Hackney Council (202013813)

REPORT

COMPLAINT 202013813

Hackney Council

31 January 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s response to the resident’s reports about:
1. damp and mould in June 2019.
2. damp and mould from October 2020.
3. a bedroom being uninhabitable and his daughter sleeping in the front room.

Jurisdiction

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.
After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. damp and mould in June 2019.
Paragraph 39(a) of the Scheme states that the Ombudsman will not investigate complaints which “are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.” The landlord’s complaints policy similarly sets out that it will not consider a complaint if a resident has not raised it within around twelve months.
Information advises that the resident reported and complained about mould in June 2019, and a complaint was closed in June 2019 which did not exhaust the landlord’s complaints procedure. The resident does not appear to have reported and complained about the issue for sixteen months, meaning the landlord’s confirmation that it would not look at historic issues was in accordance with its policy. This investigation therefore does not consider events before the most recent reports in October 2020.

Background and summary of events

Background

The resident is a secure tenant of the landlord, a local authority. The property is a two bedroom ground floor flat, which the resident occupies with his daughter.
In accordance with the Landlord and Tenant Act 1985 and its repairs policy, the landlord is responsible for the property structure, wall replastering and large patch repairs; while tenants are responsible for decorations and trying to tackle mould, such as controlling build up of moisture and using mould spray. When carrying out repairs to walls, the landlord will redecorate an affected area but not an entire room. The landlord may temporarily rehouse or decant residents for major repairs that include subsidence, major roof repairs or ‘serious damp.’
The landlord has four categories of repair, with the lowest priority, normal repairs, aimed to be completed within 21 working days. The landlord’s website states there is a backlog of repairs due to the coronavirus pandemic and non-urgent repairs may take longer than usual.
Services such as greater priority for repairs or repairs outside usual policy, are available to residents who are frail, elderly or have severe physical health problems or disabilities. Elderly or vulnerable residents can be provided assistance to redecorate their homes if they are registered disabled, or are over 70 with support needs; have a long-term or terminal illness; or have mental health or learning problems.
The landlord operates a two stage complaints procedure and aims to respond at stage one within ten working days, and within 20 days at stage two.

