Clarion Housing Association Limited (202220271)

REPORT

COMPLAINT 202220271

Clarion Housing Association Limited

28 March 2024

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:
1. repairs to the communal roof and gutter rising damp and black mould.
2. the associated complaint.

Background

The resident is a leaseholder of a ground-floor flat, and her lease is dated 28 September 1987. The resident lives in a two-storey block of flats containing four flats, two on each floor.
On 29 March 2021 the resident reported:
1. the gutters were blocked, and the roof was broken which caused damp and mould growth inside
2. there was debris falling off the roof.
The landlord told the resident that its planned works team had a job registered to repair the roof, but a date had not been set for the work to start.
The landlord told the resident on 23 June 2021 that it would conduct the work to the roof in 2022 to 2023. This was to include new roof tiles, fascia, soffits, and gutters. It mentioned that it must consult leaseholders about the works. The landlord budgeted for this work in 2022 to 2023.

On 1 December 2022 the resident complained to her landlord about the disrepair to the roof and gutters. She alleged she had black mould in her bedrooms and rising damp.
On 4 January 2023 the landlord responded to the resident’s complaint at stage 1 and said:
1. it accepted the roof was beyond repair
2. it referred the work to its planned investment team but it could not say when the communal roof work would be done
3. it had started a consultation process and the work should be resolved by March 2023, although there may be delays
4. it invited the resident to contact its insurer to claim for damage to her internal areas
5. it upheld the resident’s complaint and offered the resident £250, including £50 for the delayed response.
The resident escalated her complaint on 11 January 2023. She alleged the landlord had not kept to the repairing obligations in her lease. The resident also alleged that the landlord had been negligent in not repairing the roof. The resident asked her landlord to:
1. replace the communal roof and facias immediately
2. replace the gutters as soon as it could
3. deal with the rising damp on the external walls caused by overflowing blocked gutters
4. remove black mould from the resident’s building.
The resident asked her landlord for an update on 28 March 2023. The landlord supplied its final stage 2 response a day later and said:
1. the consultation process to replace the roof was underway
2. a cyber security incident that affected the landlord in June 2022 slowed the process down, with the works now planned for 2023 to 2024
3. the start of the works would depend on how many questions arise from the consultation
4. it would keep the resident updated and would keep the roof and gutters safe until they are replaced
5. it would ask a surveyor to assess if any temporary repairs were necessary and would contact the resident again by 7 April 2023
6. it re-offered £250 compensation and awarded another £50 for the delay in complaint handling.
The landlord sent the resident a notice of the intended roof works and estimated costs on 25 April 2023.
The resident expressed dissatisfaction at the landlord’s failure to give her a date for completing the roof repairs. The resident also told us that:
1. she had to buy and use dehumidifiers at extra cost
2. she had to throw away pillows, clothes and curtains affected by mould
3. she had to paint the internal parts of her property with anti-mould paint
4. the delays had caused distress as she was concerned at the effect of mould growth in her property and felt unsupported by her landlord.
The resident also looked to challenge the estimated roof repair costs. The resident has informed us that the repairs to the main communal roof were completed in July to August 2023. However, the repairs to the front and back flat roof referred to in the consultation are outstanding.
The landlord has explained to us that it will not do this work as part of the consulted works. This is because the landlord has assessed this work is unnecessary and would not represent value for money.

Assessment and findings

Scope of investigation

Part of the resident’s complaint relates to the reasonableness of the landlord’s estimate for the roof works. Under the Housing Ombudsman’s Scheme, there are some complaints we cannot look at.
Under paragraph 42(f) of the Scheme we may not look at complaints that the Ombudsman considers can be more quickly, fairly, reasonably, or effectively considered through the courts, other tribunal, or procedure.
The First-tier Tribunal (Property Chamber) can deal with disputes over the reasonableness of roof work charges. This aspect of the resident’s complaint is therefore out of scope under paragraph 42(f) of the Scheme.
The Ombudsman can consider whether the landlord acted fairly and reasonably in how it responded to the resident’s report of roof or gutter disrepair, rising damp and mould.

