Estuary Housing Association Limited (202225058)

REPORT

COMPLAINT 202225058

Estuary Housing Association Limited

31 July 2024

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:
1. Reports of damp and mould at the resident’s property.
2. The associated complaint.

Background

The resident is an assured tenant of the landlord. The resident lives in the property with her three children and her partner. The resident’s children have ADHD, autism, and asthma. The resident has made the landlord aware of these conditions.
On 18 January 2023, the resident submitted a complaint to the landlord. She stated she has had mould in her property for 2 years and it had not been resolved. She explained that 2 of her children were suffering and both have asthma, which had been made worse by the mould. The resident also explained her belongings had been damaged by the mould.
The landlord provided its stage 1 complaint response to the resident on 7 February 2023. It explained that it had several conversations with her regarding the works to address the damp and mould and had kept her informed as best as possible over the time period agreed. The landlord apologised for any of the damage which had been caused by the damp and mould and would make sure that it was considered during the repair works. It explained that the resident had now been moved to temporary accommodation whilst works were being undertaken and stated it would update her as the phased repairs were undertaken. The landlord stated its contractor would complete the repairs under the defects liability clause. The landlord offered the resident £50 compensation for the distress and inconvenience caused by damage during the damp and mould works.
On 7 February 2023, the resident requested her complaint to be escalated to the next stage of the landlord’s complaints process. She stated she was not happy with the outcome of the situation with the damp and mould. The resident explained she was put in temporary accommodation for 2 weeks for works to be carried out at her property to resolve the damp and mould. However, the landlord failed to complete works whilst she was in temporary accommodation. She also stated that her children had asthma and it had worsened due to the damp and mould at the property. The resident also stated that she and her children could not go back into temporary accommodation as it had impacted her children’s mental health and asked the landlord if it could provide a permanent move.
The landlord provided its stage 2 complaint response to the resident on 4 May 2023. It apologised that no works were carried out at the resident’s property whilst her and her family were moved to temporary accommodation. The landlord explained the developer had since visited and advised that it could not find any defects arising from the construction of the property and therefore was not prepared to carry out any associated works. It also stated that a roof inspection had been completed, and the roof was sound and there were no associated defects. The landlord also explained that it had booked an appointment for 10 May 2023 for window repairs. It also stated that it was waiting for a date for the plaster work to the ceilings to begin once the required works to the fans had been completed. The landlord also explained that a work order had been raised to replace all affected timbers within the location of the bathroom and other affected rooms.
The resident remained dissatisfied with the landlord’s response and submitted her complaint to the Ombudsman. She stated that her desired outcome was to be permanently moved to another property.

Assessment and findings

Reports of damp and mould at the resident’s property.

Scope of Investigation

The resident has mentioned as part of the complaint that the damp and mould at the property has impacted her and her children’s health and resulted in them having severe asthma. The Ombudsman does not doubt the resident’s comments about hers and her children’s health. We understand this has been a difficult time for the family. However, it is outside the Ombudsman’s role to determine whether there is a direct link between the landlord’s actions or inaction and any specific impact on her and her children’s health. It would be more appropriately suited for a court or liability insurer to investigate it as a personal injury claim. Courts can award damages in a different way to the Ombudsman and review medical evidence. However, it is generally accepted that damp and mould can pose a significant health risk, particularly to those with respiratory problems such as asthma. This service can consider the general risk and any distress and inconvenience caused by any errors by the landlord and the landlord’s response to the resident’s concerns about her and her children’s health.
The resident has also stated as part of her complaint to the Ombudsman that she had to dispose of furniture and belongings because they were damaged due to the damp and mould at the property. Normally, damage to a resident’s belongings would be considered as part of a claim under the resident’s own contents insurance policy (if they have one). When there is alleged negligence by the landlord or its contractors, residents may be able to raise a claim under the landlord’s liability insurance. Landlords are entitled to use liability insurance to manage such claims and the landlord would not be required to pay a claim itself rather than using insurance. A landlord’s insurer is usually a separate organisation, and the Ombudsman cannot look at the actions of insurers, only at the actions of the landlord. Therefore, we cannot comment on the outcome of any claim made to a liability insurer.
The resident raised concerns that the damp and mould had been an issue at the property since November 2019. The Ombudsman does not doubt the resident’s comments about the length of time the issue has been ongoing for, we have seen evidence to confirm this is a longstanding issue. However, there is no evidence of her raising a formal complaint to the landlord until January 2023. In view of the time periods involved in this case and considering the availability and reliability of evidence, this report will not consider any specific events approximately more than 12 months prior to when the resident submitted her complaint to the landlord in January 2023. This is because paragraph 52(c) of the Housing Ombudsman Scheme (available on our website), explains that this service will not investigate complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, normally within 12 months of the matters arising.

