Guinness Trust (202221101)

REPORT

COMPLAINT 202221101

Guinness Trust

24 November 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 reports of damp and mould and the associated repairs.

Background

2. The resident is an assured tenant of the landlord and occupies a 2-bedroom mid-terraced house with her three young children. The resident advises she has health conditions and her children experience breathing difficulties.
3. On 14 November 2022, the resident reported damp and mould in the property. The landlord carried out a mould wash on 8 December 2022 and the same day, the resident made a formal complaint about how it handled the matter and its communication and also referred her complaint to the Ombudsman. On 9 December 2022, Environmental Health (EH) contacted the landlord as the resident had previously approached them about a separate matter, namely loss of heating and hot water for almost 2 weeks. Subsequently, an EH officer inspected the property with the landlord on 12 December 2022. The landlord installed a new boiler and carried out an initial assessment of the windows the same day.
4. On 14 December 2022, the resident complained about how mould affected her recent re-decoration. She also stated its contractors broke her loft ladder and her personal items stored in the loft were ruined due to condensation. The landlord issued its stage 1 response on 22 December 2022. It said it had carried out a joint visit with EH and agreed that the windows were likely causing some of the mould issues. The landlord planned for its contractors to assess the roof and windows in the new year and any required repairs would be completed as soon as possible. With respect to her damaged items in the loft, it recommended that she contact her contents insurer to claim for damages. It apologised for any distress caused by the broken ladder but stated it could not confirm that its operatives were at fault. The landlord offered £25 for poor communication.
5. In the resident’s escalation request on 23 December 2022, she said not all work had been completed. The landlord issued its stage 2 response on 29 January 2023. It reiterated its stage 1 response. It also stated that following its window contractor visit on 5 January 2023, it was established that a repair was not viable so the windows would be replaced. In addition, it said that it was awaiting a date for its roofing contractor to check the roof for any defects. The landlord offered a further £50 as an apology for further poor communication and the delay in issuing its stage 2 response.
6. In February 2023, the resident continued to report instances of damp and mould. She stated some affected areas were missed and that operatives repeatedly arrived without shoe covers. On 8 March 2023, 6 window units were replaced in the property. EH was contacted by the multi-agency safeguarding hub in February 2023 and subsequently, another joint inspection of the property took place on 16 March 2023. EH stated they would be satisfied once the insulation in the loft space was replaced and the roofing works completed.
7. The resident continued to report experiencing damp and mould. In September 2023, the landlord found that the previous work order for the roofing works had incorrectly been closed down. It raised another work order to carry out a standard eaves repair and replace the loft insulation.
8. The resident has advised the Service that in resolution of her complaint, she is seeking that the landlord resolve damp and mould in her property as her priority is a safe environment for her children to live in.

Assessment and findings

Scope of investigation

9. The Ombudsman acknowledges the resident’s comments that she has reported mould at the property to the landlord over a number of years. She advised that the issue has been present since after she took up the tenancy in 2019. While this may be the case, this investigation will not seek to consider matters as far back as 4 years.
10. This is because the Ombudsman expects residents to bring issues with which they are dissatisfied to the landlord’s attention in good time, by way of formal complaint. This is set out in the Scheme, which explains that the Ombudsman may not investigate a complaint that was not brought to the attention of the landlord, by way of a formal complaint, within a reasonable period, which would normally be within 6 months of the matter arising. In this case, the resident formally complained to the landlord about its handling of the damp and mould and its communication on 8 December 2022, and referred her complaint to the Ombudsman the same day.
11. Moreover, the resident has said that the damp and mould in the property had a negative impact on her family’s health. The Ombudsman does not doubt the resident’s comments; however, it is beyond the expertise of the Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s and her children’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her health or that of her children has been affected by any action or failure by the landlord. While we cannot consider the effect on health, consideration has been given to any general distress and inconvenience which the resident experienced as a result of any service failure by the landlord.
12. Finally, the landlord, by way of its internal complaint procedures, investigated and responded to damp and mould and other issues including loss of heating and hot water. However, the resident has subsequently confirmed to the Service that she considers only the damp and mould issue to be outstanding and that the other issues covered by the complaint have been resolved. Accordingly, the investigation has focussed on the landlord’s response to reports of damp and mould from the first report of mould in November 2022 up until the resident exhausted the landlord’s complaints process, and the actions or lack of actions carried out by the landlord and its contractors. The report will also examine whether the landlord followed its policies and treated the resident fairly.