Lease, law, and policies

Clause 5(b)(i) of the resident’s lease obliges the landlord to keep in repair the roof, gutters, drains and external pipes to the resident’s property. Clause 4(1)(b)(i) allows the landlord to recover the cost of this through a service charge. This is a charge that is payable, under the lease, by the resident to reimburse the landlord.
Section 20 of the Landlord and Tenant Act 1985 places an obligation on landlords to consult with leaseholders before doing works of repair. This is if the repair or maintenance work would cost each leaseholder more than £250.
Landlords must also consult before entering a contract to do repair work that lasts 12 months or more. This is where the work would cost more than £100 per leaseholder. Only a tribunal can remove or change these consultation requirements.
The landlord’s repairs and maintenance policy indicates that roof replacements are not responsive repairs and are delivered through planned programmes.
The landlord’s leaks, condensation, damp, and mould policy applies to all the landlord’s residents. Specifically, the policy requires the landlord to:
1. offer advice to residents on mould and damp mitigation
2. investigate the cause of any reoccurring damp or mould and do remedial works where necessary
3. conduct a comprehensive risk assessment in cases of severe or reoccurring damp or mould
4. consider ways to support residents, which may include funding dehumidifiers or applying anti mould paint in severe or re-occurring cases
5. consider moving residents in very complex cases where there are health risks.

The roof

The landlord reported blocked gutters on 29 March 2021. She also told her landlord that the roof next door was falling away and there was a risk from falling debris. The landlord told the resident on this day that it had already logged a job as a planned repair. The landlord was responsible for repairing the roof and gutters under the resident’s lease.
The landlord responded to the resident on 23 June 2021 and said it had decided to start a consultation process. The landlord’s ‘section 20’ consultation policy allowed it to do urgent works without consulting to remove an immediate danger.
The landlord should have first inspected the roof and considered if any emergency works were needed. This is because the resident reported concerns about debris falling from the roof. There is no evidence the landlord considered emergency roof work before 29 March 2023 when it said it would send a surveyor. The landlord’s delay and subsequent failure to assess if works were needed was a failure.
Nor is there any evidence that the landlord considered applying to the tribunal for dispensation from consultation. Although the landlord was under no legal obligation to apply it should have considered this option, in light of the reports. This is because of the poor state of the roof may have made urgent work necessary.
The landlord said in its internal records on 21 September 2022 that COVID-19 caused delays. However, the Ombudsman notes that COVID-19 restrictions had eased by June 2021, when the landlord said it would consult with residents.
The Ombudsman has not seen evidence that the landlord updated or explained to the resident the reason for the consultation delays before 4 January 2023. The Ombudsman finds that the landlord’s delay and lack of communication with the resident were service failures and caused her distress.
It is unclear whether the landlord inspected the roof in 2021. This is because the only inspection report it provided was dated 28 March 2023 – 2 years after the initial report. The report noted:
1. the roof had come to the end of its ‘useable life’
2. the UPVC rainwater goods were in a very poor condition with several missing sections
3. the fascia boards were decayed
4. there was water entering the building consequently and the drainage outlets were blocked and the soffit, facia and eves were failing.
The report recommended a re-tile or new roof and new lead flashings, sarking felt and softwood battens. The report also recommended the landlord strengthen the roof rafters and replace rainwater goods.
As the repairs related to a communal roof the landlord correctly treated the repair as a planned repair. This was in line with its repairs and maintenance policy. The landlord had to decide whether it needed to consult the resident and other leaseholders before starting work. This is under section 20 of the Landlord and Tenant Act 1985.This is because the cost of the work exceeded the thresholds referred to in paragraphs 19 and 20 of this report.
The landlord told the resident on 29 March 2023 that the planned roof work would not happen until 2023 to 2024.
Having told the resident on 23 June 2021 that it would consult leaseholders, the landlord should have started this process with the resident within a reasonable period. The Ombudsman notes the landlord did not start the consultation with the resident until 25 April 2023. This was 22 months after the landlord said it would start the consultation. This was not appropriate.
The landlord told the resident in its stage 2 response that a cyber incident in June 2022 delayed the consultation. The Ombudsman notes that this was a year after the landlord said it would start the consultation.
It is unclear from the landlord’s records how COVID-19 or the cyber incident affected its ability to consult with leaseholders. In the absence of a clear explanation the Ombudsman finds 22 months to start a consultation to be unreasonable.
The resident and landlord have confirmed that the repairs to the main communal roof completed in July or August 2023. This was 28 to 29 months after the resident reported the repairs. For the reasons stated in this report the Ombudsman considers this was an unreasonable length of time.
This is likely to have affected the resident’s enjoyment of her home – given the damp she complained of.
The landlord has said that it decided not to replace the flat roofs at the front and rear of the resident’s property as this was unnecessary. This is despite it referring to these roofs in the consultation. The Ombudsman has not seen evidence that the landlord has informed the resident of this decision. The Ombudsman therefore makes an order to clarify the situation with these roofs.

