Manchester City Council (202305823)

REPORT

COMPLAINT 202305823

Manchester City Council

29 July 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 resident’s complaint is about the landlord’s handling of the resident’s reports of damp and mould.
The Ombudsman has also investigated the landlord’s keeping.

Background and summary of events

The background legal and policy context

Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on the landlord to keep the structure and exterior of the property in repair. The landlord also has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
As per Section 11 of the same act, the tenancy agreement states that the landlord is responsible for making sure the structure and outside of the home and certain parts of the inside, including the inside walls, floors and ceilings are kept repaired. The law says that a landlord should repair a housing defect “within a reasonable amount of time”. This is not specific but depends on the circumstances and levels of urgency. Section 9a of the Landlord and Tenant Act 1985 implies an obligation into the tenancy agreement that the landlord must ensure the property is “fit for human habitation” in relation to, by virtue of Section 10 of the same act, ventilation.
The Homes (Fitness for Habitation) Act 2018 (‘The Homes Act 2018’) obliges the landlord to ensure that the property is fit for human habitation. In determining whether a property is unfit for habitation, regard should be given to whether the property is so far defective in matters including repair, stability, freedom from damp, ventilation, drainage and sanitary conveniences, and facilities for preparation and cooking of food and disposal of waste water, that it is not reasonably suitable for occupation in that condition.
The resident’s tenancy agreement states that the landlord is responsible under Section 32 of the Housing Act 1961 for maintaining the structure, exterior and common parts of the building in good repair, including drains, gutters and external pipes. Section 11 of the Landlord and Tenant Act 1985 created an implied term in tenancy agreements that a landlord must carry out certain repairs and specifies again that the landlord must keep in repair the structure and exterior of the dwelling house.
The landlord has a 2 stage complaints procedure. At stage 1 the complaint will be acknowledged within 5 working days and a written response will be provided within 10 working days. If a response within 10 working days is not possible the resident should be contacted to explain the reason for the delay and be given a date when they can expect a final response. At stage 2 the complaint will be acknowledged within 5 working days and a written response will be provided within 20 working days. If a response within 10 working days is not possible the resident should be contacted to explain the reason for the delay and be given a date when they can expect a final response.
The landlord’s Damp and Mould Policy is dated March 2023 and within it, it is stated that the landlord should:
1. “Investigate to determine the cause of damp, mould and condensation and carry out remedial repairs and actions in accordance with the tenancy agreement. We will diagnose the cause of damp correctly and deliver effective solutions based on dealing with the cause of the damp not just the symptom.”
2. “Ensure effective communication with residents affected by damp, condensation, and mould, being clear about the action to be taken, the timescales within which the action will be completed and the aftercare arrangements.”

