Whitefriars Housing Group Limited (202004594)

REPORT

COMPLAINT 202004594

Whitefriars Housing Group Limited

28 April 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 damp and mould in her property.
2. the resident’s concerns about anti-social behaviour, the information she was given about the property before moving in, staff conduct and asbestos in her kitchen. 
3. the associated complaint handling.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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. After carefully considering all the evidence, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
3. It is noted that, during her correspondence with the landlord regarding the damp and mould in the property, the resident has mentioned other issues such as antisocial behaviour, not having enough information about the property before moving in, staff conduct (whereby a contractor had opened the resident’s bedroom door whilst carrying out a kitchen replacement), and asbestos in her kitchen, which resulted in her suffering financial loss. As these are separate issues to the complaint raised with the Ombudsman, these will not be addressed as part of this investigation report.
4. This is in accordance with paragraph 39(a) of the Scheme which says that the Ombudsman will not consider complaints about issues which have not exhausted the landlord’s internal complaints procedure.
5. If the resident feels these matters are unresolved, the resident would need to contact the landlord and, if appropriate, raise a separate complaint accordingly through the landlord’s internal complaints process. The resident may be able to refer these issues to the Ombudsman as a separate complaint, if she remains dissatisfied once she has received the landlord’s final response to these issues.

Background and summary of events

6. The resident is a tenant of the landlord. The property is a flat situated in a building with similar properties. It is noted that the resident has sought representation from a third party who has corresponded with the landlord on her behalf on some occasions. For ease of reference, this report will refer to both the resident and the third party as “the resident”.
7. The resident first reported damp and mould in the property on 24 October 2018. The landlord’s records indicate that works were subsequently carried out on 14 November 2018 to remedy a leak and to treat the mould.
8. On 11 December 2018 the resident reported that there was mould throughout the property. Further mould treatment works were completed on 28 December 2018.
9. However, the resident reported that there was mould in the property again on 2 January 2019. The landlord’s records note that by this point, three or more mould treatments had been carried out. An inspection by a Technical Officer was arranged for 14 January 2019. The landlord has not provided a record of the inspection findings.
10. Following this, the landlord raised an order for works identified during the inspection. It appears that one of the jobs was to replace the bathroom extractor fan. The works were carried out on 14 February 2019 but the resident contacted the landlord on this date to complain that the works agreed during the inspection had not been carried out, as only decorative works had been completed. The Technical Officer spoke to the resident and confirmed that the bathroom extractor fan would not be replaced at that time as it was in good working order, and the situation would be monitored. Advice was given to the resident on ventilating the property and using the hygrometers that had been provided to monitor the humidity levels in the property.
11. On 25 February 2019 the resident raised a complaint about how her reports of damp and mould were being handled. She said that the works that had been agreed following the inspection had not been completed, the damp and mould was having a significant impact on the living conditions in the property and on her family’s health, and she could not afford to keep opening windows when it was very cold outside. She said she felt there was something very wrong with the property as water would drip from the ceiling. She said the bathroom extractor fan was too small to be effective. Evidence has been provided to the Ombudsman to confirm that the complaint was responded to on 29 February.
12. On 12 March 2019 an order was raised to complete works to the bedroom, bathroom and rear bedroom. Evidence from the landlord indicates the work involved painting.
13. During April 2019 the resident chased the landlord in relation to the mould treatment works; she advised that the mould throughout the property was very bad again and the property needed inspecting. During May 2019 the resident told the landlord that the mould was “bleeding” through the paintwork again.
14. On 17 October 2019 the resident reported that there was mould in the property again, and on 19 November 2019 she reported that damp was affecting every room in the property. During October and November 2019, orders were raised to treat the mould.
15. The landlord arranged to inspect the property on 25 November 2019, and notes confirm there were found to be isolated mould spots to the living room and kitchen for which mould growth treatment was arranged.  
16. On 15 December 2019 the resident advised that despite the last mould treatment taking place in November 2019, the mould had returned and needed removing. The following day the resident wrote to the landlord again, she said that she had been advised on numerous occasions that the damp and mould was due to her lifestyle but she disputed this as she left windows open and no clothes were washed or dried in the property. She said that her shoes and suitcases were mouldy and there was a very strong smell of damp in one of the bedrooms. She asked the landlord to authorise a damp and condensation survey in order to identify the core problem.
