Brighton and Hove City Council (202122936)

REPORT

COMPLAINT 202122936

Brighton and Hove City Council

12 June 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 the landlord’s response to the resident’s reports of damp and mould in his property.
2. The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Background

3. The resident is a secure tenant of a two bedroom first floor flat. The resident is disabled and he receives assistance with his care needs. He has a heart complaint and mobility difficulties. The resident also has a mental health condition. 
4. The resident’s tenancy agreement provides that the landlord must maintain and repair the structure and exterior of the premises and to keep in repair and working order any installations for the supply of water, gas, electrical and sanitation and appliances for space and water heating.
5. The Housing Health and Safety Rating System (HHSRS) is a risk-based evaluation tool to help local authorities meet their legal obligations under the Housing Act 2004 to identify and protect against potential risks and hazards to health and safety from any deficiencies identified in homes. Under the rating system, a landlord has a responsibility to keep a property free from category one hazards, including damp and mould growth. This means taking preventative measures that could have a significant effect on harmful outcomes relating to moisture production and ventilation. A local authority cannot take statutory enforcement action against itself for its own housing, however it is expected to use the HHSRS to assess its housing and to ensure that this meets the required standards.
6. The landlord’s ‘tenant’s handbook’ states that emergency repairs, such as a lack of power in a property or a serious water leak, will be attended to by the landlord within 24 hours. All other routine repairs will be completed within 20 working days. Complex repairs, such as those requiring scaffolding or where there must be statutory leaseholder consultation prior to works commencing, may take longer than 20 days to complete. Planned works include items that require substantial repair or replacement to a building, for example, renewal of roofs and pointing repairs. These works are usually larger scale and are approved to take place during a particular financial year. 
7. The landlord has provided this Service with a draft ‘damp and condensation procedure’ outlining the steps it will take when a resident reports an issue with damp and mould in their property. As the procedure was in draft form at the conclusion of the landlord’s complaints process, no further reference has been made to it in this report.
8. The landlord operates a two stage complaints procedure. It sets out ten working days for its stage one complaint response and 20 working days for its stage two complaint response. The complaint policy notes that it will keep the resident informed where it is not possible to provide its response within the time advised.

Scope of the investigation

9. The resident and landlord have provided evidence dating back to 2005 in relation to this matter. This Service notes that the resident has reported issues with damp and mould to his landlord over a number of years and details of earlier reports have been helpful in providing a clear picture of the history of this complaint to date and the landlord’s interventions. For the purpose of this investigation, however, these previous reports and the landlord’s responses are referenced for contextual purposes only. This is because the Ombudsman is limited to investigating only those issues that have progressed through a landlord’s complaints procedure and then brought to the attention of the Ombudsman within a reasonable timescale. Therefore this investigation will focus on events from May 2020 onwards.

 

Summary of events

10. The resident had been reporting problems with mould and damp in his property for a number of years with the landlord providing dehumidifiers and attending to inspect for blown glazing seals and condensation in 2020. The resident first raised a complaint in November 2020 and said that he was experiencing respiratory difficulties due to black mould in his property. The landlord responded to the resident’s complaint on 3 December 2020 in which it:

a. Confirmed that it had attended in January 2020 and noted that the resident had requested that trickle vents be fitted in his windows to assist air circulation in his home to combat damp and mould; 

b. The job was raised but due to some administrative problems when the repairs service transitioned over from a contracted-out service to an in-house service, this was delayed;

c.  Due to government restrictions in place to reduce transmission of the COVID-19 pandemic from March to August 2020, the landlord was attending to emergency priority repairs only and these works were therefore put on hold;

d.  A further delay was caused in August 2020 by the wrong windows contractors being sent, by mistake, to undertake the works. The landlord apologised for this administrative error. The correct windows contractors were unable to attend to measure the windows until November. This had been completed and they will be contacting the resident with a date to complete the works. 

