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Clarion Housing Association Limited (202127661)

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REPORT

COMPLAINT 202127661

Clarion Housing Association Limited

17 October 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:
    1. Reports of damp and mould.
    2. Related complaint

Background

  1. The resident is an assured tenant of the property. The landlord has recorded that she is vulnerable, disabled and has a significant health condition.
  2. The resident reported mould throughout the property, ‘blown’ external bricks, and a damaged pathway in January 2022. The landlord said that the windows would be overhauled and radiators would need to be removed before a permanent solution could be made.  The resident complained in March 2022 that the contractors who had attended had not been advised to clean the mould and the window contractor had not turned up. She said that the job had been re-scheduled twice and still no work had been started to the pathway or brickwork.
  3. The first complaint response in April 2022 identified service failure given the delay and the landlord initially dismissing the external repair. The landlord offered compensation of  £340 but the resident escalated the complaint in May 2022, as work had still not been completed. A final response was then issued on 15 June 2022 which reiterated that no work was required to the pathway and said outstanding window work was scheduled for 7 July 2022, and part of the delay with internal works was due to the resident requesting a particular operative.
  4. The landlord arranged a stock survey to ensure all matters were identified, and increased the compensation offer by £250. The resident responded that the landlord’s letter was inaccurate and asked for a further review but the landlord responded on 30 August 2022 reiterating its previous position. It issued a final response on 24 October 2022 which repeated that work was not required to the brick pointing, but there had been some delay in repairing windows.
  5. The resident says that mould has reappeared behind her radiator despite work she has paid for and this issue has been very stressful over a number of years. She feels that this is a long-term problem caused by the external wall and paving and that if the landlord cannot resolve this, she should be rehoused. The landlord has undertaken a further mould wash in the property and noted that an assessment and advice was needed as damp coursing may be required. 

Assessment and findings

Scope of investigation

  1. It is noted that the resident has stated that the repairs had affected her health. The Ombudsman does not doubt her comments; but must clarify that it is beyond the expertise of this Service to decide on whether there was a direct link between the repairs at the property and her health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord.

Assessment

Repairs

  1. The landlord’s Repairs and Maintenance Policy says that non-emergency repairs are appointed at the initial point of contact. These appointments are termed as ‘at residents’ convenience’ offering the next available appointment that suits the resident and will be offered within 28 calendar days of the repair being reported.
  2. Online information provided by the landlord includes its ‘condensation damp and mould policy’ which was issued following the Ombudsman’s report into sector-wide complaints in October 2021. The landlord’s  policy says that where such issues are reported,  it will make a property inspection to identify the cause of the issues and these repairs will be specifically tracked and managed.
  3. Section 4.8 says that where particularly severe or recurring damp or mould issues are identified, the landlord will undertake a comprehensive risk assessment which may result in a range of actions to support the resident depending on their circumstances. This may include funding dehumidifiers, installing ventilation systems, dry lining walls or applying mould resistant coverings.
  4. Section 5 says the landlord will diagnose the cause of damp and mould and deliver effective solutions based on dealing with the cause of the problem, not just the symptoms. It will recommend effective solutions, details of all necessary remedial works and the estimated timescales to complete the work.
  5. In this case, the landlord’s log indicates that on 20 January 2022, the resident reported repairs relating to:
    1. Mould throughout the property.
    2. Windows damaged.
    3. External brickwork and pathway.
  6. There is no dispute that the landlord is responsible for the repairs logged. What is disputed is the adequacy of the landlord’s response to the reported repairs. The landlord has accepted that there were delays resulting in some service failure and has offered compensation to address this. The resident is unhappy with the way work was scheduled and that no permanent solution has been put in place to address the damp and mould. This investigation considers if the landlord’s action was appropriate and in relation to the individual circumstances of the resident. It also considers if the landlord has made sufficient remedy to acknowledge the distress and inconvenience of the service failure. 

