Nuneaton and Bedworth Borough Council (201614786)

REPORT

COMPLAINT 201614786

Nuneaton and Bedworth Borough Council

16 August 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

The complaint is about the landlord’s:
1. Response to the residents reports of repairs required at the property.
2. Response to the resident’s reports of damp and mould at the property.
3. Response to the resident’s request to be rehoused.
4. Complaint handling.

Background and summary of events

The resident is a secure tenant of the local authority landlord. The property is a one bedroom ground floor flat. The flat is in a two storey building that forms the left hand side of a pair of semi-detached dwellings.
The landlord has no recorded vulnerabilities for the resident. However, the landlord is aware that she suffers with fibromyalgia, lung disease, asthma and arthritis.
Under the tenancy agreement the landlord is responsible for repairing and maintaining the structure of the property. The tenancy agreement says that the landlord will carry out repairs it is responsible for within a reasonable time, giving priority to urgent repairs.
The landlord has a responsibility under 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 mould problems in its properties amount to a hazard that may require remedy.
The Ombudsman’s Spotlight Report on Damp and Mould (published October 2021) provides recommendations for landlords, including that they should:
1. Adopt a zero-tolerance approach to damp and mould interventions. Landlords should review their current strategy and consider whether their approach will achieve this.
2. Ensure they can identify complex cases at an early stage and have a strategy for keeping residents informed and an effective resolution.
3. Ensure that they clearly and regularly communicate with their residents regarding actions taken or otherwise to resolve reports of damp and mould.
4. Identify where an independent, mutually agreed and suitably qualified surveyor should be used, share the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps. Landlords should then act on accepted survey recommendations in a timely manner
The landlord’s management move procedure says that the purpose of the procedure is to enable it to act appropriately and with consideration, in the event of a tenant needing to move house urgently. Priority for housing will be primarily assessed on a critical housing need basis and after one offer of suitable and similar accommodation has been offered, the landlord will then review the priority.
The landlord introduced a new council housing complaints policy in October 2020. The complaints policy says that the landlord will respond to a complaint at stage 1 and stage 2 within 10 working days.
Section 3.15 of the version of the Housing Ombudsman Complaint Handling Code (the Code) in use at the time of the resident’s complaint says that at the completion of each stage of the complaints process the landlord should write to the resident advising them of the complaint stage and how to escalate the matter if dissatisfied.
On 16 January 2018 structural engineers instructed by the landlord carried out a structural appraisal of the flat above the resident’s. In their report the structural engineers noted the following:
1. Cracks on the front elevation of the building that had been previously filled or repointed had slightly reopened.
2. There was evidence of some rotational lateral outward movement within the left hand gable wall.
The structural engineers made the following recommendations:
1. A CCTV survey be undertaken on the drainage around the building to check on its condition and water tightness. Subject to the result of that survey it might be necessary to excavate a trail hole adjacent to the front left hand corner of the building and determine the suitability of the subsoil on which the building was founded.
2. Strapping to the left hand gable wall back to the roof structure behind should be undertaken.
Sometime during 2018 the landlord installed strapping to the left hand gable wall and on 16 February 2018 requested a drainage report.
On 12 March 2018 the landlord sent an internal email saying that the resident had said that there was damp and mould in her living room after the water authority had done some work on the shared drain.
In September 2018 the resident reported foul smells in the bathroom at the property. On 14 September 2018, the landlord’s drainage specialists carried out a CCTV survey to assess the general condition of the drainage system. The survey revealed a large open joint in the drainage and the drainage specialists recommended various remedial work which was completed on 1 October 2018.
Following concerns from the resident in the upstairs flat the landlord attended the property on 9 October 2020. On 12 October 2020 the landlord sent an internal email saying that there was “still movement at the property.”
On 23 October 2020 the landlord’s contractor visited the building and noted in an email to the landlord that “upon initial outside inspection I believe that we will need a crack repair system to be implemented and rebuilding of the canopy supports and investigations into what effects the two huge trees are having on the ground around that area. I feel I will need to get our specialist contractor down to access and advise on a course of action.”
The contractor sent a further email to the landlord on 28 October 2020 saying that it had spoken to the resident and the resident of the upstairs flat. It had booked in structural engineers to attend the property on 12 November 2020.
The structural engineer attended the property on 12 November 2020 to carry out a site appraisal of the damage noted both externally and internally.
On 1 December 2020 the resident telephoned the landlord to report a foul smell in the bathroom at the property.
On 4 December 2020 the landlord’s tenant support officer telephoned the resident to discuss support needs. A visit was arranged for 11 December 2020 in order to discuss independent living services.
On 8 December 2020 the resident chased the landlord for an update concerning the bathroom smell. The landlord raised an order the same day for a drainage specialist to survey the drains at the property.
On 17 December 2020 the resident telephoned the landlord saying that the cracks on her walls had got worse and the floor at the property had started to lift and she wanted to discuss the issues with someone at the landlord.
On 18 December 2020 the landlord’s tenant support officer visited the resident to discuss her support needs. The resident informed the landlord that she wanted to move to an independent living scheme. The landlord recorded that the resident had “a number of health issues and the poor condition of her current property is impacting in this as well as her mental health. Repairs have been reported and are ongoing.”
On 21 December 2020 the resident telephoned the landlord saying that she had noticed movement in the windows within the last week. She said that she had been told that the issues with the drainage would continue until the subsidence was dealt with. The landlord told her that it would speak to the surveyors who dealt with the drainage & window programmes and call her back.
