Barking and Dagenham Council (202017534)

REPORT

COMPLAINT 202017534

Barking and Dagenham Council

13 May 2022

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

This complaint is about the landlord’s handling of:
1. the resident’s reports of damp in his property;
2. the resident’s request to be re-housed;
3. the related complaint.

Background and summary of events

Background

The resident is a secure tenant. The landlord is a local authority and has described the property as a two-bedroom ground floor flat. The property is within a low-rise block.
During the course of this complaint, the resident advised the landlord that members of his household had asthma and depression and one of his children is autistic.
The landlord has a tenancy conditions booklet that shows that it will maintain the structure and outside of the property and maintain installations for supplying water and for sanitation. It adds that it will give the resident 24 hours’ notice if there is a water leak from the property, after which it may force access, and that it may offer temporary housing if the type of repair requires it.
The landlord’s ‘right to repair’ scheme sets out that it aims to complete repairs that might affect health, safety or security within a certain timescale that is dependent on the repair type; the scheme shows that it should complete all repairs that are its responsibility within 20 working days.
The landlord’s website has a section on repairs that shows that during the lockdown period, its repairs team ‘were only carrying out emergency works’, leading to ‘a backlog of outstanding works which we are now in the process of prioritising’.
The landlord has an allocations policy and management transfer procedure that shows that:
1. it has facility to offer residents a ‘management transfer’ for ‘re-housing on the basis of exceptional circumstances’
2. this applies in instances where there is threat to ‘life and limb’, escalating threats to the person or a property that requires major works that cannot be done with the resident in occupation
3. a request for a decant due to works will usually come from its repairs service and be considered through a visit to the property and review by an estate officer and tenancy services manager before a decision is sent to the resident
4. if a management transfer is agreed, the resident will be eligible for a move to a property similar to their existing one
5. if a management transfer is not agreed, there is an appeal process where a more senior member of staff reviews the decision within 14 days.
The landlord has a two-stage complaints procedure which requires it to respond to complaints within 10 working days (at stage one) and 30 working days (at the final review stage). Its policy sets out that it will not consider a matter as a complaint if it has been ‘allocated or investigated as members or MP’s casework’ or is an ‘insurance claim’.