Assessment

The resident is a secure tenant of the landlord having conducted a mutual exchange in June 1988. Her property is a 2 storey, 1st floor flat in a semi-detached structure. The resident is elderly and lives in the property with her grandson. She has advised the Service that she has a collapsed lung. Her rent for 2024-25 is £89.18, for 2023-24 was £82.87 and for 2022-23 was £77.45.
On 4 February 2022 the resident reported a chimney cowl repair. The landlord’s repair records show that it raised an order, “roof or chimney: roof; roof inspection needed” with a one-week timeframe but that the job was cancelled (Job No. 5065666).
On 21 April 2022 the resident reported damaged plaster. The landlord’s repair records show that it raised an order, “plaster come off wall in bedroom cupboard please report and supply photos – Inside wall or ceiling: Wall damaged; Bedroom” (Job No. 5082663). The repair records show again that the repair was cancelled.
A repair note dated 22 April 2022 stated that the resident had refused access to complete repairs Job No. 5082663 and Job No. 5065666.
On 5 May 2022, solicitors acting on behalf of the resident sent a letter of claim under Section 82(6) of the Environmental Protection Act advising the landlord that the resident had been experiencing damp in the property’s bedroom where she slept from a damaged chimney since February 2022.
On 20 October 2022 the landlord raised an order for a roof inspection after a report of the cowl coming off the chimney. The repair records state that an inspection was carried out although there is no contemporaneous evidence of the inspection and its outcome, or of any works carried out at this time.
On 22 November 2022, the resident’s solicitor sent the resident a survey and a Scott Schedule prepared on 10 November 2022 by a surveyor it had commissioned. The surveyor stated that there were defects preventing “the occupants from storing items within the cupboard spaces [in both bedrooms]. Elevated moisture readings point towards damp issues from the chimney, & likely hygroscopic salts. The underlying damp problem warrants further investigations by the Landlord prior to undertaking and internal remedial works”. It further stated, “there remains the likelihood of a missing flue terminal cowl”, and that “it is important the landlord ensures checks are carried to the chimney stack and roof area adjacent. Also, that any works to mortar pointing, lead flashings, flaunching & anchoring / suitably of flue terminals are undertaken first prior to making good the damaged plaster internally”.
The surveyor noted that the internal cupboard spaces formed part of the demised premises but were not classed as habitable space, and that the resident could remain at the property during remedial works. The surveyor noted additional items outside the letter of claim, in particular the replacement of kitchen units and worktops which were likely over 20 years old.
On 10 February 2023 the landlord received an enquiry from the resident’s MP about damp and mould in her property. On 21 February 2023 the landlord advised the MP that it had attended on 10 February 2023 where the resident had confirmed she had taken legal representation and declined an inspection. It would therefore pass the matter to its legal team.
The resident contacted the Service advising that she was unhappy with the landlord’s handling of damp and mould. She advised that she had developed lung problems due to the mould and was also worried that the damp and mould would affect her grandson. On 22 May 2023 the Service asked the landlord to register a formal complaint and send the response by 13 June 2023. The landlord decided to deal with the complaint at stage 2 of its complaints procedure.
On 31 May 2023 the landlord instructed specialist third party consultants to undertake a property condition survey and assess if the property was fit for habitation. The consultants attended on 12 June 2023.
On 13 June 2023 the resident agreed a complaint response extension of 5 days, until 20 June 2023, as the landlord was awaiting the outcome of the survey.
The consultants produced its condition survey report on 16 June 2023 and the landlord received a copy on 19 June 2023. The report indicated that:
1. “Generally, most of the building’s components were recorded to be in fair condition. 2 areas of damp and mould was recorded to the property within the cupboard of the main bedroom and minor buildup to the main bathroom ceiling.”
2. “The temperature and humidity levels within the building were within the acceptable tolerances with respect to the HHSRS.”
3. “All brick vents throughout the property were blocked up internally and externally at the time of survey. It was also noted, trickle vents located on the windows in the rooms were closed.”
4. “Hazards present within the building present a minor risk to the resident” and that the property was considered ‘to be habitable’ based on the HHSRS Scoring system.”
The report stated that the following remedial works were “essential”:
1. “Commission further investigations at high level to the loft space and chimney area to identify any defective areas that allow water ingress to the damp and mould area internally. Investigations should identify issues such as defective or failed mortar joints, failed flaunching, missing cowls or failure of flashings around the chimney.”