The landlord’s response to the resident’s reports of damp and mould and the associated repairs

13. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are three principles driving effective dispute resolution:
    1. Be fair – treat people fairly and follow fair processes.
    2. Put things right.
    3. Learn from outcomes.

14. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect on or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.
15. The landlord has an obligation under the tenancy agreement to maintain the outside and the structure of the property, which includes the roof, windows and internal walls.  Additionally, under Section 9A of the Landlord and Tenant Act 1985, the landlord must ensure that the property is fit for human habitation during the term of the tenancy. Further, the landlord’s responsive repairs policy states that it must maintain the outside and the structure of the property. This includes windows and internal walls.
16. On receiving reports of damp and mould, the landlord should arrange an inspection, investigate to determine the cause/s, carry out a risk assessment and, if necessary, undertake remedial repairs within a reasonable timescale that will deal with the cause and consequences of damp.
17. Following the resident’s reports, the landlord sought to help and arranged for its contractor to inspect the property. The first report of mould was made on 14 November 2022, and an inspection and a mould wash was carried out on 8 December 2022. While the landlord acted fairly by attending the property in a reasonable time, it is unclear from its records, other than carrying out of a mould wash, what the outcome of the inspection was and whether the landlord explored the root cause. It was only once the joint inspection was undertaken alongside EH, that the cause was considered.
18. During the inspection of 12 December 2022, the EH officer did not identify significant disrepair that would warrant an assessment under the Housing Health and Safety Rating System. They did, however, indicate in their report of 19 December 2022 that there was evidence of condensation and suggested the following areas for the landlord to investigate: check loft insulation; investigate the roof for slipped tiles; investigate soffits and fascias; unblock window vent at the front of property; and fix the broken extractor fan in the bathroom.
19. The landlord’s damp and mould policy outlines that it will take responsibility for diagnosing and resolving damp and mould in a timely and effective way, where it results from issues that require repair and undertake a comprehensive risk assessment; however, this did not appear to have happened and the Service has not had sight of any risk assessment. As the EH stated “there was no significant disrepair that would warrant an assessment”, it was not unreasonable that the landlord did not complete a risk assessment during that joint inspection. Nonetheless, the landlord needed to be mindful that 3 young children were occupying the property and the impact on them.
20. The potential detriment of damp and mould to a resident’s health and wellbeing has been highlighted in the Ombudsman’s October 2021 Spotlight report entitled ‘Damp and mould: It’s not lifestyle’, and it is the case that the longer it is left untreated, the more damaging it can be to a person’s health. Under the Housing Health and Safety Rating System, damp and mould growth is classified as a hazard.
21. The Government also states that, under the Social Housing (Regulation) Act 2023, it will introduce ‘Awaab’s Law’, which will require landlords to investigate and fix damp and mould in its properties within strict time limits. This came about from the tragic death of Awwab Ishak in December 2020 which highlighted the expectation for landlords to do more to tackle the issue, and the significance and weight that should be given to reports of mould.
22. The landlord was contacted by EH on 9 December 2022 and, as a result of the inspection of 12 December 2022, EH found there was not significant disrepair that would warrant an assessment under the Housing Health and Safety Rating System. Having found evidence of condensation during that inspection which EH considered to be the root cause of the damp and mould, EH suggested a number of areas for the landlord to investigate. The landlord acted fairly by engaging with EH and attending joint inspections on both 12 December 2022 and 16 March 2023 which speaks to the landlord’s willingness to resolve the resident’s concerns.
23. The EH’s correspondence to the landlord indicated that it was not formally requesting these works. However, the landlord stated to the resident in its stage 1 response that it would carry out assessments and undertake necessary repairs, and that it had contacted its contractor to carry out the assessments to the roof and windows as recommended. It was therefore reasonable for the resident to expect these assessments to take place. Where repairs are required, they should be undertaken in accordance with its responsive repairs policy. This policy states emergencies repairs, which address an immediate health and safety risk, will be completed or temporarily make safe within 24 hours. If made safe, it will return in a reasonable timeframe to complete the repair. Routine repairs which are not emergencies are aimed to be fixed within 28 calendar days.
24. The Ombudsman recognises that prior to the resident’s complaint the landlord previously attended the property and replaced gasket and panes in the windows around July 2022. The landlord’s records also indicate that it repaired 3 to 4 window vents in the property on 30 August 2022. This demonstrates the landlord’s willingness to minimise damp and mould in the property.
25. On 20 December 2022, two days prior to the stage 1 response in which the resident was told that a contractor would carry out a window assessment, a job was raised for the landlord’s window contractor to attend the property, which it did on 5 January 2023. This was a reasonable timeframe for carrying out an assessment of the windows. The contractor assessed it was not viable to repair and that the windows should be replaced. The landlord confirmed in its stage 2 response of 29 January 2023 that the job was with its commercial team awaiting approval. The landlord’s records indicate the window units were replaced on 28 February 2023, but it is noted that the resident stated the 6 units were replaced on 8 March 2023. Irrespective of the disputed completion date, this was still approximately two months after the assessment and outside its aim to carry out routine repairs within 28 calendar days, and there is no evidence that the landlord provided an update to the resident after the 28 days, informing her that there would be a delay.