Also on 21 December 2020 the landlord sent an email to its contractors saying that it had carried out another drain survey at the property which had identified “some defects”. However the drains were the responsibility of the water authority as they were shared drains. The landlord had notified the water authority and was awaiting feedback.
The structural engineer returned to the building on 6 January 2021 to undertake a structural survey. The engineer issued a report on 22 January 2021 noting that there were cracks both internally and externally at the property. The engineer made the following recommendations:
1. That the external walls which had the most severe cracking be underpinned.
2. Once the structure had been underpinned, the cracks be repaired using proprietary crack stitching bars.
3. That the wall ties on the gable end be checked for adequacy and replaced as necessary.
4. While the defective drain, located downstream of the left hand side rear wall, was not likely to be currently affecting the property, it should be repaired as a matter of urgency to avoid future issues.
On 10 February 2021 the resident telephoned the landlord asking whether the engineer had produced a report and wanting an update on any recommended works.
On 10 February 2021 the landlord telephoned the resident and informed her that the surveyor was awaiting quotations for the work. The resident asked the landlord what work was required and informed the landlord that the subsidence was getting worse.
On 26 February 2021 the resident telephoned the landlord again asking for an update about the recommended works as she had been expecting a call about this from the landlord that day. She also said that there was cement debris falling from the exterior walls at the property.
The landlord sent an internal email on 1 March 2021 asking if someone could contact the resident to update her.
There is evidence that during February and March 2021 the landlord was obtaining quotes for the required works.
On 11 March 2021 the surveyor sent an email to the landlord saying that:
1. He had recently been in discussion with both the residents at the building above tenants in regards to the required structural repairs.
2. The repairs have been ongoing for some time but the matter had only been passed to him in the past couple months. Since then he had arranged for a structural survey to be carried out, a specification of works written and quotation provided which he had approved the previous week.
3. He was waiting for the contractor to confirm how long it would take them to start the works and how long the works would take.
4. Once he heard back from the contractor he could discuss with the landlord’s housing team whether temporary accommodation would be necessary whilst the works were ongoing. The contractor would need 2 weeks to review the information before he could update the residents.
5. He asked if someone could update the residents.
On 18 March 2021 the landlord’s tenancy support officer sent an internal email saying that it had spoken to the resident who wanted to move to a 1 bedroom property on the ground floor and the only 1 bedroom properties it had had access issues for the resident as they were on the first floor.
The landlord’s notes show that on 1 April 2021 it spoke to the resident and informed her that the underpinning works at the property would take approximately 4 weeks and it would offer her temporary accommodation during this period. The resident said that she did not want to return to the property following the works being completed. The resident said that she was doing everything she could to secure a permanent move: she was calling and bidding on properties and was liaising with the tenancy support officer. The landlord discussed the landlord’s bidding process with the resident and informed her that although she was registered as wanting an independent living unit she could also bid on other properties.
On 7 April 2021 the resident again spoke to the landlord to report a strong sewage smell at the property. On the same day the landlord sent an internal email raising a job to carry out a patch report to the living room concrete floor at the property.
On 10 May 2021 the landlord invited the resident and the upstairs resident to attend a meeting on 19 May 2021 to discuss decanting them from the property.
On 19 May 2021 the landlord sent the resident a letter setting out what had been discussed at the meeting. In the letter the landlord said that:
1. Both residents had said that when the planned underpinning work was completed they did not want to return to the property.
2. The residents had told the landlord that the repair needs at the property had had a detrimental impact on their health, both physically and mentally.
3. The residents had been frustrated with the landlord’s communication, and felt that they had had to chase departments for updates regarding the structural report etc.
4. The landlord had explained that the usual process would be for the landlord to move the residents into temporary accommodation while the structural work was being completed and then the residents would return to the property. However due to the circumstances which the residents had described experiencing over the previous 6 years it would explore the option of a management move. The landlord would need to present the current and historic issues to the senior management team to see if the management move could be approved.
5. The landlord had explained there was no guarantee that a management move would be approved and, if it was approved, there would only be 1 offer of accommodation.
6. The resident had said that she would be willing to accept a 1 bedroom, ground floor property, with a bath, fairly close to town on a good bus route.
On 31 May 2021 the resident sent a letter to the landlord making a formal complaint about the landlord’s response to her reports about subsidence and damp and mould at the property and her request to be permanently rehoused. The resident said that the damp and mould at the property had had a detrimental impact on her health, which had been made worse by having to isolate in the property during the Covid 19 lockdown.
The landlord sent the resident a stage 1 response to her complaint on 25 June 2021. In its response the landlord:
1. Apologised for the length of time taken to investigate the complaint.
2. Said that all of the repairs that the resident had raised had been responded to within its expected response times.
3. Said that the resident had reported issues with damp and mould in 2017 and a full damp survey was completed at that time. There had been no further reports of damp or mould recorded since.
4. Explained that in respect of the structural works required to the property, it had carried out surveys and had advised the resident that works would take approximately 4 weeks to be completed and that she would need to move out of the property for the duration of the work.