17. The landlord subsequently carried out an inspection of the property on 19 December 2019. The landlord has provided case notes which show a work order was raised for mould treatment work to be carried out to bedroom two as per specifications noted by the inspecting officer.
18. On 20 December 2019 the resident advised the landlord that it had failed again to provide a permanent solution for the damp and mould problem in the property. She also said that she had corresponded with the landlord on over 20 occasions but had not received a response. The resident sent a follow up email later that month, and during January 2020, she called the landlord chasing a response to her complaint.
19. A ventilation specialist conducted a survey of the property on 12 February 2020. The landlord visited the property the following day to conduct its own survey. The landlord has not provided a contemporaneous record of the findings of either inspection.
20. On 9 March 2020 the resident wrote to the landlord about the matter again. She said that the mould had been treated again in February 2020, during which the mould was painted over, but the contractor had been unable to complete the work due to damp walls. She said the mould had reappeared already. She said she had not received any updates since the inspections in February 2020 were carried out. She said that the hygrometers had confirmed the property was above normal levels and the temperature of the lounge was low, despite the heating being left on. She said in less than two years, over 40 repair appointments had been arranged, causing her significant inconvenience. She said she had received a text that day informing her that a contractor would be attending but no details of the works had been provided.
21. The landlord responded to the complaint on 25 March 2020. In this it said that:
    1. Its surveyor had attended on 13 February 2020 and identified that there was no evidence of damp in the property. They had identified that the temperature in the property was low and suggested that the resident increase the temperature. They also identified that the humidity in the living room was high and suggested the resident shut doors and opened the kitchen window when cooking. A leak in the bathroom had been identified resulting in damp on the walls; a repair had been raised for this but was cancelled due to the operative being unable to gain access to the property.
    2. A ventilation specialist had attended to identify any further issues. They had recommended the installation of a kitchen extractor fan along with a wall Positive Input Ventilation (PIV) unit to assist air circulation and reduce humidity. The specialist reported that the resident had refused to allow them access to the property to complete the works. The landlord therefore recommended that the resident allow access to its operatives to complete the works.
22. The resident responded on 2 April 2020, setting out that:
    1. She disagreed with the assessment that there was no damp in the property and therefore requested that independent damp specialists inspect the property to confirm this.
    2. She was willing to put the heating on for a long period of time to see if the required temperature could be achieved; however, this would be costly and would impact her financial situation.
    3. She questioned the recommendation to close doors and open the kitchen window whilst cooking, as she reasoned that this would have little impact as she did not cook for a substantial period of time.
    4. She raised concerns about the number of visits she was having, especially due to the current Covid-19 pandemic.
    5. She had not refused entry to the ventilation specialist; she contended that they had yet to provide her with a report of their findings and proposed plan of works.
23. The landlord provided a follow up stage one complaint response on 24 April 2020. In this it said that:
    1. Its records indicated that when contact was made by its contractor, the resident preferred to have other issues resolved before she would agree to the completion of any remedial works, which had been recommended following the survey undertaken on 12 February 2020. The works were therefore placed on hold. The landlord advised the resident make contact to arrange the completion of these works, once the Covid-19 restrictions had been relaxed.
    2. In relation to the loss of personal belongings due to mould damage, it was not prepared to accept liability for these items as there was no evidence of structural defects within the property which caused the damp and mould.
24. The resident responded on 5 May 2020 to advise that:

a.  She had previously communicated to the landlord that she could not provide access to the property because of the need for her to reduce face to face contact due to the Covid-19 pandemic.

b.  She contended that the ventilation specialist’s report was incomplete and lacked important facts, and that they had carried out their inspection following the painting of the mould. She said she declined to allow access to the property because the measures taken were only temporary and the issue had not been resolved since 2018.

c.  The condition was severe and had worsened in the property and therefore she requested independent surveyors to attend.

