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Sandwell Metropolitan Borough Council (202124220)

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REPORT

COMPLAINT 202124220

Sandwell Metropolitan Borough Council

26 January 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 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 handling of:
    1. Leaks in the property and damage to the resident’s carpet.
    2. Reports of damp and mould in the property.
  2. The Ombudsman has also considered the landlord’s complaint handling.

Background

  1. The landlord is a local authority. The resident, with her partner, are secure tenants of the landlord, which commenced on 9 August 2004. The property is a 1–bedroom ground floor flat.
  2. The resident has vulnerabilities as does her partner.
  3. For the purposes of this investigation, this Service will refer to the resident or her advocate as the resident.
  4. On the 23 January 2020 the resident sent an email to the landlord which explained she had hoarding concerns affecting her and the property. Prior to this, she and her partner felt harassed by the landlord due to the number of visits by it regarding the property condition. She made 2 requests:
    1. for the landlord to put on hold visits for 6 months, so the resident could make progress with a hoarding charity
    2. another member of staff to carry out the visits when they resumed

The landlord agreed to holding off on visits on 28 February 2020 for a period of 3 months. It wanted her progress to be shared with it. It highlighted that due to the concentration of goods in the property, it heightened the risk for trips and blocked emergency routes for exit.

  1. A toilet pan leak was reported by the resident on 17 October 2021. The landlord attended the property on the same day and found there was no leak. The following 2 days, the same reports were made but the landlord was unable to access the property. On 20 October 2021 it did gain access and repair a leak in the bathroom.
  2. A similar repair attendance was attempted on 22 November 2021 but it was unable to access the property. The resident advised the landlord that her carpet was damaged. She filed a claim to the landlord’s insurance department, for it to assess if the claim would meet its own criteria. On 18 January 2022, her compensation claim was declined by the landlord’s insurance department. It justified rejecting the claim as there was no prior reports of a leaking toilet. Additionally, it was not foreseeable and it had attended within a reasonable timescale from the reports. It suggested she sought legal advice.
  3. On 19 January 2022 the resident said to the landlord she would be taking her claim further. She did not believe the damage to the carpet was her fault and she could not afford new carpeting. She mentioned a historical case where rats had chewed through the wiring of her washing machine and that at the time, she had not made a claim. She also informed it that she was taking medication for stress and depression.
  4. The resident had contacted her MP on 30 January 2022 about her declined claim. She mentioned she felt suicidal and was on anti-depressants. She stated she did not want the landlord attending her property. This was in light of COVID-19 concerns and her vulnerable partner. She sought compensation due to the damages which stemmed from the leak. The day after, the resident contacted this Service and elaborated on her concerns. She said she was shown the faulty pipe when the landlord attended the property. The insurance claim was for around £200 and by it being declined, the resident felt the landlord was not taking responsibility. She referred to events about a rat infestation, but she stated this was investigated and resolved. She also felt its insurance investigation had not thoroughly reviewed her claim.
  5. The landlord became aware of the MP’s enquiry on 4 February 2022. It responded to the MP’s enquiry on 10 February 2022. It said that when it attended the resident’s property on 17 October 2021, the cistern had overflown. When it flushed the toilet and checked the bung, it was unable to source a leak. It confirmed the toilet was not leaking on this inspection.
  6. When it attended the property again on 20 October 2021, it found the leak and repaired the bung. It noted the resident’s carpet was wet, but it denied liability as no leak was evident on 17 October 2021. It further added that its tenant handbook covered contents insurance. It confirmed she held contents insurance and that it previously informed her about this on 9 December 2021. It had postponed a property inspection, due to her partner’s health concerns and COVID-19. However, an inspection was arranged for 2 March 2022 as it was necessary to check the property condition, but it would use personal protective equipment.
  7. This Service asked the landlord about the status of the complaint on 8 February 2022 which categorised it to be responsive repairs including leaks, damp and mould. The deadline to respond was 18 February 2022. The landlord issued its stage 1 complaint response on 15 February 2022. It did not uphold the resident’s complaint. When it had visited the property, it found condensation to the ceiling and attributed to the little airflow around the house. It said to her that the kitchen would need to be emptied in order to have applied fungicidal wash. She asked whether this could be done herself and was informed to not use bleach, instead to have tried a solution of white vinegar, dish soap and water. If she changed her mind, she could contact it to carry out the fungicidal treatment.
  8. The resident emailed the landlord on 4 March 2022 asking management to consider her allegations that its staff member lied about fitting a part behind her toilet. She deliberated police involvement. She stated the events made her angry and she felt poorly.
  9. On 10 March 2022 the resident obtained a doctor’s note which stated she was tearful and depressed, with anxiety and stress. She could not have attended appointments and was unable to speak for up to 6 weeks. She stated that she would be leaving the property as per medical advice in the interim. On the same day, she filed a second claim to the landlord for the leak issues stemming from October 2021. Its response to this the following day was it had already dealt with this claim and its stance had not changed.
  10. The resident communicated with this Service again on 16 March 2022. She updated us about her wellbeing at the time. She was unsure whether a complaint was made in the first instance. She reported to us that the landlord showed her the fault but was denying it did so. She submitted she could not have identified the problem herself due to mobility issues and she still sought compensation for her damaged carpet.
  11. On 7 April 2022 the landlord sent a breach of tenancy letter to the resident due to no access to the property on 16 February 2022 and 8 March 2022. She responded to this 4 days later and it offered alternative dates for visits. She later updated it that she would not be available until 7 June 2022. The resident contacted this Service on 23 May 2022. She wanted her complaint escalated. She included pest infestation issues from a past occasion.
  12. The landlord conducted a visit to the resident’s property on 10 June 2022. It completed the following referrals:
    1. welfare rights
    2. fire services
    3. floating support

