Camden Council (202220378)

REPORT

COMPLAINT 202220378

Camden Council

25 October 2023

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 the resident’s:
1. Reports of damp and mould in her property.
2. Rehousing application.
The Ombudsman has also considered the landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42(j) of the Housing Ombudsman Scheme (the Scheme), the landlord’s handling of the resident’s rehousing application is outside of the Ombudsman’s jurisdiction.
The resident emailed the landlord on 15 November 2022, and said that the local authority had awarded ‘medical points’ for rehousing, but had later removed them. She said that she had filled out a questionnaire and provided medical evidence, but had not received a response.
Paragraph 42(j) of the Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint handling body.
Part 6 of the Housing Act (1996) governs the allocation of local authority housing stock in England. It sets out the circumstances where reasonable preference must be given to certain applicants, when making decisions about offers of property. The reasonable preference criteria include applicants living in unsuitable conditions and applicants who need to move on medical, or welfare grounds.
The Housing Ombudsman can only consider complaints about transfer applications that are outside of Part 6 of the Housing Act (1996). The Local Government and Social Care Ombudsman (LGSCO) can review complaints about applications for rehousing that fall under Part 6. This includes complaints concerning applications for rehousing that meet the reasonable preference criteria, and the assessment of such applications.
Since the resident’s rehousing application falls within Part 6 of the Housing Act (1996), it cannot be reviewed by the Housing Ombudsman. As a result, the complaint is better suited to the LGSCO. It is noted that the resident raised a complaint with the LGSCO, on 17 November 2022, about the landlord’s handling of her rehousing application.
This investigation has considered the resident’s complaints about damp and mould in her property, and the associated complaint. These parts of the resident’s complaint relate to the landlord’s provision and management of social housing, and are therefore within the Ombudsman’s jurisdiction to investigate.

Background

The resident is a secure tenant of the landlord in a 2 bedroom mid floor flat, in a block, and her tenancy began on 21 March 2019. The resident, and members of her household, have disabilities, and are considered vulnerable due to medical conditions.