2. “Remove redundant door frame to top of stairwell to facilitate access to the loft hatch and install new hatch and locking mechanism.”
3. “Complete fungicidal mould wash to areas of remaining plaster within the main bedroom cupboard and minor area of mould recorded to the ceiling in the main bathroom.”
The report made the following recommendations:
1. “Encourage tenants to utilise the trickle vents to allow for passive background ventilation.”
2. “Install dual speed extract fan in the kitchen and to improve mechanical ventilation extraction.”
3. “Commission a heating engineer to confirm the heating system is balanced and the system size is sized correctly for the property and to confirm hot water is heating correctly.”
4. “Commission a competent electrician to undertake an electrical inspection.”
5. “Replaster gable wall internally within main bedroom and make good decorations.”
6. “Subject to the chimney breast being non-operational to the ground floor flat, it is recommended the chimney breast is blocked up to mitigate any issues associated with unnecessary openings at roof level such as moisture ingress.”
On 20 June 2023 the landlord sent the stage 2 response. It noted the outcome of the inspection by the consultants although it incorrectly stated it took place on 31 May 2023. The landlord noted that the works concluded “that the minor levels of damp observed weren’t considered as an immediate risk”. It proposed the following works:
1. “Undertake further investigations at high level to the loft space and chimney area to identify any defective areas that allow water ingress to the damp and mould area internally. Investigations at to be completed within 3 months of the receipt of this letter.”
2. “Remove redundant door frame to top of stairwell to facilitate access to the loft hatch and install new hatch and locking mechanism. This work is completed in accordance with the further investigations outlined above.”
3. “Complete fungicidal mould wash to areas of remaining plaster within the main bedroom cupboard and minor area of mould recorded to the ceiling in the main bathroom. This work is to be completed within 4 weeks of receipt of this letter.”
On 25 July 2023, there was another inspection by a single joint expert surveyor and on 27 July 2023 the landlord received the report. The report indicated that:
1. The property was considered fit for human habitation.
2. No roof ridge or hip tiles had been displaced. The landlord could patch point the tiles.
3. There was damaged plasterwork and decorations with the front bedroom built-in cupboard adjoining the chimney breast with an estimated reinstatement value of £350.00 plus VAT. The plasterwork was probably contaminated with salts and should be replaced. On the balance of probabilities, the damaged plasterwork was a consequence of historic leaks, but the back gutter should be checked as a precaution. The chipped roof slates should also be replaced. The contaminated plasterwork would need replacing and decorations making good.
4. The ground floor entrance hall evidenced slightly elevated readings to the plaster but low readings to timber skirtings, therefore the readings were surface condensation related combined with minor contamination of the plasterwork due to repeated condensation, with an estimated reinstatement value of £200.00 plus VAT.
5. There was minor black spot mould growth to the bathroom ceiling which was surface condensation related and not due to a defect within the structure. A trickle vent should be kept open and the internal louvre in an extractor fan needed to be replaced with an estimated reinstatement value of £50.00 plus VAT.
On 21 August and 6 October 2023, the resident advised the Service that she remained dissatisfied having completed the landlord’s complaints procedure as no works had been completed since February 2022, and that she now had a collapsed lung which she attributed to the damp.
On 29 May 2023 the Service advised the landlord we would be investigate the resident’s complaint and requested further information.
On 31 May 2024 a surveyor from the landlord visited the resident’s property to assess its current condition. It noted the poor structural condition of the chimney stack that was the root cause of the bedroom damp and also noted that the damp untreated plaster in that location had lost adhesion and was in need of replacement. The surveyor concluded that property was fit for habitation and the following works remained outstanding.
1. The undertaking of further investigations at high level to the loft space and chimney area to identify any defective areas that allow water ingress to the damp and mould area internally.
2. The removal of the redundant door frame to top of stairwell to facilitate access to the loft hatch and the installation of a new hatch and locking mechanism.
On 14 June 2024 the landlord sent a letter to the resident apologising for the delay in the completion of the works detailed in the letter of 20 June 2023 and offered £750.00 compensation. Internal correspondence indicate that the landlord had incorrectly marked the works as completed and that it reinstated the job order.
The resident has advised the Service that the landlord was due to erect scaffolding form 17 July 2024 to complete chimney works then complete internal plastering works.

