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Citizen Housing (202101670)

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REPORT

COMPLAINT 202101670

Citizen Housing

28 February 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 was about the landlord’s:
    1. Response to the resident’s reports of damp at the property and request for repairs.
    2. Handling of her complaint.

Background

  1. Since 2009 the resident has lived in a three-bedroom semi-detached house which is owned and managed by the landlord. The resident installed a downstairs toilet and sink, the pipework for which runs through the cellar in the property. The resident’s complaint to the Ombudsman centres on her reports to the landlord of damp in the property, a ‘musty smell’ emanating from the cellar and unsatisfactory repairs to make good damage caused as a result of a bathroom leak.
  2. Scope of investigation: As the following summary of events will make clear, the resident first reported the damp issue to the landlord in January 2019 and action was taken by the landlord up to June 2019 to ascertain the cause and the work necessary to address the issue. The fact that the work was not undertaken at that stage appears down to matters having stalled when the landlord became aware the problem was potentially being caused by the toilet installation and sought to establish from the resident what permission from itself and building controls had been sought. Beyond first raising her complaint and receiving an initial response in March/April 2019 it was not until October 2020 – some eighteen months later – that the resident sought to further pursue the complaint with the landlord.
  3. While this report will reference those earlier 2019 events in order to place later events in context, the Ombudsman will make no finding in relation to the earlier events. This is because, under the Housing Ombudsman Scheme, the Ombudsman will not consider a complaint that was not brought to its attention normally more than 12 months after having exhausted the landlord’s complaints procedure. There is no evidence that the resident further pursued her 2019 complaint with the landlord at the time or that she sought to escalate it to this Service.
  4. In addition, the resident has raised with this Service her later concerns about other repairs undertaken by the landlord (i.e., to crack in bedroom wall; bedroom ceiling; external downpipe; broken roof tiles; pest control; radiator leak; and scheduling of gas servicing appointments). These do not form part of this investigation. The records indicate the resident raised these repair requests with the landlord during 2021 and so (with the exception of the bath panel) were after she had referred her current complaint to the Ombudsman. Before the Ombudsman can consider any complaint the resident might have with respect to these repairs, she would first need to give the landlord an opportunity to respond in accordance with its complaints procedure. There is no evidence that the resident has done so but if she chooses to do so, once that process has been exhausted it will be open to her to refer the complaints to this Service for consideration.