Damp and Mould

  1. Following the report on 20 January 2022, a job was raised and an inspection of the mould booked for 3 February 2022. This was rescheduled on the resident’s request for 7 February 2022. A note on 9 February 2022 said that the resident had asked for the operatives to remove the radiators when they visited. The landlord’s agent said that the contractors attending were not qualified to do this, but if required to progress the repair they would put a request in to a gas contractor.  The landlord explained the procedure was to assess works before a solution would be given. The resident was unhappy with this and said she would log a complaint.  
  2. On 17 February 2022, the landlord’s contractor noted that there was extensive mould in the bedroom behind the radiators, which would need to be removed  so a permanent solution could be made in the bedroom.
  3. On 7 March 2022, the landlord noted that it was seeking a date for the radiator to be moved as soon as possible, and for an operative to attend the same or next day to complete the mould removal work.
  4. In the resident’s complaint escalation email of 17 March 2022, she advised that the operative had attended that day, and informed her that he had only come to repair inside and outside of the lounge windows, and not to clean off the mould and paint the bedroom wall. The other operative to assist with the windows had not turned up and he could not  do the work alone and the  landlord had been unable to find a replacement worker.
  5. The resident said that during a phone call on 8 March 2022, the  landlord had confirmed the operative would do lounge windows and clean mould from bedroom wall. The resident had requested that the lower section of the external wall (including chimney breast and alcove)  be painted with anti-damp paint to prevent recurrence of mould.  She was concerned about being without a radiator to adequately heat the bedroom until the damp and mould clean up job was rescheduled. She reminded the landlord that she had health issues which were exacerbated by cold and required the heating on as much as possible to avoid extreme muscle pain and discomfort. This was the second time the job had been rescheduled.
  6. The landlord’s complaint response dated 5 April 2022 noted that the first operative in February 2022 who attended was not able to remove the radiators, but that the work to remove the radiators and clean the mould was completed on 18 March 2022. It offered £15 for the missed appointment on 3 February 2022 and £200 for the delay in the  radiator removal and mould wash (to include the time taken, inconvenience, consideration of household vulnerabilities, failure to follow process, repeated visits to resolve the issue and the resident having to chase for updates). Its further offer of £250, in June 2022, was in respect of delays in relation to all the repairs. 
  7. The resident advised the Ombudsman in November 2022 that the mould had reappeared behind the radiator and that she felt this was because of the external issues, which are discussed below. There is no indication that this repeat of the problem was reported formally to the landlord until the repair log dated 3 February 2023. A mould wash was then completed in the bedroom below the windows  six days later.
  8. The resident then advised the Ombudsman that the issue had returned on the wall opposite the windows in April 2023, and under the bed in July 2023. She  said that the landlord needed to do more than the annual ‘clean and repaint’ particularly given her ill health and time spent housebound.  On 7 August 2023, an entry on the landlord repair log indicates that the resident had reported ongoing damp and mould and a job was raised to assess and advise on any works required, including if damp coursing may be needed.  

Windows

  1. There is some confusion as the repair log appears to show that there was an inspection of the windows on 3 February 2022, although the record relating to the damp said this  appointment was rescheduled by the resident. It may be that this was done from the outside, however. The repair log says the ‘ground floor property requires windows to be scraped of loose paint, filled, sanded and at the least primed to protect from weather and extend lifetime of windows.’
  2. The appointment appears to have been made initially for 3 February 2022 for two men all day, weather permitting (noting that this was the date of the inspection, so may be in error), but then rebooked for 17 March 2022 as the weather was not suitable. On the day, one of the operatives was unwell so the job had to be rebooked as was a ‘two-man job’. The resident agreed to call back to rebook.
  3. The repair log shows an entry dated 14 April 2022 for two operatives to repair and paint the living room bay windows  and for an appointment to be made with the resident. The stage one response dated 5 April 2022 did not refer specifically to the windows, however the initial complaint has not been seen  and the first acknowledgment referred only to damp and mould and the pathway and pointing. The resident included the windows in her request to escalate the complaint on 17 March 2022 (which was prior to the first response).
  4. An entry shows that an operative attended on 23 May 2022 but was unable to complete the job as was working alone for most of the day. The resident asked for an appointment after 3 July 2022 with the same operative as she was happy with his work, so would wait until his return from annual leave. An appointment was then made for 18 July 2022 to complete the lounge windows. The outside of the windows was completed on 23 May 2022.
  5. As above, the complaint response in June 2022 increased the overall compensation for delays and inconvenience, considering the particular impact on the resident, for which £100 was included in the additional £250.  
  6. The 24 October 2022 complaint response noted that  the resident had advised that a stock condition survey was carried out at her property, but the other 11 flats in the block were not included. The landlord had reviewed its records and found that all flats had previously had a stock condition survey, with the exception of the resident’s property. The landlord  therefore arranged for a surveyor to attend on 13 June 2022 to undertake a stock survey. A recommendation was made to have all the windows in the block replaced and cyclical decorations considered. The landlord would therefore revisit in the 2025/26 financial year. No other immediate planned investment works were identified.
  7. The landlord also responded to new issues raised in August 2022 regarding secondary glazing and the side gate handle which do not form part of this investigation.

