Clarion Housing Association Limited (202220280)

REPORT

COMPLAINT 202220280

Clarion Housing Association Limited

31 May 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:
1. Record keeping.
2. Handling of leaks, damp and mould in the property.
3. Decision to change the locks on the property during works.
4. Complaint handling.

Background

The residents are a husband and wife, who have been assured shorthold tenants of the property since 2017, where they live with their 4 young children. The property is a 4 bedroom flat, which is owned and managed by the landlord, a housing association. Where we refer to “the resident” in this report, we are referring to the joint residents. However, because the husband had the majority of contact with the landlord and this Service, we use male pronouns.
The landlord’s repair log shows that the resident reported 2 leaks, a year apart, on 24 August 2020 and 9 August 2021, coming through his ceiling from the flat above. The landlord’s notes show it arranged appointments on 7 September 2020 and 27 August 2021 for these respective reports, but there are no notes to confirm what the outcome of the appointments were, or what works it completed, if any.
On 18 January 2022, the resident reported that one of his hallway window handles had fallen off, and the handle on the kitchen window was very stiff. The resident also reported mould issues in the bedrooms and hallway. The landlord’s repair log shows it arranged an appointment for 31 January 2022, but there are no notes to confirm what the outcome of the appointment was and what works it completed, if any.
The landlord raised a complaint for the resident on 18 January 2022, though we have not seen the specific details of what the resident complained about. It sent a stage 1 response on 27 January 2022, in which it said:
1. It had passed his damp and mould concerns to its contractor, who would contact him before 4 February 2022 to arrange a visit and assess any repairs required.
2. It had investigated and found he had been passed between staff and had received no response to some of his calls and emails. To address this, it was awarding £100 compensation.
3. The resident could request an escalation to stage 2 if he was dissatisfied with the response.
The resident sent an email to the landlord on 11 February 2022, in which he said the walls were very wet and they had to move their possessions away from the walls, which was creating a lack of space in the property. The landlord’s internal emails show it arranged a surveyor’s visit for 6pm the same day. However, there are no notes to confirm the surveyor’s findings or any works scheduled.
The resident reported on 13 February 2022 that there was water coming down the walls in the kitchen and 1 of the bedrooms, which was likely caused by a leak from the flat above. He also said the kitchen floor was soaking wet. The landlord’s notes show it attended the resident’s property the same day and attempted to contact the neighbour in the property above, but there are no notes confirming the outcomes of these actions.
The resident’s solicitors wrote to the landlord on his behalf on 15 February 2022. They said:
1. They were using the pre-action protocol in relation to the following defects at the property:
  1. Water ingress affecting the separate W.C. during periods of rainfall.
  2. Resultant damp, mould and spoiled decorations to the separate W.C.
  3. Damp affecting a child’s bedroom and bathroom.
  4. Bad smell throughout the property due to the damp conditions.
  5. Condensing main to the riser cupboard.
2. The resident had been raising concerns about water ingress since 2019 and, while the landlord had completed some works to redecorate, the issue had not been properly addressed.
3. They proposed that the landlord should agree to instruct a single joint expert to inspect the property and provide a report. The landlord should respond to this proposal within 20 working days.
4. They were of the view that the landlord was in breach of its repairing obligations, and they asked it to provide its proposal for compensation.
The landlord attended the property on 18 March 2022 to “remove wet thermal boarding in toilet, supply dehumidifier and mould wash affected areas”. Its notes show the resident refused access for this work.
The landlord sent the resident a letter on 27 May 2022 acknowledging his complaint and confirming it would send a response within 10 working days. We have not seen details of the complaint the resident had raised at this time to prompt this letter.
The resident’s local councillor emailed the landlord on 23 October 2022 attaching an email the resident had sent to him dated 21 October 2022. The councillor asked the landlord to respond to the resident’s email, in which he had:
1. Attached a letter from his consultant, who had detailed the resident’s physical and mental health diagnoses. The doctor wrote that the resident was at risk of suicide and that the damp and mouldy property was worsening his medical conditions.
2. Confirmed there were mushrooms and mould growing in the property and inside the cupboards, limiting the storage space.
3. Said there had been leaks from the flat above, which had led to him disposing of the hallway carpet because it was sodden. He confirmed the landlord had told him this was not an emergency and it had arranged an appointment for 3 days later.
4. Confirmed 2 of the bedrooms were affected by damp and mould, leading to a smell and limited storage space.
5. Stated his mental health had deteriorated due to the issues in the property.
The landlord completed a survey on 21 October 2022 and produced a schedule of works. It began works on the separate W.C. on 11 November 2022. It confirmed the resident and his family would need to be decanted for the remaining works to be completed. The decant was originally planned for 14 November 2022 but this was delayed as the resident had been sectioned under the Mental Health Act 1983. The decant began on 22 November 2022, with the resident opting to stay at a family member’s home.
