Barking and Dagenham Council (202101016)

REPORT

COMPLAINT 202101016

Barking and Dagenham Council

31 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

1. The complaint is about the landlords handling of the resident’s reports of damp and mould in her property. 

Background and summary of events

2. The resident is a secure tenant of a two bedroom house. The resident has lived there since 2014. The household consists of one adult and three children including one child with special needs.
3. The resident says she has repeatedly raised the issue of damp and mould in her property for several years and the landlord has not taken action to resolve the matter to her satisfaction. The first record of a damp and mould inspection at the property is in December 2014.
4. Repair records confirm that the mould issue was raised consistently by the resident each year whereupon the landlord attended and carried out repainting and fungicidal mould treatments. These works were logged in Jan 2016, June 2017 and July 2018.
5. In 2019, the resident approached her local MP for assistance with her situation. The resident said that “My house constantly builds up damp and mould, I have had to call out the repairs team about this problem every year, mostly twice a year and in between I am having to clean the mould myself the best that I can which is difficult as its also in high hard to reach places, every day for five going onto six years now.” The resident explained that the mould was making her children ill often and was growing on many different things within her property including ‘clothes, toys, food in cupboards, utensils, mattresses, clothes, curtains’ and many other items. The landlord and resident said the affected rooms were the hall, kitchen, living room, bathroom, as well as front and back bedrooms.
6. Following an MP enquiry on 14 November 2019, the landlord carried out an inspection and survey of the property on 16 December 2019. The landlord said that the survey indicated there were no defects or leaks at the property (although the resident said that there had been some leaks reported) and so it was probable the mould was caused by condensation. The landlord said the most likely cause of the damp and mould was a lack of thermal insulation at the property and insufficient ventilation. A schedule of works was prepared but due to an error acknowledged by the landlord in its stage one complaint response, these works were not carried out until after Covid restrictions were eased in August 2020.
7. In August 2020, the landlord carried out remedial works including boarding of walls to improve thermal insulation. An extractor fan was fitted in the bathroom and an air brick was installed in one of the affected rooms. A second air brick in of the other bedrooms was however, not installed as recommended in the survey since the landlord said the location was too close to the resident’s bunk bed in one of the bedrooms.
8. On 14 April 2021, the resident contacted this service regarding the outstanding damp and mould problems at her property. This service contacted the landlord and asked it to provide a stage one complaint response to the resident within ten working days.
9. The landlord responded to the resident at stage one on 4 May 2021. In the response, the landlord went over the history of repair works at the address and acknowledged there had been ‘an oversight within the planning team’ that had resulted in some of the works specified being ‘archived’ in error. Consequently, the landlord said there had been a delay from January 2020 until March 2020 when Coronavirus restrictions on routine repairs were in force.
10. The resident requested an escalation of her complaint on 7 May 2021 and said that the landlord had not considered the impact of the situation on her household or provided any resolution. The resident requested that she be moved and provided with compensation for the disruption caused by the works as well as damage to her possessions caused by the mould. On 12 May 2021, the resident contacted the landlord again and said the mould had got considerably worse following the boarding and mould treatment. Not only had the mould re-appeared but it was now also in places it was not present previously.
11. On 21 June 2021, the landlord responded at stage two. As part of the stage two process, the landlord had arranged an inspection of the resident’s windows on 27 May. In its response, the landlord noted that the window trickle vents were functioning correctly but the windows and vents were closed when they visited. The landlord said it was sending away samples of the mould to identify the cause and confirm whether the mould was caused by condensation.
12. The landlord concluded that the actions it had taken were ‘consistent with the goal of preventing heat loss and increasing ventilation’. It said that it had offered the resident suitable advice regarding how to minimise the affect of condensation in her home, which included heating her home adequately when it was cold and ventilating the property regularly. The landlord acknowledged that the stage one complaint response had not been provided within their target timescale of ten working days and offered the resident £100 compensation for this.
13. However, the landlord said that damage to personal property from mould was an insurance matter and not something for which they would normally provide compensation. The landlord said it had registered the resident for rehousing and given her appropriate priority which it would review on receipt of further information. The landlord did not consider the condition of the resident’s home required her to be placed in alternative housing on an urgent basis but said this could be reconsidered as part of another inspection on the condition of the property.
14. On 29 June 2021, the resident contacted this service disputing the findings of the landlord at stage two. The resident said that she does routinely keep the windows open at the property and is not able to afford to heat the property constantly. The resident highlighted the impact of the works and disruption caused which required them to ‘move all our belongings and sleep downstairs in the living room’. The resident has also asked why the second air brick was not installed as she says the bunk beds could have been moved.