Summary of Events

The landlord’s repairs records show that an order was raised on 5 February 2020 to inspect damp and mould throughout the resident’s property. This job was recorded as complete on 20 March 2020.
The landlord’s internal emails show that it reviewed the resident’s damp report on 4-5 May 2020, having spoken to him and receiving advice that damp and mould was continuously returning. It noted that mould treatment works were pending and that previous works had been due to condensation so it was likely that the long-term solution would be related to ‘lifestyle’.
The landlord’s repairs records show that an order was raised on 25 June 2020 to specify works for mould treatment to various areas in the property. The job was subsequently recorded as ‘abandoned’.
The local authority environmental health officer (EHO) made the landlord aware on 12 October 2020 of a potential roof leak affecting the property and the two flats above. The landlord noted on 10 November 2020 that a roof inspection had found no defect but the EHO added on 13 November 2020 that the resident suspected the leak was from a leasehold flat two floors above his.
The landlord’s internal records show there were discussions from 7 December 2020 about the leak from the leasehold flat two floors above (this discussion referred to a previous leak from that address during December 2019 to February 2020). It noted in early January 2021 that the resident had reported that his hallway cupboard needed repairs due to the leak from above.
The landlord’s repairs records show that a job to attend the property to survey for remedial works was assigned to an operative on 25 January 2021 and 2 February 2021 but there was no answer to its Covid-19 survey telephone call attempts.
The landlord responded to the resident’s councillor on 1 February 2021, advising that it had left a voicemail message with the resident on 29 January 2021 with a view to conducting a mould treatment.
The landlord liaised with the leaseholder of the property two levels above the resident’s on 10-11 February 2021. This indicated that the water supply there had been re-established and plumbing checks in January 2021 showed no evidence that the leak had returned.
The resident made a report on 17 March 2021 that a surveyor appointment had been missed on 15 March 2021 and that he had already raised a formal complaint about the problems at the block. The landlord noted the following day that it had been unable to establish an appointment having been made for 15 March 2021 but that it had apologised to the resident.
The landlord recorded that it attended the property on 22 March 2021 and drew up a works specification on 23 March 2021 to conduct remedial works such as:
1. bathroom – bath renewal, re-plastering, mould treatment and decorations
2. toilet, kitchen, living room, hallway and two bedrooms – variety of mould treatment and decorations plus installation of kitchen extractor fan
3. hallway cupboard – re-plastering and decorations
4. external – re-seal kitchen window frame and re-pointing of brickwork joints.
The resident submitted an email to the landlord’s repairs complaint department on 29 March 2021. The landlord acknowledged it on 30 March 2021, advising it would consider how best to approach the matter.
The Ombudsman wrote to the landlord on 31 March 2021, following contact from the resident. It advised that the resident was concerned about a leak into the bathroom, damp and mould throughout the property over the previous 18 months, a cracked bath and the impact on him and his family. The resident had added that he wished to be moved to a three-bedroom house and compensated.
The landlord’s internal emails show that the EHO wrote to it on 1 April 2021, asking for assistance due to a complaint they had received from the resident about damage to his property due to a suspected leak from above. The landlord noted that it replied to the EHO the same day, explaining repairs were being conducted and that the source of the leak had been rectified.
The landlord’s internal emails show that it was aware on 8 April 2021 that the resident had consistently been telephoning it to chase outstanding repairs.
The landlord recorded receipt of a member’s enquiry on 12 April 2021 that was about the leak.
The resident submitted an online complaint to the landlord on 13 April 2021 that he had still not been contacted by it despite his request three weeks earlier. He also wrote to it to advise that only the bath renewal had been done and that these works had not been done correctly. The resident wrote further to the landlord on 14 April 2021, asking his housing officer to call him about his request to be moved due to the black mould, poor living conditions over 16 months and vulnerability of his family. He reiterated that the new bath had been poorly installed the day before.
The landlord and resident exchanged further emails about the bath panel and skirting board on 14-15 April 2021 – the landlord acknowledged that the skirting should not have been left partly detached as it was but that its contractor had told it that the resident had been warned they could not get a secure fixing. The landlord suggested a further pre-inspection before further works commenced from 26 April 2021 and the resident sought assurance that the leak from above had been resolved.
The landlord wrote to the resident on 15 April 2021, advising that a response was due to be sent to the resident’s councillor and that repairs were to be carried out on 26 April 2021. It added that management transfers were only agreed in extreme circumstances and works could be conducted with the resident in situ plus it would not be able to inspect the property until 12 May 2021 by which point the works would be complete. It signposted him to the homeswapper scheme and to register for a bidding account and wrote to him separately on the same date, advising that it would log a complaint given the complexity of the matter.
The resident wrote to the landlord on 15 April 2021, advising that:
1. he had been ‘left for 16 months to rot’ in the property and this should be treated as an emergency given the EHO found the property was in a very poor condition with members of the household unwell with asthma and depression
2. water had been running down his walls and this had only stopped because an upstairs neighbour had moved out and a management transfer should be agreed
3. despite contact with an elected representative and environmental health, he was still living in unsafe conditions with mould and damp in all rooms
4. they had cleaned the black mould themselves and the housing officer had not helped
5. a new bath had been installed a couple of days earlier but the panel had been left in a poor state with the frame split (he provided photographs of this)
6. there was no point completing more repairs on 26 April 2021 until the leak from above was resolved.