The landlord changed the locks on the property on 28 November 2022 because it said the resident had been returning to the property on occasions to check the progress of works, which was a health and safety risk. This led to the resident confronting the contractors on 29 November 2022 and the landlord completing a “risk to staff” assessment form and limiting its face to face interactions with the resident thereafter.
After receiving contact from the resident, this Service contacted the landlord on 1 December 2022 and asked it to respond to the resident in line with its complaints procedure. The resident had complained about:
1. The length of time it took the landlord to take action following his reports of damp and mould.
2. The landlord refusing to tell him what works it was completing during the decant.
3. The landlord changing the locks on the property during the decant, preventing entry by the resident.
4. The lack of action on the mouldy kitchen cupboards and his reports of repairs required to the windows.
After completion of the works, the resident inspected the property with the landlord on 9 December 2022 and some snagging works were identified. The landlord confirmed in an internal email that it had completed these on 13 December 2022. The resident moved back into the property on 23 December 2022.
The landlord sent the resident a stage 1 complaint response on 12 January 2023, in which it said:
1. It had raised a repair order in February 2022 to resolve various repairs in the kitchen. However, the resident had refused access to the property twice in February 2022 and March 2022.
2. It had raised a further repair order on 18 August 2022. An operative had attended on 5 September 2022, overhauling the kitchen tap and renewing the valve under the kitchen sink.
3. It had completed all repairs within its service level agreement, when it had been granted access to the property.
4. Once it had vacant possession of a property, it was standard practice not to allow residents back inside while works were ongoing for health and safety reasons. It had no record of any requests from the resident to provide access to the property for the collection of personal possessions or medication.
5. It had completed a joint inspection with the environmental health officer from the local authority on 23 December 2022, and the officer had confirmed they were satisfied with the repairs completed at the property.
6. An operative had used the incorrect paint for the hallway cupboard on 9 January 2023. The operative would return within a few days with the correct anti-mould paint to complete the work.
7. It was partially upholding his complaint because of the need for the repeat visit and the delay in responding to the complaint. It would provide £150 compensation for the inconvenience caused by these issues.
The resident sent the landlord a stage 2 escalation request by email on 24 January 2023, in which he:
1. Disputed the landlord’s version of events, stating the issues had been ongoing for several years. He said he had involved his solicitors in late January 2022 and began legal proceedings in February 2022. He had refused the landlord on the 2 occasions mentioned on the advice of the solicitor because there was an active disrepair claim at the time. He had since dropped the claim because it was taking too long.
2. Stated the landlord had acted unlawfully when changing his locks. It had also rushed him when arranging a slot for collecting his items, and he was not given enough time.
3. Said there had been a leak from the flat above on 13 February 2022 and it took the landlord 6 days to repair this.
4. Disputed that the environmental health officer was satisfied with the works. He said the officer requested further work, which resulted in the cupboards being painted.
5. Said the property was not ready when he and his family moved back in, and they were initially without access to hot water and heating.
The landlord sent its stage 2 complaint response on 4 April 2023, in which it said:
1. The resident’s complaint, sent via this Service, had said the issue with damp and mould had been “ongoing for months before the landlord took any action to help resolve it”. This did not match the resident’s statement in his escalation request that the issue had been ongoing for several years.
2. It did not agree that it had acted illegally in changing the locks, and it had followed correct protocol and policy in doing this. It had no evidence it had refused him access to his possessions and medications. It had arranged an appointment with him to collect these items.
3. It was unable to comment on his claim that it had rushed him when arranging an appointment for collecting his items as the staff member involved was absent from work. It would follow this up when the staff member returned and contact him with his findings in due course.
4. The environmental health officer had identified that the hallway cupboard needed to be mould washed during their visit. The landlord had missed this previously due to there being items in the cupboard, but it had since completed this.
5. In its previous response, it had referred to the resident’s wife throughout rather than referring to the joint residents. It offered £50 in relation to this error. It also offered £50 for the delay in issuing its stage 2 response This total compensation of £100 was in addition to the compensation of £150 it awarded at stage 1.
6. The resident had the right to bring the complaint to this Service if he remained dissatisfied with the landlord’s response.
The resident duly made his complaint to this Service on 15 January 2024.