Summary of events

The resident reports that he regularly obtained mould spray from the landlord’s offices as the property was damp and mouldy. He reports that he visited the landlord’s offices on 15 and 19 October 2020 and that at his first visit, staff informed him mould spray was no longer being given out due to Covid-19 and took his details to raise a repair. He reports that at his second visit, staff informed him nothing was on the system and that checks would be made. The resident later booked a virtual inspection for 29 October 2020, and complained on 13 November 2020 after the landlord failed to keep and contact him about the appointment.
1. He was unhappy with a lack of contact from staff following his office visits and the missed inspection and reported that since these, his daughter’s bedroom had become uninhabitable as a result of a damp and mouldy smell. He advised he had purchased repairs materials but was unable to do repairs himself as he had severe pain in one shoulder.
2. He asked the landlord to inspect the property and rectify the issue; compensate for the recent missed appointment and distress caused by the conditions; reimburse him for materials he had purchased; and provide interim accommodation until the issue was rectified.
The landlord carried out an inspection on 23 November 2020. The same day, a work order was raised for its contractor to attend to scope works, that included to install thermal board and fully redecorate in one bedroom; replace vents in both bedrooms; mould wash in a bedroom and kitchen; and repaint some areas with antifungal paint. The works order was raised with a ‘normal’ priority, the landlord’s lowest priority, with a target date of 22 December 2020 for the contractor to complete its inspection.
In December 2020, the landlord informed the resident on a number of occasions that its complaint response would be delayed. The landlord informed the resident that repairs had been raised to its contractor, who would contact him to arrange an inspection. The landlord explained the contactor’s report would then be sent for its approval.
In January 2021, the resident contacted the landlord about delays, which the landlord discussed with its contractor. Information provided advises that the contractor had attempted to call the resident using a number which did not work. The landlord informed the contractor that the resident requested all communication via email, after which a subcontractor liaised by email to carry out an inspection on 26 January 2021.
The resident raised a number of concerns around this time. He raised concern about his details being passed to parties such as the subcontractor without permission. He requested clarification on works, as works the contractor had been asked to scope did not match what he was informed at the November 2020 inspection. He enquired if interim accommodation would be provided during works, as he was asthmatic, over 66, and his daughter was sleeping in the front room. He enquired whether support would be provided to move items for the inspection and for the works, as he had limited movement in one shoulder. After the contractor’s inspection, he raised concern that only two walls in each affected room would be decorated (rather than all four walls) and requested for the whole flat to be redecorated.
The landlord responded to the resident’s complaint on 27 January 2021and the same day asked repairs staff to respond to questions he had raised. The landlord’s response said:
1. The repairs department had been asked contact the resident after office visits in October 2020 and staff did not recollect saying they would update him.
2. The contractor had been unable to contact the resident until provided with his email in January 2021, because telephone numbers for him had not worked.
3. The missed inspection was due to a surveyor being on leave, which had not fed through to a booking system due to technical issues. The lack of contact after the missed visit was being brought to the attention of a manager.
4. Interim accommodation was discussed with a repairs manager and was not considered to be required.
5. Following the complaint, an inspection had been carried out; orders required as a result of the inspection would be raised and monitored; and questions the resident had asked would be answered separately.
6. Historic reports could not be investigated due to a cyber-attack in October 2020 and so the complaint could not be fully answered.
7. It apologised and offered £75 in recognition of this; the missed inspection; and complaint response delay.
8. It explained the complaint would have to be placed on hold and reviewed when IT systems were accessible, if the resident wanted historic aspects addressed.
The resident complained about the response in emails to the landlord and this Service, following which the landlord escalated and acknowledged the complaint.
He was unhappy with the repairs delays, and stated that he and his daughter were victims of discrimination, and that the response had deprived him of the right to request a review. He stated his daughter’s bedroom had become ‘uninhabitable’ since October 2020, because of a damp and mouldy smell and because her belongings had been moved from it for an inspection that had not taken place. He was unhappy service was not being adjusted for physical issues he detailed. He advised that the works could not go ahead unless he had confirmation that the whole flat would be redecorated and he would be provided interim accommodation and support with moving furniture. He also requested confirmation of the scope of works, a point of contact and confirmation that his details would not be shared without express permission. He requested compensation for time and trouble reporting the issues and distress and inconvenience caused him and his daughter.
In February 2021, the landlord updated the resident that the contractor had been contacted to chase the works estimate following their inspection, and informed him that his points of contact were staff investigating the escalated complaint and repairs staff. The resident discussed his queries with repairs staff, and in an email on 19 February 2021 he confirmed that it had been agreed a decant was not feasible; decoration of the whole flat would be authorised; and he would seek help to move belongings from room to room. The resident asked the landlord to confirm his understanding and an action plan and start date for the works. The landlord responded on 23 February 2021 that it awaited the contractor’s estimate.
In March 2021, the landlord informed the resident that works had been approved and he would be contacted by contractors to arrange an appointment. The resident was sent a copy of the approved works specification, which included works to thermal board in both bedrooms; replaster in both bedrooms; apply damp proof liquid membrane; remove mould and apply anti mould paint in bedrooms and kitchen; and replace vents in bedrooms. The resident subsequently advised he had agreed to compromise about interim accommodation, and to get family to help move furniture, because the whole flat would be decorated. He queried this not being included in the specification and requested an up to date one.