11. The landlord closed down the resident’s complaint on 4 December 2020. The trickle vents were fitted to the windows on the 11 December 2020.
12. On 29 January 2021 the landlord’s records show that the resident had made contact with it that week to report that while the trickle vents had made some difference, the damp problem persisted and that there was black mould in his bedroom and lounge. He also reported that his belongings had been damaged by mould spores.
13. On 1 February 2021 a job was raised for a survey to be undertaken by a specialist damp contractor. This was chased by the landlord on 15 and 23 February 2021. On 26 February 2021 it was confirmed that the surveyor was having difficulty in making contact with the resident and the inspection had since been arranged for 1 March 2021. From the landlord’s records it appears that this appointment did not proceed and no explanation has been provided for this, however the inspection did go ahead 10 March 2021.
14. The damp report, dated 15 March 2021, concluded that it was likely that the damp and mould in the property was caused by condensation rather than a structural issue. The resident was given advice about what actions he could take to improve air flow in the property to reduce condensation. The report identified that the position of radiators in the property could impede heat flow in the property and it noted that there was no extractor fan fitted in the kitchen area and the bathroom extractor fan was not functional. It also highlighted that cavity wall insulation had been retro-fitted and that external pointing in the block was poor with open holes visible, which would increase the risk of moisture ingress into the wall and cold air ingress affecting heat loss. The report also highlighted that there was no internal door in the kitchen. This meant that excess moisture produced by the tumble dryer and whilst cooking would circulate throughout the property, increasing the risk of condensation. The report recommended that:

a.    Humidistat extractor fans be fitted in the kitchen and bathroom;

b.    Radiators be relocated or additional heating emitters be installed; 

c.    Eroded pointing be brought up to good standard to reduce the risk of moisture ingress and general heat loss;

d.    A internal door be fitted to the kitchen;

e.   That the most affected window reveals be assessed regarding heat retention and remedial works undertaken;

f.     There be an assessment of the existing retro fitted cavity wall insulation in the longer term. This should also allow for further assessment of the construction and insulation properties to the internal dividing walls between flats and communal areas.  

15. The report include advice for the resident about managing condensation in the property which included maintaining a constant level of heat in the property and keeping the trickle vents open in the windows. The resident was also encouraged to clean down the areas affected by mould with an anti-fungal wash and to use a tumble dryer that was vent ducted through an external perimeter wall to direct excess moisture produced out of the property. 
16. Between 19 and 22 March 2021 the landlord’s internal correspondence shows that there had been some discussion about further works to the resident’s property following the inspection report and that the block had been referred to planned works for repointing. As no penetrative damp had been identified by the report, works to improve ventilation in the property would be passed to the relevant team.   
17. A note on the landlord’s repairs log states that the recommendations in the damp survey were passed to the other team. This was not followed up and no further works were undertaken at this time.
18. No further records had been provided by the landlord until August 2021 when it is recorded that the resident had raised an enquiry about the repointing works again. On 6 August 2021, the landlord’s records state that “We have no open repair jobs relating to repointing for this address. If (resident) needs to report a new repair issue, this should be done through the repairs helpdesk”.
19. The landlord’s repair logs record on 9 August 2021 that this issue was considered again but it was determined that the whole of the resident’s block needed repointing and this would be picked up by the planned or cyclical works team and the works would therefore be subject to delays. It was noted that the resident had asked for the brickwork on the external walls to his flat to be repointed some time before, but the repairs team had repointed the brickwork to the downstairs neighbour’s flat instead in error. The records suggest that the decision was made that repointing to the resident’s property would not be prioritised ahead of the cyclical works programme.
20. On 25 November 2021 the resident contacted the landlord to ask that his complaint be escalated to stage two. He said that trickle vents had been installed but that the property was very cold, even with the heating on. He said that the second bedroom that his carer used had black mould throughout and as a result, his carer could not sleep in the room overnight and instead had taken to sleeping on the sofa. The resident requested again that the repointing be completed and also raised that the roof was leaking which had been reported to the repairs team but no further action had been taken.
21. On 17 December 2021, the landlord’s internal correspondence identified that there was a further delay in works being agreed as the incorrect address for the resident was provided which mistakenly identified him as a leaseholder and not a tenant. When this was rectified, it was agreed that a further survey would take place after Christmas but that no planned works were scheduled to repair the pointing in the block.
22. The landlord’s complaint response was issued on 17 December 2021. It stated that the damp issue had been passed to the relevant repairs team who would be arranging a survey in the New Year with the resident directly and therefore the complaint would be closed.
23. On 17 January 2022 the resident contacted the landlord to report that he had yet to be contacted to arrange a survey. The landlord then confirmed that an appointment had been booked for 21 January 2022. 
24. The records provided by the landlord do not confirm whether this appointment went ahead and, if so, what the proposed actions were following the survey. The resident contacted this Service on 23 February 2022 to advise that works had not taken place and the landlord said that it would have to erect scaffolding in order to address the leak in the roof and the pointing issue. The resident reported, again, that his belongings had been damaged by the mould. 
25. The landlord wrote to the resident in an undated letter to inform him that scaffolding would be erected to complete roofing works on the property during the week commencing 14 March 2022. The works were completed, and the scaffolding removed on 7 June 2022. The resident contacted this Service on 14 July 2022 to advise that the brickwork had not been repointed.
26. The landlord’s records dated 2 November 2022 show that a further inspection survey had been raised “to establish extent of programmed works required”. The resident contacted this Service again on 2 December 2022 to advise that the repointing had not yet been undertaken, although the landlord had previously repointed the downstairs flat. He has had to chase the landlord for works but nothing had been done to date.
27. On 3 February 2023 the landlord’s repairs log show that works had been raised for extractor fans to be fitted to the kitchen area. On 2 March 2023 further works were raised “to attend to assess exterior of the property as water ingress noted internally as a result of failed pointing”.
28. On 9 March 2023 the landlord’s internal correspondence shows that further enquiries were made as to what works had been agreed at the resident’s property. The repairs team replied that they had attended a couple of months before but the resident had not allowed access. It was recorded that the resident had some health issues and did not want fans installed but just wanted the brickwork pointing to be completed.
29. On 5 April 2023, the resident informed this Service that the landlord had contacted him to arrange a further survey of his property. The resident reported that the works remain outstanding.