The landlord had also taken pictures of the property and would assess if it could support with a clear up. It later returned to the property on 13 July 2022 and found evidence of hoarding. So, on that date, the landlord’s records said that a fire safety referral and welfare rights referral were completed. A deep clean referral was submitted and the floating support referral had been made.

  1. On 15 July 2022 the resident made further contact with this Service and the landlord in the same email. She said she was unhappy about a previous rat infestation that damaged her washing machine. This resulted in her buying another washing machine, which was unaffordable for her at that time. She also stated she was called a ‘liar’ by the landlord’s staff member regarding the leak in the bathroom. She found it difficult to clean the kitchen ceiling due to her osteoarthritis.
  2. This Service asked the landlord on 8 October 2022 to escalate the complaint regarding damp, mould and leaks to stage 2 of its internal complaint process. In terms of the pest infestation she had mentioned, for it to produce a stage 1 complaint response if applicable. Its stage 2 complaint response was dated 16 November 2022 where it did not uphold her complaint. It did apologise for any inconvenience caused; however, it did not find previous jobs raised for possible damp and mould in the property. In its visit in April 2022, it could not have investigated the issues due to the cluttered property and workers would not have been able to carry out repairs. It provided details of its insurance and legal departments for the compensation claim. Lastly, it commented on the pest infestation that the repair job for an external wall was completed. It then provided a contact number for its pest control.
  3. The resident remained dissatisfied and referred the matter to this Service on 18 December 2022. She sought compensation for the leaks in the property, damp and mould, the denied insurance claim and pest infestation. She felt there was dishonesty which had arisen from the landlord’s communication and handling of the issues.