The landlord responded that after works started, it would carry out variations where necessary. It stated that it was still within lockdown and only carrying out health and safety works. It explained that it was not obligated to decorate areas not associated with the repairs, but could authorise works in the hallway since this was affected. It advised the resident to contact the contractors for a start date. The resident responded that without an agreement to decorate the whole flat, he wanted interim accommodation; help with storage; and details of a point of contact. He queried being asked to contact the contractor as he had been waiting for a contractor to contact him since November 2020.
On 8 March 2021, the landlord issued its final response to the resident.
1. It detailed, reviewed and restated some of the findings of its first response.
2. It restated apology and explanation about a missed inspection, and apologised for delay in his being contacted after the inspection and repair raised in November 2020. It explained this was around the time of a cyber attack, and it was unable to access a repairs database to clearly understand the matter, but this was possibly because the contractor had incorrect telephone numbers.
3. It explained that contact details had been shared with staff and contractors to address repairs in line with the tenancy agreement. It advised that once its housing database was reinstated, a note would be put on file to stress his preference for email if he wanted.
4. It advised that it generally only redecorated damaged areas and it had agreed to fully redecorate the hall, two bedrooms and a kitchen as a goodwill gesture to remedy the complaint, although not obligated to do so.
5. It advised that it did not generally assist with storing or moving furniture and would not assist with furniture and belongings as it was not intended to decorate the entire property. It advised that responsibility for this lay with tenants, especially because of Covid-19 restrictions. It noted that he had agreed to seek assistance from family.
6. It advised that it would not provide interim accommodation, in accordance with policy and the opinion of repairs staff, who had attended the property and believed works could be done with the resident in situ.
7. It advised that it empathised with the issues he raised but it was satisfied the stated proposals were acceptable. It apologised it was not made clear that he could decline the compensation offer and escalate the complaint. It advised that a specific liaison officer could not be provided but noted that repairs staff were responding to his queries.
8. It advised that it disagreed he and his daughter were victims of discrimination. It explained that many tenants faced delays due to the Covid-19 pandemic, and that a cyber-attack had affected access to its IT systems and added delays.
The resident wrote to councillors after the landlord’s final response, where he raised concern that the works were outstanding; that the landlord had not been able to contact its contractors since November 2020; and that the repairs had not been ‘ordered’ to be carried out. The resident was informed that the landlord’s approach to remedying the complaint was reasonable, such as its agreement to redecorate the hallway bedrooms and kitchen, for which there was no obligation, as a goodwill gesture.
In June 2021, information provided advises that the resident was sent a slip asking him to contact the contractor, after they had been unable to contact him.
In July 2021, the landlord contacted the resident and asked if he was happy contacting the contractor directly to arrange the works, or if he preferred an appointment to be arranged on his behalf. The resident asked the landlord to arrange the appointment and requested the scope of works; the room that would be started first; and how long each room would take. The landlord provided extracts from the works specification the resident already appeared to have been provided in March 2021, which he then requested in plain English.
In August 2021, the landlord detailed the room works would start in, and advised that the contractor would discuss the next room with the resident and explain the scope of works to him. The landlord explained it could not provide the works length as this depended on different factors. It advised there was no specific liaison officer, but confirmed the resident could speak to contractors about the plan/specific details, or contact its repairs department about concerns. The landlord noted time and resources were being taken up by the ongoing communications and asked the resident to confirm his preferred works start date. It was agreed for the works to start on 23 August 2021 and information provided indicates these were completed in August/September 2021 and in November 2021.
The resident raised concern after the works started that the hallway, bedrooms and kitchen would not be redecorated, and that a workman who attended had no instruction to carry out decorations. The resident later made the landlord aware that he had agreed to pay the workman to decorate each room, and had paid the workman £600 to decorate his daughter’s bedroom. The landlord investigated, arranged for the resident to be refunded, and issued a supplemental complaint response on 14 December 2021. The landlord confirmed that works were completed; apologised that the workman took private payment; and confirmed further actions were being taken to try to avoid such circumstances happening again. It noted the resident was aware it would be carrying out the works he privately paid for, and asked him not to enter into such agreements in future and to report such proposals immediately.
In correspondence to this Service, the resident has restated complaints he made to the landlord and raised dissatisfaction that the landlord failed to consider his vulnerabilities and the impact of his daughter sleeping in the front room. He advised that he sought compensation for repairs delays since June 2019.
The landlord has advised that it restricted service to emergency repairs at high infection periods and that between 4 January and 21 June 2021, it mainly only carried out emergency and immediate priority repairs, which caused large backlogs of normal and urgent priority repairs. The landlord advises that this means that residents have experienced delays getting works scheduled since business as usual was resumed in June 2021, which has been further impacted by issues such as staff isolating, new Covid-19 variants and ongoing issues with systems caused by the cyber-attack.

