Tamworth Borough Council (202310186)

REPORT

COMPLAINT 202310186

Tamworth Borough Council

29 April 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 handling of:
1. Damp and mould.
2. Repairs at the property.

Background

The resident holds a 5-year fixed term tenancy with the landlord since December 2022. The property is a 2-bedroom ground floor flat. The resident occupies the property with a 1-year-old child and is expecting a baby in July 2024. The resident is asthmatic. The landlord is aware of the resident’s vulnerabilities. The landlord is a local authority.
On 29 November 2022, the resident was offered the property by the landlord. At the property viewing, the resident noticed damp in the living room, and mould in kitchen cupboards. She declined the property stating she did not feel the property was fit to live in. The landlord explained its allocations policy of making 1 reasonable offer of accommodation and said it deemed the offer reasonable. It said it would ask its repairs officer to inspect the damp and mould.
On 5 December 2022, the resident moved into the property. Four weeks later on 28 December, the resident emailed the landlord informing it that walls in the property were wet and mould was appearing on the walls. The landlord inspected and organised an extractor fan to be fitted to the kitchen. It also supplied a £200 decoration voucher. On 24 January 2023, the resident made a complaint stating that mould had appeared on the walls and in the corners of various rooms soon after she moved into the property. The mould had damaged her personal belongings and furniture, and the situation was affecting her asthma.
The landlord visited and found evidence of mould on the living room wall and ceiling. The resident pointed out other areas of concern in the bedrooms, living room, bathroom, and pantry. It organised a repair to a leaking gutter and works to be carried out to extractor fans and air vents. It provided advice on household activities such as bathing and drying clothes. It advised the tenant to wait and see how things were after the works to the extractors and vents had been completed.
On 2 March 2023, the resident escalated her complaint to stage 2. She stated she was out of pocket because of having to repaint the whole flat, the living room wall was soaking wet, her asthma had been made worse and personal belongings had been thrown away due to being damaged by mould. She also complained that repair issues reported to the landlord at the start of the tenancy had not been dealt with. These were, rubbish had been left in the garden, the fencing at the front of the property had not been repaired, and she had not been provided with the key to a security gate.
In April 2023, the landlord provided its stage 2 response. It said:
1. It had requested the gate key be provided to her.
2. An officer would inspect the rubbish left in the garden.
3. The fence was her responsibility unless it bordered a recognisable hazard.
In respect of the damp and mould, it itemised the works it had carried out after its visit on 7 February 2023 and said it would:
1. Ask its contractors to provide a dehumidifier.
2. Carry out a mould treatment to the bedroom.
3. Offered £100 compensation for her costs in running a dehumidifier and damaged clothing.
In May 2023, the resident remained dissatisfied with the landlord’s response and escalated her complaint to this service. To resolve the issue the resident considers the compensation for the issues should be increased and the damp and mould treated.

Scope of Investigation

In March 2024, this service contacted the resident to discuss the complaint. The resident said that her family’s health had been affected by damp and mould in the property. She provided this service with recent letters from a doctor and a health visitor about the impact of damp and mould on her health and the health of her baby. While the Ombudsman understands the impact the situation may have had on her health and wellbeing, the letters cannot be considered as part of this investigation because they were not available to the landlord during the complaint period. Additionally, the Ombudsman is not able to determine a causal link between the landlord’s actions or inaction, and the impact on the health of the resident. However, the Ombudsman can consider how the landlord responded to the health matters raised by the resident at the time of her complaint. Where a failure on the landlord’s part is identified, the Ombudsman will consider the resulting distress and inconvenience. While the Ombudsman is not considering the letters as part of the current investigation, the landlord is asked to consider the letters from health professionals when making any decisions.