The landlord’s response to the rising damp and mould

The resident told the landlord on 29 March 2021 and on 1 December 2022 that she was living with black mould. She also complained on 1 December 2022 about rising damp. Despite this the Ombudsman has not seen evidence that the landlord offered the resident advice or investigated the mould or rising damp. The landlord did not conduct a risk assessment. The landlord should have taken these steps under its leaks, condensation, damp, and mould policy as the mould was unresolved.
The landlord should have inspected the resident’s property for mould and considered if it needed to offer help. For example, the landlord’s policies allowed it to offer dehumidifiers where damp or mould was re-occurring. This inaction amounted to a service failure as it was not in line with the landlord’s leaks, condensation, damp, and mould policy.
In the Ombudsman’s opinion the lack of practical help from the landlord left the resident feeling distressed and vulnerable and was not in line with its policies.
The resident told the Ombudsman that she had to paint her internal walls with anti-mould paint and throw away clothes because of black mould. The landlord would only be responsible for damage caused by mould growth if this resulted from a failure to meet its repairing obligations.
The Ombudsman has seen evidence that the defective roof had caused water ingress and damp to communal areas. This is evident from the landlord’s report of 28 March 2023. However, there is no evidence that linked to the specific damage the resident alleged in her home. It is therefore, in the absence of such evidence, not possible for the Ombudsman to conclude the defective roof caused the mould and consequent damage the resident complained of. The landlord in its stage 1 response directed the resident to its insurer.

Conclusions

In summary, the Ombudsman has found the following failures amount to maladministration in the landlord’s handling of the residents reports of roof and gutter disrepair, rising damp and mould:
1. a delay in the landlord consulting the resident about works. This is because it took 22 months to start the consultation with the resident without a clear explanation of why it took this long
2. the delay in the landlord updating the resident on the consultation. There was a gap between 23 June 2021 and 4 January 2023 in the landlord updating the resident on the status of the work
3. the roof and gutter repairs taking 28 to 29 months to complete, partly due to the delays in consultation
4. the lack of any investigation and help offered by the landlord to the resident relating to mould or rising damp. The landlord failed to show it had acted in line with its leaks, condensation, damp, and mould policy.
The Ombudsman also considers that the offer of £250 for the failures in dealing with the communal roof was not in keeping with the landlord’s compensation policy and our remedies guidance. The landlord’s compensation policy allows for payments up to £700 where there has been a failure to apply its policy over a period that has caused distress.
The Ombudsman’s remedies guidance allows for compensation of up to £1000 where the resident has experienced significant distress by the landlord’s failures. The landlord’s failures caused the resident concern that her health would be adversely affected by the mould. The landlord did not address this in the complaint which was a failure. The Ombudsman therefore considers it appropriate to make an award to reflect the distress and inconvenience caused.

The landlord’s complaint handling

The landlord used an interim complaint policy at the time the resident complained. This had two complaint stages. The interim policy required it to respond to complaints at stage 1 within 20 working days. It also needed to respond to complaints at stage 2 within 40 working days.
It took the landlord 21 working days to respond at stage 1 and 55 working days to respond at stage 2. These were short delays that in the Ombudsman’s opinion caused no detriment to the resident. The landlord apologised for the delayed response in its stage 1 and stage 2 responses and offered the resident £100 compensation for these. In the Ombudsman’s opinion it was appropriate for the landlord to acknowledge the delays and offer compensation.

Determination

In accordance with paragraph 52 of the Scheme there was maladministration in the landlord’s handling of repairs to the communal roof and gutter, rising damp and mould.
In accordance with paragraph 52 of the Scheme there was service failure in the landlord’s complaint handling.

Orders

The Ombudsman orders the landlord within 28 days of the date of this determination to:
1. pay the resident directly the sum of £1200, made up of:
  1. £1,100 for the distress and inconvenience caused to the resident by the delay resolving the repairs to the roof and the lack of assistance with the damp and mould
  2. £100 for complaint handling.
The Ombudsman orders that the landlord, within 56 days of the date of this determination:
1. write to the resident with its detailed findings as to why it has not replaced the flat roofs to the front and rear of her property, and any maintenance and repair work it intends to do
2. inspect the resident’s property for damp and mould and decide whether the cause is something the landlord is responsible for. If it is, create a risk assessment and plan to deal with any mould, providing the resident with a copy
3. write to the resident to explain whether the landlord intends to recharge the resident and other leaseholders the full cost of the communal roof and gutter repairs.
The landlord must provide the Ombudsman with evidence that it has complied with these orders as follows:
1. Order 51(a) within 28 days of the date of this determination.
2. Order 52 within 56 days of the date of this determination.

Recommendations

The Ombudsman recommends that the landlord undertake a review of this case to identify lessons learnt. This should include:
1. how the landlord responds to mould in communal spaces
2. the cause of the delays in consulting the resident and how the landlord can avoid consultation delays.