External brickwork/pathway

  1. The landlord’s repair log indicates that a job was opened on 20 January 2022 to repair the external walls/bricks and pathway and fix blown bricks, fix the old, dislodged pointing and resolve the water build up on the uneven pathway.
  2. This job was shown as closed on 17 February 2022 when an inspection noted “pathway in beside building neighbours rainwater come in this pathway gate because flooring level higher in neighbour then in her property. External wall needs remedies bricks and concrete, in her bedroom huge mould behind radiators which half inch closed to walls, those two radiators need to move it out temporarily, then I will [render] both walls and [plaster], to have permanent solution now.” It also stated that all the resident’s clothes had mould.
  3. In her email of 17 March 2022, the resident said that she had first raised the issue the of the external pathway and brickwork in January 2022 and asked that permission be given for her to get the work carried out by a contractor of her choosing and the invoices to be paid by the landlord.
  4. The landlord response dated 5 April 2022 noted the resident said that an operative was due to inspect the pathway on 3 February 2022 but did not attend and this was rescheduled to 17 February 2022. The landlord said that the operative did not believe that the pointing needed correcting on the external wall. The resident had not agreed and asked for a surveyor to attend.
  5. The landlord confirmed that the surveyor had spoken to the resident on 29 March 2022 and had agreed the external wall required pointing although it was not believed to have contributed to damp and mould in the property. The job was scheduled for 19 May 2022. The landlord said the puddles in the pathway did not bridge into the property and were deemed to be of a normal level commonly found along property pathways, so would not require any repairs. As this work was initially dismissed and required the resident to chase for further works, service failure was identified, and £100 compensation was included in the total £340 offered.
  6. The landlord’s notes. on 20 April 2022, show “SURVEYOR REQUEST – touch up and repoint where needed on the external wall under the concrete render, take photos on completion.” But a further note on the same date said, “Attend property couldn’t find any problems with pointing.” 
  7. Despite the advice from the landlord that the external work was scheduled for 19 May 2022, the resident’s email of 24 May 2022 said that nothing had been done regarding the blown bricks and repointing on the side of the flat; a contractor had inspected it, but no work had been completed.
  8. The landlord’s second response on 15 June 2022 repeated its position in the stage 1 response, that the puddles did not bridge the property and did not need any repairs. The landlord apologised for not addressing the concerns in a timely fashion and noted that the resident had been compensated for this service failure in the stage 1 response. As discussed above, the landlord said a stock survey would be undertaken on 13 June 2022 to ensure any additional work was identified. 
  9. The resident informed that landlord that a contractor who visited to complete the works had advised her that the blown bricks and pointing needed repair. A surveyor some years previously had also advised that the bottom two rows of brickwork needed repointing on the entire building. She expressed concern that the landlord had failed to make good the side pathway which was a serious health and safety risk in freezing conditions.
  10. In its response of 24 October 2022, the landlord apologised for its comments around the resident believing the brickwork needed repointing. However, it said that whilst a previous contractor and surveyor may have said that in the past, she was advised that these works would not affect the damp and mould. Pointing works were arranged to be inspected on 19 October 2022 and following this inspection, the pointing was confirmed to be in good condition and no works were identified. The resident told this Service that she was not aware of this external inspection having taken place and as the landlord would require access from the resident or the neighbour, felt the landlord was mistaken. 
  11. A further repair was logged by the resident on 6 July 2023 when the resident asked for a check on the external rendering and drainage. The landlord’s notes indicate that it noted the need to avoid further errors due to the resident’s circumstances. A further note on 7 August 2023 said the resident was reporting an ongoing issue with damp and felt a damp proofing course was required.

