REPORT

COMPLAINT 202100661

Stockport Homes Limited

15 March 2023

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:

a.     The landlord’s handling of the resident’s reports of damp, mould, and condensation at the property.

b.     The landlord’s handling of the resident’s reports of pests at the property and the delay in completing associated repairs.

c.      The landlord’s response to the resident’s concerns about the presence of lead within the property.

d.     The landlord’s complaints handling.

Background

2.     The resident occupies the property, which is a 3-bedroom semi-detached house, under an assured tenancy agreement with the landlord. The resident states that she has asthma and ADHD, and her son also has complex needs.

3.     The resident first reported damp, mould, and condensation in the property in 2016. The property was inspected in 2016, 2019 and again in 2020, when some repairs were raised. The resident has also reported the presence of rodents within the property and the Council’s pest control service has attended on multiple occasions between 2018 and 2021.

4.     In October 2020, the resident made a formal complaint to the landlord about its failure to address the damp, mould, condensation, and pests at the property. She raised concerns about the overall condition of the property and its impact on the health and wellbeing of her and her family. The resident noted that an Occupational Therapist (OT) had concluded that the property was too small to meet the family’s needs. The resident wanted to be moved to a more suitable property.

5.     The landlord responded that, once again, the recent inspection had concluded that the damp and mould present in the property was due to condensation. Some repairs had been raised which, combined with the advice given to the resident, should resolve the issue. The landlord explained that the resident’s housing application had a high priority but noted that the demand for housing in the area was very high. The landlord’s response did not address the complaint relating to the presence of pests. The resident sought to escalate her complaint, but the landlord refused, as it had received a Letter of Claim from the resident’s solicitors. The resident was directed to her solicitors for advice.

6.     The resident then raised concerns about the presence of lead within the property, after she visited the doctor with symptoms and was referred for tests. The landlord arranged a lead test of water and paint samples at the property. 1 sample indicated the presence of lead-based paint and the landlord provided advice to the resident about the potential risks and safe redecoration. The landlord explained that as redecoration was the tenant’s obligation under the terms of the lease, it was the resident’s responsibility to ensure that any works were carried out safely. The landlord refused to escalate the resident’s complaint about the presence of lead within the property, as she had indicated that this matter had been referred to her solicitor.

7.     The resident has informed this Service that she is still dissatisfied with the condition of the property and is seeking a move to a more suitable property. The resident has also referred to the costs she has incurred due to the ongoing presence of damp and mould within the property. To the Ombudsman’s knowledge, the resident has not yet begun court proceedings.

Assessment and findings

The landlord’s handling of reports of damp, mould, and condensation.

8.     Under the terms of the resident’s lease, the landlord is responsible for maintaining the structure and exterior of the building. The landlord should ensure that all reports of damp and mould are investigated and, where it is suspected that the issue has arisen due to disrepair, recommended works should be completed in a timely manner.

9.     The Ombudsman also looks beyond the landlord’s statutory repairs obligations and responsibilities under the terms of the lease, to consider whether it has taken reasonable action to resolve the issue. It must be acknowledged that some properties are more susceptible to damp and mould, due to their age and construction type and there is only so much adjustment a resident can

reasonably be expected to make to their lifestyle. Landlords should be mindful that when the cause of damp and mould is found to be due to “everyday living”, a resident may become frustrated that the problem is ongoing despite following the landlord’s advice.

10. The Ombudsman’s guidance, “Spotlight on: Damp and Mould”, which was published in October 2021, promotes a proactive approach to dealing with reports of damp and mould and encourages landlords to move away from a culture of apportioning blame and to work with residents to resolve the issue. This could include providing advice, considering improvements to the property’s ventilation or heating systems, and helping to manage mould growth with other interventions.

11. The landlord has not provided a copy of its Repairs Policy. Its website states that non-urgent repairs will usually be completed within 20 working days and planned works, including re-pointing, should be completed within 6 months. The landlord has noted that during the period of the complaint, its services were impacted by the restrictions imposed due to the COVID-19 pandemic and the impact on its resources.

12. At the inspections completed in 2016 and 2019, the surveyor found no defect to explain the presence of damp and mould. The resident was provided with advice on ventilating and heating the property to reduce condensation and prevent mould growth, and the landlord serviced the property’s extractor fans. Following contact from the resident’s MP in September 2020, a technical inspection was carried out. The landlord took appropriate steps to investigate the resident’s concerns by completing a further inspection, indicating that it took her reports of an ongoing problem seriously.

13. The inspection, which was completed on 8 September 2020, identified some repairs were required, including repointing, repairs to the guttering, and renewal of flashing over the porch. It also recommended carrying out a mould wash. A job order was raised for these works on 17 September 2020. Repointing works were completed on 3 November 2020 and repairs to the guttering and renewal of the porch flashing were completed on 24 November 2020. The recommended repairs were completed within a reasonable time, in line with the landlord’s timescales for completing planned works.

