Colchester City Council (202201413)

REPORT

COMPLAINT 202201413

Colchester Borough Council

13 December 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

1. The complaint is about the landlord’s response to the resident’s:
   1. Reports about damp and mould.
   2. Reports about a pest infestation.
   3. Concerns about the conduct of the landlord’s staff.
2. The Ombudsman has also considered the landlord’s complaint handling and record keeping.

Background

3. The resident was a secure tenant. The landlord’s records indicate that the resident had a medical condition that affected her lungs.
4. The resident first reported mould in the bathroom in 2018. The landlord did a damp survey that resulted in advice being provided to the resident on using the extractor fan. In response to reports of mould in the lounge, the landlord carried out a further damp survey in 2020. The landlord’s records suggest that there was no damp and mould in the bathroom at that time.
5. The resident raised a stage 1 complaint by telephone on 7 April 2022, about ongoing issues with damp and mould in the bathroom. The resident also complained about a member of the landlord’s staff.
6. The landlord provided the stage 1 response on 5 May 2022. The landlord partially upheld the complaint. The landlord:
   1. Said it would inspect the property to identify if further works were necessary to resolve the damp and mould. It committed to updating the resident following the inspection.
   2. Apologised that incorrect information had been given to the resident about removing the shower by a member of its staff. Had the correct process been followed, permission would not have been granted. To learn from this, the landlord committed to providing additional staff training.
   3. Made a passing comment, that following previous issues with mice at the property, it had arranged for the animal control team to reattend the property.
7. The landlord inspected the property on 18 May 2022. The resident phoned the landlord on the same day to escalate the complaint to stage 2, about ongoing damp and mould in the bathroom. The resident said this was affecting her health. She said that the landlord’s contractors had suggested that there could be an issue with damp behind the “multi panel boards”. The resident was unhappy with the landlord’s proposed solution.
8. The landlord carried out a review of the resident’s complaint on 20 July 2022. The Ombudsman has not been provided with a copy of the meeting notes.
9. The resident raised a new stage 1 complaint on 21 July 2022, claiming that a member of the landlord’s staff had been rude, condescending, and had spoken down to her. The resident said that she no longer wanted any dealings with its member of staff. The landlord issued its stage 1 response on 22 July 2022. The landlord said that it welcomed all feedback and had tried to phone the resident to apologise.
10. The landlord issued the stage 2 response on 25 July 2022, about ongoing damp and mould in the bathroom. The landlord did not uphold the complaint. It said:
    1. That there was no mould visible in the shower area at the time of its inspection on 15 July 2022, and the shower area was well ventilated. It noted that the resident said she had cleaned and treated the mould herself. While the resident expressed concern that there could be damp behind the multi-panelling, there was no evidence to suggest that this was the case.
    2. It noted there was a dead field mouse in the boiler cupboard. The landlord offered to fill any holes under the kitchen cupboard once the resident had cleared the cupboard out.
    3. It was working to improve how it communicated with residents regarding the progress of inspections and works being carried out.
11. The resident told the landlord on 26 July 2022, that she wanted to escalate her complaint about the landlord’s member of staff. There is no evidence that the complaint was investigated at stage 2.
12. The resident contacted the Ombudsman on 8 August 2022. The resident said that the landlord had not completed agreed works. There was still mould and mice in the property. The resident felt that her health was deteriorating because of the landlord’s inaction. Nothing had been done to address the behaviour of its staff member. The resident later told the Ombudsman that she vacated the property, after securing alternative accommodation.

Jurisdiction

13. 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.
14. Paragraph 42(a) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints, which in the Ombudsman’s opinion are made prior to having exhausted the landlord’s complaints procedure.
15. After carefully considering all the evidence, in accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
    1. The landlord’s response to the resident’s reports about a pest infestation.
    2. The landlord’s response to the resident’s concerns about the conduct of the landlord’s staff.
16. This is because the resident’s complaint about pests was not investigated by the landlord at any stage of the landlord’s complaint process. The resident’s complaint about a member of the landlord’s staff did not complete all stages of the landlord’s internal complaint process.
17. This investigation focuses on the landlord’s response to the resident’s reports about damp and mould in the bathroom between 7 October 2021 and 25 July 2022. This being 6 months prior to the formal complaint being made, through to when the landlord’s complaint process was exhausted. However, this report also references events outside of this timeframe, where relevant to the resolution of the substantive complaint.