Summary of events

The resident completed an online form on the landlord’s website, raising a concern about damp and mould in her property on 26 July 2021. It is unclear what action the landlord took on receipt of the form.
The resident emailed the landlord on 14 November 2021 to make a complaint, and said:
1. She had completed a repairs form for damp and mould in her home, but had not received a response;
2. The presence of damp and mould was “problematic” for her and members of her household, due to their health conditions, and mould could “trigger worsening” of their illnesses.
The landlord emailed the resident on 14 November 2021 and said that it had passed on her concerns to the appropriate team, who would get in touch. The landlord issued a stage 1 complaint response on 2 December 2021, and said:
1. It was “unable to uphold” her complaint;
2. It had arranged for a specialist damp contractor to complete a survey on 7 December 2021, and apologised for the delay in progressing with the damp survey;
3. It would update the resident on the next steps, once the survey was complete.
The damp specialist completed a survey of the resident’s property on 7 December 2021, and provided a report to the landlord, which said:
1. The windows were single glazed which could create an environment for condensation and mould. There was evidence of damp and mould around the windows, which had no ‘trickle vents’;
2. The report made the following recommendations:
  1. It should consider installing mechanical ventilation units in the property;
  2. Consider installing secondary glazing to the windows to prevent occurrences of condensation and mould;
  3. After doing the above it should clean and sterilise the affected areas with a mould cleaning solution, and redecorate with a ‘fungicidal emulsion paint’.
From the evidence available, there is no evidence to suggest that the landlord took any action upon receipt of the report in December 2021.
The resident’s GP wrote to the landlord on 17 August 2022, and said that he was concerned about the condition of the resident’s property due to the “severe mould issue”. The GP stated that the resident had asthma and took a medication that made her “vulnerable to chest infections” and that it was “not safe” for her to be living in a property with a mould problem.
The resident’s social worker (Ms B) emailed the landlord on 18 August 2022, and said:
1. She was concerned that the resident was being directed to complete an online form about damp and mould. The resident had completed the form “repeatedly” and received no response;
2. The resident was “immunosuppressed” and suffered from several medical conditions that made her “vulnerable to the impact of damp”. Which were: cancer, kidney and liver problems, and asthma.
3. The resident’s son was also vulnerable to damp and suffered from sickle cell disease, and was prescribed immunosuppressant medication;
4. She asked the landlord to address the concerns about damp and mould “urgently”.
The landlord responded to Ms B on the same day and said it would visit the property the following week to assess the situation, and offered to do a joint visit with Ms B. It does not appear that the landlord visited the resident’s property the following week.
The resident emailed the landlord on 15 November 2022 to express a concern about its handling of the damp and mould issue within her home, and said:
1. She had contacted the landlord several times over the last 3 years about the damp and mould, and it had taken no action;
2. The surveyor who had visited her house last year had said that it was “unsafe” for a healthy person to live in her property, “let alone” someone with her complex health conditions;
3. The surveyor had also told her that the lack of double glazing had “significantly contributed” to the damp and mould.
On receipt of the resident’s email the landlord opened a stage 2 complaint investigation, and visited the resident’s property 23 November 2022. The landlord reported internally that the resident’s property had a “minor mould problem”. It concluded that, due to the health conditions of the resident and household members, it “may be prudent” to rehouse her. The landlord was of the view that it would be unable to resolve the mould issue due to the single glazed windows, and mould around such windows was “quite normal”.
The landlord sent the resident its stage 2 complaint response (which it calls a ‘review stage complaint’) on 2 December 2022, and said:
1. Its recent visit found the property had “minor mould problems” due to the single glazed windows. It was felt that the issue could be “managed or lived with by residents”;
2. It had offered the resident a ‘mould clean’, but she had declined. The offer of a mould clean was still open to her;
3. It apologised that its stage 1 response had been sent late, but agreed with the decision made at the time.
The resident emailed the landlord on 2 December 2022 and said that its version of events, outlined in the complaint response, was inaccurate. She stated that she had not refused the mould clean, and had been told by the landlord’s operative that there was “no point”. This was because the single glazed windows meant the mould would return, and the operative advised she should be rehoused. The resident requested a further visit, with her social worker present. It is unclear whether a joint visit took place.
The resident contacted this Service on 2 December 2022 and said she was unhappy with the landlord’s final complaint response. She said she was dissatisfied with its handling of her reports of damp and mould, and wanted the Ombudsman to investigate.

Events after the complaints procedure

The resident contacted the landlord on 9 December 2022 and asked when it would complete the mould wash, and the works to install double glazing. An internal email for the landlord, on 9 December 2022, stated that it was not prepared to fit double glazing at the resident’s property, and sought to book a mould wash. It is unclear if a mould wash took place at this time.
An occupational therapist from the local authority visited the resident’s property on 9 December 2022. The notes from the visit stated, in relation to the “damp/disrepair”, it was recommended that it “be repaired directly as soon as practicable”. As such, a decision was made to remove the ‘medical points’ from the resident’s housing application, as she was otherwise adequately housed.
The landlord completed a further ‘mould inspection’ on 24 May 2023 and reported “moderate” mould in the resident’s kitchen that required a mould wash.
The landlord attended the resident’s property on 21 August 2023 and carried out a damp and mould treatment on the “affected wall”. The landlord told this Service on 15 September 2023 that there was an outstanding repair, as there was water ingress from the external fabric of the building. The landlord had commissioned an independent surveyor to identify the “root cause” of the issue. The surveyor had attempted to complete an inspection on 13 September 2023, but was unable to gain access. The landlord said that it had asked the surveyor to attempt the inspection again.