14. The resident maintains that damp and mould is still present throughout the ground floor of the property and in the porch. She has stated that she has replaced flooring in the property twice, at a cost of £450 each time, and purchased four sofas. The resident has explained that she feels that the landlord is “victim blaming” and stressed that despite following its advice on heating and ventilation, the damp and mould is still present.

15. The landlord’s position is that the cause of the continued presence of damp and mould is condensation, which is supported by the evidence provided to this investigation. The landlord has provided a copy of an expert report, dated 8 March 2021, which was produced in accordance with the pre-action protocol for housing disrepair claims. This confirmed that no damp and mould due to disrepair was identified. The landlord is entitled to rely on the professional opinion of the surveyor to conclude that no further works are required.

16. The landlord attempted to complete the porch mould wash on 23 September 2020 but was unable to gain access. The landlord’s records show that another job order was raised on 3 December 2020 for a mould wash to the walls and inside of the gas meter cupboard. The job was cancelled following the contractor’s reports of “no access” when attempts were made to complete the job on 17 February 2021, 05 March 2021 and 29 June 2021.

17. The landlord made reasonable efforts to assist the resident with managing the mould growth by attempting to carry out a mould wash. The Ombudsman will not make a finding of service failure for failure to complete works if the landlord has been unable to gain access on multiple occasions. Although the landlord could have considered whether any improvements could be made to the property to prevent further mould growth, it was reasonable that it took a less invasive approach as a first line resolution. The Ombudsman would expect residents to co-operate with landlords to attempt to resolve the issue and it would not be fair to penalise the landlord for failure to take additional action when it had been unable to gain access to complete works.

18. As the landlord does not accept liability for the damage to the resident’s property, it was not required to compensate her for damage to her personal belongings either. The landlord could have, however, provided better advice to the resident about making a claim via her home contents insurance.

19. The Ombudsman is satisfied that there was no maladministration by the landlord in respect of its handling of the resident’s reports of damp, mould, and condensation. The landlord took reasonable and appropriate steps to investigate the resident’s concerns and completed any repairs identified within a reasonable time. It also sought to assist the resident in dealing with the presence of mould by offering to complete a mould wash.

20. The Ombudsman is sympathetic to the resident’s concerns for the health of her family and acknowledges that the problem can be difficult to manage with lifestyle changes alone, particularly where a property is overcrowded. The Ombudsman therefore recommends that the landlord assess whether there are any additional actions it can take to assist the resident to reduce the presence of damp and mould, such as improving ventilation.

The landlord’s handling of reports of pests at the property and the delay in completing associated repairs.

21. The landlord has provided a copy of its Pest Control Policy, which states that when a tenant reports an infestation, they should be directed to the Council’s pest control service booking system. The cost of any visits and treatments will then be recharged to the landlord. Where a pest infestation is identified, it is the responsibility of the landlord to ensure that there is no disrepair contributing to the problem and, if identified, repairs should be carried out within a reasonable time.

22. In 2018, the Council’s pest control service reported to the landlord following the final visit that there were no further signs of pest activity. A job order was first raised to fill holes in the resident’s meter cupboard on 9 January 2018, as this had been identified as a potential access point for pests. The landlord’s operative attended on 25 January 2018 but was unable to gain access to complete the repairs and the job was cancelled.

23. In its response to an enquiry made by the resident’s MP on 28 July 2020, the landlord acknowledged that the resident had reported pests in the property on several occasions between March and May 2020. A job was re-raised on 20 March 2020 to fill the holes in the meter cupboard, but subsequently cancelled due to the pandemic. According to the landlord’s records, an appointment was attended on 5 June 2020. The landlord’s appointment record shows that the operative was required to ‘fill in holes to meterbox area where mice/rats are entering’. The operative reported that they had filled the holes, but a ‘new job needed for rebuild of backdoor step’. The operative’s feedback does not suggest that the further job was related to the pests at the property.

24. The landlord explained to the resident at the time of the first lockdown that as it was unable to enter the property, she could consider temporarily blocking up the holes and ordering home pest treatments. In the exceptional circumstances that resulted from the pandemic, the landlord’s actions were reasonable, and the landlord attended to complete the recommended works as soon as it was safely able to do so.

25. Prior to the complaint made on 1 October 2020, the Council’s pest control officers made 4 visits to the property in August and September 2020, to inspect, carry out treatment and follow-up. They also attempted to visit on 11 and 29 September 2020 but were unable to gain access. This evidences that the landlord’s system of referring the resident to the Council’s online booking system was working effectively.