Policies and Procedures

The landlord’s repairs policy guide states the landlord is responsible for keeping the structure and exterior of a resident’s property in good condition and the building in which it is situated.
In addition, the landlord’s repairs policy includes the following response timescales for the following repair categories:
1. Emergency repairs – the landlord will respond within 24 hours.
2. Routine repairs – the landlord will complete the repair within 20 working days.
The landlord does not currently have a damp and mould policy in place. It has confirmed in its file submission sent to the Ombudsman that it is currently working on creating a new damp and mould policy. The Ombudsman recommends that landlords have a detailed damp and mould policy as a means of managing repairs relating to this issue. As the landlord is already developing such a policy, we will not include a recommendation for it to do so in this report. It is recommended that the landlord reviews the Ombudsman’s spotlight report on damp and mould (available on our website) when developing its policy to ensure its policy is compliant with the Ombudsman’s expectations of landlords’ handling of damp and mould issues.
Although it does not currently have a dedicated policy, the landlord’s website includes information about damp and mould. It states if a resident has tried tips to stop the mould and it keeps coming back, they should contact the landlord’s repairs contractor. The website explains the landlord may need to send out a surveyor to understand what is causing the damp and mould.

Assessment

The resident submitted her complaint about damp and mould issues to the landlord in January 2023. However, the Ombudsman has noted from the landlord’s records for contextual reasons that the landlord inspected the resident’s property in December 2020 due to the reported damp and mould issues. During the inspection, the landlord identified condensation in the property and confirmed that it would complete mould treatment in the 2 bedrooms and the lounge. Based on the information provided, it appears that the landlord failed to carry out these works. However, the Ombudsman recognises that COVID-19 lockdown restrictions came into place shortly after the inspection was completed, which would have impacted the landlord completing the mould treatment.
On 4 January 2022, the resident contacted the landlord about the ongoing damp and mould issues at her property. The resident also contacted the landlord on 27 January 2022 and stated that her 4-year-old son had been prescribed a steroid inhaler due to the damp and mould at her property. Although there was a slight delay in the landlord responding to the resident’s report, it took appropriate steps by arranging a damp specialist to inspect the resident’s property. The damp specialist carried out an inspection at the resident’s property on 17 February 2022 and it was identified that ongoing damp and mould issues had been caused by condensation. The damp specialist recommended some further investigation into the window within the left bedroom and to rule out a leak or water ingress from the external side of the property.
There was a delay by the landlord in updating the resident about the outcome of the damp inspection. The resident contacted the landlord twice in February 2022, chasing for an update on the outcome of the inspection. The landlord eventually emailed the resident on 24 March 2022 and provided her with the findings from the damp specialist inspection. It also informed the resident that it had contacted the damp specialist and asked them to re-attend and further investigate the high moisture levels recorded above the window to the left bedroom, for potential water ingress from the external side of the property located at roof level. Following this, the landlord’s contractor took no action to investigate the window and external side of the property. Due to this, the resident contacted the landlord in November and December 2022 explaining that the damp and mould issue had still not been resolved. The delay by the landlord was unreasonable and would have resulted in the resident and her children with asthma living in damp and mould conditions for a prolonged period.
Due to the damp and mould works remaining outstanding, the resident submitted a complaint to the landlord on 18 January 2023. The resident explained that her and her children’s belongings had been damaged by the mould within the property. The Ombudsman would have expected the landlord to signpost and provide the resident with details of how the resident could pursue an insurance claim with its liability insurer if it has one. However, the landlord failed to do this which was unreasonable. Considering this, the landlord should refer the resident to its liability insurer or consider a claim itself for damage to the resident’s possessions caused by the damp and mould. If the landlord is considering a claim itself, it should explain the reasons for its decision regarding the claim to the resident in writing.