The Ombudsman’s special investigation into the landlord

The Ombudsman completed a special investigation into the landlord in October 2022 covering various issues:
1. Recurring themes in the majority of damp and mould cases were:
  1. A failure to accurately diagnose the cause of damp within a reasonable timeframe.
  2. Poor communication with residents.
  3. Failures to update residents on inspection findings and the actions to be taken.
  4. The landlord explained that it was in the process of implementing a new approach to damp, mould and condensation which would aim to tackle these weaknesses.
2. Poor record keeping and communication were recurring themes in the majority of the cases we reviewed, both in the response to the service request and in the subsequent handling of the complaint.
3. Recurring themes in the landlord’s complaint handling were:
  1. Delayed complaint responses.
  2. Complaints being closed without sufficient reason or explanation.
  3. Inadequate analysis of what had gone wrong.
  4. Insufficient offers of redress to put things right.
  5. A lack of an effective plan or evidence of learning from the complaint.
The Ombudsman included the following recommendations in the report:
1. Damp and mould:
  1. The landlord was to provide the Ombudsman with its condensation, damp and mould policy. The landlord was also to publish this policy and provide its residents with the outcome of its review of regional practices in this area.
  2. The landlord was to provide the Ombudsman with its No Access policy and to publish its policy and recommended practice in this area. The landlord was to seek resident engagement in drafting this policy and in reviewing its practices on how to successfully gain access.
  3. The landlord was to provide the Ombudsman with its revised information pack which was to be made available to residents concerning condensation, damp and mould, energy efficiency, fuel poverty and associated issues.
2. Record keeping and communication:
  1. The landlord was to review its record keeping and communications, particularly around damp and mould, pest control and complaint handling in line of the special investigation findings.
  2. The landlord was to ensure that a resident has a clear point of contact when dealing with ongoing issues or pursuing a formal complaint.
  3. The landlord was to ensure that it had effective systems for identifying and recording residents’ vulnerabilities and making any reasonable adjustments to meet their needs. It was also recommended for staff to receive training in this area.
3. Complaint handling:
  1. The landlord was to provide the Ombudsman with its revised complaint policy and publish this as soon as practicable.
  2. The landlord was to produce an action plan to improve the timeliness, quality and consistency of its complaint responses and clarity of the information available to residents about its complaint handling procedures. The landlord was to involve residents in the development of this plan.

Assessment and findings

The landlord’s record keeping

The Ombudsman expects landlords to maintain a robust record of contacts and repairs. This is because clear, accurate, and easily accessible records provide an audit trail and enhance the landlord’s ability to identify and respond to problems when they arise.
On many occasions, the landlord failed to maintain adequate records, which has affected this Service’s ability to carry out a thorough investigation. We have highlighted this at various points in the background. This includes the lack of outcome notes for the repairs visits on 7 September 2020, 27 August 2021, 31 January 2022, 11 February 2022 and 13 February 2022.
There was also no record of the complaint the resident submitted which led the landlord to send a stage 1 response on 27 January 2022. This was contrary to section 3.10 of the Housing Ombudsman’s Complaint Handling Code (the Code) at the time, which said the landlord needed to keep a full record of the complaint. This included “the original complaint and the date received, all correspondence with the resident, correspondence with other parties and any reports or surveys prepared”.
The resident has also disputed the landlord’s version of events around the visit on 5 September 2022 outlined in its stage 1 response dated 12 January 2023. The landlord said it “overhauled the kitchen tap and renewed the valve under the kitchen sink” during this visit. The resident said that he replaced the kitchen tap himself because it had been constantly running hot water and the landlord said it would not attend within emergency appointment timescales. The resident said the landlord hit the valve under the sink with a hammer and used a tool to turn it, rather than renewing it as it claimed. The Ombudsman has no further evidence to verify which version of events is correct but the resident’s recollection of events is very plausible given the poor record keeping demonstrated by the landlord.
The Ombudsman released his “Spotlight on Knowledge and Information Management” report in May 2023, which included recommendations for landlords on how to develop key data recording standards. As this matter was ongoing before the Ombudsman released this report, we will not measure the landlord’s actions against the recommendations. The landlord has also recently completed a self-assessment against the Spotlight report in line with an order on a separate Ombudsman case (reference number 202233437), and confirmed the improvements it has made to its procedures. We will not issue any orders for the landlord to improve its record keeping practices as a result of this case.
For the lack of accurate records relating to numerous repairs visits and the lack of records relating to the resident’s complaint raised in January 2022, the Ombudsman finds maladministration with the landlord’s record keeping