Assessment and findings

15. 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; this includes an obligation to stop any rising or penetrating damp. ‘Anti-mould growth treatment’ is clearly cited as the landlord’s repair responsibility on its website.
16. 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 the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
17. Government guidance on the HHSRS says that “the landlord is responsible for provision, state and proper working order of installations within and associated with the dwelling for ventilation including air bricks, trickle vents”
18. The Housing Ombudsman produced a spotlight report on damp and mould in October 2021 which recommends landlords adopt a zero tolerance approach to damp and mould. When assessing the landlord’s response to the resident reports of damp and mould in this case, the key elements are whether the landlord was proactive in identifying the cause of the damp and mould, the actions taken by the landlord to treat, remove and combat the mould as well as adherence to the landlord’s relevant policies and expected customer service standards.
19. Although there have been reports of damp and mould prior to 2019 by the resident, this report will focus on the landlord’s response after the survey in December 2019. Repairs records do show that the property was inspected in 2015 and 2017 but due to the passage of time since then, it is not possible to reliably assess what the outcomes of those inspections were with respect to identifying causes of damp and mould. 
20. The steps taken by the landlord to identify the causes of the damp and mould were reasonable. In response to the reports of damp and mould from the resident and the enquiry from a local MP, the landlord carried out an inspection of the property and prepared a schedule of works intended to improve thermal insulation at the property and improve ventilation. Given the evidence available, it was reasonable for the landlord to focus on condensation as the cause of damp and mould.
21. It is not within the remit of the Housing Ombudsman to assess the priority given for rehousing by the landlord, but the landlord made an informed decision not to provide alternative accommodation on a more urgent basis given that the property had been inspected by a qualified surveyor and no severe hazards were found. This was reasonable and there is no evidence to suggest an urgent move was required.     
22. In terms of the actions taken, the landlord has provided generic advice to the resident regarding condensation and keeping her property suitably heated and ventilated. The resident has said that she does regularly keep the windows open but is understandably concerned about the costs of keeping her property adequately heated.
23. In addition to advice given, the landlord undertook a series of fungicidal mould treatments and repainting in the years prior to 2019, and then following the surveyors report established a need to improve ventilation with an extractor fan and two air bricks. It also boarded walls to improve thermal insulation, although the resident has said that following this the mould became worse.
24. Although the landlord did carry out most of the above works, it is noted that the second air brick was not installed in one of the bedrooms due to the location of the bunk beds. The resident has said she had to relocate belongings and furniture because of the works and there appears to have been little or no consultation with the resident regarding the installation of the second air brick. The landlord should have communicated better with the resident regarding its decision not to install this second vent. As a result of the landlord taking a unilateral decision not to install the second air brick, an opportunity was missed to further improve ventilation at the property. The landlord has therefore failed to complete all the recommended works contained in the original survey. 
25. The landlord’s complaints process has generally been helpful in contributing to the process of identifying causes and combating the damp and mould. The inspection of the windows in May 2021 was an important step and the complaints team generally helped to follow up on the surveyor’s original recommendations when things had gone wrong, as for example the delays in work from January to March 2020 identified in the stage one response.
26. However, it is of some concern that the landlord has referred to ‘lifestyle issues’ in its internal communications. Similarly, the tone and implication of the stage two response is that the resident does not keep the trickle vents open on her windows or keep her windows open to ensure the property is ventilated.
27. For example, the stage two response states that “In March 2021 you told us the mould had returned. It was now more aggressive and had started to appear in locations that had not previously been affected. Officers visited on 8 March 2021 to assess matters. Their notes state the property was very warm at the time, but no windows were open.”