5. Said that following the meeting with the resident on 19 May 2021 to discuss her housing options it was pleased to report that a management move had been approved. Its choice based lettings team had been made aware of this and would look for any appropriate properties prior to them being advertised. Unfortunately it could not predict how long it would take for a suitable property to become available.
6. Attached a report from its system that logged communication showing it had provided updates in relation to the ongoing issues. It can apologised that the resident felt the number of communications was not adequate.
The landlord’s records show that on 28 June 2021 the landlord offered the resident a management move to a bungalow. However the resident had recently had a cataract operation and could not leave the property that week to view the bungalow. The resident later told the landlord that she would not be able to accept the bungalow because it was not close enough to a bus route.
Following a conversation with the resident on 19 July 2021 concerning her property requirements the landlord wrote to her on 20 July 2021. In its letter the landlord said that:
1. The resident had said that that she required a 1 bedroom ground floor property with a bath due to her health needs. She also needed to be close to a frequent bus service to the town centre to maintain her independence and for her to be able to access her health support.
2. The resident had said that she could afford £112 rent per week.
3. As discussed, she would only receive 1 suitable offer of accommodation. If she did not accept the reasonable offer, no further offers would be made and once the planned works commenced, the landlord would decant her from the property into temporary accommodation and return her to the property to once the work was completed.
On 2 September 2021 the landlord again met with the resident to discuss her property requirements.
On 5 October 2021 the resident telephoned the landlord asking for someone to call her about the management move.
On 21 October 2021 the landlord sent an internal email saying that it was not able to provide a time scale for a suitable property becoming available as it did not know until it received a tenancy termination which properties were becoming void. It needed to ensure that any property offered matched the resident’s requirements as only 1 offer would be made.
During a telephone conversation in December 2021 about the rent the resident informed the landlord that there were numerous issues with the property (including subsidence and mould) that her housing officer was aware of.
On 5 January 2022 the resident informed this service that she had hand delivered a letter to the landlord on 19 September 2021 asking to escalate her complaint. She had received a receipt for the letter but had not received a response.
This service contacted the landlord on 5 January 2022 asking that, if the resident had yet to exhaust its complaints procedure, it contact her directly to discuss the outstanding issues and provide a written response within the timescales set out in its complaint policy or in the Code, whichever was sooner, but no later than 2 February 2022. The landlord informed this service on 5 January 2021 that it had no record of receiving an escalation request from the resident.
On 10 February 2022 this service sent the landlord a further email asking it to provide the resident with a written response to her complaint within 5 working days.
The landlord sent the resident its stage 2 complaint response on 23 February 2022. In its complaint response the landlord:
1. Said that the resident had raised no additional points and there were no changes to make to the information and explanations that it had provided in its stage 1 response.
2. Said that its decision to offer a management move to alternative accommodation on a permanent basis was agreed and confirmed in its letter to the resident dated 27 July 2021.
3. Said that it was still unable to proceed with the remedial works whilst the resident remained in the property.
4. Explained that the options for the resident were for her to move out whilst the works took place and then return to the property or to take an offer of alternative accommodation on a permanent basis when a suitable property becomes available.
5. Said that due to the length of time since the last structural inspection was completed and the resident’s concern that the subsidence has worsened it would arrange for its surveyor to visit the property within the next two weeks.
6. Apologised that the situation had been lengthy and for any inconvenience this may have caused the resident.
7. Informed the resident that if she remained dissatisfied with its response, or with how it had dealt with her complaint, she could escalate the complaint to the Local Government Ombudsman.
The landlord’s letter dated 23 February 2022 was its final response to the resident’s complaint.
On 7 March 2022 the landlord called the resident to arrange an appointment to visit the property to check if there had been any deterioration since original structural report was completed.
The landlord attended the property on 18 March 2022. On 24 March 2022 the landlord sent an internal email concerning the visit and recommended the following action:
1. That the landlord fit tell tales to the property so that movement could be identified.
2. That a full CCTV survey of the drains around the property be carried out.
3. That the landlord meet with its landscape contractor to look at the tree at the property and assess:
  1. Whether the tree could be a contributing factor to the subsidence depending on the root structure and height.
  2. Whether the tree be reduced down to a more manageable height as it was effecting the telephone lines adjoining the neighbouring property.
4. That the residents be decanted or moved so the internal cracking and works could be fully identified and rectified.
In May 2022 the landlord provided an update to this service about the outstanding remedial works:
1. It said that whilst a temporary decant would suffice, the resident had requested a permanent move. To date several offers had been made but the resident had not accepted them for various reasons.
2. A further drainage CCTV survey had been done on 5 April 2022. It was still co-ordinating the recommended works as some might be the responsibility of the water authority.
On 9 December 2022 the landlord wrote to the resident concerning the required works saying that it had planned to complete the works but “ A complaint raised with the Housing Ombudsman about the handling of the remedial works has delayed these commencing whilst we wait for their feedback.” The landlord said that it had not received feedback from this service and so was writing to set out what interim works it would carry out and what it had done so far. It said that it would be fitting tell tales to the property to monitor ongoing movement. Its contractors had carried out a drainage survey and some interim remedial works and revised their quote for the underpinning works as it was some time since that had been previously costed. In the New Year the landlord would visit the resident to discuss moving her to suitable alternative accommodation.