Assessment and findings

The landlord’s response to the resident’s reports of damp and mould in his property

30. Once on notice of repairs, the landlord is required to carry out an inspection within a reasonable period of time, in accordance with its obligations under the terms of the tenancy agreement and in law. The law does not specify what a reasonable amount of time is; this depends on the individual circumstances of the case. 
31. There is evidence that the damp problem in the property had been ongoing for a number of years. There was a delay in fitting trickle-vents to the windows, some of which can be attributed to works being put on hold during the COVID-19 pandemic, although there is no evidence that an explanation for these delays was provided to the resident at the time.  It was not until the resident raised a complaint in November 2020 that arrangements were made for the vents to be installed and further delays were caused by an administrative error. The landlord’s repairs policy states that routine repairs should be completed within 28 working days.  A delay of 10 months was therefore unreasonable and the resident was put to time and trouble in following this up with the landlord.
32. When the resident contacted the landlord in January 2021 to report that the mould had returned despite the trickle vents being fitted, the landlord acted appropriately by making arrangements for a specialist contractor to attend to complete a damp survey. The survey was requested on 1 February 2021 but delayed until 10 March 2021 because the contractor was having difficulty making contact with the resident. While the landlord was aware of the resident’s vulnerabilities, there is no evidence that the landlord intervened in contacting the resident itself to arrange access. It would have been good practice for the landlord, in view of the resident’s needs, to make attempts to contact him by various means in order to arrange access to the property to complete the survey.   
33. The survey report made a number of recommendations the landlord could take to reduce condensation in the property. One of the recommendations was to repoint the brickwork to the exterior of the resident’s flat. The other recommendations included fitting an internal door in the kitchen, renewing the bathroom extractor fan and installing a fan in the kitchen, repositioning radiators in the property to reduce ‘cold spots’ and to consider installing additional radiators and assessing the effectiveness of cavity wall insulation. 
34. The survey was made available to the landlord on 15 March 2021.To date, there is no evidence provided to this Service that any of the recommended works have been undertaken in the property or that the survey report had been shared with the resident. There appears to have been a lack of co-ordination, with recommended works referred to different teams and then not followed up. The resident had to repeatedly raise repair requests with the landlord with no progress. This delayed and protracted an already difficult and challenging situation for the resident.
35. The Ombudsman’s ‘Spotlight report on Damp and Mould’ provides that “landlords must ensure that there is effective communication between their teams and departments, and ensure that one individual or team has overall responsibility for ensuring complaints or reports are resolved, including follow-up or aftercare”  This approach was not adopted and as a consequence works were overlooked or closed down in error.
36. The landlord’s records indicate that works were raised in early 2023 to install an extractor fan in the kitchen but as the resident did not allow access to undertake these works, the job was closed. There is an obligation on a tenant to allow reasonable access for works to go ahead. The landlord also has a responsibility, however, to ensure that works are carried out within a reasonable time. A landlord can use its discretion to decide on the best course of action to do this. In this instance, given the resident’s vulnerabilities, it would have been good practice for the landlord to meet with the resident to discuss its plans to address the damp problem in the property with reference to the recommendations in the damp report. This could have provided reassurance to the resident that other measures to improve the conditions in the property were being implemented pending more extensive works. There is no evidence that this happened.
37. The resident was understandably frustrated that the repointing to his property had not gone ahead. As the records state that repointing works raised in relation to his property, had previously been undertaken to his neighbour’s property in error, the resident had a reasonable expectation that the repointing would be undertaken outside of the cyclical works schedule. No evidence has been provided by the landlord indicating that it had communicated with the resident as to why the repointing could not be undertaken outside of the cyclical works schedule and when the cyclical works would commence. 
38. Further, as the necessary works were delayed, and this was having a detrimental impact on the resident, it would have been open for the landlord to consider alternative solutions. For example, given the resident’s health needs, the landlord could have discussed with the resident whether he would consider a move to another property. The landlord could also have referred the resident to its insurers and advised how to make a claim given that his personal belongings had been damaged by the damp and mould in the property. Again, there is no evidence that this happened and further demonstrates that the landlord failed take a holistic solution-focused approach to the issue.