26. The resident stated the roofing contractor attended the property on 4 January 2023 to check the roof for any defects, but the landlord’s stage 2 response of 29 January 2023 stated that it was awaiting a date for its roofing contractor to do this, which would have caused confusion for the resident. Further, there is no indication of an inspection on 4 January 2023 in the landlord’s repair log; rather, it shows that the roofing contractor attended on 4 June 2023, suggesting a typo – but, if correct, is a substantial delay from 19 December 2022 when EH contacted the landlord with its recommended actions. It is concerning that inaccuracies may be present in the landlord’s records; and the Ombudsman would reasonably expect a repair older than 6 months to be flagged up.
27. From the evidence the Service has seen, the landlord contacted its roofing contractor on 5 September 2023 and was informed the relevant repair work order had been closed. Its roofing contractor stated it had attended in March 2023 but could not install scaffolding due to building materials in the way and it notified the landlord the same day. There is no evidence of this on the landlord’s repair logs it provided to the Service. It is concerning the landlord was not aware of this and all the more so given that the original work order for the roof had been raised in December 2022, over 8 months previously. It is also of concern that the landlord’s records show that its contractor informed the landlord on 31 May 2023 that the work order had been cancelled due to no response from the landlord, yet it did not arrange a new work order sooner than September 2023. This was a further failing on the landlord’s part. 
28. The above may indicate underlying issues with the landlord’s record keeping and it is of concern that there are no additional memos or notes to accompany the completion details of each repair. There are further examples of poor record keeping such as the window contractor emailing a quotation to be approved on 5 January 2023 following its inspection and the landlord towards the end of the month chasing the contractor for the quotation that had already been provided. Although the landlord provided its repair and case history records, these lacked sufficient detail for the Service to understand what the landlord did and when. In line with our recent spotlight report “On the record: Spotlight on Knowledge and Information Management” of May 2023, the landlord should have a robust record keeping system to ensure appropriate recording of, handling of, and responses to complaints and its delivery of operational service. In this respect, a recommendation has been made.
29. In the event of severe damp and mould, the resident may be decanted to temporary alternative accommodation while repair works to the property are undertaken. An internal landlord email dated 15 December 2022 indicated that at no point had the resident mentioned moving out and that the question was asked however the resident said she wanted the issues rectified and not money spent on temporary accommodation. Early on, there is evidence that it was discussed internally whether a decant was necessary and took into consideration how severe the damp and mould in the property was. This is in line with the landlord’s decant policy which identifies major work to remove extensive damp as a reason for temporary rehousing. As such, the landlord took appropriate steps to explore whether a decant was necessary and there was no service failure in the landlord’s handling in this respect.
30. While the Service does not consider complaints about damages and/or liability for damages, as such matters are better suited to an insurance claim or the courts; the Ombudsman recognises that it was not unreasonable in the circumstances for the landlord to ask the resident to claim under her contents insurance. Indeed, the welcome pack sent to the resident on 9 July 2019 included a recommendation to get home contents insurance to protect property from loss and damage. 
31. The Ombudsman also notes that the resident said she could not afford contents insurance. The resident asserted that her possessions including precious memories and Christmas gifts were ruined due to condensation in the loft. As the resident had told the landlord that she did not have contents insurance, it would have been appropriate for the landlord to have provided the resident with details of its own insurer, so that a claim could be made. In this regard, a recommendation has been made.
32. The landlord acted appropriately by arranging for its roofing contractor to attend the property shortly after the EH inspection. The resident states that on 4 January 2023 the contractor found no slipped tiles but was told that vents needed to be installed to eliminate condensation. It is unclear if any roof vents have since been installed; however, there is no mention of this in the landlord’s emails with the roofing contractor or in its repair logs.
33. The landlord should take preventative action including ensuring that extractor fans are working. The broken mechanical extractor fan was recommended to be fixed by the EH officer as early as 19 December 2022. The landlord’s repair logs demonstrate this was not raised as a repair until 15 March 2023 which was a day before the second EH inspection. The repair was completed on 20 March 2023 which was 3 months after the EH officer’s recommendation. While this was only a recommendation from, not a requirement, a functional extractor fan may have improved ventilation and the delay would have likely caused distress to the resident. It is unclear why the repair was not raised sooner. This was an avoidable delay for a repair that should have been carried out in accordance with its responsive repairs policy. This states a routine repair, such as fixing a broken extractor fan, should be completed within 28 calendar days.
34. The landlord made efforts to resolve the damp and mould and arranged inspections and a mould wash in good time. It also worked with EH in arranging joint inspections which demonstrated a willingness to resolve the resident’s concerns. It is noted the landlord carried out works to windows previously in July and August 2022 and again in March 2023. However, to date it has not put in place a suitable and lasting fix for the issue. While the Service appreciates that sometimes with damp and mould cases, landlords go through a process of elimination in order to overcome issues, it does not appear that the landlord has tackled all of the potential causes as suggested by EH.
