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Birmingham City Council (202006450)

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REPORT

COMPLAINT 202006450

Birmingham City Council

8 February 2021


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 landlord’s:
  • Response to the resident’s reports of mould in the property;
  • Complaint handling.

Background and summary of events

  1. The resident is a secure tenant, and the property is a relatively new build house. The Housing Ombudsman Service has asked the landlord to confirm the age of the property, but this information has not been provided.
  2. The tenancy agreement states the landlord has “no responsibility to install, extend or improve existing ventilation… unless [it] is required to do so … to satisfy any statutory provisions.” The agreement also states the landlord is not responsible for “condensation, or the effects of condensation.”
  3. The tenancy agreement requires the resident to “take reasonable steps to avoid moisture building up (condensation) within the property and causing damage.”
  4. The Housing Health and Safety Rating System Guidance for Landlords and Property Related Professionals outlines a number of preventative measures that can have a significant effect on “likelihood and harm outcomes relating to moisture production and ventilation”. These measures include, but are not limited to:
    1. Adequate extraction of moisture laden air during peak times, like cooking, bathing and laundry;
    2. Continuous low-level background ventilation where necessary; and
    3. Sufficient means of ventilation to cope with moisture from normal domestic activities without the need to open windows that could lead to heat loss, noise and security risks.
  5. The guidance states landlords are responsible for “the inside facilities which are part of the dwelling”, which includes ventilation. In this respect “ventilation covers elements such as airbricks, trickle vents, opening lights to windows and mechanical and non-mechanical ventilation equipment.”
  6. The landlord has a repairs policy which states the target for routine repairs to be completed is within 30 days of them being reported.
  7. The repairs policy also outlines a procedure prior to ordering ventilation fans for a property. A site visit should be completed by the repairs partner during which it should establish the current means of ventilation. If additional ventilation is required it should identify the most appropriate type, identify the appropriate location, check for flued gas appliances, and advise the tenant of the correct operation and running costs of the ventilation.
  8. The landlord’s complaint policy states all complaints will be fully investigated by the department that provided the service and a response will be issued within 15 working day. If the resident remains dissatisfied, they can escalate the complaint to stage two for a review. The complaint will then be considered by an independent person and the landlord will respond in 20 working days.