Assessment and findings

The landlord does not have a damp and mould policy. The landlord’s repairs policy does not set out how it will deal with reports of damp and mould from its residents.
The Ombudsman expects a social landlord to have these policies and procedures in place to be accountable and transparent in its service delivery. Residents have the right to know what to expect when they report damp and mould. When the landlord does not have clear policies, procedures, and tenant satisfaction measures in place it deprives residents of the ability to understand and assess how their landlord is performing.
The landlord was not able to provide any measurable service standards or policy and procedure documents on how it will respond to reports of damp and mould. Therefore, the Ombudsman will look at the information provided by the landlord and the resident and consider whether the landlord’s approach was in the Ombudsman’s opinion, fair in all the circumstances of the case.
The landlord’s repairs policy states its purpose and objectives are to ‘meet all our landlord obligations in relation to repairing your property’ and, ‘Ensure our approach to Health & Safety meets best practice and all our contractual and legal obligations.’
Landlords must consider the property condition using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). Damp and mould are potential category-one hazards that fall within the scope of HHSRS.
In this case, the photographs provided by the landlord show black mould in various rooms of the property when the property was void. The Ombudsman considers that in one location, the mould could be reasonably described as ‘extensive.’ An examination of the void schedule of works shows the landlord did not carry out any investigations, treatments or works relating to the mould. The Ombudsman’s spotlight report on damp and mould (It’s not lifestyle), made several recommendations to landlords such as ‘Landlords should make the most of every opportunity to identify and address damp and mould, including visits and void periods.’ The Ombudsman considers it was a failing that the landlord did not investigate and treat the cause of the black mould in the property when it became aware of it in the void period.
On 29 November 2022, the landlord invited the resident to view the property. She noticed damp in the living room and mould in the kitchen cupboards. She emailed her concern to the landlord and stated her opinion that she did not believe the property was habitable. The landlord informed her that it would assess the damp. The documents provided do not demonstrate any timescale was given to the resident about when this would happen, or that it considered if it would be appropriate to wait for the outcome of the damp and mould assessment before issuing the tenancy. The landlord’s focus on letting the property meant the damp issue was not prioritised by the landlord. Given that damp and mould are potential category– 1 hazards that fall within the scope of HHSRS, this was unfair and unreasonable.
The landlord arranged for the tenancy to start on 5 December 2022. No evidence has been provided to show the damp and mould was inspected by the landlord as it said it would, or that it shared its plan to solve the damp and mould issue with the resident. The evidence provided by the landlord shows it decorated the property throughout prior to the tenancy start.
On 28 December 2022, (4 weeks after the tenancy started), the resident contacted the landlord through its ‘tell us’ service. She informed it that the damp walls had not been fixed. They were wet to the touch and mould was growing. She stated that she was severely asthmatic, her baby was getting poorly, mould was in every room of the house and affecting her belongings. She informed it that due to her own medical conditions she was unable to wipe the mould away every day. The landlord raised an inspection with a ‘routine’ priority and informed her it would carry out a damp and mould inspection in 3 weeks’ time.
Research has shown that damp and mould is injurious to health and residents living in homes with damp and mould may be more likely to have respiratory problems, allergies, asthma, and other conditions that impact on their immune system. Given the information provided by the resident about the impact of the situation on her family’s health, the 3-week timescale was inappropriate. Additionally, in the circumstances, it would have been appropriate to discuss any other support that could be provided while awaiting the inspection. There is no evidence the landlord did this which meant that apart from booking the appointment, the landlord provided no other advice and support on the issue. The resident contacted the landlord distressed about the 3-week timescale for the inspection. The landlord reassessed the urgency and brought forward the appointment. While, this was appropriate, this means the landlord’s risk assessment when the resident first contacted it, appears not to have taken the information provided by the resident about the impact of the damp and mould on her health sufficiently seriously. This caused the resident avoidable distress.