The landlord recorded on 20 April 2021 that it had attended the resident’s property again, noting there was ‘severe mould’ with cold spots due to a lack of insulation. Its internal emails show that it now intended to install insulation boards to combat ‘cold bridging’, install an extractor fan to reduce the impact of cooking moisture and address external brickwork pointing that it described as ‘bad’. It added that works were likely to take two to three weeks.
The landlord sent further complaint acknowledgements to the resident on 21-22 April 2021 that showed that it was reviewing the matter at the final stage of its complaints process and would respond by 7 June 2021. It signposted the resident to a legal recourse for consideration of the health issues he had raised and acknowledged that the resident had provided a breakdown of costs he had incurred (this totalled £771.04 and included cleaning products, paint, a blind and childrens’ clothes).
The resident advised the landlord on 28 April 2021 that operatives had found further damp and mould in the property and that carpets would need to be replaced; he chased progress of works with the landlord on 10 May 2021.
The resident advised the landlord on 20 May 2021 that new bathroom paint was already cracking around the windows, the living room tiles had not stuck, the kitchen fan had still not been fitted, the operative had not cleaned up the dust created by the works and his kitchen worktop had been damaged. He added that he had now been told that works would take five weeks (instead of two) and more building works were needed even though the landlord had already undertaken decorations.
The landlord consulted with its contractor from 20 May 2021 about the resident’s concerns. The contractor said it had protected the kitchen worktops, the resident had dislodged the tile when installing a curtain and there had been difficulty with installing the extractor fan as it could not get through the external wall.
This Service wrote to the landlord on 28 May 2021, issuing a Complaint Handling Failure Order and advising that it would proceed with an investigation given the lack of a complaint response from the landlord.
The landlord issued its final complaint response on 7 June 2021. It concluded that:
1. it received a damp report on 5 February 2020 and inspected on 20 March 2020 but the country went into lockdown on 23 March 2020 so no further visits could be undertaken
2. works were raised on 25 June 2020 but were placed on a suspended list due to lockdown restrictions
3. it had no record of an EHO report in September 2020
4. a job was raised on 18 January 2021 for a cupboard repair and decorations following a leak from above and voicemails were left when it tried to organise the works
5. a new mould inspection was raised on 2 February 2021 after which plastering repairs were specified but it had no record of an appointment being made for 15 March 2021
6. it attended on 22 March 2021 and identified mould treatment and decorations (following water damage) were needed and works began on 26 April 2021
7. there had been no report from the resident of a leak from the neighbouring leasehold property but it had been working to gain access to that address following a report from a different neighbour and it had checked the leak had been rectified before starting works on 26 April 2021
8. although some delay was beyond its control, it had been 14 months since the resident had reported the damp issue so it would award compensation of £350 (made up of £25 per month) as a gesture of goodwill
9. the housing officer first became aware of the issue on 31 March 2021 – at this point, works were scheduled in so she had correctly advised the resident that a management transfer would not be considered and no suitable temporary accommodation had been available
10. a member’s enquiry had already been logged when the complaints team received contact on 4 January 2021 so it had correctly decided not to log a complaint at this point
11. it had changed this approach on 13 April 2021 because of further contact from the resident and the Ombudsman
12. it had no record of general advice given to him about the housing register but it would be in touch about his recent application to join the register and open a bidding account
13. it could not award compensation for products that the resident stated he had been required to purchase due to disrepair given the lack of receipts and it was unaware of any agreement to replace carpets.
The resident replied to the landlord on 7 June 2021. He expressed continued dissatisfaction on the grounds that:
1. nobody inspected his property on 20 March 2020 and he still had details of the health and safety officer who attended in September 2020
2. he had not been advised about any plastering repairs in February 2021 and surveyors had missed appointments in March 2021
3. he had reported the leak from above contrary to what the landlord advised
4. he did not accept the landlord’s compensation offer and it should have logged his concerns as a complaint well before it did
5. works were still incomplete with two holes in the brick wall outside and no clarity on if the leak from above had been resolved
6. he needed to replace carpets and his and his children’s possessions had been damaged so he was out of pocket by £1,000
7. his bidding account for re-housing should be backdated five years.
The resident subsequently approached this Service on 11 June 2021, advising that works were still not finished and the landlord should admit to all its faults, backdate his housing application five years, move his family to a three-bedroom house, reimburse him £1500 for products he had to purchase and lost possessions, pay him £750 for new carpets (which he later provided a receipt for) and increase the compensation for the distress caused.
The landlord noted on 16 June 2021 that all works had been completed with the exception of the extractor fan.
The landlord advised the resident on 24 June 2021 that it would address mastic seal to the childrens’ bedroom when it renewed window units on 4 July 2021, the external damaged bricks would be replaced, decorations would be made good to the bathroom and toilet and he had told it that he did not want the kitchen extractor fan to be installed.
The landlord asked its contractor on 22 July 2021 to proceed with thermal insulation to the bathroom and toilet and fill the hole that had been made for the planned extractor fan. The contractor said it planned to complete the works on 2 August 2021.
The resident made reports to the landlord during August-September 2021 that external bricks still needed to be replaced, there were water marks below the window in his childrens’ bedroom and paint was cracking again on the bathroom ceiling. The landlord responded to the resident on 8 September 2021, advising it would liaise with its contractors.
The resident chased the landlord for progress on 13 September 2021 and the landlord referred to its contractor on the same date. The contractor replied to the landlord, advising that it planned to attend the following day.