Assessment and findings

The landlord’s obligations, policies and procedures

Section 11 of the Landlord and Tenant Act 1985 obliges the landlord to keep in repair the structure and exterior of the property, and keep in repair and proper working order the installations for the supply of water and sanitation. The resident’s tenancy agreement states that the landlord is responsible for the drains, gutters and external pipes of the property.
The Homes (Fitness for Habitation) Act 2018 (‘The Homes Act 2018’) obliges the landlord to ensure that the property is fit for human habitation. In determining whether a property is unfit for habitation, regard should be given to whether the property is so far defective in matters including repair, stability, freedom from damp, ventilation, drainage and sanitary conveniences, and facilities for preparation and cooking of food and disposal of waste water, that it is not reasonably suitable for occupation in that condition.
Landlords are required to consider the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not specify any minimum standards, but it is concerned with avoiding, or minimising potential health hazards. Damp and mould are potential hazards that fall within the scope of HHSRS. Landlords should be aware of their obligations under HHSRS. Where potential hazards are identified, improvement works are typically the starting point and additional monitoring is expected.
The Ombudsman published the Spotlight report on Damp and Mould in October 2021 which stated that landlord should “adopt a zero tolerance approach to damp and mould”. The report said landlords should take “proactive interventions” in its approach to diagnosing damp and mould issues in its properties.
The landlord’s complaints procedure states that it operates a 2 stage complaints procedure. Stage 1 responses will be sent within 10 working days of receipt of the complaint, and stage 2 complaint responses will be sent within 25 working days.
The landlord’s remedies policy states that it can offer compensation for the following:
1. £25 per month for a failure to provide a service;
2. £100 to £300 for distress, up to £1,000 in “severe” cases;
3. £100 to £300 for time and trouble;
4. £20 per month for “delay”.