Assessment and findings

The landlord’s response to the resident’s reports about damp and mould

18. Landlords have a responsibility to make sure that their properties are fit for habitation. This means that properties should be structurally stable, free from serious disrepair, free from dampness that could damage an occupant’s health, and provide adequate heating and ventilation. Due to the resident’s medical condition, she was likely to be at greater risk of physical harm from damp and mould. The landlord was required to act on the resident’s reports about a recurrence of mould in a timely manner.
19. The resident phoned the landlord on 7 April 2022, to complain that it had done nothing about damp and mould in the bathroom. The Ombudsman has seen no evidence that the resident raised any new reports about damp and mould in the bathroom, prior to the complaint. The resident was not disadvantaged by the landlord choosing to respond to the resident’s concerns as a complaint, rather than as a service request. It was appropriate that the landlord re-inspected the bathroom, after this was brought to its attention. While the inspection was arranged in a timely manner, it was unfortunate that the appointment had to be rescheduled several times to accommodate the availability of the resident. This was likely to have delayed resolution of the substantive issue.
20. The Ombudsman notes that the resident expressed dissatisfaction with the landlord’s proposed solution. It has not been possible to determine based on fact, what remedial action the landlord proposed. The landlord has not provided a copy of its inspection notes from 18 May 2022. This may suggest an issue with its record keeping. However, the resident remained concerned that the cause of the damp lay behind some “multi-panel boards” in the bathroom. The landlord responded appropriately by arranging a second inspection by a more senior member of its staff. This showed that the landlord was committed to resolving the substantive issue. It was unfortunate that the inspection had to be rescheduled several times before it was eventually carried out on 15 July 2022. While this added further delay, it was reasonable for the landlord to accommodate the resident’s changing availability.
21. The landlord has not provided the Ombudsman with its inspection notes from 15 July 2022. The landlord’s stage 2 response states that at the time of the inspection, there was no mould visible in the shower area, the property was well ventilated, and the resident had cleaned and treated the mould herself. It found no evidence of any water leaks and sought to reassure the resident that there were no pipes behind the “multi-panelling” to cause concern. While there was no immediate requirement for follow-on works, given the history of damp and mould in the property, it would have been reasonable for the landlord to have explained what the resident should do if the mould returned. In view of the resident’s medical condition, the landlord could have considered offering a short period of proactive monitoring. This would have provided the resident with reassurance, removed reliance on the resident reporting new issues, and allowed it to respond more quickly if further investigation or intervention was required.
22. The Ombudsman notes that the landlord published a new damp and mould policy in 2023, which states that it will monitor homes that suffer from condensation and will contact affected residents proactively to determine if condensation remains an issue. It will provide resident’s advice and support. Where a resident has a vulnerability, it will instruct a specialist contractor to complete a mould wash and make good the affected area. This demonstrates that the landlord has taken recent learnings from the sector into account, bringing best practice into its operations.
23. On balance, the Ombudsman has found no maladministration in the landlord’s response to the resident’s reports about damp and mould.

The landlord’s complaint handling and record keeping

24. The landlord has a 2-stage complaint policy. Residents can make a complaint in a variety of ways, including by telephone. The landlord aims to respond to stage 1 complaints in 10 working days. It will provide the stage 2 response in 20 working days. Where an extension is required, this should not exceed a further 10 working days without good reason.
25. The resident made several complaints to the landlord between 7 April 2022 and 26 July 2022. When the landlord was unable to provide its stage 1 response by 22 April 2022, it did not agree an extension with the resident in a timely manner. The resident had to chase the landlord for an update, which was unreasonable.
26. It was understandable that the landlord wanted to inspect the property before issuing the stage 2 response, which created some unavoidable delay in its complaint handling. However, the landlord should have confirmed a new date for issue of its stage 2 response, after the inspection had to be rearranged for a second time. The resident was caused uncertainty, as well as increase time and trouble.
27. The resident states that she asked the landlord to consider several complaint elements aside from her complaint about damp and mould. This included a complaint about a member of the landlord’s staff and about rodents. The Ombudsman appreciates that there was a disconnect between what the resident wanted the landlord to investigate and what the landlord understood the resident’s complaint to be about. In view of the potential for misunderstanding when taking complaints over the telephone, it was appropriate that the landlord emailed the resident on 7 April 2022 to check its understanding. As the resident accepted the scope of the landlord’s investigation at the time, the Ombudsman does not find service failure.
28. The Ombudsman makes a general observation about the landlord’s complaint handling, which was unhelpful in this case. Although the landlord did not investigate the resident’s complaint about rodents, it made loose references to rodents within its complaint responses. The landlord should have considered providing, what were essentially information updates regarding pest control, in a separate communication. This would have avoided confusion in its complaint handling, yet still fulfilled its obligation to keep the resident updated on matters which fell outside of its investigation. 
29. While the Ombudsman was able to determine this case based on the evidence provided, there were noticeable omissions in the landlord’s records, as highlighted throughout this report. This was inappropriate. The Ombudsman would expect a landlord to keep robust records and evidence of its actions relating to each casefile, which can be provided to the Ombudsman upon request. Landlords who fail to create and record information accurately, risk missing opportunities to identify that its actions were wrong or inadequate and contribute to inadequate communication and redress.
30. Overall, the landlord’s complaint handling and record keeping fell short, for which the Ombudsman finds service failure.

Determination

31. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s reports about damp and mould.
32. In accordance with paragraph 42 (a) of the Housing Ombudsman Scheme, the landlord’s response to the resident’s reports about a pest infestation, was not within the Ombudsman’s jurisdiction.
33. In accordance with paragraph 42 (a) of the Housing Ombudsman Scheme, the landlord’s response to the resident’s concerns about the conduct of the landlord’s staff, was not within the Ombudsman’s jurisdiction.
34. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling and record keeping.

Orders

35. Within 4 weeks of the date of this report, the landlord must pay compensation of £100 directly to the resident in recognition of the resident’s inconvenience, time and trouble, caused by failures in complaint handling and record keeping. This compensation has been determined in line with the Ombudsman’s remedies guidance.
36. The landlord must provide evidence to the Ombudsman that it has complied with the above order, within 4 weeks of the date of this decision.

Recommendation

37. The landlord should consider how it presents information to the Ombudsman, so that the landlord’s actions are clearly evidenced.