39. Resolving an issue such as mould and damp in a property requires a collaborative and investigative approach. The Ombudsman’s “Spotlight on Damp and Mould” states that where survey are undertaken “Landlords should act on accepted survey recommendations in a timely manner”. Where recommendations are not accepted, there should be an audit trail detailing why. If major works are delayed due to budget constraints, residents should be kept informed and, where possible,  interim works should be undertaken pending these works. If interim measures are not effective, consideration should be given to bringing works forward, or if urgent, for works to take place outside of the cyclical works schedule. In this instance, there was no evidence of a systematic approach, instead the landlord took no further action to follow-up on the recommendations in the report to completion.
40. In the resident’s stage two complaint request dated December 2021 he advised that his carer could not sleep in his spare bedroom due to the levels of black mould and instead she had been sleeping on the sofa.  He also said that he had medical evidence to support that he was experiencing respiratory problems and he felt that this was due to the  damp conditions. The landlord failed to take into consideration the impact on both the resident’s care provision and his significant health problems and vulnerabilities in its decision making. 
41. The landlord’s communication with the resident was poor. The records do not support that the landlord provided the resident with an explanation for the delays in fitting trickle vents to his windows before the resident submitted his complaint. There is no evidence that the landlord informed the resident that only emergency works were being undertaken from March to August 2020 due to COVID-19 restrictions. The Ombudsman’s “Spotlight report on Damp and Mould” states that “Landlords should ….. share the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps.”  There is no evidence that the recommendations from the damp survey were communicated to the resident.
42. There is little evidence of communication from the landlord to the resident between March and November 2021. Consequently, the resident had to escalate his complaint in order for his concerns to be addressed. When the resident received his stage two complaint response in December 2021 informing him that a survey would be arranged for January 2022 in resolution of his complaint, he had to chase the landlord for this appointment to be arranged. This was unsatisfactory and, would have further impacted on the resident’s confidence in the service.
43. One final point relates to failings in relation to the landlord’s record keeping. This is evidenced by internal correspondence between departments where emails were sent to chase the status of repairs at the property and where referred works were not followed up. Landlord’s repairs records should be up to date and easily accessible to all staff. Landlords should have systems in place to maintain accurate records of repair reports, visits, inspections and investigations. The landlord’s repairs logs records that requests were made for additional surveys to be undertaken between March 2021 and April 2023. There are no records to support that these surveys took place, and if so, what the outcome of the surveys were. This is of concern as, in the absence of these records, the landlord is not able to reasonably demonstrate that the resident’s situation has been reviewed, the outcomes of the review and the timescales for any proposed works.
44. The landlord’s corporate complaints policy states that where it is obvious that the complainant has suffered some loss due to a service failing, consideration should be given to offering a payment to the complainant. In deciding whether compensation is appropriate the policy advises that the landlord will follow guidance from the Local Government and Social Care Ombudsman. This Service has identified significant service failings in the landlord’s response to the resident’s reports of damp and mould in his property. As the landlord does not have its own compensation policy this Service has assessed the level of compensation using the Ombudsman’s remedies guidance.
45. An order has been made below for compensation of £1400 in relation to this aspect of the complaint, which is within the range of compensation that the Ombudsman can order where there is evidence of severe maladministration. In making this assessment, this Service has taken into account the distress and inconvenience caused to the resident by the length of time that these repair issues have been ongoing without resolution. It has also taken into account the resident’s vulnerability; that he is disabled and requires a carer. The Ombudsman considers these  vulnerabilities as aggravating factors when determining redress which justifies an increased award to reflect the specific impact on the resident.

The landlord’s complaints handling

46. The Ombudsman’s Dispute Resolution Principles are:

a. be fair

b. put things right

c. and learn from outcomes

This Service will apply these principles when considering whether any redress  is appropriate and proportionate for any maladministration or service failure identified.