The landlord raised an ‘inspection to damp and mould.’ The landlord’s void contractor visited the property on 24 January 2023. It recommended the landlord install an extractor fan in the kitchen, overhaul the extractor fan in the bathroom and clean out the air vents in the pantry and living room (which it found had been filled with expanding foam by the previous resident). The landlord has not provided an inspection report, or evidence that it used appropriate equipment to take moisture readings of the affected walls or that it investigated the damp-proof course, or the external brickwork and pointing of the building. The landlord may wish to reflect on whether the void contractor was the appropriate person to carry out an inspection to damp and mould in the circumstances.
After the contractors visit, the resident made a stage 1 complaint stating her dissatisfaction with the outcome of the visit. She stated the void contractor had implied the situation was her fault. That she was told to open the windows and not to dry washing on an airer inside the property. She said she was told that having hot baths contributed to the situation of flaking paint in the bathroom. Within the complaint letter she detailed the impact and effect of the damp and mould on her health and on her furniture and other personal items. That she was out of pocket due to her expenditure on moisture absorbers, renting a dehumidifier, mould treatments and mould wipes. She believed the property had been empty for many months and had suffered from damp and mould prior to her moving in. She provided the landlord with photographs of her belongings damaged by mould and said some items needed to be replaced. She requested a decoration voucher to buy mould treatments and mould resistant paint.
On 3 February 2023, as part of its complaint investigation, the landlord spoke to the resident about the issues. It authorised a £200 voucher. While the Ombudsman understands issuing a decorating voucher may be a suitable course of action in some circumstances, the landlord lacked curiosity about the resident’s request. The landlord missed an opportunity to investigate why the mould treatment and specialist paint was needed so soon after it had fully decorated the property. The Ombudsman’s view is that because the landlord did not carry out a detailed enough inspection of the property at its prior visit, it was not clear on the precise causes of the damp and mould.
It shared the details of the resident’s complaint with an internal department and asked it to provide the stage 1 complaint response. The department stated they ‘very much doubted it was damp, there was no history of damp at the property and no evidence of damp when the property was void, and the situation was most likely brought about by the resident’s ‘lifestyle decisions.’ It was unreasonable to infer blame on the resident when it had not carried out a proper damp and mould assessment. The Ombudsman finds the landlord was incorrect in stating there was no history of mould at the property. This is because the landlord had taken photographs which demonstrate that black mould was present during the void period. Based on the photographs of the property after it was cleared, the Ombudsman is satisfied that black mould was present in the property prior to the resident’s occupation.
On 7 February 2022, as part of its complaint investigation, the landlord visited the property. The resident pointed out areas of concern in the bedrooms, lounge, bathroom, and pantry. It documented there was evidence of mould on the lounge wall and ceiling. It organised a blocked air vent in the lounge to be cleared out and stated there were no obvious external reasons for the issues.
Given this was its second visit within 2 weeks for damp and mould, and the residents reports of the impact of the damp and mould on her family’s health, the Ombudsman’s view is the landlord’s inspection at this stage was not detailed enough. The Ombudsman expects the landlord to carry out a detailed inspection and carry out the recommended testing in line with industry good practice. The landlord’s approach was unreasonable in the circumstances and caused distress to the resident.
On 9 February 2023, the landlord responded to the resident’s stage 1 complaint. It said it was aware that an officer had visited on 7 February 2023 and works orders would be raised. It stated that it was aware she had recently spoken with a member of staff and this conversation had addressed some of the points raised. The landlord’s complaint response did not address the residents reports of the impact of the damp and mould on her family’s health and the damaged belongings. This was not a reasonable response. The landlord was not customer focused in its complaint response because it also did not respond to the issue of the money she had spent attempting to treat the mould. The Ombudsman considers the landlord lacked empathy and did not take the resident’s reports of the impact on her health and finances seriously enough. Its approach was heavy handed, unfair, and unreasonable.