Assessment and findings

Damp

The resident reported a damp problem in his property in early February 2020. The landlord raised a repairs order to inspect the property in accordance with its obligations but there is no evidence that this inspection occurred. In mitigation, the government introduced Covid-19 related self-isolation guidance from mid-March 2020 and lockdown regulations from 26 March 2020. However, the landlord’s right to repair scheme sets out that it should conduct repairs within 20 working days so it should already have inspected the property by the point that Covid-19 restrictions were in place and it was inappropriate that it failed to do so.
It should be noted that March 2020 and the following weeks was a difficult period for most organisations and local authorities often had to transfer staff to frontline services to ensure a continuity of its business. However, guidance was given to landlords in late March 2020 that their repairing obligations had not changed, records should be kept of any attempts to address issues raised by residents during this period and that visits could be made for urgent health and safety issues.
When the landlord reviewed the damp issue in May 2020, it noted that mould treatment works were pending but indicated that the problem was due to ‘lifestyle’. However, when the landlord reviewed the case again in December 2020, it became apparent that it had been aware of a leak from a flat two floors above the resident’s during December 2019-February 2020. The landlord’s assessment that the resident’s mould problems were due to ‘lifestyle’ was therefore flawed and likely meant that it overlooked that a leak into the resident’s property was at least contributing to damp.
When a repairs order was raised on 25 June 2020 to address the mould problem, landlords were able to undertake wider repairs and safety inspections in accordance with public health advice. The landlord has advised that there was a backlog of repairs that it needed to catch up on and prioritise. However, there is no record of any communications with the resident from June 2020 until January 2021 when it began to approach him with a view to inspecting his property. This communications delay was unreasonable as it will inevitably have caused the resident uncertainty as to whether the landlord was planning to progress the repairs or not.
The landlord has since said that the resident did not report problems with a leak from above but the EHO informed it as early as October 2020 that the leak was impacting the resident’s property and told it in November 2020 that the resident suspected the leak was from the leasehold flat two floors above. It was inappropriate that the landlord failed to prioritise the resident’s mould works in light of this new information and that it failed to obtain confirmation from the leaseholder above until January 2021 that the leak had been remedied. The landlord therefore contributed to unnecessary delay during this period when it is likely that damage to the resident’s property worsened.
The evidence seen by this Service indicates that the landlord attempted to contact the resident during January-February 2021 with a view to arranging a property inspection. Given this was around the time that the government had introduced a third national lockdown, it was reasonable that the landlord tried to contact the resident to discuss Covid-19 safety in advance of the planned visit.
The landlord successfully inspected the resident’s property in late March 2021, identifying a range of remedial works needed because of leak damage and widespread mould. Although the bath renewal was completed by mid-April 2021, it was inappropriate that some of the other works were still outstanding in June 2021 – this was outside of both the timescale that the landlord originally estimated and the 20-working day obligation set out in its right to repair scheme. This will have caused distress and inconvenience to the resident, particularly given his family’s physical and mental health conditions that he had informed the landlord of by this point.
It is of concern that the landlord established in July 2021 that additional mould-related works were necessary and that it and the resident were still in contact as late as September 2021 regarding the quality of works – a recommendation is made below in this regard.
The landlord acknowledged through its final complaint response in June 2021 that there had been service failings and awarded compensation of £350 which it said was a goodwill gesture. It accurately advised that it had not been presented with evidence of damage to possessions, the value of these possessions or any assurance that it would pay for carpet renewals so it could not offer compensation for these.
Although the landlord’s decision on the damaged possessions was reasonable given the lack of evidence and there was the mitigating factor of Covid-19 restrictions during some of the delay period, the level of compensation awarded was insufficient given the resident and his family were left in unsuitable living conditions for well over a year, the mould affected all rooms in the property and the potential vulnerability of members of the household.
In summary, the landlord delayed unreasonably in diagnosing the cause of damp to the resident’s property during February-March 2020, failed to follow up and communicate with the resident between May 2020 and January 2021 and delayed unreasonably in completing remedial works at the property between March-September 2021. Although the landlord awarded compensation as a gesture of goodwill, this was not sufficient given the extent of the delay and the impact on the resident and his family.