Assessment and findings

Scope of the investigation

The resident has advised the Service that her health was affected by damp and mould in her property, referring to a collapsed lung. Whilst this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim. In assessing the resident’s complaint, the Service has considered the reasonableness and appropriateness of the landlord’s response taking into account its legal obligations, policies and procedures and good practice. The Service has also considered to what extent the resident has experienced distress and inconvenience as a result of service failures by the landlord.

Assessment

In addition to the landlord’s legal obligations in respect of repairs and hazards within the property, the Ombudsman published a Spotlight report on Damp and Mould in October 2021. This stated that landlords should “adopt a zero-tolerance approach to damp and mould”. The report said landlords should take “proactive interventions” in its approach to diagnosing damp and mould issues in its properties.
In this case, as of April 2022, the landlord was aware of a chimney cowl repair and damaged plaster inside the resident’s property, which indicated that there may be water ingress. While its repair records noted access issues, there is no evidence it took steps to overcome this in order to investigate the repairs, such as by speaking or writing to the resident. It therefore did not take proactive interventions to diagnose possible damp and mould at an early stage. Not only was this not conducive to meeting its repair obligation, it was not in accordance with its repairs policy and good practice as set out by this Service.
Clear record keeping and management is a core function of a repairs service because this assists the landlord in fulfilling its repair obligations. Accurate and complete records ensure that the landlord has a good understanding of the age and condition of the structure and its fittings within the property, enable outstanding repairs and inspections to be monitored and managed, and enable the landlord to provide accurate information to residents. It was therefore unreasonable that the landlord did not note that it did not attend to the chimney cowl at the time the repair was raised, in February 2022. The repair records also do not make clear its understanding of why the resident refused access. This was important as this information could be taken into account when deciding how best to gain access and resolve the reported repair.
The landlord then received a letter of claim from the resident’s solicitor confirming that there was damp due to damage to the chimney. There is no evidence that the landlord took any action to assess the repair condition of the property and carry out any works, either in defence of the claim or as part of its responsive repairs service, until October 2022 when it raised an inspection. Even then there is no evidence that the inspection was carried out or that any works were identified at this time. As such, the delay by the landlord in meeting its obligations to carry out necessary repairs and to ensure that the property remained fit for habitation was prolonged. The absence of an inspection report or contemporaneous record explaining that the inspection did not take place also represents a further record keeping failure.
The resident’s solicitor’s surveyor’s report of 10 November 2023 confirmed that there was damp in both bedroom cupboards, which indicated that the damp was spreading as the letter of claim only referred to the resident’s bedroom. It is not known whether the landlord received this report or whether it has not retrieved the report from its records as the report had been provided by the resident. Regardless, the landlord should have carried out its own inspection by this point and kept a record of its findings and proposed works.
The response to the MP on 21 February 2023 indicated that the landlord had again been refused access to inspect the resident’s property that month. However, again there is no direct evidence that the landlord had sought to inspect at that time. Over and above the record keeping failure, it had now been a year since the resident initially reported a repair to her chimney. During this time the landlord had taken no effective action to remedy the issue or to mitigate any adverse impact, for instance by use of a dehumidifier or installation of a heat recovery system.
It was only on 31 May 2024 that the landlord took effective action by commissioning a property condition survey, and only after the Service had advised it to respond to the resident within its complaints procedure. While this survey concluded that the damp and mould presented a minor risk at that time, it stated that it was essential that the landlord ascertain whether there were any defects in the loft space and chimney areas allowing water ingress, and that it complete a fungicidal wash. The landlord confirmed it would carry out the works in its response to the resident’s complaint on 20 June 2023.
The landlord committed to investigate the loft space and chimney area, altering the loft hatch as necessary within 3 months. This was an unreasonably long and arbitrary timeframe given that the resident had originally raised a repair in February 2023 and the actions were deemed essential. In any event, the landlord has not completed these actions, therefore continued to fail to meet its obligations to carry out necessary repairs.
The landlord only became aware that works identified in its inspection of 12 June 2023 and confirmed in its complaint response of 20 June 2023 were not completed after the Service advised that we would now investigate the complaint. Its internal correspondence states that its records incorrectly stated that the works had been completed. This is another record keeping failure and in fact indicates an inability to arrange, manage and track the progress of works to its properties. This failure is compounded and rendered more inexplicable by the fact that there was another survey on 23 July 2023 which confirmed the need to make good damaged plasterwork and roof slates.
In fact, it was unreasonable that the landlord did not cross-reference the reports of 16 June 2023 and 27 July 2023 in order to arrive at an overall comprehensive approach to remedying the repair issues the resident had raised. Furthermore, the report of 16 June 2023 and 27 July 2023 made further recommendations outside the essential works such as improving the ventilation within the property, ensuring that the heating system was operating optimally, checking the back gutter; however, there is no evidence that the landlord has acted on or considered these recommendations. Therefore, as well as the lengthy delay in taking action the landlord did not give reasonable consideration to all possible steps to resolve the damp and mould reported.
In awarding compensation, the Service has considered that while the resident’s property was not assessed as unfit for habitation, her enjoyment of her property has been curtailed. It is noted that the resident is vulnerable through age, and while the damp was identified in cupboards, these were in rooms that she and her grandson slept in and therefore spent several hours in every day. It is also noted that the landlord has proactively awarded compensation for the delay in carrying out all actions identified in the Stage 2 response. As these works are integral to resolving the resident’s complaint, the Service orders that the landlord pay the resident the sum offered if it has not already done so.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Service, there was maladministration by the landlord in respect of its handling of the resident’s reports of damp and mould.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its record keeping.