Damp and mould and the associated complaint

The resident’s complaint to the landlord indicates that she had been reporting issues with mould in her property for 3 years, and evidently found the conditions she was living in distressing. As part of her complaint, the resident reported that she had submitted online forms in relation to damp and mould, and did not receive a response. The evidence provided for this investigation shows that the resident first reported a concern about damp and mould in July 2021. The evidence suggests that the landlord did not contact the resident on receipt of the form in July 2021, which was a failing in its handling of the matter.
The landlord was on notice about the resident’s concerns around damp and mould when she first raised it in July 2021. That the landlord did not commission a damp expert to conduct a survey until 7 December 2021, amounts to an unreasonable delay. Given the landlord had been on notice for 5 months, it would have been reasonable for it to attend and inspect the property sooner. The lack of action from the landlord during this time is particularly concerning given the Ombudsman’s Spotlight on damp and mould was published in the intervening period. The landlord was on notice that the resident was suffering with damp and mould in her property, and was considered vulnerable to the effects of damp and mould. The landlord’s approach was inappropriate and did not demonstrate the “proactive interventions” called for in the Spotlight report.
The length of time it took the landlord to commission a specialist survey was inappropriate given the situation’s potential health implications, and the vulnerability of the resident. The lack of engagement around the damp issue was also contrary to the approach required under HHSRS. It is noted the resident felt the landlord failed to take the situation seriously, the timeline of events supports this conclusion.
The landlord’s stage 1 complaint response appropriately apologised for the delay in progressing with the damp survey, and said it would contact the resident after the survey to discuss the next steps. This Service has seen no evidence to indicate that the landlord did so, which was a further failing in its handling of the matter. The resident was evidently distressed about the condition of her property. She experienced a further detriment of the landlord not following up with her and explaining what action in intended to take, as it said it would do.
The damp survey made recommendations, which may have helped alleviate the issues with damp and mould in the resident’s property. The recommendations were to install mechanical ventilation and add glazing/replace the windows. The landlord may have decided that it did not want to complete such works. However, it would have been reasonable for it to have explained this to the resident, to manage her expectations. That it did not caused the resident a further inconvenience of not knowing the landlord’s position.
It is unclear why the landlord did not act on the recommendations of the damp survey. It is reasonable to conclude it commissioned a damp expert to advise it on what steps it could take to resolve the problem. While it is noted that there appears to have been a gap in the resident reporting concerns about damp and mould. It is unclear what actions the landlord took, if any, between the survey in 2021 and Ms B raising concerns, on behalf of the resident, in August 2022. This is further evidence that the landlord did not adopt a proactive approach in seeking to resolve the issue for the resident.
Following concerns raised by Ms B in August 2022, the landlord suggested it would do a joint visit with her in attendance. It also said it would visit the resident the following week to decide on the best next steps. The evidence available indicates that neither suggested visit happened at that time. Internal emails for the landlord, in November 2022, state that it “still need[ed] to visit that one” and that Ms B was “on the case again”. Not only was this is a further failing in the landlord’s handling of the matter (a further delay), but the tone of the email is concerning. The comments suggest that the landlord was not treating the concerns raised by the social worker with urgency. The landlord, again, did not do something it said it would do, and only responded when Ms B made further contact, 3 months later. The impact on the resident was further distress of feeling that the landlord was not treating her concerns about damp and mould seriously, or with urgency.
The landlord’s comments in its stage 2 complaint response, that the damp could be “managed or lived with” by residents, are also concerning. The damp specialist report, of December 2021, made no mention that the damp should be “lived with” and made recommendations to reduce the issue within the property. It is unclear how the landlord concluded that the damp could be lived with. Indeed, the landlord’s comments were not in keeping with the expectations outlined in the Ombudsman’s Spotlight report on damp and mould that landlord’s should have a “zero tolerance approach”.
The landlord’s comments that the damp could be “managed or lived with” were particularly concerning, given the vulnerability of the resident and her son. Under the Equality Act 2010, the landlord has a duty to minimise the disadvantages suffered connected to a person’s protected characteristics. The evidence available indicates that the landlord did not have due regard for whether the resident had a disability, as defined by the Equality Act. The landlord was told by both the resident’s social worker, and her GP, that her health conditions made her particularly vulnerable to the effects of damp and mould. That the landlord suggested the damp and mould could be “lived with” indicates it did not have due regard for its responsibilities under the Equality Act 2010. The landlord failed to consider the resident’s unique circumstances, her disability, and the potential impact of damp on her health.
It is noted that the landlord felt it would be “prudent” for the resident to be rehoused, due her health conditions. That it supported the resident with a rehousing application was appropriate in the circumstances. However, its comments that the condition could be lived with lacked empathy and understanding of the impact the situation was having on the resident. It is evident that the resident was concerned about the impact on her, and her family’s health, a suggestion that the situation could be lived with must have been worrying.
It is unclear if the landlord shared the findings of the damp survey with the resident, which recommended installing additional glazing. However, the resident asked it to install double glazing in December 2022. Internal emails for the landlord show that it was not prepared to do so, but it is unclear whether its position was formally communicated to the resident. The resident was evidently of the view that her property would benefit from double glazing, a view shared by the damp specialist who visited the property. That the landlord did not formally outline its position to the resident about the windows, was a further failing in its handling of the matter. This caused further inconvenience to the resident, as she was unclear on the landlord’s position, when she had specifically asked it a question.
It is noted that the landlord offered and completed a further mould treatment in August 2023, but found an issue of water ingress. It is evident that the matter was more complex to diagnose than initially thought, and the landlord’s prompt request for a further damp survey was appropriate. It is noted that the surveyor was unable to attend the appointment in early September 2023, which could reasonably be expected to impact on the landlord’s ability to address the matter.
The Ombudsman has considered the resident’s loss of amenity and the level of rent paid throughout the matter being outstanding. The Ombudsman acknowledges that the resident was paying £629.59 in rent, per month (not including service charges), at the time of raising issues about damp and mould. The resident had some benefit of living in her property during that time, and therefore was liable to pay rent. The kitchen was the main area affected by the damp and mould. It is also noted that the resident reported mould around the windows throughout. Taking this into account, the Ombudsman has ordered the landlord to pay compensation of 10% of the rent covering the period from July 2021 to September 2023, to reflect the loss of amenity. The total amount of rent payable over that period was £16,369.54, so the compensation ordered for loss of amenity is £1,636.93.
The landlord did not respond promptly to the resident’s initial concerns about damp and mould, and delayed in commissioning an expert to inspect. Following the inspection, the landlord did not act on recommendations, other than to offer a mould wash. This was a cursory approach, as the survey recommended a mould wash, only after other works had been completed. It is unclear why the landlord did not act on the recommendations, and that it did not properly communicate its position to the resident was a further failing. The landlord admitted a failing which it failed to offer redress for, which would have been in line with its compensation policy. The landlord failed to have due consideration for the vulnerability of the resident and members of her household. That the resident was particularly vulnerable to the effects of damp and mould, combined with the landlord’s cursory and dismissive approach, is particularly concerning. Therefore, this Service has determined that there was severe maladministration in the landlord’s handling of the resident’s reports of damp and mould.