25. The landlord wrote to the resident on 1 June 2020 apologising for the delay in providing a response and confirmed it would need to extend its investigation beyond the expected timescale. It confirmed it would aim to provide a response by 15 June 2020.
26. The landlord provided a stage two complaint response on 23 June 2020. In this it said that it had attempted to carry out the required works on numerous occasions but had yet to be granted access to the property in order to do so. It said that it was also aware that the resident had cancelled all appointments and was instead seeking further external advice. In light of this, the landlord advised that it had closed the complaint due to the resident’s unwillingness to engage. It did, however, advise the resident that if she were to re-engage in the process, it would work with her to find a resolution.
27. The resident was dissatisfied with the landlord’s response and said she had not withdrawn her complaint. She also confirmed that she would not be providing access to the ventilation specialist. Following this the landlord confirmed that the complaint had only been temporarily closed while it was unable to gain access to the property. It said it could re-open the complaint should the resident wish to work with it and allow access to fit an air flow system.
28. The resident subsequently contacted the Ombudsman, who made enquiries with the landlord about the complaint. Following this, the landlord provided an interim stage two complaint response on 10 September 2020, in which it confirmed that it had agreed to appoint an independent damp specialist to assess the property.
29. The damp specialist inspected the property and provided a report to the landlord on 5 November 2020. This concluded that there was a condensation and mould problem in the living room and bedrooms, but there was no structural cause of damp in the property. It concluded there was a lack of ventilation in the property and that the property was cold. It recommended various works to improve the situation, including the installation of: a chemical damp proof course; an extractor fan in the kitchen; air vents in the living room and bedrooms; and thermal boards to the external walls in the living toom and bedrooms. It also confirmed that the wall plaster on the other side of the bath was damp and needed replacing following a water leak.
30. On 2 December 2020, the Ombudsman wrote to the landlord following further contact from the resident. It explained that although the resident agreed an inspection had taken place, the dispute remained unresolved and she had not received a stage two complaint response.
31. The landlord wrote to the resident on 8 December 2020, advising that:
    1. The findings of the independent damp specialist concurred with the landlord’s, in that there was no structural cause of damp within the property. The issue was instead condensation and mould caused primarily by a lack of ventilation.
    2. It had considered the damp specialist’s recommendations and decided that it would install a positive airflow system to provide the ventilation necessary to help manage the condensation. The part had been ordered and it would contact the resident to arrange a date to install this system. If the airflow system did not resolve the issue and excessive condensation was still evident, it would follow up by implementing some of the other solutions identified in the independent inspection.
    3. This was the landlord’s final response to the complaint.
32. The resident was dissatisfied with the landlord’s response. She maintained that the issue was structural and that the installation of a ventilation system would not resolve the damp and mould.
33. The landlord responded further on 21 January 2021, to clarify the following:

a. It acknowledged that completing repairs within the property may be inconvenient, but it was necessary to help find a solution.

b.  The damp report was provided by an independent damp specialist, and it was confident about the recommendation to install a ventilation system.

c.  Once the ventilation system was in place, it would then raise the necessary repairs to undertake plastering work required as a result of the damp.

d.  The opening of windows was not necessarily the answer to ventilating the property; it was a balance of ventilation and heating at 18 degrees or above.

34. The resident subsequently referred her complaint to the Ombudsman. She said she remained dissatisfied with the landlord’s handling of the matter as there had been no resolution to the damp and mould issue after three years, and her belongings had been damaged by damp and mould. She said that in light of this, she was seeking to be rehoused.
35. During March 2021, the resident wrote to the ventilation specialist to confirm that she had received notification of an appointment scheduled for 8 April 2021. However, the resident confirmed that she did not agree with the findings and contended that a ventilation system would not stop leaks into the property. As such, the resident informed them that she would not grant access to complete the work.

Assessment and findings

Repairing responsibilities

36. The tenancy agreement confirms that the landlord is responsible for keeping the structure and exterior of the property in good repair and working order. This repairing obligation includes carrying out repairs to stop water entering the property causing penetrating damp.
37. The landlord also has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.