Conclusions

  1. It is noted that the resident initially suggested that the landlord would need to remove the radiators to access the wall properly, but when the operatives arrived, they were not ready to do this. The landlord has explained that it is usual practice for the job to be assessed on the first visit. It is not unreasonable for the landlord to make its own diagnosis and not rely on the resident’s opinion, albeit in this instance the landlord then agreed to take the action suggested by the resident. 
  2. The resident has since said she was unhappy that she had been directed to make an insurance claim in respect of carpet damaged by a leaking radiator after they had to be moved during the repair. It was appropriate in the circumstances of the case that the landlord directed her to make an insurance claim. This is because a claim for reimbursement for damaged personal items is best considered as an issue of liability under legal procedure, that is, via an insurance claim.
  3. The Ombudsman would however look to see if the landlord responded to the repair promptly. Although this did not form part of the initial complaint, it arose as a result of the repair. Suffice to say that records indicate that the leak was initially reported on 25 March 2022 and repaired on 29 March 2022. A further leak was reported on 12 April 2022, an engineer attended on 13 April 2022 and ordered parts which were then fitted on 19 April 2022. This does not appear to be an unreasonable response to the leak caused by the substantive repair.
  4. Given the absence of any other contemporaneous evidence, the Ombudsman cannot make a finding about what may have been discussed during the previous inspection, when the resident was advised that there was a problem with the brickwork and pathway, and whether this was related to the internal damp problems.
  5. However, the evidence shows that the internal damp issues have returned following the landlord carrying out mould washes and repainting, and there is nothing to indicate that any root cause has been identified.
  6. The landlord has therefore failed to follow its own policy on damp and mould in respect of identifying the root cause of the damp, and specifically tracking and managing the work required to resolve it.
  7. Whilst the financial remedy offered for the delays in the repairs to the initial reports of damp and the windows appears to be reasonable, the damp has returned. The landlord’s assertion that it would not be caused by issues outside the property is not convincingly supported, in the absence of any other cause. Ultimately the landlord has not been able to show what is causing the damp which was first report in January 2022 and returned again as recently as August 2023.  
  8. Given the evidence that the repair relating to damp and mould has not been completed, the landlord should investigate this matter fully and provide a report to the resident and this Service outlining what it has found and its plan to resolve the issue. This should include opinion from suitable specialists and detail of why this has not been addressed from January 2022 to date. 
  9. Landlords are required to look at the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not set out any minimum standards, but it is concerned with avoiding, or minimising potential hazards. Damp and mould are potential hazards that can fall within the scope of HHSRS. Landlords should be aware of their obligations under HHSRS, and they are expected to carry out additional monitoring of a property where potential hazards are identified.
  10. The Ombudsman’s Spotlight Report on Damp and Mould (published October 2021) provides recommendations for landlords. These include requiring that they “adopt a zero-tolerance approach to damp and mould interventions” and review their current strategies to make this possible. It further requires landlords to work with residents to have inspections undertaken by experts and to take timely action on accepted survey recommendations.
  11. The remedy already offered by the landlord does not separate the compensation into sums offered in respect of the various repairs, but rather gives a total of £690, including £100 relating to admin errors and delay offered at stage two, and £25 for the delay in the first complaint response.
  12. The landlord should pay the resident an additional sum of £500 to recognise maladministration in failing to address the cause of the damp in the resident’s home. This is towards the top of the Ombudsman’s range of remedies where there has been an impact on the resident, and the landlord has made some attempt to put things right, but the offer was not proportionate to the failings identified. This does not imply that the external brickwork was the cause of the damp but that overall, the landlord has not evidenced that it was not, as the root cause of the damp has not been found. The £500 remedy spans the repair issues generally and is in addition to the sums already offered.