Assessment and findings

The landlord’s response to the residents reports of repairs required at the property

There was severe maladministration by the landlord in its response to the resident’s reports of repairs required at the property as:
1. Although the structural engineer recommended on 16 January 2018 that a CCTV survey be undertaken on the drainage, this was not done until 14 September 2018, 8 months later, and then only after the resident had reported foul smells in the bathroom at the property.
2. Although the structural engineer carried out its survey on 6 January 2021 the resident had to chase the landlord for updates on the outcome of the survey on 10 and 26 February 2021.
3. The landlord identified on 1 April 2021 that the works would take 4 weeks to complete and the resident would need to be decanted or permanently moved whilst the works were being carried out. However the works have still not started. Although the delay is because of the lack of availability of a permanent property to move the resident to there is no evidence that the landlord considered whether it needed to alleviate the resident’s living conditions whilst awaiting the move or if the situation had deteriorated until it inspected the property on 7 March 2022.
4. Despite only one management move offer having been made and that offer being unsuitable, on 11 April 2022 the landlord informed this Service that “To date several offers [of a permanent move] have been made but the tenant has not accepted them for various reasons.” Whilst it is understandable that the landlord might not have a suitable property readily available in its housing stock it was unreasonable for it to imply that the delay in moving was the resident’s fault for rejecting several properties when only one had been offered.
5. The landlord incorrectly informed the resident in December 2022 that the delay in commencing the remedial works was because it was waiting for feedback from this Service about the resident’s complaint. The resident’s referral of her complaint to this Service to be investigated does not have an impact on the landlord’s tenancy and repair obligations and should not be used by a landlord as a reason to delay complying with these obligations.
6. Although the landlord recommended on 24 March 2022 that tell tales be fitted to the property so that movement could be identified, the landlord did not contact the resident to arrange this until 9 December 2022.

The landlord’s response to the residents reports of damp and mould at the property