Policies and procedures

38. The landlord’s repairs and maintenance policy states that it expects tenants to make lifestyle changes to resolve instances of condensation. Moreover, it says that where condensation is the likely cause of any reported dampness, it will advise tenants of any action/s required to deal with the problem and prevent further instances.
39. The landlord’s complaints policy and procedure confirms the following:
    1. A complaint is defined as an expression of dissatisfaction, however made, about the standard of service, actions, or lack of actions, by the landlord.
    2. There are two stages to the complaints process. At both stages the landlord will aim to provide a formal response within ten working days. When complaints require a more detailed investigation, the landlord should ensure that the resident is informed of any delays and provided an anticipated timescale for completion.
    3. Where investigations are complete and repairs have been ordered, then the complaint will be closed off and monitored to ensure that the outstanding actions have been undertaken.

 

 

Scope of Investigation

40. The resident has detailed how the landlord’s failure to address the damp and mould has impacted her health. The Ombudsman does not doubt the resident’s comments concerning her health, however, the Ombudsman cannot draw conclusions on the causation of, or liability for, impact on health and wellbeing. This may be more effectively dealt with as a personal injury claim through the courts. If the resident wants to pursue a personal injury claim, she may wish to seek independent legal advice regarding this process. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.

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

41. The landlord responded appropriately to the resident’s initial reports about damp and mould by carrying out mould treatment works and repairing a leak in the property. However, by early January 2019, less than three months after the resident first reported the matter, it was evident that the mould was returning quickly after each treatment. This required further investigation by the landlord to ensure that it met its obligations under the HHSRS, and it took appropriate action in this regard by arranging for its Technical Officer to inspect the property in January 2019.
42. It is not known what exactly the findings and recommendations of the Technical Officer were, but the available evidence suggests that they concluded that the mould was being caused by condensation rather than a structural defect in the property. Further mould treatment works were carried out and the resident was given advice on increasing the ventilation and monitoring the humidity levels in the property. It was reasonable for the landlord to advise the resident on the steps she could take to manage the situation given that there is no evidence the landlord identified a structural defect in the property causing the damp and mould. This was also in line with the repairs policy. However, within a matter of weeks the resident had advised that the mould had reappeared throughout the property. Evidence from the landlord shows it responded to the resident by arranging a home visit to discuss the mould issues and calls took place between April and May 2019.
43. The resident raised further concerns about damp and mould during October and November 2019. Again, the landlord responded by carrying out mould treatment works. The landlord subsequently arranged for a ventilation specialist to inspect the property during February 2019. The following month, the landlord confirmed the findings of the specialist and that it would carry out the works they had recommended. This was 18 months after the resident first reported the damp and mould issue to the landlord, and overall, the landlord was too slow to progress the matter and propose a lasting solution.
44. Furthermore, the evidence indicates that during this timeframe the resident had to provide access for a considerable number of inspections and repair appointments. She had to pursue the matter with the landlord on a number of occasions and her correspondence was not always responded to, causing further frustration and inconvenience. It is also evident that there was a significant issue with mould in the property, despite treatment works being carried out, which would have inevitably had a considerable impact on the living conditions in the property.
45. Overall, the landlord has taken reasonable steps to address the resident’s concerns about damp and mould since early 2020. The landlord confirmed that it would carry out the works recommended by the ventilation specialist but the resident has not provided access for these works, as she disputes the findings of the specialist. This led to the landlord closing the complaint. This was reasonable in the circumstances as the landlord is entitled to rely on the findings of the specialists that it engages.
46. Following contact by the Ombudsman, the landlord agreed to instruct a further damp specialist survey, as requested by the resident. The survey found that the mould was being caused by condensation and was not due to a structural defect. The landlord considered the findings of the damp specialist and confirmed to the resident the works it had agreed to carry out. However, the resident has not been willing to allow access as she has also disputed the findings of the damp survey. The Ombudsman recommends that the resident considers providing access for the works as the landlord has proposed a reasonable solution to the mould problem.
47. It is noted that the landlord has not agreed to carry out the full range of works recommended by the damp specialist but rather, intends to adopt a “staged” approach, starting with works to improve the ventilation in the property (and as recommended by the ventilation specialist). This is reasonable in the circumstances given that the landlord is not obliged to carry out improvement works to the property. However, it is recommended that the landlord has a plan for monitoring the effectiveness of the works, and for taking further remedial action if the works do not prove successful, with timescales attached.
48. Landlords would normally only be expected to compensate tenants for damage to their belongings due to mould in instances where the problem resulted from a failure to meet a landlord’s repairing obligations, such as a failure to remedy a water leak. There is no suggestion that this was the case as the leak was confined to the bathroom. Therefore, it was reasonable for the landlord to confirm that it would not be compensating the resident for any lost belongings. The resident would need to pursue the matter with her contents insurer, if she has such a policy in place.
49. As a resolution to the complaint, the resident wishes to be rehoused in a different property. The landlord has responded to this request by saying that it would not allocate the resident a priority move as it did not accept that the property was uninhabitable. It confirmed that the resident could register to apply for properties herself, via its website. The landlord’s response to this request was reasonable in the circumstances. The landlord has committed to carrying out improvement works to address the mould issue and it would not be obliged to re-house the resident in these circumstances.