Shortly after the resident submitted her initial complaint to the landlord, it authorised and arranged a decant (temporary move) from 24 January 2023 for 2 weeks for the resident and her family to alternative accommodation so it could carry out the required works to resolve the damp and mould issues within the property. However, whilst the resident and her family were decanted, the landlord failed to carry out any works at her property. The resident also informed that the decant had a significant impact on her son’s mental health who has autism, as he was in an unfamiliar environment and did not have access to his belongings. Due to this, the resident explained to the landlord that she was not willing for her and her family to be decanted again. The landlord’s failure to complete the required works whilst the resident and her family were decanted was unacceptable. It inconvenienced the resident and caused significant distress, particularly to one of her children. It also resulted in the resident and family having to return to her property with ongoing damp and mould issues.
The landlord apologised in its stage 1 complaint response issued on 7 February 2023 for any of the damage which had been caused by the damp and mould and explained it would make sure that it was considered during the repair works. It also explained that its contractor would complete the repairs under the defects liability clause for the property. The landlord offered the resident £50 compensation for the distress and inconvenience caused. Considering, the period of time the damp and mould repairs had been outstanding at the resident’s property, the amount of compensation offered was not sufficient for distress and inconvenience.
In March 2023, the landlord and the developer attended the resident’s property to inspect the roof. Following the inspection, there were no issues identified with the roof. However, there were some issues identified with the windows and due to this, the landlord confirmed it would raise a work order for the windows to be overhauled. It was also noted that the developer was going to look into the ventilation system at the property. The landlord acted appropriately by inspecting the roof and windows, but there was a significant delay in the landlord and the developer carrying out the inspection following its previous damp specialist inspection in March 2022. The delay was unreasonable and resulted in the damp and mould remaining outstanding for a prolonged period.
The landlord contacted the resident on 25 March 2023 and explained that it had informed the relevant team that she could not be temporarily moved again. It also confirmed with the resident that she was still on the waiting list for a 3-bedroom property and the allocations team were aware of her circumstances. The landlord informed the resident that it would see what work the contractor could complete whilst the resident remained in the property. This was an appropriate response as the landlord was willing to consider whether it could carry out work without decanting the resident and it gave her an update regarding her request for a permanent move.
Shortly after, the landlord’s contractor attended the resident’s property on 28 March 2023 to carry out a mould wash at the property. The contractor could only carry out a partial mould wash as the resident asked the contractor to stop the mould wash because it was aggravating hers and her children’s asthma. The Ombudsman is not questioning the resident’s reasons for stopping the mould wash and we can understand her concerns. However, we also recognise that this would have been outside of the landlord’s control, and it took the right steps by not continuing with the mould wash.
After the partial mould wash, the landlord provided the resident with its stage 1 complaint response on 4 May 2023. The landlord explained the developer had visited the resident’s property and informed the landlord that it could not find any defects arising from the construction of the property and therefore were not prepared to carry out any associated works. However, the landlord confirmed in its response that it had booked an appointment for 10 May 2023 for the windows to be repaired and was waiting for an appointment for plasterwork to the ceilings. It also stated it had raised a work order to replace all the affected timbers within the bathroom and other affected rooms. In addition, it explained that it had requested its contractor to re-arrange an appointment to complete the mould wash with a different chemical or when the affected family members were not at home. The landlord also confirmed that the resident was still on the waiting list for a 3-bedroom property. However, it also explained it was willing to consider an urgent management move which would be on a like for like basis to another 2-bedroom property. But it stated that the resident had expressed that she did not want to consider this option at the time. The landlord acted appropriately by confirming it would arrange appointments for the necessary works and in looking at alternative chemicals to reduce the impact on the family from the mould wash. In addition, the landlord offering the resident an urgent management move was a reasonable solution to quickly remove the resident and her family from the damp and mould conditions. The resident was entitled to refuse the offer of a 2 bedroom property and the landlord was still expected to carry out repairs if possible while she remained in the property. However, the landlord would not be at fault if it was unable to carry out certain repairs with the resident in situ and she declined its offer of a decant or transfer to a 2 bedroom property.