35. Overall, the landlord could have done more to put in a place a lasting fix with respect to damp and mould in the property.  While there was evidence that the landlord treated the resident’s concerns with some degree of urgency and according to the inspections there was not a significant damp and mould issue, it failed to deal with repairs in accordance with its policy timescales. This would have had an adverse effect on the resident and her family. In particular, there were considerable delays in renewing loft insulation and carrying out an eaves repair which may have contributed to the subsequent damp and mould. These appear to still be outstanding at the time of writing this report.
36. The landlord’s stage 2 response did not give a target date for the roof repairs and stated its contractor would be in touch with the resident to complete the repairs they had been assigned. It stated the landlord would continue to liaise with EH until the repairs were satisfactorily completed. However, it appears that it has failed to complete the roof repair to date. This is over 9 months from its promise to carry out the roof repair which is an unreasonable timeframe. It also failed to communicate with the resident about the delays. Further, the remedy offered in its final response does not adequately reflect the level of detriment caused to the resident by the failures identified in this report.
37. The Ombudsman recognises that the resident decorated her home on the basis that the work carried out by the landlord had resolved the mould issue. However, she had experienced further issues with mould. As part of the stage 1 investigation, the landlord indicated that it would redecorate any affected areas but that any painting would normally be white and would not match the current décor. While the Service appreciates this is not ideal, the landlord’s response was not unreasonable and the resident may choose to decorate over any internal parts in line with the tenancy agreement. It is unclear if the landlord made good the affected areas and completed the redecoration as agreed in its stage 1 response. It would be appropriate for the landlord to reinspect the property and once it is satisfied the mould has been dealt with, it should carry out redecoration to put resident back in the position she was when she believed the mould issue had been resolved prior to decoration. A recommendation has been made in this regard.
38. With regard to the broken loft ladder, the Ombudsman cannot determine what happened and which party was responsible; however, the Ombudsman appreciates the distress a broken loft ladder may have on the resident. On 14 December 2022, the resident stated that operatives who previously visited the property broke her loft ladder. The landlord acted reasonably by asking its operatives what had happened. The operatives stated they did not set up or put away the ladder and were not aware of any damage caused to the ladder during their visit. While the landlord cannot determine how the ladder was broken, it was appropriate for the landlord to apologise for the distress the situation may have caused.
39. In the landlord’s communication with the resident, it was clear that it had accepted responsibility and set an expectation that the recommended roof works including loft insulation replacement and a standard eaves repair would be completed. The Ombudsman does not underestimate the distress caused to the resident by the landlord’s failure to carry out these works within a reasonable time, and this was clearly a resident who wanted a safe, environment for her young children. It is of concern that the resident states that her children were frequently in and out of hospital due to chest infections. 
40. According to the EH on 16 March 2023, the property was habitable and since the windows were replaced, the damp and mould have been reduced. However, the landlord still failed to carry out the roof works within a reasonable time. It is noted that the EHO stated it would be satisfied once the roof repairs were completed. To date, it appears this has not happened and it failed to communicate any timetabling of required works with the resident in line with its damp and mould policy. Additionally, the landlord, though it promptly attended the property following reports of damp and mould, did not carry out a damp and mould checklist on 8 December 2022 in line with its policy and damp and mould self-assessment for 2022-23. This states that it will complete a damp and mould checklist during each property visit to ensure root causes are identified and conduct repairs for all reported cases of damp and mould. It said it will follow up on completed repairs to ensure any issues do not return.
41. Across the landlord’s formal responses, it acknowledged poor communication and apologised for the distress this caused to the resident. The landlord’s stage 1 response of 22 December 2022 offered £25 for poor communication and confusion caused by its advisor suggesting that a surveyor would attend the property on 8 December 2022. In fact, a joiner attended the property that day and the landlord acknowledged its advisor could have been clearer. In light of the above, its apology and offer of compensation did not adequately ‘put things right’. The resident continued to report damp and mould and was not given clear times and dates of when a suitable and lasting fix would take place. This was a failing on the part of the landlord. Further, the landlord’s stage 2 response reiterated its position and that it would follow through on EH’s recommendation. It offered a further £50 compensation for the further poor communication and delays in its response. Again, the landlord failed to provide specific times and merely stated its contractors would be in touch with the resident to schedule dates to complete the repairs. This was unsatisfactory and did not remedy the outstanding issues.
42. In line with the Service’s remedies guidance, awards of between £100 to £600 compensation should be made where the Ombudsman has found failure which impacted the resident. It has been noted that the property had been inspected twice by EH: on both occasions no major issues were raised with respect to damp and mould. Further, as there were no further reports of mould between March and August 2023, this would indicate that the detriment experienced as a result of the landlord’s failure to carry out the roof repair was minimal. An order have been made below for a corresponding remedy.