Summary of events

  1. In January 2019, following the resident’s report of damp and mould, the landlord commissioned a damp survey of the rear living room of the property. The surveyor’s report [dated 22 February 2019] found rising damp in the living room and plaster damage. However, it noted that the resident was less concerned about that than the ‘musty smell’ emanating from the cellar. It considered ventilation would help with this but as the cellar was below ground it would remain damp unless a damp membrane system was also installed.
  2. Earlier complaint response [913817]: On 27 March 2019 the resident submitted an online complaint about ‘outstanding repairs’; not having been given notice of a contractor’s attendance; and requesting a copy of the surveyor’s report explaining the property was still experiencing damp from the ‘disused cellar’. On 24 April the landlord replied, explaining its survey had identified work it would undertake to help address the damp. This included injecting an internal chemical damp course to address rising damp and ventilating the cellar. It told the resident its contractors would be in contact with her to schedule a survey with a view to undertaking the works. The complaints officer gave the resident his direct contact details in case she considers that his review had overlooked any relevant facts. The landlord then considered the complaint closed, with repairs outstanding to tackle the damp issue.
  3. The landlord has said that its surveyor visited the property again on 2 May 2019 to investigate the issue of cellar ventilation. The resident had removed the floorboards to access the cellar, and this revealed the resident’s alteration to install the downstairs toilet. The surveyor found unlagged hot and cold water pipes along with the soil pipe having been routed through the unvented cellar had caused the moisture. The landlord has said that at that point ventilation and damp works ceased while it sought to ascertain whether the toilet installation – which it was concerned had been incorrectly fitted – was causing the damp in the cellar. The surveyors attended again in June 2019 and provided costings for work to install a damp course membrane and new floor with drainage to the cellar. But meanwhile the landlord asked the resident for evidence that she had sought permission for the installation and the associated building control approval.
  4. The resident did not provide this evidence and there is then a break in time when matters were not progressed by either party. The landlord has said it was waiting on the customer at this point as, to tackle the damp, it needed to resolve its root cause – which was likely the unapproved toilet installation – before treating for the consequential damp. It has further explained that it needed to understand what permission had been granted, as that would help identify next steps, including the need for an independent inspection of the cellar and consideration of possible rechargeable repairs.
  5. Stage 1 complaint: On 10 November 2020 the resident emailed the landlord asking for a final response to her earlier April 2019 complaint which she considered still open, and to a further complaint she said she had submitted online on 14 October 2020 about its failure to complete repairs and redecoration after damp and mould damage. The landlord has said it never received this complaint. It appears the resident spoke with the landlord’s complaints officer and, on 30 November 2020, and resent her complaint.
  6. On 7 December 2020 the resident emailed the landlord again about repairs from 2019, damp and mould, and an ongoing bathroom leak causing damage to hallway décor which she considered posed a safety hazard. She complained of no response to her October and November 2020 emails and wanted compensation for stress, hardship, and the cost of redecoration. She asked for a final response so she could refer her complaint to the Ombudsman.
  7. Stage 1 complaint response [1265735]: The landlord treated this as a new complaint, and on 17 December 2020 provided a response. It said it had no record of outstanding repairs but would inspect the property to identify these. Regarding her reference to continuing bathroom leaks, it apologised that there had been leaks in the past 12 months to a boiler and kitchen sink (March 2020); hot water cylinder (September 2020) and burst pipe to bathroom sink (November 2020). It also noted its replacement of a damaged section of ceiling (July 2020). [The landlord’s repairs records note this was undertaken following a leak the previous month, and also notes the completion of papering/plastering following a report of bathroom damp, and regrouting of tiles around the bath in October and December 2020 to address leak and mould.]
  8. With regard to the earlier complaint [913817] of damp and a musty smell from the cellar it said its survey had identified this to be the result of rising damp and the toilet installation causing condensation. It said the installation was causing serious damp and decay which could make flooring joists unsafe, and she would be liable for the cost of replacing them. It asked that she allow an inspection to resolve the issue. It also indicated that although she could refer her complaint to the Ombudsman she would first be expected to have exhausted its complaints procedure, which she had not. It advised she let it know if she thought its response had overlooked any facts. 
  9. On 23 December 2020 the resident told the landlord it had failed to answer her complaint and queried if its response was a final response to her earlier [913817] complaint. She also asked for a copy of the surveyor’s report and questioned why the earlier complaint had been closed when it was a [Stage 1] investigation and the work it had undertaken to complete had not been done. The landlord stated that it had provided a final response, but it remained open to the resident to request a review if she explained what she felt was outstanding.