The resident has said that the presence of mould adversely impacted her health. However, it is beyond the expertise of this Service to determine if any ill health suffered by the resident or his family directly resulted from the landlord’s actions or lack of actions. Ultimately this would be a matter for the courts. However, the impact on the resident of the landlord’s actions will be considered in determining whether any compensation should be paid for distress and inconvenience.
The landlord said in its stage 1 response to the complaint dated 25 June 2021 that the resident had made no reports about damp and mould at the property since it had completed a full damp survey in 2017.
However, there is evidence that the resident:
1. Reported that there was damp and mould at the property to the landlord in March 2018. There is no evidence that the landlord responded to this report.
2. Mentioned in her complaint dated 31 May 2021 that she had been living with mould in the property and this had adversely impacted her health.
3. Informed the landlord during a telephone conversation in December 2021 about the rent that there were numerous issues with the property (including mould) that her housing officer was aware of.
This service’s spotlight report on damp and mould recommends that landlords adopt a zero-tolerance approach to damp and mould interventions. However, rather than adopting a zero–tolerance approach there is no evidence that the landlord investigated the property to establish the extent of any damp and mould following the resident’s reports from March 2018 onwards. It is particularly concerning that when considering the resident’s complaint dated 31 May 2021 in which she mentioned that there was damp and mould at the property the landlord did not take the opportunity to make any enquiries about the presence of damp and mould or inspect the property. Rather, in its stage 1 complaint response the landlord dismissed the issue by saying that the resident had made no reports about damp mould since it had completed a full damp survey in 2017.
There is no evidence that the landlord considered whether the mould reported by the resident from March 2018 onwards amounted to a hazard under the HHSRS that might require remedy.
Therefore the landlord’s response to the resident’s reports of damp and mould at the property was unreasonable and amounts to severe maladministration.

The landlord’s response to the resident’s request to be rehoused

The landlord acted appropriately and in line with its management move procedure by:
1. Considering a permanent move for the resident, rather than a temporary decant.
2. Informing the resident that it would make one offer of suitable accommodation.
There was therefore no failing in the landlord’s response to the resident’s request to be rehoused.

The landlord’s complaint handling

There was maladministration in the landlord’s complaint handling as:
1. The landlord’s responded to the resident’s complaint at stage 1 on 25 June 2021, 19 working days after the resident made the complaint and 9 working days after the 10 working day timescale set out in its complaints policy.
2. In its complaint response dated 25 June 2021 the landlord did not advise the resident of the complaint stage and how she could escalate the matter if she remained dissatisfied. This was in breach of the provisions of the Code.
3. The resident says she hand delivered a letter to the landlord on 19 September 2021 requesting that it escalate her complaint. The landlord has informed this service that it has no record of receiving the letter. Regardless of whether the letter was received by the landlord, this service asked the landlord on 5 January 2022 to send the resident a stage 2 complaint response by 2 February 2022. This service sent a further letter to the landlord on 10 February 2022 asking it to provide the resident with a written response to her complaint within 5 working days. The landlord issued its stage 2 complaint response on 23 February 2022, 15 working days later than the date originally requested by this service.
4. The landlord’s stage 2 response to the complaint dated 23 February 2023 incorrectly referred the resident to the Local Government Ombudsman if she wished to escalate her complaint.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was severe maladministration by the landlord in its:
1. Response to the resident’s reports of repairs required at the property.
2. Response to the resident’s reports of damp and mould at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s request to be rehoused.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its complaints handling.

Reasons

There were significant delays in carrying out remedial works required to the property.
The landlord did not take a proactive approach in dealing with the resident’s reports of damp and mould.
The landlord acted in accordance with its management move procedure in responding to the resident’s request to be rehoused.
There were delays in complaint handling, the landlord did not advise the resident how she could escalate her complaint and incorrectly referred her to the Local Government Ombudsman.

Orders

The landlord is ordered within 4 weeks of the date of this report to arrange for a senior member of its staff to apologise to the resident for the failings identified in this report, in person (or in writing if preferred by the resident).
The landlord is ordered within 2 weeks of the date of this report to contact the resident to discuss whether she would accept moving to a temporary property whilst the landlord continues to search for a suitable permanent management move property to become available.
The landlord is ordered within 4 weeks of the date of this report to inspect the property to consider whether any works need to be carried out to alleviate the resident’s living conditions whilst awaiting the move to an alternative property. The landlord should ensure that this inspection includes consideration of any damp and mould at the property. If works are required the landlord should send the resident and this service details of the works, together with a time table to the resident within 2 weeks of inspecting the property.
In making an order for the landlord to pay compensation the Ombudsman recognises that some residents’ circumstances mean that they are more affected by landlords’ actions or inactions than others. This might be due to their particular circumstances or vulnerabilities.
The landlord is ordered within 4 weeks of the date of this report to pay the resident £2245.94 in compensation made up as follows:
1. £1395.94 for the period that the property was affected by damp and mould.
2. £700 for the distress and inconvenience incurred by the resident as a result of the landlord’s response to her reports of repairs required at the property.
3. £150 for the time and trouble incurred by the resident as a result of the landlord’s complaint handling failings.
4. The compensation is to be paid direct to the resident and not to be off set against any arrears of rent owed by the resident to the landlord.