The landlord’s handling of the resident’s complaint

The landlord’s stage 1 complaint response was sent 14 working days after the complaint was raised. This was not an excessive delay, but that the landlord did not acknowledge or apologise for the delay in its response was a failing in its complaint handling. It would have been reasonable for the landlord to have done so, and offered the resident some form of redress for the failing, in line with its remedies policy.
The landlord admitted a failing in its stage 1 complaint response, that there was a delay in progressing with the damp survey. It would therefore have been reasonable for the landlord to offer the resident some form of redress, to seek to put right its failing, in line with its remedies policy. That it did not was a failing in its handling of the matter, and overall complaint handling.
It is noted that the landlord did apologise for the delay at stage 1, in its stage 2 complaint response, which was appropriate. However, it did not offer any other redress for the delay, which would have been reasonable, and was a further failing in its complaint handling.
The landlord’s stage 2 complaint response lacked detail, and did not address the damp survey it had completed, in a meaningful way. As part of its stage 1 complaint investigation it had, appropriately, commissioned the survey. It would therefore have been reasonable for the landlord to assess its actions in the intervening period. The landlord’s approach to its stage 2 response was cursory and simply stated that it agreed with the findings at stage 1. This was inappropriate, as the matter was still outstanding, and the landlord had taken actions, that it would have been reasonable to address.
The landlord’s stage 2 complaint response failed to address any learning it had done about its handling of the matter, despite admitted failings. This was a further failing in its complaint handling. The overall tone of the landlord’s complaint responses lacked empathy, and did not show it had considered the individual circumstances of the resident, or the impact she had described. The landlord’s complaint responses admitted failings but did not offer redress, in line with its redress policy, which was unreasonable. As such, relevant orders have been made below.

Review of policies and practice

The Ombudsman has found maladministration (including severe maladministration) following investigations into complaints raised with the landlord involving: leaks, damp and mould, repairs and complaint handling. The relevant cases, and findings, are set out below:
1. 202207700: We found severe maladministration for the landlord’s response to the resident’s reports of leaks;
2. 202126123: We found severe maladministration for the landlord’s handling of the resident’s reports of leaks into their property from the flat above, and for its handling of the resident’s reports of damp and mould;
3. 202115731: We found maladministration in the landlord’s handling of damp and mould within the property, and its handling of outstanding repairs.
The Ombudsman has several complaints awaiting investigation, where similar issues have been identified. We have therefore decided to issue a wider order under paragraph 54(f) of the Scheme. This is for the landlord to review its policy or practice in relation to the service failures identified in this determination, which may give rise to further complaints about the matter. We have set out the scope of the review below.