  10. Request for Stage 2 review [1265735]: On 31 December 2020 the resident requested escalation of her complaint to Stage 2 on the grounds that the previous complaint [913817] had been incorrectly closed as the landlord had failed to carry out the work it had undertaken to and had not responded to her emails.
  11. On 12 January 2021 the landlord acknowledged the resident’s complaint [1265735], was sorry to hear she remained dissatisfied, and said it would consider any new information she had provided and get back to her within 10 working days.
  12. Stage 2 request declined [1265735]: On 15 January 2021 the landlord declined to escalate the complaint to its Stage 2, explaining it did not consider it had exhausted its Stage 1 as work remained outstanding. It attached a copy of the surveyor’s report, stating that it had commissioned a further inspection of the cellar to identify the cause of the rising damp and ascertain if it related solely to the installation of the downstairs toilet and sink that she had installed. It asked if she had sought the retrospective permission for its installation, as it had previously advised she do. It undertook, following its further inspection, to complete any remedial work required to resolve the damp issue.
  13. On 4 February 2021 the landlord advised the resident that it would need until 5 March 2021 to respond to her complaint of 15 January 2021, and on 4 March 2021 advised her it would need a further extension to 5 April 2021. It said it needed the cellar survey to be completed before responding in order to understand how much damp might be attributed to the downstairs toilet.
  14. The landlord sought to arrange a further survey of the cellar for 3 March 2021, explaining the complaint about damp/mould would remain open until the work was completed. But the resident queried why a further survey was necessary in addition to previous surveys; that clearing the cellar to enable access was inconvenient and she wanted the work – not a further survey – undertaken to resolve the problem.
  15. On 15 March 2021 the landlord replied to say the surveyors had not previously accessed the cellar and may not have known it existed. [This was incorrect as the cellar had clearly been accessed.] The landlord reiterated a survey was necessary to ascertain if her installation of the downstairs toilet was causing the damp. It said it was concerned the floor joists might rot, impacting the safety of the floor. But it said it would work with the resident to resolve the issue as it did not want to take tenancy action against her and would work with her to get retrospective permission for the downstairs toilet.
  16. In April/May 2021 the resident contacted the Ombudsman to complain about the landlord’s delayed completion of repairs and that it had failed to progress her formal complaint to a Stage 2 review, thereby delaying her referral to this Service. Meanwhile the landlord continued to seek access for the survey.
  17. Decline to escalate complaint [1265735]: On 24 May 2021, the landlord told the resident that as it had been unable to agree with her a date for its surveyors to inspect the cellar it was concerned the downstairs toilet adaptation was causing the damp affecting the timber joists and floorboards. With reference to her request for a Stage 2 review of her complaint it said that without access for the survey it was unable to establish the cause of the damp and being unable to investigate this further meant it would have to put her complaint on hold. It said that owing to the potential for structural damage to be caused in the cellar from what it considered to be her adaptation of the toilet, it had passed its structural concern to its insurers.
  18. The landlord’s internal records indicate it was concerned, from the photographs taken by its surveyors of the cellar, that uninsulated pipework for the toilet was resulting in high humidity and moisture within the cellar, with a visible effect on the joists and cellar floor. It considered the damp within the property and the ‘musty smell’ was being contributed to by the potentially unauthorised downstairs toilet alteration. It was concerned that unless resolved there would be further decay and a possible collapse of the floor, and so remedial action and a claim to its insurers was appropriate.
  19. Following contact from the resident, this Service asked the landlord to provide her with a final complaint response. In response to this Service’s enquiries the landlord told the Ombudsman that it had been struggling to gain access to the property and was increasingly concerned that lack of access would risk further damage to the property and so it was potentially exploring enforcement action to gain access. It said it had since referred the matter to its insurers, put the complaint on hold owing to no access preventing investigation, and had notified the resident of this on 25 May 2021. On 27 May 2021 loss adjusters, instructed on behalf of the insurers to inspect the cause of the damage to the flooring above the cellar, contacted the resident to arrange access.
  20. Since this time the resident has been contacted by the landlord’s insurers concerning her causing potential damage to the cellar, which she disputes. She appears to have declined access which, in turn, has resulted in the landlord considering enforcement action to gain entry.
  21. Stage 2 complaint response: Meanwhile, on 17 June 2021 the landlord issued the resident with its final [1265735] complaint response (sent following this Service’s intervention). It explained that as the resident had failed to permit access for the inspection it was concerned about the longer-term implication of unresolved damp and remained keen to resolve the complaint by identifying and completing necessary repairs. It said that owing to the access issues it was unable to provide as much information as it would want in response to her complaint but was required to issue a final response within a specified timescale.  It said that her refusal to allow access to resolve the damp issue was a breach of tenancy and it would be considering legal action (enforcement measures) to gain entry.
  22. As the Ombudsman understands it, tenancy action to enforce access remains ongoing.