Re-housing request

The resident initially asked the landlord to re-house him in late March-early April 2021. He requested this on the grounds that there was black mould in the property that was impacting him and his family and that they required a three-bedroom house. The landlord’s relevant policies and procedures set out that a decant due to works required to a property will usually be received from its contractor or repairs department. In this case, there was no indication following the inspection on 22 March 2021 that the resident should be re-housed so there was no fault in it not offering to move him at this point.
The landlord responded to the resident’s request on 15 April 2021 – it told him that re-housing was only offered in exceptional circumstances and that works were due to commence in the next two weeks that would remedy the damp. It was appropriate that the landlord took into account the pending works in its decision-making and there was no indication from the 22 March 2021 inspection that there would be a problem with works proceeding with the resident remaining in the property. The landlord also gave the resident appropriate advice by signposting him to alternative means of securing a move and explaining that he would not be offered a three-bedroom house even if his re-housing request had been agreed.
However, the landlord’s management transfer procedure sets out that there is an appeal process available for re-housing decisions to be reviewed at a more senior level. Although when it made its original decision on 15 April 2021, the landlord signposted the resident appropriately to other re-housing options, it did not advise him of any recourse to request an appeal and it did not review the management transfer decision in accordance with its procedures even after the resident expressed his dissatisfaction with the decision during mid-late April 2021.
Although the landlord’s original decision was made in accordance with the management transfer procedure and there was no likelihood that the resident would have been offered a move to a three-bedroom property through this recourse, it was inappropriate that the landlord failed to consider the resident’s dissatisfaction as an appeal.
Further, although the landlord later told the resident that there was no temporary accommodation available for his family during the works, there is no evidence that it investigated this option. The landlord’s failure to demonstrate that it considered this option was unreasonable, particularly given the resident’s concerns about how his family’s health conditions could be impacted by the upheaval of works being undertaken in all rooms within the property.
In summary, the landlord considered the resident’s original re-housing request within an appropriate timescale and refused it in line with its procedures. However, it failed to review the decision through the appeal route that is allowed for in its management transfer procedure and did not investigate the potential need for temporary accommodation.

Complaint handling

The resident originally submitted correspondence to the landlord’s repairs complaints department on 29 March 2021, having already told it on 17 March 2021 that he thought he had made a formal complaint. The landlord acknowledged the correspondence on 30 March 2021, advising it would consider how best to approach his concerns. Given the landlord had already investigated the matter via a councillor (otherwise known as a ‘member’) enquiry during January-February 2021 and the landlord’s complaints policy sets out that it will not log a complaint about a matter that has already been investigated through a member’s enquiry, this acknowledgement was appropriate.
Over the course of the next two weeks, the resident made further representations via this Service and by submitting an online complaint form. It was therefore clear that the resident wished to engage the complaints process and that he was dissatisfied with the outcome of the member’s enquiry that had been responded to in February 2021.
The landlord advised him on 15 April 2021 that it would log a complaint given the complexity of the matter – this was appropriate and demonstrated that the landlord was willing to use its discretion to review the matter through the complaints process despite having already considered it through member’s casework. However, it was unreasonable that it took the landlord more than two weeks to advise the resident of this approach. This delay meant that the resident was unaware as to whether the landlord was willing to investigate his complaint and caused him to chase it on several occasions by telephone and email.
Having said it would log the complaint on 15 April 2021, the landlord should have investigated and responded within 10 working days in accordance with its complaints process. Instead, it decided to immediately escalate the complaint to the final stage of its complaints process. While this was reasonable given it had already responded to a member’s enquiry and it determined that the complaint was complex, it should still have responded within 30 working days in accordance with its complaint procedure. However, it did not respond until 7 June 2021 – this was a week outside of the 30-working day timescale for a complaint review and therefore inappropriate.
In summary, the landlord delayed by more than two weeks in offering the resident clear advice as to how it intended to investigate his complaint and one week in providing him with its final complaint response.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the resident’s reports of damp in his property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of:
1. the resident’s re-housing request
2. the related complaint.

Reasons

The landlord contributed to delays between February 2020 and September 2021 in resolving damp at the resident’s property and its compensation award was insufficient given the circumstances of the case.
The landlord failed to review the resident’s re-housing request in accordance with the appeal route within its management transfer procedure and did not demonstrate how it investigated the option of temporary accommodation.
The landlord delayed in both acknowledging and offering a full response to the resident’s complaint.

Orders

The landlord to write to the resident to apologise for the service failures identified in this report.
The landlord to pay the resident compensation of £675, made up of:
1. £400 in recognition of the distress and inconvenience caused to him by the maladministration identified in its handling of his reports of damp in his property;
2. £200 in recognition of the inconvenience caused to him by the service failures identified in its handling of his request to be re-housed;
3. £75 in recognition of the time and trouble and inconvenience caused to him by the service failures identified in its handling of the related complaint.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

The landlord to ensure that its housing officers are aware of the management transfer appeal process and that residents are signposted accordingly when re-housing requests are refused in future.

The landlord should confirm compliance with this order to this Service within eight weeks of the date of this report.

Recommendations

If it has not already done so, the landlord to pay the resident the £350 compensation that it awarded in its final complaint response in June 2021.
The landlord to offer the resident a post-inspection of the works that it completed between April-September 2021 and assess whether any further damp-related works are necessary.
If it has not already done so, the landlord to complete the new Ombudsman Complaint Handling Code self-assessment.

The landlord should confirm its intentions in regard to these recommendations to this Service within four weeks of the date of this report.