Assessment and findings

Scope of investigation

  1. Prior to the landlord’s stage 2 complaint response, the resident said she reported pest infestation to the landlord. She sought compensation for her damaged washing machine and the cost to replace it. From the evidence provided, this stemmed from her reports in November 2017. It is unclear whether this aspect of the complaint had exhausted the landlord’s internal complaints process. She had also mentioned to this Service on 31 January 2022 that this was previously investigated and resolved. As such, in line with paragraph 42(a) of the Housing Ombudsman Scheme, matters regarding the landlord’s handling of reports of pest infestation is one we cannot currently comment on. In the event the resident does exhaust the landlord’s complaints process with regards to this issue, this matter was not brought to the attention of the landlord or this Service withing a reasonable time scale. Paragraph 42(c) of the Housing Ombudsman Scheme says a reasonable period is 6 months from the matter first arising. As such, this investigation will however look at the landlord’s complaint handling regarding the pest infestation.
  2. Additionally, the Ombudsman is not able to investigate issues that postdate the completion of the landlord’s internal complaints process. Although, we can comment on whether the landlord had followed through on any agreements it might have made during its complaints process.
  3. The resident had complained about the outcome of her landlord’s insurance claim for the damaged carpet. However, this issue is outside of the scope of this investigation to consider. This is because this Service is unable to determine liability or award damages for insurance claims. The landlord said it only makes payment for claims whereby it was proven it was under legal liability to do so. Paragraph 42(o) says we may not consider matters where the resident is seeking an outcome which is not within our authority to provide. Although this Service cannot determine liability, this report will look into the landlord’s communication and response to the resident’s reports of a leak which caused damage to her carpet.
  4. Further to this, the resident had also said that the landlord’s pursuit in visiting and inspecting the property had exacerbated her health issues and was hospitalised. The Ombudsman is an alternative to the courts. As such, is unable to establish legal liability for whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Therefore, the Ombudsman is unable to consider the personal health aspects of the complaint. These matters are perhaps suited for consideration by a court. However, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.

Policies and procedures

  1. Section 11 of the Landlord and Tenant Act 1985 places statutory obligations on the landlord. It is to keep in repair and proper working order, the installations in the property that supply water and sanitation. This is echoed within the tenancy conditions. It states that the landlord is required to keep in repair and proper working order installations that supply water and sanitation. This includes basins, sinks, baths and toilets.
  2. Under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, the landlord is to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard under HHSRS.
  3. Within the tenancy conditions, it also says the landlord must carry out the repairs which it is responsible for within a reasonable time, and it must clear up after carrying out any work. Conversely, it says that if the landlord is responsible for repairs, the resident also has the right to have them carried out within a reasonable timescale.
  4. Clauses for access to property are detailed in the tenancy conditions and the resident must:
    1. allow the landlord’s officers, agents or workforce to enter the property to:
      1. inspect the condition, state of repairs, decoration or cleanliness
      2. carry out repairs, maintenance, services or improvements at any reasonable time of the day
    2. take all reasonable steps to ensure that access is given to the property when an appointment has been made
  5. There are also maintenance repairs that resident must follow as stated in the landlord’s tenancy conditions. The resident must keep the property clean, tidy, in good condition and free from vermin. It further adds that any member of the resident’s household must not allow an accumulation of personal property, rubbish or other items to cause damage to the property, pose a risk or prevent safe access.
  6. The landlord’s website shows it operates a 2 stage complaints process. It commits to providing a response within 10 working days at stage 1, if the complaint is escalated to stage 2, it aims to respond in 20 working days. If this is not possible, it will keep the resident informed.

The landlord’s handling of leaks in the property and damage to the resident’s carpet