Assessment and findings

  1. As already explained, the complaint being considered here is the one brought to the landlord in October/November 2020 concerning the damp from the cellar and work to make good damage following leaks. The landlord’s repair records show the property had suffered a number of leaks which it had resolved and had undertaken work to make good the damage. The repair records seen by the Ombudsman do not indicate outstanding repair requests. While the records note the work undertaken to address damage, it is not possible to discern from the records whether that work fully addressed the resulting damage or whether the resident indicated her dissatisfaction with the work at the time. With its records indicating no outstanding repairs, the landlord’s undertaking on receipt of the resident’s complaint to inspect the property to ascertain what repairs or redecoration were still needed would appear to have been a reasonable response to the complaint about such at that stage.
  2. In so far as the damp in the cellar was concerned, the resident maintains the landlord ought to have undertaken work originally recommended by its surveyors in 2019. But the landlord had made clear that it suspected the toilet installation to be the root cause of the damp and that this needed investigating further before taking action. At that point the onus was on the resident, and reasonably so in the Ombudsman’s opinion, to provide the requested evidence of the permission/consent required under the terms of her tenancy for the alteration. She did not do so and matters evidently stalled at that point.
  3. By the time the resident again complained to the landlord in October/November 2020 – which is the complaint being considered here – it was not the existence of damp which remained disputed, but its root cause. The landlord continued to consider this likely the result of the toilet installation and owing to the lapse of time it was increasingly concerned this could now be having an adverse impact on the structure of the property. The resident has complained of delay by the landlord from this point on and considers the damp to be the result of the cellar having been blocked off prior to her tenancy and of the property’s original damp proof course not being fit for purpose.
  4. While the cause of damp is not for the Ombudsman to determine, it can consider the landlord’s response to the report of damp. It was appropriate that the landlord continued to seek evidence at that stage of any permission granted for the toilet installation and to seek access for an inspection to ascertain the root cause of the damp, as this would inform the steps necessary to address it. That being the case, the Ombudsman considers the landlord responded appropriately at that point. In the Ombudsman’s view, had the resident reason to consider there to be another cause of the damp, which she clearly did, an inspection would helped clarify the position for all parties once and for all and enable the problem to be resolved.  But the resident declined access for the inspection.
  5. As the Ombudsman sees it, the fact that progress stalled once again at this point was down to the resident declining access for the inspection and failing to respond to the landlord’s request for evidence of permission for the installation. The Ombudsman can understand the resident’s frustration at having to again allow access; it being of some clear inconvenience for her. Nevertheless, it was a condition of her tenancy that she permit access. Whatever the resident’s view of the cause of the damp, it was entirely reasonable for the landlord to rely on the professional opinion of its surveyors, which had determined the further inspection necessary to confirm the cause of the damp and the work required. In the Ombudsman’s view, it was the resident’s continued refusal to permit access for the inspection that resulted in the delayed resolution of the damp issue, not service failure on the part of the landlord.
  6. However, in bringing her complaint to the Ombudsman the resident has also made clear her unhappiness with the landlord’s response to her formal complaint. This is particularly regarding its closure of her 2019 complaint and its response and failure to escalate her 2020 complaint for a review. As already explained, the landlord’s 2019 response does not fall to be considered here, and the Ombudsman has seen no evidence that the resident pursued it further from the point at which the landlord requested from her evidence of permission for the toilet installation.
  7. With respect to the resident’s 2020 complaint, the Ombudsman has found evidence of muddled and confused handling by the landlord. The landlord operates a two stage complaints procedure. It undertakes to compete a Stage 1 investigation within 10 working days and, if the resident remains dissatisfied, they are entitled to request a review. The landlord undertakes to provide its Stage 2 review within a further 10 working days, and if it does not consider escalation appropriate it undertakes to advise the resident of its reasons before closing the complaint.
  8. Firstly, the landlord’s Stage 1 response to the resident was issued outside its 10-working day service standard. The Ombudsman has not seen evidence of a complaint being submitted in October 2020 and the landlord has said it did not receive one. But it did then take it four weeks to respond to the complaint it received from the resident in November 2020. While this delay was not so significant to constitute any material detriment to the resident, it was clearly not ideal.
  9. Secondly, the Ombudsman notes the landlord’s December 2020 Stage 1 response refers to it being both an investigation and review. This was understandably confusing for the resident, and indeed for this Service, when it subsequently sought to establish for her which stage had been reached.
  10. Thirdly, the landlord’s complaints procedure appropriately provides for escalation should a resident remain dissatisfied with a Stage 1 response. However, although the landlord confirmed at the time that its Stage 1 response was its final response, upon the resident’s request for escalation it declined to do so on the grounds that its Stage 1 had not been exhausted. This left the resident understandably confused as to whether she had received its final response and where to go to escalate her complaint. Evidently, the landlord considered a further inspection necessary to conclude its complaint response, but when this could not be undertaken this left the complaint response similarly suspended. This was not a satisfactory position in which to leave matters for the resident, regardless of the reasons.
  11. As the Ombudsman sees it, this confused complaint handling stemmed from the landlord having conflated its action to resolve the damp issue with its action to appropriately progress and conclude the resident’s formal complaint. The landlord’s complaints procedure states that when a repair is necessary to resolve a complaint, provided the repair is scheduled, the complaint will be closed, and the repair monitored to ensure completion. In this case, however, a repair was not going to be possible within any reasonable timeframe as the issue to be first resolved was one of causality which evidently would be a lengthy process. Consequently, the appropriate complaint response from the landlord at that stage would have been to review its action to date, explain its position to the resident (be this in the form of a Stage 2 review or explanation of why it had decided not to escalate her complaint) and outline for her the external escalation options.
  12. By effectively putting the complaint on hold, the landlord considerably exceeded its own service standard complaint response times, leaving the resident waiting over five months for its Stage 2 complaint response. This further resulted in uncertainty, frustration and inconvenience for the resident as she sought this Service’s intervention to progress her complaint. Such a delay and intervention could have been avoided had the landlord progressed the complaint in line with its complaints procedure and taken the action as outlined (paragraph 37).
  13. Finally, the Ombudsman notes that when the landlord eventually issued its final response, the author was the same as that which had conducted its earlier Stage 1 investigation. In order to assure a complainant that their complaint has been impartially reviewed, however, the landlord should make every effort to ensure its Stage 1 and 2 responses are kept distinct and its final response considered and issued by an officer not previously involved in the earlier complaint.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s reports of damp at the property and her request for repairs.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the resident’s complaint.

