in order to have this matter addressed. This has been taken into consideration when considering the amount of compensation awarded below for complaint handling.
28. The landlord should pay the resident £300 compensation in recognition of the inconvenience caused by its poor complaint handling; including the delay in receiving a stage two complaint response, the time and trouble the resident spent pursuing the matter and the landlord’s failure to address her concerns regarding her claims that she was not able to reside in the property and had been paying rent during this time. The amount is in line with the Ombudsman’s remedies guidance, as referenced above which states that amounts in this range are proportionate where there has been considerable service failure or maladministration which may not have had a permanent impact on the resident. It is recommended that the landlord carries out staff training for complaint handlers to ensure that the correct complaints procedure is followed and residents are updated and provided with a new complaint response timescale where there are likely to be delays.

Determination

29. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports of a leak into her property and the remedial works required.
30. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the associated complaint.

Orders

31. The Ombudsman orders that the following actions take place within four weeks:
    1. The landlord is to pay the resident £700, comprised of:
       1. £300 as previously offered if this has not already been paid.
       2. £200 in recognition of the inconvenience caused by the landlord’s failure to investigate the resident’s concern that the property was uninhabitable or respond to her request to be temporarily rehoused, the repair delays and the time and trouble experienced by the resident as a result of the landlord’s poor communication.
       3. £200 in recognition of the inconvenience caused by the landlord’s poor complaint handling.

 Recommendations

32. The landlord should carry out a review of the complaint and confirm its position regarding whether the resident should have been offered temporary accommodation in view of the impact of the damp and mould on her health retrospectively. The resident should provide medical evidence to support her claim that she was not able to live in the property during this period and the landlord should write to both the resident and the Ombudsman to confirm its position regarding whether further compensation or a rent refund will be paid. If the resident is unhappy with the landlord’s response once she has provided medical evidence, she may wish to raise a new complaint with the landlord and may approach the Ombudsman if she remains dissatisfied following the landlord’s final complaint response. 
33. The landlord should ensure that the outstanding works to the resident’s property as detailed in her new complaint to the landlord are rectified if it has not already done so. It should also consider whether further compensation should be awarded to the resident in view of its handling of the matter.
34. It is recommended that the landlord carries out staff training for complaint handlers to ensure that the correct complaints procedure is followed and residents are updated and provided with a new complaint response timescale where there are likely to be delays.