The landlord’s contractor attended the resident’s property in June 2023 and carried out window repairs. The landlord also replaced the extractor fans in the kitchen and bathroom at the resident’s property. In addition, in August 2023, the landlord’s contractor attended the resident’s property and overhauled the windows and fitted new trickle vents.
The landlord’s records from January 2024 explain that there were still works outstanding to resolve the damp and mould in the bathroom. In addition, by this date there were no records to suggest that the plasterwork to the ceiling had been completed or the mould wash. The landlord has not explained why these works were delayed. Therefore, the Ombudsman concludes this was unreasonable and would have added to the resident’s distress and inconvenience.
In March 2024, the landlord’s ventilation specialist contactor issued a survey report following its inspection of the resident’s property. The ventilation contactor recommended for a wall mounted positive input ventilation system (PIV) to be installed at the property and for a filter less extractor fan to be installed in the bathroom and the kitchen. In April 2024, the landlord was still waiting for the contractor to confirm a date it could complete the ventilation works. The resident informed the Ombudsman in July 2024 that the landlord had booked an appointment for 29 July 2024 to complete the ventilation installation works.
The Ombudsman recognises the landlord explained in its stage 2 response from May 2023 that it had offered an urgent management move to help resolve the situation. But prior to this, the resident and her family with vulnerabilities had been living in damp and mould conditions for a significant period of time. Whilst some delays were unavoidable, due to the effect of Covid on the landlord’s service and the difficulties carrying out repairs with the resident in situ, other delays are unexplained and appear to have been avoidable. In addition, all the works to resolve the damp and mould are still yet to be completed. Therefore, there has been severe maladministration in the landlord’s handling of reports of damp and mould at the resident’s property.
It would be appropriate for the landlord to pay the resident £1200 compensation to recognise the distress and inconvenience caused by the significant delay and distress the resident has experienced due to the landlord’s failure to resolve the damp and mould within a reasonable period. The amount of compensation awarded is in line with the Ombudsman’s approach to compensation set out in our remedies guidance (published on our website). The remedies guidance suggests awards of £1000 or more where there have been serious failings by the landlord, which had a significant long-term impact on the resident.
In addition, the resident informed the Ombudsman in July 2024 that the damp and mould had spread further around the property. Also, a considerable amount of time has passed since a damp specialist surveyor last inspected the resident’s property. Therefore, the Ombudsman requires the landlord to arrange for an independent specialist damp surveyor to inspect the whole of the resident’s property. In addition, following the surveyor inspection, the landlord should draw up a schedule of works with timescales to resolve the damp and mould at the resident’s property. The landlord should then carry out the necessary work to resolve the damp and mould and then notify this service once the works have been completed. The Ombudsman recognises some works may not be able to be completed whilst the resident and her family are in the property, and the resident has confirmed that she does not want to be decanted again whilst the works are carried out because of concerns with her son’s autism and mental health. Therefore, if the landlord is unable to complete the required works to resolve the damp and mould whilst the resident and her family are at the property, the landlord should discuss this with the resident and re-offer the urgent management move to a like to like property to the resident, which would be a 2-bedroom property. However, the Ombudsman would ask that the landlord keep the resident on the waiting list for a 3-bedroom property as a larger property had previously been requested for other reasons, including her son’s needing a separate room due to their disabilities.
The resident was entitled to refuse the offer of a 2 bedroom property initially and the landlord would still be expected to carry out repairs if possible while she remained in the property. However, the landlord would not be at fault if it was unable to carry out certain repairs with the resident in situ and she declined its offer of a decant or transfer to a 2 bedroom property.
It was reasonable for the landlord to approve a move to a 3-bedroom property but the Ombudsman cannot order a landlord to prioritise moving the resident and her family into a 3-bedroom property instead of its existing offer of a 2 bedroom property as an urgent transfer. This is because landlords have limited housing stock and long waiting lists and properties are required to be allocated based on a priority need. Larger properties are often in the highest demand with more limited supply meaning longer waits for this type of property. The Ombudsman does not have access to the landlord’s housing list so we cannot judge whether there are other people in even more urgent need of a 3-bedroom property. In general, landlords are expected to give the highest priority to those who are homeless or who are fleeing domestic violence.