  1. From the evidence provided, the landlord’s attendances regarding the leak were classed as high priority. As a result, it classified each report from the resident as emergency repairs, in which it responded to within 24 hours. It committed to have repaired or made safe the leak in that timeframe. Besides the emergency repair timescale of 24 hours, the landlord is only obligated to complete repairs in reasonable timeframe.
  2. The resident’s first report of a leak was on 17 October 2021. The landlord attended the property and found no leak on that occasion. It was a prompt and appropriate response by it to attend and try to remedy any faults on the same day. The resident stated she was told on that occasion, she needed a new toilet. However, this Service has not received any evidence that substantiates the landlord agreed to do so.
  3. In the landlord’s records it noted subsequent reports made by the resident consecutively on the 18 October and 19 October 2021. On both occasions, it had attempted to attend the property on the same day but was not provided access. Prior to its arrival, it also notified the resident by text message that she had a repair attendance pending. The landlord had informed and communicated to the resident clearly. No further justification had been provided as to why it was unable to access the property on these occasions. The timeliness of its attempts to have attended the property were appropriate.
  4. Further to this, the resident reported the leak again on 20 October 2021 and positively, the landlord attended the property on the same day. It was able to identify the issue and repaired the leak which stemmed from the bung. The duration of the leak is not clear as it was unable to gain access to the property for 2 days. However, the landlord still had responded to each report within 24 hours. It had therefore fulfilled its emergency repairs timescales and was in line with its tenancy conditions. This was fair and reasonable in the circumstances of the complaint. The resident had made a further report on 22 November 2022, but the landlord had not been able to gain access to the property again. It is not clear what this contact entailed. Despite that instance, there was no additional evidence that a potential leak had reoccurred since it fixed the issue on 20 October 2021. Further, it had not been disputed by the resident that the issue had reoccurred.
  5. The resident stated that her carpet was damaged from the leak. In a letter dated 9 December 2021, the landlord suggested to her that she may wish to pursue an insurance claim for damage to her carpets through her contents insurance. This Service had not received a copy of this letter. Therefore, we cannot comment on its communication. Despite that, it was still reasonable for the landlord to do so as she remained unhappy about the damaged carpet.
  6. Overall, the landlord was quick to respond to the resident’s reports of a leak. The leak was not expected and was not prolonged by its actions or lack of action. It made safe the leak after a total of 4 calendar days since she initially reported issues. This was fair as it had not identified a leak in the first instance and it was unable to gain access on latter occasions. Ultimately, it did not fail to repair the leak in a reasonable timeframe. It also notified her that she could potentially claim damages through her contents insurance. As touched on earlier regarding insurance, it is not in our powers to determine whether the landlord is liable for the damage to the carpet. While this has clearly been a difficult situation for the resident on the available evidence, in the Ombudsman’s view there were no service failings by the landlord in its handling of leaks in the property and damage to the resident’s carpet. As a result, this Service makes a finding of no maladministration with regards to this part of her complaint.