Reasons

  1. The delay in resolving the damp issue at the property was the result of the resident’s refusal to permit access for an inspection and to provide evidence of permission/approval for the toilet installation. With respect to other repairs at the property, the available evidence indicates the landlord responded to repair requests, and when the resident complained of outstanding repairs, it appropriately sought to inspect the property to ascertain the nature of the work required.
  2. In its complaint handling the landlord failed to respond in accordance with its published service standards; failed to make clear for the resident which stages of its complaints procedure had been reached; failed to finalise its Stage 1 response and signpost the resident to options for escalation; and in failing to have its Stage 1 and 2 responses handled by different officers failed to demonstrate for the resident due impartiality.

Orders

  1. Within four weeks of the date of this determination the landlord is ordered to:
    1. Pay the resident £300 compensation for its complaint handling failures.
    2. Provide this Service with written confirmation that it has shared with relevant staff the complaint handling findings in this case and a copy of the Ombudsman’s Complaint Handling Code to ensure they are familiar with the principles of effective complaint handling. In particular, the landlord should ensure its complaints staff are aware of the need to: make explicit the complaint stage being responded to; the need to finalise complaints within published service response times (and not leave complaints ‘on hold’); the need to signpost routes of escalation to Stage 2 and this Service; and the need to ensure its Stage 1 investigating officer and Stage 2 reviewing officer are not the same person.