Determination

43. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s response to the resident’s reports of damp and mould and the associated repairs.

Orders and recommendations

Orders

44. Within 4 weeks of the date of this report, the landlord must pay the resident £225 for its failure to carry out appropriate remedial repairs in a timely manner. This amount includes the £75 compensation offered across stages 1 and 2, if it had not paid this already.
45. Within 8 weeks of the date of this report, the landlord must complete the roof works, if it has not done so already. Additionally, the landlord must follow up the repair work undertaken on the roof by inspecting the works and satisfying for itself that sufficient action has been taken to prevent damp and mould from reoccurring. It should consider instructing an independent external damp specialist to inspect the property if the issue has not been resolved by the remedial work. The landlord must confirm this to the resident in writing and share of copy with the Service.

46. The landlord must provide evidence that it has attempted to make the above compensation payment within 4 weeks and complied with the works order within 8 weeks.

Recommendations

47. The landlord should:
    1. Redecorate areas that were affected by mould once it has satisfied itself that the mould issue has been resolved, if it has not done so already.
    2. Take reasonable steps in partnership with the resident to ensure adequate heating and ventilation of the property, in order to prevent the growth of mould.
    3. Share details of its insurer to enable her to make a damages claim, if it has not done so already.
    4. Carry out a review of its repairs record keeping in this case. The landlord should demonstrate that it has considered implementing a system that provides clear and detailed information on completion dates and works carried out.