The landlord’s handling of reports of damp and mould in the property

  1. As stated above, in line with HHSRS, the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
  2. There had been no evidence provided that the resident made reports of damp and mould prior to this Service’s contact with the landlord on 8 February 2022.
  3. However, the landlord subsequently visited the property 2 days after this Service’s contact and noted condensation on the kitchen ceiling. The resident had ongoing difficulties with hoarding. It said to her that as a result, there was poor airflow. The landlord’s records show that she had not allowed it to enter the bathroom. The Ombudsman’s spotlight report on damp and mould, published in October 2021 said that landlords should have the ability to identify and report early signs of damp and mould. As it was aware of the condensation, it appropriately recommended fungicidal treatment to the resident. However, in order to have done this, the area needed to be cleared. The landlord’s records show the area had a vast amount of items cluttered in the kitchen. The resident declined treatment at the time and asked whether she could wash it herself. She was informed by it a solution to treat the area. In its stage 1 complaint response, it still offered her the option to receive fungicidal treatment from it and for her to contact it which was reasonable.
  4. It was clear from the evidence the resident’s hoarding condition impacted the landlord’s ability to inspect and assess potential damp and mould. There were multiple occasions where it found it difficult to access specific rooms in the property or the property entirely. This would have no doubt caused delays and difficulties in treating any existing condensation, damp or mould. It was not unreasonable the landlord did not complete a damp survey at the outset as it required suitable access to the property.
  5. The resident is required to allow access as per the tenancy conditions. There was a 6 week period starting from 10 March 2022 that the resident had alerted the landlord she would not be available based on medical advice. She was also advised by her doctor to not be at the property due to her mental health. This Service had received contrasting information about how many attempted visits took place during this period. However, in this period, the landlord issued a breach of tenancy letter due to no access on 7 April 2022. It mentioned no access to the property on 16 February 2022 and 8 March 2022. Both dates mentioned regarding failed visits pre-dated the residents doctor’s letter. In that instance, it would have been unreasonable to continue to try to access the property when it knew she was not home. Additionally, there is evidence that shows the 16 February 2022 visit was agreed to have been postponed. Yet, this was used as a contributory factor by the landlord in its decision to send a breach of tenancy warning. Given the resident’s known vulnerabilities, it was not reasonable to send the breach of tenancy letter at that time.
  6. To elaborate on the above, the landlord was on notice of the resident’s issue regarding damp and mould in February 2022 for the first time. This Service would have expected to see the landlord’s clear decision making regarding the risk to the resident and those around her. It should have assessed the risk of continuous living within a hoarded property, that showed signs of damp and mould for any period of time. The risk assessment ought to have taken into account the known vulnerabilities and considered interim mitigations such as:
    1. support referrals
    2. level of hoarding with the use of tools such as clutter scales
    3. referrals to appropriate agencies – such as fire services or adult social care
  7. The landlord had not made referrals or signposted the resident prior to 10 June 2022. This meant she went without the appropriate referrals for 4 months. This Service understands there were obstacles inspecting the property. While the landlord had communicated effectively to re-arrange a date to visit once the resident was ready, lack of early referrals meant it had failed to identify and manage the risk and appropriate interventions at the earliest opportunity. It missed 2 clear escalations of risk, which were her MP’s intervention and her doctor’s note. It did not evidence to this Service any tools or frameworks used to assess the heightened risk, instead it relied on subjective opinion.
  8. Ultimately, enforcement on 7 April 2022 should not have been the landlord’s early response following the resident’s concerns of damp and mould. There were internal discussions as early as 10 February 2022, that the contents in the property would act as an accelerant in a fire. Knowing this, it should have made a referral to the fire service as soon as possible, despite it feeling that the resident needed to empty her kitchen before any further action. Although there was evidence of historical support and it was aware the resident had said she was working with a hoarding charity in the past, there was no evidence of it reengaging with her or reoffering her support. Additionally, it should have signposted her to help with the hoarding and clearing of the kitchen. That would have been reasonable and appropriate following its inspection of the property on 10 February 2022. Although on 15 February 2022 it had referred her to the local housing officer, it did not make a referral to the fire services until 10 June 2022. As above, there was an 82 working days delay to the landlord’s referral to the fire services and this delay was not reasonable in the circumstances of heightened risk to the resident.
  9. The landlord stated in its stage 2 complaint response of 16 November 2022 that it held no records of works raised for damp and mould. However, it affirmed that if the resident had cleared her property, it would then have been able to inspect the works required related to any damp and mould. It also incorrectly referred to the visit of 10 February 2022 as a visit in April 2022, which would have caused confusion to the resident.
  10. Evidence showed that floating support were involved prior to the landlord’s stage 2 complaint response. By 27 June 2023, it emailed the resident regarding booking an inspection where it would assess any repairs required, as there were improvements to the level of hoarding. Although these events occurred beyond its final complaint response, it committed to assessing the property when it was decluttered. So even though it was approaching 7 months since its stage 2 complaint response, it was appropriate for the landlord to try and assess any damp and mould at that time, as it being able to do so was dependent on the extent of cluttering in the property.
  11. The landlord was hindered from assessing the damp and mould due to the condition of the property and the resident’s wellbeing. While this was the case, it should have adjusted its service delivery between 10 February 2022 and 10 June 2022 due to the resident’s vulnerabilities. No evidence was provided that it had assessed the level of her vulnerabilities and the impact upon her ability to effectively manage her living conditions. Therefore it missed early opportunities to work with her to effectively sustain her tenancy. As such, this Service finds maladministration in the landlord’s handling of reports of damp and mould in the property. Earlier referrals could have potentially accelerated the process and improved the resident’s living conditions, safety and have allowed the landlord to assess any damp and mould quicker.