26. The landlord has provided copies of emails showing that it was in direct contact with the resident about the ongoing pest issues. The resident reported that the holes in the cupboard had not been filled and so the landlord requested that the job be re-raised on 2 September 2020. The Ombudsman cannot see evidence that a new repairs order was raised for holes in the cupboard at that time or following further reports from the resident on 8 September 2020 and 14 October 2020.

27.  The landlord’s operative attended to complete follow-on works to the property’s back doorstep on 18 and 24 August 2020 but reported that they were unable to gain access. The landlord’s operative again reported no access to complete the back doorstep repairs on 6 October 2020 and noted that the job would require two men. At a visit on 20 November 2020 the operative reported that the resident had refused the works on the advice of her solicitor.

28. Following an inspection carried out in relation to the legal disrepair claim, repairs were raised on 1 December 2020 to brick up holes in the cupboard and renew the back step. The landlord attempted to complete the works on 17 December 2020 but the operative reported that additional labour and materials were required, and that the resident had refused to remove belongings from the cupboard for works to be completed. The repairs were then completed on 9 April 2021.

29. The landlord acted appropriately by referring the resident to the Council’s pest control service and obtaining details of the outcome of its visits. There was clearly a lengthy delay in the landlord completing repairs to potential access areas for pests, but for the most part this was not unreasonable in the circumstances. Works were delayed between December 2020 and April 2021 due to the second and third lockdowns and, prior to this, repairs to the back doorstep were delayed by the resident’s failure to provide access or refusal to allow the works to be completed. The resident is reminded that, in accordance with the terms of her tenancy agreement, she must allow access to the landlord on reasonable notice to enable it to complete repairs it is responsible for.

30. The operative’s notes from 5 June 2020 suggested that the repairs to the holes in the cupboard had been completed at that time, and so the landlord was unaware that further works were required until the resident’s email of 1 September 2020. It has, however, failed to explain the unreasonable delay of 3 months before a works order was raised for the additional repairs. The Ombudsman makes a finding of service failure in respect of this delay.

31. The resident reported further pest activity at the property in March 2021 and pest control attended, carried out treatment and confirmed there was no sign of ongoing activity. At the inspection on 8 March 2021 in relation to the legal disrepair claim, the surveyor noted that there were some areas of missing brickwork in the cupboard requiring additional works. It is recommended that the landlord complete these works as soon as possible if it has not already done so.

The landlord’s response to the resident’s concerns about the presence of lead within paint and the water supply.

32. The Housing Health and Safety Rating System (HHSRS) identifies 29 hazards that may pose a risk to the health and safety of a property’s occupants, one of which is the presence of lead. Hazards can be labelled as either Category 1 or 2, depending on the level of risk identified. Where a landlord identifies a category 1 hazard within a property, it has a duty to take appropriate action.

33. The Ombudsman does not have the technical expertise to assess whether there was sufficient lead in the paint at the resident’s property to constitute a hazard under the HHSRS, or to pose a risk to the health of the resident and her family. Should the resident wish to pursue a claim for personal injury due to the presence of hazardous materials within the property, she should seek independent legal advice. The Ombudsman’s approach to investigating this aspect of the complaint is to consider whether the action taken by the landlord in response to the resident’s concerns was reasonable in all the circumstances.

34. The landlord has acknowledged that at the time of the complaint, it did not have procedures in place for the testing of water and paint samples. In response to the resident’s concerns, which were first raised on 12 March 2021, the landlord attempted to contact her to obtain further information. The resident then requested that the landlord carry out lead testing at the property on 13 March 2021. In emails with the resident dated 15 and 16 March 2021, the landlord agreed to arrange testing and attempted to reassure the resident that the risk to health was low provided lead paint wasn’t disturbed. It also shared guidance on the presence of lead paint with the resident and requested further information about the areas of concern.

35. The landlord took prompt and appropriate action in response to the resident’s concerns and attempted to support and reassure her whilst testing was awaited, acknowledging the distress the issue was causing her. The landlord has provided a significant amount of internal correspondence where it discussed how best to investigate the issue, indicating that it took the resident’s concerns seriously and was proactive in its response.

36. Following completion of the paint and water testing, the landlord reported to the resident that the levels of lead in the water were undetectable and that of the 3 samples tested only 1 indicated a lead-based paint. The report from the landlord’s contractor advised that the risk of harm was minimal unless the paint was disturbed and so the landlord told the resident to stop any redecoration works until she had arranged for the lead to be encapsulated or removed. The landlord provided guidance on how to do this safely and invited the resident to contact it for further information.

37. Whilst the landlord was correct in its statement that the resident was responsible for the redecoration of the property, it did not take account of its responsibility to ensure the property was free from Category 1 hazards. The resident indicated to the landlord that the paint had been revealed during redecoration works. It therefore would have been reasonable for the landlord to have conducted further investigations to assess whether, having been exposed, the lead paint had been “disturbed” in a manner that gave rise to a category 1 hazard.