Complaint handling

50. In accordance with the landlord’s definition of a complaint, it is clear that a formal complaint should have been raised much earlier than it was. Clear expressions of dissatisfaction were raised as early as February 2019, yet it was not until March 2020 that a complaint was acknowledged by the landlord, which significantly exceeded the landlord’s stated timescales for a response as set out in its complaints procedure. During the intervening period the resident pursued the landlord on various occasions in relation to formally registering her complaint, particularly over the period between December 2019 and March 2020. This was unsatisfactory.
51. The landlord’s complaint responses have not always provided clear information about the stage the complaint had reached and what the next stage of the complaints process was. Furthermore, two responses were provided at stage one of the procedure – on 25 March and 24 April 2020 – which failed to comply with the complaints procedure and prolonged this process unnecessarily.
52. There was also a delay in the landlord responding to the complaint after it received the resident’s escalation request on 5 May 2020. This was not acknowledged until 1 June 2020, when the landlord confirmed that it needed to extend the timeframe for a response. While the landlord advised the resident that it would aim to respond by 15 June, it eventually provided the response on 23 June 2020, suggesting that it failed to keep the resident adequately updated on the matter.
53. The decision, on 23 June 2020, to close the complaint at this stage was reasonable as the landlord had not been provided access to the property to complete the works it proposed as a resolution to the complaint. This, however, should have been clearly stated as the landlord’s final response to the complaint, which should have included details of how to contact the Ombudsman if the resident remained dissatisfied with its response.

 

Determination (decision)

54. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s reports of damp and mould in her property.
55. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its associated complaint handling.

Reasons

56. It is acknowledged that the landlord has taken reasonable steps to address the resident’s concerns about damp and mould in the property from early 2020 onwards as it has arranged for specialist surveys and committed to carrying out the recommended works. The landlord was entitled to rely on the findings of the specialists that it engaged, who concluded that the damp and mould was being caused by condensation rather than a structural defect in the property. However, the landlord was too slow to progress the matter and propose a lasting solution prior to this, as the resident had started reporting the problems in October 2018. The resident also had to provide access for a considerable number of inspections and repair appointments, and she went to significant time and trouble in pursuing the matter with the landlord.
57. The landlord failed to respond to the resident’s complaint in line with its complaints procedure. It failed to respond to the initial complaint and following this, the resident went to considerable time and effort in pursuing the landlord for a response through its complaints process. There were delays once the landlord did log a complaint and a lack of clarity in the responses in relation to how the complaint could be escalated.

Orders

58. The landlord is ordered to do the following within the next four weeks:
    1. Apologise to the resident for the service failures identified by this investigation.
    2. Pay the resident £600 compensation broken down as follows:
       1. £400 for the distress and inconvenience caused by its handling of the resident’s reports about damp and mould.
       2. £200 for the distress and inconvenience caused by its poor complaint handling.

c. Confirm in writing the plan for monitoring the effectiveness of the works it proposes to carry out and the next steps should the works prove unsuccessful in resolving the mould problem in the property, with timescales attached.

d. Review its handling of the damp and mould issues and its complaint handling in this case and implement any necessary remedial action to ensure that the same issues do not arise again. A copy of the review’s report should be provided to both the resident and the Ombudsman.

Recommendations

59. It is recommended that:

1. The resident considers allowing access to the property for the works the landlord proposes to carry out.
2. The landlord takes steps to ensure that it keeps adequate records of inspection findings.