Reasons

After the resident initially reported damage to her chimney and damp and mould in February and April 2022, there was a lengthy delay by the landlord in taking effective action, specifically in carrying out inspections and repair works. It was not until its complaint response of 20 June 2023 that it confirmed the further actions it would be taking. The landlord did not take all the actions it committed to in the complaint response, having lost oversight of the case, further prolonging the delay. It is also unreasonable that the landlord has not considered the further recommendations made in surveys received in order to arrive at a comprehensive resolution.
There have also been significant failures in the landlord’s record keeping. There is a consistent absence of records confirming why visits and inspections were not carried out, and of any steps taken to gain access. Furthermore, having committed to take further action in its stage 2 response, the landlord’s record keeping caused misunderstanding with staff incorrectly thinking that works had been completed.

Orders

Within the next four weeks the landlord is ordered to:
1. arrange for a senior member of staff to send an apology to the resident, either in writing or verbally, depending on the preference of the resident. The landlord should take into account the guidance of the Service on apologies.
2. pay the resident compensation of £1,941.32, comprising:
  1. £941.32 for failings in its handling of her reports of damp and mould. This is calculated as 20% of the resident’s rent from 21 April 2022 when the resident first reported damp and mould to 20 June 2023 when the landlord committed to take further action based on the survey it commissioned. (20% of 49 weeks x £77.45) + (20% of 11 weeks x £82.87) = £759.01 + £182.31.
  2. £250 for her distress and inconvenience and time and trouble caused by the handling of her reports of damp and mould.
  3. the £750 compensation offered in its letter of 14 June 2024 for the delay in taking the action outlined in the stage 2 response, if this payment has not already been made.
3. carry out all essential actions outlined in the report of 16 June 2023 and the complaint response on 20 June 2023.
4. confirm to the resident what works it will be completing externally and internally, taking into account all the findings and recommendations of all surveys received.
5. complete all the works that it advised it would be carrying out.

In accordance with paragraph 54(g) of the Housing Ombudsman Scheme, within the next 12 weeks the landlord must carry out a review of its practice in relation to its system for managing and responding to repair issues. The outcome of the review should be provided to its Senior Management Team and this Service. The review should include as a minimum (but is not limited to):
1. its record-keeping practices and responses to the repairs.
2. ensuring that when a legal repair claim has been submitted, there are clear timeframes, defined roles and responsibilities, clear lines of communication and timely completion of works.
3. its practices for keeping the resident updated.
4. if it has not done so already, consider implementing a knowledge and information management strategy, in line with the Ombudsman’s Spotlight Report on Knowledge and Information Management.