Summary of events

  1. On 24 June 2019, the resident contacted the landlord to report mould growth to her porch, wall, and front elevation. It is reasonable to conclude that the landlord responded to this report as an appointment was booked for 16 September 2019, however, the landlord has provided no evidence to what, if any actions it took in response to the initial report or between 24 June 2019 and 16 September 2019. The Ombudsman notes that 16 September 2019 is significantly outside of the 30-day response time for routine repairs.
  2. At some point following the initial report, and presumably before the 16 September 2019, the resident called and cancelled the appointment of 16 September 2019. Again, the landlord has provided no evidence of this call.
  3. During the complaint investigation the investigator sent notes from its system to the contractor. The notes says “…DAMPINSPEC AT THE TIME OF OUR INSPECTION – 2 x fans, kitchen and bathroom RECOMMENDATIONS Fit two fans Paint mould to kitchen and bathroom (… 26/Nov/2019)”. Following the damp inspection, the landlord’s contractor attended the property on 9 December 2019 and completed mould treatment “in front entrance, on walls, ceilings and cupboard doors.”
  4. On 27 December 2019, the resident “requested a recal not happy”. The landlord has provided no evidence regarding the content of this call or why the resident was unhappy. However, on 2 January 2020 the landlord’s contractor attended the property again and completed mould treatment to the living room. The resident also contacted the landlord about installation of extractor fans, as recommended by the contractor.
  5. On 2 January 2020, the resident contacted the landlord and submitted a complaint. The resident stated, “I have been waiting at home numerous days… and the extractor fans have still not been fitted and the repair for the damp has not yet been completed.” The complaint was acknowledged by the landlord on the same day.
  6. On 10 and 13 January 2020, the landlord requested an update from its contractor. Both requests asked the contractor for the same information, namely “why has this job not been completed… what is going on with the fan extract?” The contractor responded on 22 January 2020 advising “we have treated the mould to the property, so our job is completed following a damp survey which we carried out. The council will need to raise a job for a new fan to be fitted as ADHOC work as it’s an improvement to the property…”
  7. The landlord sent its stage one response to the resident on 27 January 2020. In its letter it stated the repair had been carried out and a damp survey had been completed following the repair. It also stated there was no repair on the system for a fan to be fitted, so the resident needed to raise a repair for it. It does not appear that the complaint was investigated by a member of staff within the repairs department, as required by the landlord’s complaints process.
  8. The resident requested a review on 24 February 2020, which was acknowledged by the landlord on 26 February 2020. In its acknowledgement the landlord confirmed the complaint would be reviewed by a senior manager or designated officer.
  9. On 26 February 2020, the landlord requested another update from its contractor. In this update request the landlord noted that it had found a note on its system stating “DAMPINSPEC at the time of our inspection – 2 x fans, kitchen and bathroom. RECOMMENDATIONS Fit two fans, paint mould to kitchen and bathroom… DAMPINSPEC Complete mould treatment work in front entrance on walls and ceiling and cupboard doors…” The landlord asked the contractor “tenant was told by the operative he would raise a new job for fans to be fitted. When will this work be completed?”
  10. The contractor responded the same day advising “the contractor always advises this as [the landlord’s] properties are not equipped to ventilate properly. We can only install fans on an ADHOC job to be raised to [the landlord]. [The contractor] are only responsible for repairs not installations.”
  11. On 23 March 2020, the member of staff investigating the complaint sought additional guidance regarding the installation of the fan from other staff members. The response stated “…this tenant also has multiple ponds in his rear garden. This may be part of the problem? Excess water from the ponds breaching the house? Just an assumption. Housing Officers alerted me to this a few weeks ago. Without assessing it its difficult to tell…

“If a fan is needed [the contractor] need to fit it as PPP. We won’t pay adhoc for a fan unless its exceptional circumstances. I would assume its more to do with the lack of heating, ventilation, and poor air circulation rather than a fan being needed. These are fairly new properties and as such don’t really suffer from damp, unless the DPC has been breached or there is a leak somewhere. The issue in my opinion is probably mould spores and condensation build up.”

  1. On 24 March 2020, the landlord issued its second stage response to the resident. The review was completed by the same member of staff who completed the initial investigation. In its response the landlord copied and pasted the text from paragraph 20 above and stated it trusted “this clarifies the matter”. It then directed the resident to contact the Local Government and Social Care Ombudsman if she remained dissatisfied.
  2. On 24 September 2020, the resident contacted the landlord to speak to the member of staff who had investigated her complaint. The landlord has not provided any evidence to suggest it responded to this request for contact.
  3. The resident submitted her stage two response letter to the Housing Ombudsman Service on 29 September 2020. She subsequently rang the Housing Ombudsman Service on 14 December 2020. During the call she advised her front porch was getting damp and mould, that this was spreading to the bathroom and living room and that she has no ponds in her garden. The resident stated she wanted fans fitting and was not interested in compensation. No further evidence has been received on this issue since this date, it is therefore reasonable to conclude that the issues remain as they were, with the landlord having not followed through on the recommendation to install the extractor fans at the property.