The associated complaint.

The Ombudsman’s Complaint Handling Code (the Code) sets out the Ombudsman’s expectations for landlords’ complaint handling practices. The Code states that a stage 1 response should be provided within 10 working days of the complaint. It also explains that a stage 2 response should be provided within 20 working days from the request to escalate the complaint. The landlord’s complaints policy references the same timescales as the Code.
The resident submitted her complaint to the landlord on 18 January 2023. The landlord acknowledged and logged the resident’s complaint on 25 January 2023. It then provided its stage 1 complaint response on 7 February 2023. The response was on time and compliant with the timescales referenced within the Code and the landlord’s complaints policy.
It took the landlord nearly 3 months to provide its stage 2 complaint response. On 7 February 2023, the resident contacted the landlord and requested her complaint to be escalated to the next stage of the landlord’s complaints process. The landlord provided its stage 2 complaint response to the resident on 4 May 2023. The response was late and not compliant with the timescales referenced in the landlord’s complaints policy or the Code.
The landlord apologised for the delayed response; however, it did not provide any reason for the delay to the resident at the time. The delay would have caused inconvenience, and the resident was delayed in progressing her complaint to the Ombudsman as she needed to wait for the landlord’s final response before contacting our service. The landlord acknowledged in its file submission sent to the Ombudsman that its stage 2 complaint response was late, and it confirmed that it had since completed staff training on the complaints process. It is positive that the landlord has shown learning from this error by providing staff training.
Given the delay in the landlord providing its stage 2 complaint response, there has been a service failure in the landlord’s handling of the associated complaint. It would be appropriate for the landlord to pay the resident £100 compensation for the distress and inconvenience caused. The amount of compensation awarded is in line with the Ombudsman’s remedies guidance. The remedies guidance suggests awards of £50 to £100, where there was a minor failure by the landlord in the service it provided, and it did not appropriately acknowledge these and/or fully put this right.

Determination (decision)

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

Orders

The landlord is ordered to:
1. Arrange for an independent damp specialist surveyor to inspect the resident’s property and draw up a schedule of the required works to resolve the damp and mould issues. The schedule must include timescales of when the work will be completed. A copy of the schedule should be sent to the resident and the Ombudsman.
2. Provide a written apology to the resident for its handling of the damp and mould at the resident’s property. The apology should come from a senior member of staff at director level within the landlord’s organisation.
3. Pay the resident £1200 compensation for distress and inconvenience caused by errors in its handling of damp and mould at the resident’s property.
4. Pay the resident £100 compensation for distress and inconvenience caused by errors in its complaint handling errors.
5. Refer the resident to its liability insurer or consider a claim itself for damage to the resident’s possessions caused by the damp and mould. If the landlord is considering a claim itself, it should explain the reasons for its decision to the resident in writing.
The landlord must comply with the above orders within 4 weeks of the date of this determination.
The landlord must review the resident’s case and identify any areas for improvement to prevent similar errors occurring in future. The review should be completed by a senior member of staff at director level. The landlord should draft a report on its findings and provide a copy of the report to this service and the resident.
The landlord must provide evidence of compliance with the above order within 8 weeks of the date of this report.
The landlord must carry out the necessary works to resolve the damp and mould at the resident’s property and inform the Ombudsman once the works have been completed. Or alternatively it should re-offer the urgent management move to a like to like property to the resident, which would be a 2-bedroom property if it is unable to complete all the required works whilst the resident and her family remain in the property.
The landlord must provide evidence of compliance with the above order within 12 weeks of the date of this report.