Assessment and findings

Scope of the investigation

This Service understands the resident feels the landlord has failed to properly address issues which have impacted living in the property; and we recognise the concerns he reports have affected and caused distress to him and his daughter. In relation to the issues raised, it is not the Ombudsman’s role to make a determination on matters such as if a property is uninhabitable or if the landlord has discriminated against him and breached the Equality Act 2010 – as these are not within our role, expertise or jurisdiction. The Ombudsman can assess whether, when considering issues, the landlord followed proper procedure, followed good practice, and responded reasonably, considering all the circumstances of the case – which this investigation goes on to do.

The landlord’s response to the resident’s reports about damp and mould in October 2020

The landlord is obligated to consider any repairs reports and take steps to resolve any repairs it is responsible for, under its policies and its responsibilities set out in the Landlord and Tenant Act 1985.
Following the resident’s report in October 2020, the landlord arranged an inspection within two weeks that was unsuccessful through no fault of the resident. When the resident complained in November 2020, within ten days the landlord inspected and raised a works order for its contractor to inspect and scope for works that involved replastering, thermal boarding, redecoration, vent replacement and mould washes, in bedrooms and a kitchen. The contractor then inspected to scope the works in January 2021, 16 working days later than the target date, following which it supplied a specification around the end of February 2021 that the landlord authorised in early March 2021.
When the landlord responded to the resident’s complaints, it acknowledged, apologised and compensated for a missed appointment in October 2020 and a delayed complaint response; it confirmed works would be raised and progressed; it noted he was discussing queries with staff; and it set out its position on issues such as redecoration; interim accommodation; and support moving furniture. Later, the landlord liaised with the contractor to complete the works, and it investigated and arranged a refund for works the resident paid for.
In the Ombudsman’s opinion, overall the landlord has responded reasonably.
For the period from October 2020 to March 2021, the landlord provided reasonable remedy and explanation in respect to a missed appointment, delayed complaint response, and the two month timeframe to inspect and scope the works due to incorrect contact details. The resident’s communication preference became known in January 2021 and swift action was taken that resulted in an inspection the same month. There could have been more effective communication, however the delay of around 16 working days to scope the works does not appear overly unreasonable, nor does the further month it took for the contractor to provide the scope of works and for the landlord to authorise this. These and the approximately four months it took for the works to be inspected, scoped and authorised appear to reasonably reflect widespread delays due to a cyber-attack; how works were being handled under a government-endorsed approach to non-urgent repairs during Covid-19; and the landlord’s understandably stretched resources during this time. The landlord’s website confirms non-urgent repairs may take longer than usual, and this investigation sees limited evidence that the resident’s repair will have been treated any differently to other residents’ repairs, except in cases where other residents’ repairs were considered to be an emergency (such as an immediate threat to health and safety for which there is no evidence was considered applicable here).
For the period from March 2021, the resident was reasonably aware the repairs scope was to take action about the mould; aware of a commitment to decorate the hallway, bedrooms and kitchen; aware that any necessary variations to the scope of works would be done after works started; and aware that he could contact contractors about the works. The landlord’s lack of appointment of an additional liaison was not unreasonable, considering the extent and landlord’s acknowledgement of any failings. This Service assesses whether a resident’s actions mitigate issues such as delays and in this case, further correspondence about matters already reasonably addressed, and a reluctance to directly contact the contractor, appeared to impact repairs completion from March 2021. The landlord subsequently provided reasonable assistance around July 2021 to schedule works, which resulted in their progress and completion. The landlord also took appropriate action after the resident reported he had paid one of its contractors for works he had been informed the landlord would do, by taking steps to prevent such incidents and arranging for him to be refunded.
The resident expressed concern in April 2021 that the landlord had been unable to contact its contractors since November 2020. This investigation sees limited evidence for this beyond issues identified and acknowledged by the time this concern was expressed. The landlord contacted its contractor about a delay inspecting and carrying out the scope of works, which resulted in this being done in January 2021. The landlord contacted its contractor about the January 2021 inspection, which resulted in the landlord authorising a scope of works that the contractor provided. This confirms the landlord successfully contacted the contractor, although this investigation understands that subsequent action may not have been as swift and effective as the resident would have liked due to issues noted at Paragraph 35 of this report. This investigation notes the resident was asked to contact the contractor after the scope of works was authorised for further progress, and there is limited evidence in order for this investigation to assess service issues the resident experienced if he subsequently contacting the contractor.
The resident has expressed concern that the landlord would not decorate the whole property. The landlord advised it generally only redecorates damaged areas and agreed to fully redecorate the hall, two bedrooms and a kitchen as a ‘goodwill gesture’ to remedy the complaint. The resident may have understood at some point that the property would be fully redecorated, however – while honouring commitments are important – a landlord is entitled to change its mind, if this is not out of line with policies. The landlord’s position was in accordance with its stated policy that it redecorates affected areas but not entire rooms, and with the resident’s decorations responsibilities. The landlord’s commitment to fully redecorate some rooms therefore shows that it sought to be customer and resolution focused by exercising some discretion beyond its stated obligations.
The resident has expressed concern that the landlord would not decant him for the works. The landlord advised it did not consider this to be necessary and believed works could be done with the resident in situ. This was a reasonable response, as it considered the views of staff who had inspected the property, upon whose opinion the landlord is entitled to rely in making such decisions.
The resident has expressed concern that the landlord did not consider his vulnerability. The landlord could have asked the resident if he had been registered as vulnerable on the system affected by a cyber-attack, and asked for doctor’s letters which might support requests he made on medical grounds. The landlord however clearly made a decision based on the resident’s stated vulnerabilities, and he had the option to provide additional information if he felt this affected the decision. The resident also confirmed that he had the option to seek family support, which it is not unreasonable for the landlord, with its limited resources, to initially expect to be explored. The resident later advised he only agreed this option on the understanding the property would be fully redecorated. The landlord was not obligated to fully redecorate the property, and if reasonable options such as family support are available, it is not necessarily reasonable to make pursuing these conditional on actions the landlord has no obligation to take.
The resident requested reimbursement for materials in his original complaint, which was never addressed in the landlord’s responses. This is not entirely reasonable, as the original complaint is expected to be considered at all stages of a complaints procedure, and not doing so may result in prolonged injustice to a resident. There is no evidence however that the landlord should reimburse the resident for the materials he purchased, and that the failing to address this aspect caused any significant detriment.
In the Ombudsman’s opinion, the landlord’s response to the resident’s reports about damp and mould from October 2020 was overall reasonable. It reasonably acknowledged and compensated failings, and provided reasonable explanation about issues and delays. It considered and set out reasonable positions on the resident’s queries about the works, based on first hand inspection by its staff, on whose opinion the landlord is entitled to rely. It reasonably advised the resident to contact contractors about further progress of the works. It took appropriate action to investigate and respond to issues that arose when the works started. There is no evidence that the resident’s repair will have been treated any differently to other residents’ repairs of a similar priority, during a period that included a government-endorsed approach to non-urgent repairs which resulted in a backlog for many residents’ repairs.