Assessment and findings

Response to reports of damp and mould

  1. The resident first reported issues with damp and mould at her property on 24 June 2019. It is of concern that there is no evidence available to confirm how the landlord responded at this point. The target for routine repairs is 30 days from the date of report, which in this case would have been no later than 25 July 2019. However, the evidence provided suggests no work was due to take place until 16 September 2019, significantly outside of the 30-day target. As the resident cancelled the appointment of 16 September 2019, no remedial work took place until 9 December 2019.
  2. The Ombudsman notes that following the inspection on 26 November 2019, the contractor recommended the provision of two extractor fans, as well as mould treatment. Having arranged the inspection of the property (albeit belatedly), it would have been appropriate for the landlord to have acted upon the findings of this inspection. However, whilst there is evidence that the mould treatment was subsequently completed, the installation of the extractor fans did not take place.
  3. The landlord’s final response confirmed that the fans would only be fitted in ‘exceptional circumstances’ and ‘assumed’ that the reported issues related to a lack of heating, ventilation or poor air circulation’. It is of concern that the landlord has relied on these assumptions in its final response, rather than the opinion of the contractor it appointed to complete the inspection, who had identified that the landlord’s properties were not adequately ventilated when recommending that the fans be installed. It is possible that lifestyle issues (use of heating, ventilating the property etc) might have contributed to the mould issues reported by the resident, however, there is no evidence of this and as such, the landlord’s final decision cannot be relied upon. In the circumstances, it would have been appropriate for the landlord to either complete the recommended works (installing the fans) or to evidence the reasons for it not doing so.
  4. Given that the resident has reported additional mould issues since the completion of the complaints process, it is recommended that the landlord either carry out the fan installation works, or else instruct a further survey of the property so as to identify the cause of the mould issues, with any identified works to then be completed within an appropriate timescale.

Complaint Handling

  1. The complaint policy is clear that complaints will be fully investigated by the team providing the service. The evidence suggests the complaint was not investigated by the repairs team. Furthermore, the review of the complaint presented additional evidence that was relevant to the complaint and was likely available to the investigator during the first investigation. This suggests the complaint was not fully investigated during the initial stage.
  2. The policy states reviews will be completed by an independent person and the acknowledgement letter to the resident stated it would be completed by a senior manager or designated officer. However, the evidence shows the review was completed by the same member of staff who completed the initial investigation. The purpose of a multi stage complaint process is to ensure that a review can take place, at a senior level and independently from staff members previously involved in the case. In this case, a failure to complete such a process raises concerns about the thoroughness of the landlord’s investigation and the transparency of its decision.
  3. In addition, during the review, it appears the landlord has confused the resident with someone else. The landlord referred to being aware of the tenant as there are multiple ponds in “his” rear garden. The resident has clarified to the Housing Ombudsman Service that she does not have ponds in her garden, and the evidence suggests the resident is female. If this is the case, it raises further questions about the thoroughness of the landlord’s investigation of the case and the final decision it has made.
  4. Neither the stage one or stage two response clearly outline the resident’s complaint, the complaint stage, the outcome of the complaint or the reasons for any decision made. This is not in line with the Complaint Handling Code. Finally, the second stage response letter advised the resident to contact the incorrect Ombudsman if she remained dissatisfied.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there is service failure in respect of the landlord’s response to the resident’s reports of damp and mould at the property.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there is service failure in respect of the landlord’s handling of the complaint.

Reasons

  1. The landlord did not respond to the resident’s reports of damp and mould within the target timeframe outlined in its policy. Whilst the Ombudsman accepts that this is a target rather than a requirement, the evidence suggests the initial appointment was significantly outside the 30-day target. Furthermore, the landlord did not act on the recommendations of its contractor regarding the resolution, opting only to apply a mould treatment to the affected areas. Without establishing the cause of the damp and mould, and subsequently putting in place the appropriate resolution the problem is likely to reoccur.
  2. The landlord did not follow its own complaints policy as it failed to fully investigate the complaint during stage one, putting additional, relevant evidence to the contractor during the review stage, which would appear to have been available to it during stage one. Furthermore, the complaint does not appear to have been investigated by someone within the service area and was not reviewed by an independent person.

Orders and recommendations

  1. The landlord to pay the resident £100 in compensation for the service failure relating to its handling of reports of damp and mould, and £50 in compensation for the service failure relating to its handling of the complaint.
  2. The landlord to either complete the fan installation works, or complete a further inspection of the property, with any identified works to be actioned by 8 April 2021.