Clarion Housing Association Limited (202001660)

 

 

 

 

REPORT

COMPLAINT 202001660

Clarion Housing Association Limited

29 January 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 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 about the rear door, cracked walls and damp.
• Response to concerns raised about its handling of the decant.
• Complaint handling. 

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the 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.
3. After carefully considering all the evidence, in accordance with paragraph 23(a) of the Scheme, the following aspect of the complaint is outside the Ombudsman’s jurisdiction: the landlord’s response to concerns raised about its handling of the decant. Paragraph 39(a) of the Scheme says:

The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion:

(a)  are made prior to having exhausted a member’s complaints procedure.

4. When the resident approached the Ombudsman, she said she wanted the Ombudsman to consider this issue. However, as it has not been considered by the landlord as part of a formal complaint, the landlord has not yet had the opportunity to respond and the matter is outside the Ombudsman’s jurisdiction under paragraph 39(a) of the Scheme. The Ombudsman can consider the resident’s complaints about the landlord’s response to her reports of problems in the property and complaint handling.

Background and summary of events

Background

5. The resident has an assured non-shorthold tenancy agreement. The property which is the subject of this complaint is a three-bedroom house; the resident has now been permanently decanted from this property.
6. The tenancy agreement says that the resident agrees to report to the landlord promptly any repair or defect for which it is responsible in the property and that they agree to allow the landlord’s employees, agents or contractors access to the property at reasonable times to, among other things, carry out inspections and repairs. It adds that, if residents refuse access, it may charge them for the cost of securing a court order to require access.
7. The landlord’s responsive repairs policy says that responsive repairs fall under two categories: emergency and non-emergency. An emergency repair is one that presents an immediate danger to the resident or the public, or would jeopardise the health, safety or security of the resident. It should be attended and repairs completed within 24 hours. An appointment for a non–emergency repair will be given within 28 days.
8. The Housing Health and Safety Rating System (the HHSRS) is concerned with avoiding or, at the very least, minimizing potential hazards. Under this rating system the landlord has a responsibility to keep a property free from category one hazards, including fire and damp and mould growth. In terms of fire, the HHSRS says that preventative measures that could have an effect on likelihood and harm outcomes include properly constructed/fitted internal doors; and means of escape from all parts of dwelling/building e.g., openable door/window etc. depending on height of building.
9. Regarding damp and mould growth, the HHSRS says that preventative measures that could have a significant effect on likelihood and harm outcomes relating to moisture production and ventilation include damp proof courses; external fabric of the building kept in good repair to avoid rain penetration; and a properly ventilated roof and under floor spaces to ensure timber remains air dry. The failure to treat this can lead to health problems including breathing difficulties caused by mould; depression and anxiety caused by the living conditions and asthma.
10. The landlord’s decant policy says that decant will be required when a property is unsafe, uninhabitable, or the scope of any repair works makes it impractical for the resident to remain in their home.
11. At the time of the complaint, the landlord had a two-stage formal complaints procedure. No timescales were specified in the policy for responding at either stage.
12. The landlord’s compensation policy says the landlord will pay discretionary compensation to maintain good relations between it and a resident where any inconvenience has been caused by its actions or failure to act. Examples include the time taken to resolve the complaint; any inconvenience suffered or a degree of disruption to the household; and repeat visits to resolve an outstanding problem. The policy also says that the landlord will not pay compensation for a resident’s loss of earnings when taking time off work to allow access to the property for repairs to be carried out because that is an obligation in the tenancy agreement or lease.

Summary of events

13. On 21 August 2018 the resident reported that the rear door would not open, that its frame was cracked and tiles around the door frame were also cracked. The resident also reported that the kitchen and a bedroom door were also hard to open. The repairs log evidenced that the repairs team completed work to rectify this on 3 September 2019. The landlord noted that it was notified of possible subsidence the following day. 
14. On 6 September 2018 the resident reported that the back door would not close as it was swollen and was sticking on the ground. She said the door could not be forced shut. The repairs log noted that this was an emergency repair but did not provide details of when it was carried out. Given that there was no further report for several days, it is presumed that this repair was carried out timeously.
15. The landlord noted that it inspected the property the following day. The landlord did not provide details of that inspection.
16. On 10 September 2018 the landlord asked the repairs team to ease and adjust the bedroom door and the under-stairs cupboard door and to check for signs of damp or condensation also. The repairs log evidenced that this work was completed on 25 September 2018.
17. The landlord noted that on 13 September 2018 it had informed the insurance team of a possible subsidence claim for the property.
18. On 28 September 2018 the insurance company inspected the property.
19. The landlord noted that on 1 October 2018 it had asked its repairs team to get an estimate to replace the rear door with a door blank[1] to allow for safe use and to check the windows for opening as the resident had reported they were hard to open.
20. On 5 October 2018 the insurance company wrote to the landlord with details of their site visit to the property on 28 September 2018. It confirmed subsidence and gave an action plan for the work which they anticipated would start in March 2019 and be completed by May 2019. This included:

• Remove the large tree in the rear garden as that was the cause of the subsidence to the rear elevation of the property.
• Replace door and kitchen window once the tree had been removed and the ground had settled. 
• Various repairs to cracks in internal and external doors and walls.
• Ease adjust kitchen cupboard doors and the bedroom door.

21. The insurance company said they did not anticipate that the resident would have to move while the repairs were carried out. They explained that current “downward movement” had caused the door and window to “bulge slightly” which was making the window, and especially the rear door, very difficult to open/close and lock. The insurance company said that the resident had confirmed that the door had been eased and adjusted on a few occasions by the landlord’s repairs team and this was now “a major concern due to security and means of escape and/or access”.
22. The tree was removed on 15 October 2018. On 18 October 2018 the resident agreed for a local construction company to look at the back door of the property in relation to providing a quote to replace it with a wooden door (paragraph 18). However, on 29 October 2018 they told the landlord that the resident had said she was not prepared to provide access as she was aware this was only a temporary fix unless she “was compensated for time off of work”. 
23. Later that day the landlord asked this construction company if its staff could work outside of normal hours or at the weekend to accommodate the resident. The company noted in a further email to the landlord that it had offered such an appointment to the resident but she would not accept it without speaking to the landlord.
24. The landlord noted that on 20 December 2018 it had asked its repairs team to to ease and adjust the front doors and some upstairs windows at the property. This job was not entered on the repair log and it was therefore unclear when this work was completed.
25. The landlord noted that on 21 December 2018 it had asked a damp survey company to inspect the property.
26. On 8 January 2019 the resident reported that the front and back doors were sticking. The repairs log evidenced that the repairs team eased and adjusted both doors as well as the bedroom windows on 18 January 2019.
27. On 16 January 2019 the insurance company told the resident that it would monitor cracking the property until August 2019. They confirmed that the rear door was opening and closing satisfactorily. This monitoring commenced on 15 February 2019.
28. On 26 February 2019 the resident reported to the landlord that the front and rear doors could not be opened. The repairs log evidenced that this job was completed on 6 March 2019.
29. On 19 March 2019, following an enquiry from the resident, the damp survey company told her that it would try to get someone to attend the property outside its normal hours of 10am to 3pm, but could not guarantee that. They asked the landlord about an out of hours appointment on 22 March 2019.
30. On 2 April 2019 the resident chased up the damp survey company and asked when someone would be attending the property. She said “please could you confirm when someone will be coming. I did say I would take an appointment but you advised you would try getting someone to come after half four. I have heard nothing since”. The damp survey company said they had chased up the landlord, but it had not responded.
31. On 21 August 2019 the insurance company wrote to the resident saying that, the crack monitoring indicated that the ground levels had stabilised following the removal of the tree. They said a visit to the property would take place to draw up a schedule of repairs.
32. The landlord noted that this visit took place on 1 October 2019 when the contractor found evidence of damp within the kitchen floor. The landlord noted that the insurance company had indicated that needed that to be investigated further before work could progress.
33. On 15 October 2019 the resident raised a complaint with the landlord about its handling of her reports of severe damp and cracks in the walls of the property that had been going on for four years. She said that doors and windows did not open properly and the property was uninhabitable. She said that a damp test that was due to take place in January 2019 had not yet taken place. The resident said that the property was subsiding and she wanted to be moved.
34. On 29 October 2019 the landlord told the resident that it needed further information before it could respond to her complaint. The evidence suggests that this information was the report from the insurance company that the landlord received in October 2018 (paragraph 19). The evidence shows that the complaints team received this report on 6 November 2019.
35. On 20 November 2019 a damp survey of the property and roof inspection took place. On the same day the roofing company gave the landlord the results of the inspection. It listed the problems identified and said, to resolve matters, the loft should be insulated and the roof replaced.
36. On 27 November 2019 the damp survey company wrote to the landlord with a copy of its inspection report. They said that it could not find a damp-proof course and identified several cracks to the outside of the property which were potentially allowing damp to penetrate the property. They also found condensation and said it could not give an assurance that the property was not affected by rising damp.
37. On 23 January 2020 the landlord issued a stage one response to the resident under its formal complaints procedure. The main points were:

• It had decided to permanently decant the resident due to the level of subsidence at the property.
• The landlord apologised for the lack of communication from its repairs teams and for the inconvenience that caused. It said it had attended on numerous occasions but were unable to complete all of the repairs to the property and would not be completing any further repairs to the property unless they were urgent.
• It offered compensation of £400 for the time it had taken to resolve the complaint and for the inconvenience caused by its failure to follow its process and for repeat visits to the property.

38. On 6 February 2020 the resident told the landlord she would accept a permanent decant. This Service understands that the resident moved to a new property in October 2020.
39. In an internal email dated 14 February 2020, the landlord referred to the property’s “structural issues and other major faults” and that it required “major remedial work”.
40. On 17 February 2020 the resident asked the landlord to escalate her complaint.
41. On 5 March 2020 the landlord responded to the resident at stage two of its formal complaint procedure. It gave details of the action it had taken and made the following points:

• While the repairs should have begun in March 2019, that was reliant on the property stabilising before the work could commence.
• It said that, at this stage, no recommendation was made for a decant, as there was no loss of use of any rooms in the property.
• The landlord agreed to carry out and independent damp survey but access could not be agreed with the resident to do so.
• The structural survey in September 2018 outlined the remedial works to be undertaken once the property has stabilised; however, to avoid any further inconvenience to the resident, it was agreed that a permanent decant would be offered.
• It apologised that the resident had cause to complain and for the inconvenience caused.

42. The landlord signposted the resident to the Ombudsman.
43. When the resident approached the Ombudsman, she said the compensation offered was not sufficient to remedy the inconvenience, frustration and distress the events had caused her.

Assessment and findings

The resident’s reports about the rear door, damp and cracked walls.

44. On at least two occasions, in August 2018 and February 2019 (paragraphs 12 and 27), the landlord did not treat the reports of the resident not being able to open the rear door as an emergency repair. (There may have been other instances; however the repair log provided to this Service was not fully completed – paragraphs 13 and 23). This was not appropriate because the door not opening or closing could have jeopardised the health, safety or security of the resident and meant it should have been treated as an emergency repair (paragraph 7).
45. The landlord suggests that its inspection of the property in early September 2018 (paragraph 14) prompted it to make a referral to its insurance as a possible subsidence case (paragraph 16). Given the problems the resident was experiencing that was an appropriate step for the landlord to take.
46. The insurance report confirmed subsidence and gave details of the action to be taken at the property (paragraph 19). The landlord acted promptly by removing the tree, considered to be the cause of the subsidence, within ten days (paragraph 21).
47. The landlord’s decision to install a door blank to replace the rear door was reasonable as that would make the exit easier to adjust it if it moved further due to the subsidence (paragraph 18). In its final complaint response, the landlord said that it had been unable to replace the rear door because it was unable to gain access to do so.
48. It is clear that the resident had concerns about installing a rear door (paragraph 21), as it was only a temporary fix. The evidence shows that, despite the resident having an obligation under the tenancy agreement to allow access (paragraph 5), the landlord and contractor tried to accommodate her requests. The action to replace the rear door came to a halt when the contractor told the landlord that the resident wanted to speak to it about the appointment before accepting it. It might have been helpful for the landlord to have contacted the resident at this time to try to progress matters; however, it was under no obligation to. Furthermore, given that problems with opening the rear door were a fire health and safety risk and continued for several months, it would have been appropriate for the landlord to have been more proactive in contacting the resident and, if that was not effective, to have considered whether legal action was appropriate to gain access and install the blank door in line with the tenancy agreement (paragraph 6).
49.  Following the removal of the tree, the insurance company monitored the cracking in the walls at the property for eight months to ensure that the ground had stopped moving before repairs were carried out. It was appropriate that the landlord did not undertake works at that time. However, the evidence is not clear that the landlord kept the resident informed of why it was not undertaking repairs in early 2019. The landlord’s lack of communication with the resident was not appropriate because she was not kept informed of when the expected repairs were due to take place.
50. Turning to the issue of damp. When the resident reported evidence of subsidence to the landlord in August 2018 (paragraph 12), the landlord asked the repairs team to check the property for damp or condensation (paragraph 15). The repairs log evidenced that was completed in September 2018 (paragraph 15; the landlord instructed the damp survey in December 2018 (paragraph 24). There is no evidence that the damp survey company took action before March 2019. This meant some six months had passed; that delay was not reasonable. Then, following an enquiry from the resident about an out of hours appointment (which is dealt with in more detail, below), no action was taken by the landlord until October 2019 (paragraph 31).
51. The landlord acted appropriately at this point after damp had been found in the kitchen by instructing a roofing company and damp survey company to inspect the property. The outcome of those inspections was that the property was likely lacking a damp‑proofing course; that it had damp and, likely, rising damp.
52. Following those reports, the landlord acted reasonably by offering the resident a permanent decant. The reason given in the stage two complaint response of March 2020 was to avoid any further inconvenience to the resident as a result of the remedial works to rectify the damage caused by subsidence (paragraph 40).
53. It is reasonable to conclude that the extent of the damp issues and the works required to rectify them were a significant contributing factor in the landlord’s decision to offer a decant when it did.
54. It took the landlord almost fifteen months from the landlord making an initial investigation of the damp to obtain an expert report it. The time taken was not reasonable. This is a serious failing; mould growth from damp is a category one hazard (paragraph 9) and the landlord had an obligation to ensure the property was free of damp.
55. This Service does not find that the resident refused a damp survey. While she requested if an out of hours appointment would be possible, her email chasing the matter did not suggest that she was refusing the inspection.
56. The delay in establishing the extent of the damp was maladministration and meant that the resident continued to live in a property where there was damp. As the landlord remained unaware if the scope of the repairs required to the property, it also meant that the offer of a decant in line with the landlord’s policy (paragraph 9) was delayed by several months.
57. This Service considers that it would have been reasonable for a damp survey to have been carried out within two months (the time that it took to arrange at the end of 2019 – paragraphs 31 and 34). Had that happened it is reasonable to presume that the resident would have been offered a decant much sooner.