The landlord’s complaint handling

  1. In the landlord’s stage 1 complaint response it defined the resident’s complaint as damp and mould in the property. It only referred to the condensation in the kitchen and overlooked her other concerns. This was namely the leaks, damage to her carpet and declined compensation, but it is not clear it made any contact regarding her complaint prior to its response. This was a failing in its complaint handling. Had it reviewed its internal records of contact between both parties, it may have understood what she was complaining of better. She had previously expressed dissatisfaction in her attempt at claiming for compensation. This would have provided a more robust response to her concerns. The first complaint response also omitted a deadline to escalate the complaint if she remained unhappy, which was not appropriate. The Ombudsman expects landlords to provide a deadline to respond within its stage 1 complaint responses.
  2. At stage 2 of the landlord’s complaint process, it made internal enquires regarding pest infestation. That matter was not addressed at the first stage of its internal investigation. In its final response it provided the resident contact details for pest control. It said to her a previous repair was completed to the property and no other issues had been raised since. This was a failing by the landlord. It was not reasonable to have commented on the matter in its final response without having carried out a full investigation. It had not demonstrated it understood her complaint. The Ombudsman expects that where additional complaints were raised during the investigation, the complaint should be logged as a new complaint. By not doing so, it deprived the resident the opportunity for a 2 stage consideration of her complaint regarding pest infestation.
  3. Additionally, once this Service received a copy of the landlord’s stage 2 response, we had asked it for its comments on whether the resident’s concerns about pest infestation had exhausted its complaints procedure. It said no reports had been made. And that she would have to contact pest control before going through its complaints process. This response was not appropriate. The Ombudsman expects for the landlord to ensure that efforts to resolve concerns do not obstruct access to the complaints procedure or cause unreasonable delays.
  4. In terms of timeliness, the landlord provided a complaint response at stage 1 within the expected timeframes. The resident had first attempted to escalate her complaint through this Service but not directly with the landlord. An email of 15 July 2022 was sent to both this Service and the landlord from her. She wanted her complaint escalated, but the email used for the landlord was not for its dedicated complaints department. Instead, this went directly to the landlord’s member of staff and was not picked up by it. This Service forwarded the complaint on 8 October 2022 and was acknowledged by it 2 days later. However, it had taken the landlord 27 working days to produce its final response. This was 7 working days outside its commitment. We have not been provided with information that it had agreed these timescales with the resident. This would have caused further frustration for her, as she was waiting and no communication was received by her that there would be a delay.
  5. As a result of the above errors by the landlord, there was a cumulative negative impact on the resident’s complaint journey. The experience would have caused her distress and inconvenience and she would have had to expend more time and effort in trying to find a resolution to her complaint. The landlord did not acknowledge its failures and there had been no learning demonstrated. As such, this Service finds maladministration in the landlord’s complaint handling. Orders have been made that factors in the impact on the resident, its poor communication and record keeping.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of leaks in the property and damage to the resident’s carpet.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of damp and mould in the property.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.

Orders and recommendation

Orders

  1. Within 4 weeks of the date of this determination, the landlord is to:
    1. Apologise to the resident for the failings detailed in this report.
    2. Pay directly to the resident’s bank account compensation totalling £350, comprised of the following:
      1. £200 for the distress and inconvenience caused to the resident by its failings in its handling of the resident’s reports of damp and mould.
      2. £150 for the distress and inconvenience experienced in addition to the time and trouble caused by the complaint handling failures identified.
  2. Within 8 weeks of the date of this determination, if the landlord has not already done so, it is to self-assess against the Ombudsman’s spotlight report on knowledge and information management, published in May 2023.
  3. The landlord is to provide evidence of compliance with the above orders.

Recommendation

  1. The landlord is to consider implementing a hoarding policy, so it can ensure it meets the needs of residents by making appropriate and reasonable adjustments.