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

The landlord’s repairs policy which was effective between July 2020 and December 2022 had 2 timescales for responsive repairs:
1. Emergency repairs, which presented “immediate danger to the resident, the public or the property, or would jeopardise the health, safety or security of the resident”. These repairs needed to be attended within 24 hours to be made safe, with further follow-up repairs completed if required.
2. Non-emergency repairs, which were offered at the resident’s convenience within 28 days of the repair being reported.
In response to the leaks the resident reported on 24 August 2020 and 9 August 2021, the landlord arranged appointments on 7 September 2020 and 27 August 2021 respectively in line with the non-emergency repair timescales. In relation to the second leak on 9 August 2021, the resident described this by saying “(the) kitchen ceiling looks like it’s going to come down…I am worried that the ceiling will come down as it doesn’t look safe”. Given the nature of this report, it would have been appropriate for the landlord to treat this as an emergency repair in line with its policy. Based on the information the resident provided, there was a risk of immediate danger to the resident, his family and the property.
The resident’s solicitors raised several disrepair issues in their letter of 15 February 2022, but we have seen no evidence that the landlord attempted to complete a thorough survey of the property in response to this. The landlord said the resident’s solicitors stopped engaging with its legal team, but we have seen no copies of any correspondence the landlord sent to the resident’s solicitors.
While the landlord arranged an appointment for 31 January 2022 in relation to the reported window repairs, and this was within correct timescales, the landlord recorded no notes for the outcome of this appointment. The resident later said in his stage 1 complaint on 1 December 2022 that the landlord had taken no action on the windows. The Ombudsman is therefore satisfied that the landlord did not fix the windows in the non-emergency timescale required under its policy. The resident did refuse the landlord entry on 8 March 2022, but the landlord had already exceeded the required timescale by this date.
The Ombudsman released his “Spotlight on Damp and Mould” report in October 2021. Among the recommendations were for landlords to adopt a “zero tolerance approach” to damp and mould and to “ensure that their responses to reports of damp and mould are timely and reflect the urgency of the issue”.
The Housing Health and Safety Rating System (HHSRS) is a risk-based evaluation tool to help local authorities identify and protect against potential risks and hazards to health and safety from any deficiencies identified in dwellings. A landlord is obligated, in accordance with the Landlord and Tenant Act 1985 and the Homes (Fitness for Human Habitation) Act 2018, to ensure that a property is fit for human habitation and free from hazards.
The resident had provided the landlord with letters from his doctors confirming his various physical and mental health conditions. These included severe rhinitis and apnoeic symptoms, which would have made him more vulnerable to damp and mould. The resident’s mental health would also have been at high risk of deterioration when he was living in the property under damp and mouldy conditions.
The records the landlord has provided show it is aware the resident is disabled. However, we have not seen any more specific details about the landlord’s knowledge of the resident’s conditions, the way these conditions affect him, and what reasonable steps the landlord takes in its approach to the resident given his conditions. The Ombudsman will order the landlord to ensureit has updated its records for the resident to reflect his numerous health conditions.
It is evident the resident raised concerns about damp and mould on several occasions between 18 January 2022 and 15 February 2022. While the evidence shows the landlord attended several times during this period, its records do not confirm what works, if any, it completed. The resident continued to raise concerns. The resident refused the landlord access to complete works on 18 March 2022, which was not the landlord’s fault. However, we have seen no evidence the landlord took any action to gain access to the property, which could have included arranging a joint inspection with the resident’s solicitors, or writing to the resident to remind him of his tenancy obligations. We do not know what ensued between the landlord and the resident’s solicitors to cause the matter not to progress. The evidence does not support that the landlord’s actions in relation to the damp and mould were proportionate, in line with the Ombudsman’s Spotlight report recommendations and its obligations under the HHSRS. This is a significant failing, particularly given the vulnerabilities faced by the resident.
Since the Ombudsman completed the special investigation into the landlord in October 2022, the landlord has completed a self-assessment in relation to the Ombudsman’s Spotlight report. It has confirmed changes it has made to its processes and procedures to make its responses to these reports more appropriate and effective. As the landlord has already completed this, the Ombudsman will not order the landlord to review its policies and procedures in relation to damp and mould as a result of this case.
The resident has told us there was no heating or hot water in the property when he and his family moved back following the decant. He has said the landlord restored the hot water within 24 hours but they were without heating for a week. We have seen no evidence of any reports about this. However, given the poor standard of the landlord’s record keeping, it is reasonable to accept the resident’s version of events about this.
For the long delays in completing the various repairs, the failure to follow its obligations under the HHSRS and the Ombudsman’s Spotlight report on damp and mould recommendations, and the failure take into account the resident’s vulnerabilities in its handling of the matter, the Ombudsman finds maladministration in the landlord’s handling of leaks, damp and mould in the property.