Determination (decision)

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

Reasons

The landlord did not respond promptly to the resident’s initial concerns about damp and mould, and delayed in commissioning an expert to inspect. The landlord did not act on the recommendations of the surveyor, and did not explain its reasons why, to the resident. The landlord’s overall approach was not in line with the expectations set out in the Ombudsman’s Spotlight report on damp and mould, as it did not adopt a zero tolerance, or proactive approach. The landlord failed to communicate its position about the installation of double glazing, which would have been appropriate. The landlord failed to consider the vulnerability and individual circumstances of the resident. This was particularly concerning as the conditions at the property may have a greater impact on her household, than another without their medical conditions.
There was a delay in issuing the stage 1 complaint response, which the landlord did not acknowledge, or apologise for, at the time. The landlord’s stage 1 complaint response admitted there had been a delay in progressing with the damp survey, but failed to offer any redress to the resident. The landlord did acknowledge the delay at stage 1, in its stage 2 complaint response, but failed to offer any redress for the admitted failing. The landlord’s stage 2 complaint response lacked empathy for the individual circumstances of the resident, and comments it made about the damp and mould were inappropriate.

Orders

Within 4 weeks, the landlord is ordered to:
1. Apologise for the impact of the failings identified in this report;
2. Pay the resident £ 2,436.93 in compensation, made up of:
  1. £1,636.93 in recognition of the loss of amenity, caused by its handling of the resident’s reports of damp and mould;
  2. £500 in recognition of the distress, inconvenience, time and trouble caused by its handling of the resident’s reports of damp and mould;
  3. £300 in recognition of the distress and inconvenience caused by its handling of the resident’s complaint.
In accordance with paragraph 54(f) of the Housing Ombudsman Scheme, the landlord is ordered to carry out a review of its practice in relation to responding to requests for repairs due to leaks, damp and mould. The review must be carried out within 12 weeks, and be conducted by a team independent of the service area responsible for the failings identified by this investigation. The review should include as a minimum (but is not limited to):
1. An exploration of why the failings identified by this investigation occurred. Including its lack of consideration of the impact the situation had on the resident, and her vulnerabilities;
2. Identification of all other residents who may have been affected by leaks, damp and mould from July 2021 to present day. This should include those who have not necessarily engaged with its complaints procedure;
3. Review its staff’s training needs to ensure all relevant officers:
  1. Respond to requests for repairs appropriately, raise quotations for approval with major revenue, and progress works orders involving more than 1 contractor in an efficient and timely manner, and in accordance with its relevant policies and procedures;
  2. Respond to formal complaints appropriately, and keep complaints about outstanding issues open until their completion. Responses must provide completion timescales, and should not require new complaints to be opened for the same outstanding issue. It should ensure all relevant officers do so in an efficient and timely manner, and in accordance with its relevant policies and procedures, and the Ombudsman’s complaint handling code;
  3. Understand their responsibilities under the Equality Act 2010, with regard to meeting the needs of individual residents when providing a service to them;
4. Ensure its future compliance with the Ombudsman’s Spotlight report on damp and mould.
Following the review, the landlord should produce a report setting out:
1. The findings and learning from the review;
2. Recommendations on how it intends to prevent similar failings from occurring in the future;
3. The number of other residents who have experienced similar issues;
4. The steps it proposes to take to provide redress, at the earliest opportunity, to the residents who have been similarly affected by the identified failings. This should include consideration of compensation commensurate to the level of detriment a particular resident has experienced, if caused by a failing on the part of the landlord.
The landlord should embed the recommendations in the report within its wider transformation programme, to inform practice in other areas of service delivery, where relevant, with appropriate oversight.
The landlord should provide a copy of the final report to its Housing Scrutiny Committee and member responsible for complaints, if appointed, for scrutiny. The Housing Scrutiny Committee should agree how it will provide oversight of the implementation of any recommendations made following the review. The landlord should also provide a copy of the report to the Ombudsman.
The landlord should commit to revisiting the issues 6 months after the report has been finalised, to check whether changes in practice have been embedded.
The landlord shall contact the Ombudsman within 4 and 12 weeks respectively to confirm it has complied with the above orders.