38. There is some evidence that the landlord did consider offering to assist the resident with redecoration, but it concluded that this was unlikely to resolve the complaint as she was seeking a move. Given the nature of the issue, its suggestion that the resident deal with the issue by herself was unreasonable. The landlord also failed to take account of the resident’s additional vulnerability as an asthma sufferer and to consider whether this warranted additional support.

39. The Ombudsman considers that there was service failure by the landlord in its response to the resident’s concerns about the presence of lead within the property. The Ombudsman orders the landlord to carry out a further assessment of the presence of lead within the property, to consider whether any action is required, and to carry out any actions identified.

Complaints handling

40. The landlord provided stage 1 responses to the resident’s complaints but subsequently refused escalation on the grounds that the resident was pursuing a legal claim for disrepair that included the issues complained about. The landlord referenced paragraphs 3.4 and 3.5 of its Customer Feedback Policy, which states that a complaint will not be accepted if it is subject to legal processes.

41. In October 2021 the Ombudsman produced guidance on the relationship between the pre-action protocol for housing condition claims and service complaints, which states:

“Even when a landlord receives correspondence initiating the protocol, it is important that they do not disengage from either the ICP or the repair issue itself

… The Ombudsman’s view is that a matter does not become ‘legal’ until proceedings have been ‘issued’. The issuing of proceedings involves filing details of the claim, such as the Claim Form and Particulars of Claim, at court.”

42. Following contact from the resident in April 2021, this Service requested that the landlord confirm whether legal proceedings had been issued. The landlord did not provide a direct response to this enquiry, stating only that a legal claim was “active”. In April 2022, it advised that it was aware of the Ombudsman’s guidance and asked whether it should provide a stage 2 response to the complaints. The Ombudsman advised that it supported local resolution of the complaint, but no evidence has been provided to this Service that the landlord provided a further response.

43. The landlord’s refusal to provide a stage 2 response to the resident meant that it missed an opportunity to resolve the resident’s concerns via its internal complaints process. The resident then felt she had no option but to continue to pursue her concerns via the legal disrepair route. The landlord’s approach was contrary to the Ombudsman’s dispute resolution principles, and the pre-action protocol, which encourages the use of alternative dispute resolution to resolve disrepair claims prior to the issuing of legal proceedings, where possible.

44. It is also noted that the landlord’s stage 1 response to the complaint of 7 October 2020 failed to address the resident’s complaint about the ongoing presence of pests within the property. The landlord should deal with all aspects of the complaint in the stage 1 response, including providing details of its investigation into the resident’s concerns and a summary of its findings. This is essential to demonstrate that the resident has been listened to and that appropriate action has been taken. Failure to address an issue raised as part of a complaint can be very frustrating for residents and further undermine their trust and confidence in the landlord.

45. It is understood that the resident is seeking a move to a different property. The landlord stated that it was unable to provide this as a resolution to the resident’s complaints. The landlord has clearly explained to the resident her housing priority position and the reason for the delay in rehousing her. The Ombudsman is unable to order the landlord to arrange a housing transfer in the absence of evidence that an emergency decant is required in accordance with its policies and procedures. The Ombudsman has, however, made orders below to enable the landlord to put things right, in recognition of the failings identified in this report.

46. The Ombudsman considers that there was maladministration by the landlord in its handling of the resident’s complaint due to the landlord’s failure to respond to all issues raised in the complaint and to escalate the complaint through its internal complaints process.

Determination

47. The Ombudsman has determined that in accordance with paragraph 52 of the Scheme:

a.     There was no maladministration in respect of the landlord’s response to the resident’s reports of damp, mould, and condensation at the property.

b.     There was service failure in respect of the landlord’s response to the resident’s reports of pests at the property and the delay in completing the associated repairs.

c.      There was no maladministration in respect of the landlord’s response to the resident’s concerns about the presence of lead within the property.

d.     There was maladministration in relation to the landlord’s complaint handling.

Orders

48. Within 28 days of this letter, the landlord is ordered to pay the resident £250 in compensation comprised of:

a.     £100 in recognition of the delay identified in raising additional works to fill holes in the meter cupboard.

b.     £150 in recognition of the failings identified in respect of the landlord’s complaints handling.

Recommendations

49. The landlord is to:

a.     Consider developing an overall framework, or policy, to address damp and mould. This would include any proactive interventions, its approach to diagnosis, actions it considers appropriate in different circumstances, effective communication, and aftercare.

b.     Assess whether the landlord can assist the resident to better manage the damp and mould within the property and contact them to discuss.

c.      Carry out any further works required to block up holes in the property’s meter cupboard if it has not already done so.

d.     Revise its Complaints Policy to clarify that the commencement of the pre- action protocol on housing condition claims should not prevent the landlord from continuing to respond to a complaint via its internal complaints process.