After the landlord carried out works to the extractor fans the Ombudsman has not seen any evidence the landlord made plans to monitor the situation or carry out a follow up visit. Where a landlord becomes aware of damp and mould in its property it should have a robust monitoring plan in place that does not rely on the on the resident contacting it first. This would allow it to effectively tackle issues at an early stage and reassure the resident it was taking the matter seriously. The landlord’s lack of proactive management after its visit was a failing in the landlord’s approach.
The resident remained dissatisfied and on 2 March 2023, escalated her complaint to stage 2. Because the landlord did not address the issue of damage to her belongings in it stage 1 response, the resident repeated the issues set out in her stage 1 complaint:
1. The carpet had been affected by mould.
2. The walls in the lounge and bedroom were wet.
3. Her bed, baby’s cot, furniture, and clothes had been ruined by mould.
4. She was experiencing financial hardship because of the cost of hiring a dehumidifier and purchasing mini dehumidifiers, mould wipes and sprays.
5. The terms and conditions of the decorating voucher the landlord offered meant she was not able to purchase mould resistant paint and mould treatments.
6. Her asthma had been made worse.
She requested the landlord ‘assess properly’ why the walls were wet, ‘damp proof and mould kill the bedroom’, supply her with an appropriate sized dehumidifier, provide a B&Q voucher so she could buy mould treatments and mould resistant paint ( the terms and conditions of the voucher previously provided by the landlord meant she was not able to buy specialist anti mould or treatments), and requested reimbursement for money spent on moisture absorbers, rental of a dehumidifier, and mould sprays.
In its stage 2 response dated 20 April 2023, it listed works it had carried out after her stage 1 complaint. It had:
1. Installed a new extractor fan in the kitchen.
2. Installed a new vent to the pantry.
3. Cleaned out guttering.
4. Refixed loose tiles in bathroom and resealed bath.
5. Replaced radiator valves.
6. Installed new windows (this was part of planned works).
It offered £100 pound in compensation for electricity usage and damaged clothing. It informed her it had raised an order for a damp and mould wash to be carried out to the bedroom. It also said it would provide the resident with a dehumidifier for a period of 2 weeks. It is not clear why the landlord decided to provide the dehumidifier for a period of 2 weeks only.
The landlord told this service it did not gain access to the property on 5 May 2023 to carry out the mould wash. It did not follow the matter up with the resident, as a result, the mould wash was not carried out. This was a failing, because in the circumstances it would have been appropriate for the landlord to contact the resident to reschedule the appointment. In respect of the landlord supplying a dehumidifier, the landlord has confirmed to the Ombudsman that it did not supply this to the resident as it said it would. The fact that it did not complete actions it promised in its final complaint response was unreasonable because the landlord has a duty to take all reasonable steps to mitigate and support the resident in managing the situation. The landlord’s handling of matters after the complaint process compounded the issue and further undermined the residents trust and confidence in the landlord.
In her stage 2 complaint escalation the resident itemised her losses and expenditure to the amount of £1527. The landlord offered an amount of £100 for costs in renting a dehumidifier and damage to belongings. The landlord has not provided its compensation policy, so it is unclear how it arrived at this figure. The landlord had a duty to carefully consider whether the resident’s losses and expenditure were a result of any act or omission on its part, and if it found it was the case, offer an appropriate amount of compensation. In the event it did not agree that any act or omission on its part had caused the losses and expenditure, it should have then provided the resident with details on how to make a claim on its public liability insurance.
The resident had a reasonable expectation to live in a dry and healthy home. The landlord shares responsibility for achieving this. The evidence shows the presence of black mould in various locations of the property at void stage. The landlord had an obligation to investigate and treat this prior to the resident moving in, but there is no evidence it did. When the resident expressed concerns about damp and mould at the property viewing, the landlord informed her it would assess it, but it did not. Four weeks after the tenancy started the resident contacted the landlord to complain the damp and mould had returned and was affecting her asthma and her baby’s health. The landlord failed to prioritise its inspection appropriately, given the circumstances reported by the resident and did not demonstrate it took seriously the impact of damp and mould on her family’s health. Evidence of this is that in her stage 1 and 2 complaints, the resident described that her baby was poorly, and her asthma had become worse as result of the damp and mould, however the landlord did not respond and did not seek further information about this at any stage. The landlord treated the resident heavy handedly and lacked empathy.