The landlord’s response to the resident’s reports about a bedroom being uninhabitable and his daughter sleeping in the front room

The resident raises dissatisfaction that the landlord did not consider the impact of his daughter sleeping in a front room, for what this investigation understands to have been almost a year. This investigation understands that this and moving a mattress between the bedroom and the front room each day will have been distressing and inconvenient, but would note that it is not the Ombudsman’s role to make a determination on whether the daughter’s bedroom was uninhabitable, as indicated at Paragraph 30, although this Service can take a view on the matter and the landlord’s handling.
This investigation is aware that ‘severe’ damp and mould has been stated to pose a higher health risk to children, so there is basis to have concern about severe mould in a child’s bedroom. The resident stated the room was uninhabitable because of a damp and mouldy smell, and because his daughter’s belongings had been moved from the room for the landlord’s inspection. This does not necessarily evidence that the bedroom met the bar to be considered uninhabitable, which this Service is aware is quite high. The landlord also had the opportunity to assess the habitability of the bedroom, and considered the works to have a low rather than high priority, which photos do not suggest was unreasonable. There is therefore limited evidence that the bedroom was uninhabitable.
However, throughout the complaint, the landlord has not commented on the reported uninhabitability of the bedroom or the necessity for the resident’s daughter to sleep in a front room. This Service cannot say that the bedroom would have been used if the resident had been informed differently, however this was a relevant matter that the landlord should have addressed, since the resident mentioned this on multiple occasions and this may have impacted his decision-making about use of the room if it was considered habitable.

Determination (decision)

In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme there was reasonable redress in the landlord’s response to the resident’s reports about damp and mould from October 2020.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in the landlord’s response to the resident’s reports about a bedroom being uninhabitable and his daughter sleeping in the front room.

Reasons

The landlord reasonably acknowledged and compensated failings, and provided reasonable explanation about delays due to Covid-19. It considered and set out reasonable positions on the resident’s queries about the works based on first hand inspection by its staff, on whose opinion the landlord is entitled to rely. It reasonably advised the resident to contact contractors about further progress of the works. It took appropriate action to investigate and respond to issues that arose when the works started. There is no evidence that the resident’s repair will have been treated any differently to other residents’ repairs of a similar priority, during a period which included a government-endorsed approach to non-urgent repairs.
The landlord failed to clarify if a bedroom was considered to be habitable, which may have impacted the resident’s decision-making in respect of his daughter sleeping in the front room for almost a year.

Orders and recommendations

Orders

The landlord to pay the resident £100 compensation for its failing in respect of the habitability of the bedroom, within four weeks of the date of this report.

Recommendations

The landlord to pay the resident the £75 compensation originally offered, if this has not been paid already.
The landlord to review its service and complaints handling to ensure that it considers and sets out its position on substantive repairs enquiries and complaints, in light of issues identified at Paragraphs 41 and 45.
The landlord to review its consideration of resident vulnerabilities and ensures that it invites submission of relevant evidence where applicable, in light of issues identified at Paragraph 40.