Complaint handling

  1. The landlord’s complaint policy says it aims to resolve complaints within 10 working days at stage 1, and 20 working days at stage 2. If unable to resolve the complaint in that time it will keep the resident informed and provide a new timescale to resolve the complaint.
  2. In this case, the resident’s complaint was submitted on 24 February 2022, and acknowledged on 4 March 2022 when the landlord said it would respond by 11 March 2022. A further acknowledgment was made on 10 March 2022, but no update issued regarding a delay. The first response was issued on 5 April 2022, 16 working days over the landlord’s published timescale. The landlord did apologise however and offered £25 compensation for the delay.
  3. By this time, the resident had requested to escalate her complaint, on 17 March 2022, due to the landlord’s failure to complete the work and respond formally. The landlord advised the resident on 24 May 2022 that there was a delay, but it hoped to answer by 27 May 2022, when it extended the deadline further to 31 May 2022. On 31 May 2022, the landlord apologised for the continued delay. It said that a senior staff meeting was due to be held on 8 June 2022 to discuss the complaint and it hoped to have a full and final response including compensation by 10 June 2022.
  4. The ‘peer review’ response was not then issued until 15 June 2022 which the landlord said was due to the high number of customer contacts. This was 61 working days after the escalation request of 17 March 2022 and the landlord offered a further £50 compensation for the further delay in the complaint process. Appeal rights to this Service were given as the landlord’s internal complaint process was complete.
  5. The resident disputed the accuracy of the landlord’s assertions. She made a further request via social media in August 2022 for her complaint to be reviewed and said that no-one had contacted her. The landlord then issued a ‘peer review addendum’ on 30 August 2022 and again apologised for the further delay which it said was due to a problem with its IT systems. 
  6. The landlord said it was not clear which issues the resident was disputing but it was satisfied that the previous responses were fair, reasonable and accurate as they gave correct information, identified service failures and applied compensation to reflect any failures, according to the landlord’s compensation policy. The landlord outlined what had taken place in respect of the repairs and referred the resident to this Service if she remained dissatisfied.
  7. However, on 24 October 2022 the landlord sent a further response, the fourth in relation to the damp and windows, bricks and pathway and with a third reference number. It apologised again for the delay which it said was due to a ‘cyber-security incident’ which occurred on 18 June 2022. This meant it was unable to access the resident’s previous correspondence until it had been able to see the resident’s email of 15 June 2022, that week.
  8. The landlord noted that it had made two errors when calculating the compensation in its second complaint response. In recognition of these further errors, the landlord awarded another £100 compensation. This included £50 for the errors in the compensation and £50 for the delay in responding to the resident’s email of 15 June 2022. This was in addition to the £50 included in the letter dated 15 June 2022 for delay in that response, and £25 awarded due to the delayed response dated 5 April 2022. In total, it would appear that £175 was offered in respect of delays and errors relating to the complaint process itself. 
  9. In this case, the resident asked the landlord to escalate the complaint when the first response was five working days late and given that the first stage response then followed on 5 April 2022, it does not seem unreasonable that this served as a response to the resident’s complaints of 24 February 2022 and 17 March 2022 without further escalation at that stage. However, this was how the landlord chose to treat it and the response was labelled as a peer review.
  10. The Ombudsman would usually expect to see the landlord process complaints without adding additional layers. It is understood that the resident was requesting further reviews, and that this was likely to involve further investigation being made into the salient repairs. In this way, the landlord may have acted in the resident’s best interests by agreeing to review the complaint.
  11. It is not good practice for landlords to operate a complaints process with more than three stages and this was is effectively what occurred in this case. The landlord could have referred the resident to this Service, while still taking steps to resolve the outstanding repair concerns. There were four complaint responses, and all were outside published and recommended timescales. It is, however, appreciated that there was a cyberattack during the period which would have impacted on the landlord’s ability to investigate, and it did reflect the delay in its offer of compensation
  12. It is noted that the final response said that the compensation would be offset against any arrears on the rent account.  However, the sum of compensation  offered by the landlord should be paid to the resident directly, and not offset against service charge owing. Further information can be found at Remedies: Offsetting and the Ombudsman’s approach – Housing Ombudsman (housing-ombudsman.org.uk) which explains that it is the Ombudsman’s position that compensation awarded by this Service should be treated separately from any existing financial arrangements between the landlord and resident and should not be offset against arrears.
  13. The resident’s complaint was responded to according to the landlord’s published process, by 15 June 2022, when it had referred the resident to this Service and awarded £75 in respect of the delays in two responses. This is fair in the circumstances. The additional £100 awarded due to errors in the earlier letter and further delay was also fair, and given the resident was able to refer to this Service on 15 June 2022, it would have been reasonable and correct for the landlord to confirm that the process was now ended and refer the resident to this Service. The fact that the landlord did not refuse to review the complaint further did not prolong the process however as the resident was already in contact with this Service and was aware of her rights to escalate the complaint to the Ombudsman.
  14. The landlord has provided reasonable redress in relation to its handling of the resident’s complaint.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the landlord’s handling of the resident’s repairs.
  2. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the member has offered redress to the complainant prior to investigation which, in the Ombudsman’s opinion, resolves the complaint handling issue satisfactorily.

Orders

  1. The landlord is ordered to :
    1. Pay the resident the £690 which was offered during the complaints process, if not done already.
    2. Pay the resident an additional £500 in relation to the failure to resolve the damp issue.
    3. Reinspect the property for damp and mould and share its inspection report with the resident and the Ombudsman. It should include options for mitigating any damp and mould in line with HHSRS and ensure that the resident is provided with expected timescales for any identified works.
  2. The landlord should provide evidence to this Service that the above orders have been complied with, within four weeks of this determination.

Recommendations

  1. The landlord’s leadership should consider reviewing the issues highlighted in this report and summarising identified areas for improvement which should also be cascaded to its relevant staff.