At an early stage, it implied the resident’s lifestyle decisions were the probable cause of the issue and failed to consider there might be a problem with the fabric of the building. It visited the property on 2 occasions and concluded there were no obvious signs of damp, but it has not provided any evidence that it carried out any appropriate tests. Appropriate tests would have been taking readings of moisture levels in the walls, and examining the damp proof course, external brickwork and pointing. In the event it did not have the in-house expertise to carry out these tests, it could have instructed a specialist to carry this out on its behalf. (As it did in April 2024). It is acknowledged that between February 2023 and April 2023, the landlord carried out actions such as repairing and installing an extractor fan, clearing out the external guttering, carried out works to extractor fans, and replaced some radiator valves. However, these measures did not address the underlying cause of the problem.
It was not until April 2024 the landlord instructed an independent survey of the property. The property was diagnosed with rising damp. This was 17 months after the issue was first brought to its attention. The extent of the works recommended is likely to mean the resident cannot remain in occupation. While it is acknowledged the landlord carried out works to assist with ventilating the property, these in isolation were ineffective. It should have considered further options sooner. Its handling of the matter was unduly long which caused the resident avoidable distress and left her living in a property that was potentially hazardous to her health.
The situation was distressing for the resident and caused detriment in that her personal belongings and furniture were damaged by mould. The damp and mould affected the resident’s enjoyment of the property from an early stage. The settling in period of her new tenancy was disrupted by having to spend an unreasonable amount of time engaging with the landlord on the issue. An issue the landlord was aware of prior to her occupation of the property. The resident informed this service she found the situation tiring and it negatively affected her wellbeing and ability to settle into her new home.
In November 2021, the Ombudsman issued a spotlight report on damp and mould. On 19 November 2022, the Secretary of State for Levelling Up, Housing and Communities, wrote to the Chief executive outlining his expectations that landlords treat damp and mould seriously. On 29 November 2022, the Ombudsman wrote to the Chief Executive recommending it consider introducing a dedicated damp and mould policy to support decision-making and an urgent, proactive approach, and in February 2023, the Ombudsman issued its follow up report. Given the strong focus on damp and mould across the sector since 2021, the Ombudsman is concerned the landlord does not appear to have acted upon recommendations made in the communications or spotlight reports. The landlord has said it is developing a damp and mould policy. It has not indicated what stage of development its policy is at. Its repairs policy has not been updated to state how it will deal with reports of damp and mould, and it does not appear to have published any measurable service standards in the area of damp and mould, so residents know what to expect when they report damp and mould.
In this case, the Ombudsman considers the landlord did not meet the purpose and objectives set out in its repairs policy because it failed to take reasonable steps to investigate and treat the mould it became aware of at the void stage. The Ombudsman considers that on its own, decorating over the black mould was not an acceptable way of dealing with the issue. When the resident expressed her concerns that the property was not habitable it said it would assess the mould but did not. The landlord did not acknowledge or enquire at any stage about the impact of the damp and mould on the resident and her child. It has not demonstrated it carried out any appropriate investigations of the structure and fabric of the building during its visits. It did not follow through on actions it said it would take at stage 2 of the complaint process. These actions would have helped the resident manage the situation. The Ombudsman finds there was a series of significant failures at the void stage, during the tenancy, and after the complaint which have had a detrimental impact on the resident and finds there was severe maladministration in the landlord’s handling of damp and mould in the property.
The Ombudsman recognises that some residents’ circumstances mean that they are more affected by landlord’s actions or inactions than others. This might be due to their particular circumstances, or because of a vulnerability. Consideration of any aggravating factors (such as a resident’s poor physical health) could justify an increased award or additional remedy to reflect the specific impact on the resident. The Ombudsman has considered the failings identified by this investigation together with the remedies guidance and considers the failings identified in the landlords handling of damp and mould at the property sit at the higher end of remedies available where there is severe maladministration and considers that an additional remedy would also be appropriate.