Compensation

58. In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In this case this Service considers that the resident remained in the property for approximately ten months longer than she would have done, had the damp survey been completed within a reasonable time. This Service considers the sum of £75 a month would be appropriate redress for the evident distress and inconvenience caused by the landlord’s failure to treat all reports of the door being stuck as an emergency repair; and by the resident having to remain in a property that was damp and required extensive repairs. This sum of £750 reflects that the maladministration had a severe long-term effect of the resident. The amount of £400 offered by the landlord did not recognise the impact its service failures had had on the resident.

Complaint handling

59. The landlord took over three months to respond to the resident’s stage one complaint (paragraph 36). While the landlord did not give timescales in which it should respond to complaints, this complaint response was not provided within a reasonable amount of time (even allowing for a slight delay while the landlord obtained a copy of a report – paragraph 33). This delay was a service failure. In such circumstances this Service considers that £100 would be proportionate redress for the inconvenience caused by that delay. In its compensation offer made at stage one, the landlord offered £400 compensation which included an amount for complaint handling and as such, sufficient redress has been offered for this service failure.
60. Following the introduction of the Ombudsman’s Complaint Handling Code in 2020, it is noted that the landlord introduced an amended complaint handling procedure which came into effect in December 2020. These new procedures include timescales for responses at each stage of the complaints procedure.

Determination (decision)

61. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to the resident’s reports about the rear door, cracked walls and damp.
62. In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the Ombudsman considers that the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves the complaint with respect to complaint handling.

Reasons

63. The landlord did not treat all reports of problems opening and closing the rear door as an emergency which was hazard if there had been a fire. Its delay in instigating a damp report meant that the resident remained in a property requiring extensive repairs for much longer than was necessary.
64. The landlord delayed responding at stage one of its formal complaint procedure. It recognised this in its final response to the resident and offered proportionate redress.

Orders and recommendations

Orders

65. The landlord shall, within four weeks of the date of this report, pay the resident:

• The £400 compensation originally offered;

• An additional £350 for the distress and inconvenience caused to the resident by the repairs failures identified in this report; and
• £100 for the complaint handling failures identified in this report.

Recommendation

66. It is recommended that the landlord take steps to ensure its staff complete the repair log in full.

[1] A plain wooden door that can easily be cut down in size