28. The spotlight report referred to above says that “it is crucial that landlords avoid paternalistic attitudes, automatically apportioning blame or using language inferring blame on the resident. We have seen examples of this with landlords initially assuming that the cause is condensation due to the resident’s ‘lifestyle’. The term ‘lifestyle’ suggests that it is a resident’s choice to live in that way.” A recommendation about this issue has therefore been made below.
29. There is no evidence that the landlord has offered practical support in terms of assisting the resident with fuel costs, although schemes offering this type of support are mentioned in the landlord’s housing strategy document. The landlord itself has said that swab tests could also have been done to help identify damp and mould causes earlier.
30. Additionally, although the landlord identified some service failure as part of the complaints process such as delay in carrying out works from January to March 2020 it has not provided suitable redress for this or provided any compensation for the disruption caused by the work, other than the £100 offer for a late stage one response.
31. Government restrictions on routine repairs due to Coronavirus also eased in July rather than August 2020 so the actual delay in reacting to the mould needs to be reconsidered. The resident reported the mould in November 2019 and works to carry out the recommendations in the survey were not carried out until August 2020. The resident had to therefore wait ten months for incomplete works to be carried out, although four of these months were unavoidable delay due to Coronavirus. This is significantly longer than the landlord’s repair target timescales.
32. Overall, although the landlord responded in a constructive manner to the residents reports of damp and mould, there were some service failures including delay in carrying out works especially from January to March 2020, failure to install the second air brick or communicate about it to the resident, as well as a failure to provide adequate redress to the resident.
33. Most importantly, the resident has also said the damp and mould problem has not been fully resolved at her property. At the time of completion of the landlord’s complaints process, the landlord accepted that “the work carried out so far has not provided you (the resident) with a long-term solution, but this does not mean the approach was flawed.”
34. The resident has described her claim for compensation as “stress and inconvenience please include damages and loss of property, furniture, goods, clothing and food, time lost. And also the extra expenses on additional gas I’ve had to top up with the extreme cold and dampness of the property.” The resident has said that her ‘anxiety has risen significantly’ following the years spent communicating with the landlord about damp and mould problems and that she is undergoing counselling for stress and depression.
35. It is known that 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. The resident has said that her children have been frequently ill. It is also noted that the change of sleeping arrangements caused by works would have been particularly impactful on the child within the household with autism.
36. Given the impact on the resident of the landlords above highlighted failures, a compensation offer of £500 would provide reasonable redress. This is £100 as offered by the landlord previously for a late stage one complaint response, a payment of £50 for each of the six months of avoidable delay in carrying out remedial works, as well as a payment of £100 for the overall failure to resolve the damp and mould issue.

Determination (decision)

37. In accordance with paragraph 54 of the Housing Ombudsman scheme, there was maladministration in the landlords handling of the resident’s reports of damp and mould problems.

Reasons

38. Although the landlord took some constructive steps to identify the causes of damp and mould and combat it, it failed to resolve the issue fully and there is evidence of avoidable delay in carrying out remedial works as well as failures in communication with the resident.

Orders

39. It is ordered that the landlord offer the resident £500 minus any compensation already paid and notify this service of payment to the resident within four weeks.
40. It is ordered that the landlord carry out a further specialist damp inspection and send an action plan to the resident and this service within 4 weeks of the survey.  

Recommendation

41. It is recommended that the landlord reviews the Housing Ombudsman’s damp and mould spotlight report of October 2021 and provides any necessary training to staff on dealing with damp and mould cases.