The landlord’s decision to change the locks on the property during works

The landlord’s “temporary decants” policy says that tenants may be required to move out of their home temporarily where “emergency health and safety works are required because the whole or a significant part of the property is uninhabitable, and/or unsafe or hazardous (for example an unplanned event such as a…major leak, condensation damp or mould works)”.
The landlord has provided us with call notes it had with the resident’s wife on 15 November 2022. During the call, it “advised (the resident’s wife) that once they’ve moved out they can’t go back into the house unless they contact us first and we arrange for someone to escort them”. The landlord has also provided a copy of an email it sent to the resident on 17 November 2022, in which it said “during the decant period, you’re advised not to return to the property, or to enter the gardens unless you are either accompanied by a member of staff or until we’ve confirmed to you it’s safe to do so. While you’re decanted there may be contractors on site using heavy and electrical equipment which could pose a safety risk. If you realise you’ve forgotten something you must have please contact me (to arrange collection)”.
The Ombudsman considers the landlord reasonably decanted the resident in line with its policy due to the substantial damp and mould problem in the property. The evidence shows the landlord notified the resident he would be unable to return to the property during the period of works because this would pose a health and safety risk, and the resident agreed to this during the telephone call on 15 November 2022. It was reasonable for the landlord to temporarily change the locks to prevent the resident from putting himself, the contractors and the property at risk. For these reasons, the Ombudsman finds no maladministration in the landlord’s decision to change the locks on the property during works.

The landlord’s complaint handling

The landlord’s suffered a cyber attack in June 2022 and introduced interim amended timescales for responding to complaints. The interim policy confirmed the landlord needed to:
1. Log and acknowledge stage 1 and stage 2 complaints within 10 working days.
2. Send a stage 1 decision in writing within 20 working days of acknowledgement.
3. Send a stage 2 decision in writing within 40 working days of the resident’s request to escalate.
The landlord acknowledged a complaint from the resident on 27 May 2022 and confirmed it would issue a stage 1 response within 10 working days. However, it did not send any response following this. This was contrary to the landlord’s obligations under its complaints procedure and the Code.
The landlord was 7 working days late when it issued the stage 1 response on 12 January 2023, and it was 10 working days late when it issued its stage 2 response on 4 April 2023. We have seen no evidence the landlord contacted the resident at either of these complaint stages to request an extension or provide an explanation of the delays.
In its stage 1 response, the landlord said the environmental health officer had been satisfied with the works completed at the property. However, when the resident disputed this in his escalation request, the landlord said in its stage 2 response that the officer had asked it to mould wash and paint the hallway cupboard. These two positions were contradictory.
In its stage 2 complaint, the landlord said it would investigate the part of his complaint about the staff member rushing him to collect his items during the decant when the staff member involved returned to work. We have seen no evidence the landlord did this. This is a failure under section 5.5 of the Code at the time, which said any outstanding actions needed to be “tracked and actioned expeditiously with regular updates provided to the resident”.
For the complaint handling delays, the incorrect information provided in the stage 1 response, and the lack of follow up regarding part of the complaint in the stage 2 response, the Ombudsman finds maladministration in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s:
1. Handling of leaks, damp and mould in the property.
2. Complaint handling.
3. Record keeping.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s decision to change the locks on the property during works.

Orders

It is ordered that, within 4 weeks of the date of this report, the landlord provides the resident with an apology written by a senior member of staff.
It is ordered that, within 4 weeks of the date of this report, the landlord provides the resident with a payment of £1,400. This is in addition to the compensation of £250 awarded during the landlord’s internal complaints procedure, and comprises:
1. £900 for the delays and failures identified in its handling of leaks, damp and mould in the property, and the resulting distress and inconvenience for the resident.
2. £300 for the delays, misinformation and lack of follow up with the complaint handling.
3. £200 for the record keeping failures identified.
It is ordered that, within 6 weeks of the date of this report, the landlord updates its records for the resident to reflect his numerous health conditions.