The landlord’s handling of repairs

In her stage 1 complaint dated 24 January 2023 the resident complained that at the start of the tenancy in December 2022:
1. Rubbish from the previous resident had not been cleared from the garden.
2. She had not been given a key for the communal back gate.
3. A fence in front of her property was broken and had not been repaired.
The landlord has not provided its lettable standard. The Ombudsman has referred to the document entitled ‘Appendix 3 lettable standard for council tenants, item 105’, found on the landlord’s website. This document does not set out what residents can expect in terms of the condition of any garden included in the tenancy. It also does not set out what keys it commits to providing at sign up of the property. The Ombudsman considers it would be good practice to include these matters in its lettable standard. In respect of rubbish, the lettable standard states ‘All general rubbish left in the property, loft, stores, etc will be removed from the property. General rubbish outside the property will also be removed.’
In her complaint, she detailed that she had spoken to the landlord about the matters in December 2022 but there had been no progress. The evidence provided shows the resident reported the rubbish left in the garden again during the settling in visit on or around 15 January 2023. The landlord advised the resident to contact the allocations team to discuss it. This was unfair and lacked customer care because given the landlord was carrying out a settling in visit the landlord should have taken responsibility for investigating and resolving the issue.
In its stage 1 complaint response dated 24 January 2023 the landlord did not respond to the issues. This was not fair or reasonable and caused frustration to the resident. The resident escalated this part of her complaint to stage 2. She informed the landlord the outstanding matters were causing her inconvenience. She had to borrow a key from a neighbour, could not enjoy the garden as the rubbish had not been removed, and due to the broken fence neighbour’s bins were being placed under her kitchen window causing unpleasant smells into her property when the kitchen window was open.
In its stage 2 response dated 17 April 2023 it said it would send an officer to inspect the rubbish and a contractor would be in touch with her to provide her with the back gate key. It did not acknowledge its service failures or apologise for the inconvenience caused. Given that almost 5 months had elapsed since the tenancy started this was discourteous. In respect of the broken fence, it said it was her responsibility unless it bordered a recognisable hazard as set out in its repair guide. This response was inappropriate and unfair because the landlord repairs guide states the landlord will inspect and assess if a fence meets the criteria and may choose to carry out a planned repair rather than a responsive repair. In the circumstances, an appropriate and fair response would have been to arrange an inspection to establish if the fence met the criteria.
The resident informed this service that due to the amount of time the matter was outstanding, her mother cleared the rubbish in the garden. The key to the back gate was provided in May 2023, 5 months after the tenancy started. This was an unreasonable delay. At the current time the fence remains broken. The Ombudsman finds the landlord did not meet its lettable standard. Had the landlord acted in a timely manner to deal with the issues in the settling in period, it is likely the Ombudsman would have considered this a service failure. Because the resident had to take her own action in respect of the rubbish, the landlord’s unreasonable delay in providing the gate key and delay in inspecting and assessing the fence, the Ombudsman finds there was maladministration and makes an order for compensation below.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was severe maladministration in the landlord’s handling of damp and mould at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of repairs.

Orders

Within 4 weeks of the date of this report the landlord must:
1. The CEO should apologise to the resident for its handling of damp and mould and repairs at the property.
2. Discuss the outcome of the independent survey with the resident. Collaborate with the resident to produce a SMART action plan (Specific, Measurable, Achievable, Realistic and Timebound), outlining its approach to carrying out the works. The landlord should consider the vulnerabilities and health conditions of the family and consider the supporting information provided from health professionals.
3. A schedule of works should be shared with the resident and this service. Works should be completed within 12 weeks of the date of this report.
4. Provide the resident with details and assistance on how to make an insurance claim on the landlord’s public liability insurance in respect of the damaged belongings.
5. Pay the resident £3250 in compensation, comprised of:
  1. £2000 for the distress and inconvenience caused by the failings identified in this report.
  2. £1000 as an additional remedy for the distress caused by the landlord’s failure to acknowledge or respond appropriately to the resident’s disclosures about the impact of damp and mould on her health.
  3. £100 if offered at stage 2 of the complaints process with an additional amount of £50 as reimbursement for monies spent on mould wipes, mould sprays and mini dehumidifiers.
  4. £100 for its delays and the inconvenience caused by its handling of the repairs.
6. The landlord must share this report with its Executive Team and Cabinet member for Housing.
Within 6 weeks of the date of this report the landlord must:
1. Update this service on the progress of its damp and mould policy.
2. Inspect the broken fence in line with its repairs guide and explain its obligations to the resident.
1. Incorporate a damp and mould assessment into its void inspection process.

Recommendations

The landlord should consider incorporating a check of ventilation such as air bricks, vents, extractors and guttering into its void inspection.
The landlord should review its other cases of damp and mould in the block to check if they are affected by the same issue identified in the independent survey.