47. The resident raised their first complaint on 13 November 2020. The landlord responded on 3 December 2020 which was four days outside the complaint response timescales which would have not caused significant detriment to the resident. However, while the landlord acknowledged service failings in its response and outlined what would happen going forward, in the Ombudsman’s opinion this did not go far enough in recognising the detriment to the resident caused to him by the landlord’s delays in completing the works. 
48. The landlord’s stage two response dated 17 December 2021 was unsatisfactory. It failed to outline the action it proposed to take to address the damp conditions in the property following its specialist damp report dated March 2021. It did not provide an explanation for the delays in implementing the works the resident had requested, neither did it provide an explanation of why these works had not been completed and when they would be undertaken. It also did not consider this Service’s Dispute Resolution Principles by failing to acknowledge the detriment to the resident or to offer any redress. Further, an important factor in dispute resolution is to look at what the landlord can do to improve service delivery going forward taking into account its service failings. No learning outcomes were identified in the response which stated only that another survey would be arranged and the complaint would be closed. The resident had to chase the landlord to follow up the survey in January 2022 and, to date, no evidence has been provided to this Service that further works have been arranged. 
49. The Ombudsman’s Complaint Handling Code provides a framework by which landlords should approach complaints handling. It states that landlord’s should address all points raised in the complaint and provide clear reasons for any decisions made. At each stage of the procedure, in its response the landlord should advise the resident of the outcome of the complaint, the reason for any decisions made, the details of any remedy offered to put things right and details of any outstanding actions.
50. Overall the landlord’s complaints handling was inadequate. A complaints procedure should be transparent and applied consistently so that a resident can be reassured that where service failings are identified, a landlord will be accountable. This was a missed opportunity for the landlord to consider the history of the complaint, undertake an internal review of its processes to see what had gone wrong and why and to identify where improvements could be made to the service. It was a chance to rebuild the resident’s trust and confident in the service by acknowledging fault where identified and offering redress. The landlord’s failure to appropriately address the resident’s complaint would have added to the resident’s frustration and further damaged the landlord-tenant relationship. As such, an order for compensation of £350 has been made taking into account the time and trouble the resident had been put to in pursuing his complaint. This award is in line with the Ombudsman’s remedies guidance and takes into account the impact on the resident, given his mental and physical health needs.

Determination (decision)

51. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in respect of its response to the resident’s reports of damp and mould in his property.
52. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its complaints handling.

Reasons

53. Following the residents reports of damp and mould, there were protracted and unreasonable delays in carrying out the necessary remedial works that fell significantly outside the landlord’s timescales.  Whilst some delays may be expected due to factors such as COVID 19, the landlord failed to take adequate steps to proactively progress matters and the delays were, in part, due to poor communication between the landlord’s internal teams.
54. While the landlord commissioned a specialist damp report in March 2021, it failed to take action to implement any of the recommendations in the report. When the resident made repeat reports of ongoing damp and mould in the property after this date, the landlord arranged to undertake further surveys of the property but no further action has been recorded. By the time the landlord’s final complaint response was issued there had already been extensive delays, it was therefore not appropriate that the works remained outstanding.
55. These failures were exacerbated by weaknesses in the landlord’s complaint handling.  It failed to offer redress and its stage two response missed the opportunity to review a history of the complaint to identify where it had failed and what actions could be taken to put things right. This caused further distress and inconvenience to the resident.

Orders and recommendations

56.  Within four weeks of the date of this determination, the landlord is to:
    1. Apologise to the resident for the failures identified in this report. The apology is to be made by a senior director and the resident is to be given the choice as to whether this is verbal or in writing.
    2. Pay the resident £1750 in compensation which comprises of:
       1. £1000 for the distress and inconvenience caused by the landlord’s delays in appropriately addressing the damp and mould in the resident’s property;
       2. £400 for the time and trouble to the resident of having to repeatedly chase the landlord for works;
       3. £350 in respect of failings in the landlord’s complaint handling.

Confirmation is to be provided to this Service when payment is made.

3. Within four weeks of the date of this determination the landlord is to provide the resident and this Service with a schedule of works to implement the recommendations in the landlord’s damp report dated 15 March 2021 with all agreed works to be undertaken within three months of the date of this report.
4. Within six weeks of the date of this determination the landlord is to:

i. review and update its Complaint Handling Code self-assessment;

ii. report its self-assessment to this Service;

iii. and publish the outcome on its website.

Recommendations

57. The landlord should review its record keeping procedures with reference to the Ombudsman’s spotlight report on Knowledge and Information Management (May 2023).
58. The landlord should review whether improved processes or training of staff are required in relation to fully investigating and responding to all complaint points raised and in offering appropriate redress, with reference to the Ombudsman’s Complaints Handling Code.