Hackney Council (202117182)

REPORT

COMPLAINT 202117182

Hackney Council

29 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

The complaint is about the landlord’s:
1. Response to the resident’s reports of damp and mould throughout the property.
2. Handling of the resident’s reports of a leaking WC.
This report also considers the landlord’s complaint handling.

Background and summary of events

Background

The resident is a secure tenant. He has lived in a first-floor studio flat with his partner owned by the landlord since December 2014. The resident is represented by his partner and has given his authority for her to act on his behalf in respect to his complaint, both with the landlord and with this Service. For clarity this report refers to both the resident and his partner (and representative) as ‘the resident’.
The landlord has advised this Service that it is not aware of any vulnerabilities that the resident and her partner may have. The resident has stated that she has mental health issues and both she and her partner have asthma. The resident has referred to these issues throughout her complaint communications with the landlord.
The resident began reporting issues with damp and mould in the property in 2016 and has continued to report the issue regularly between 2016 and 2021. The resident first reported that her toilet was leaking in 2019. In May 2021 the resident made a formal complaint stating that the property was still suffering from damp and mould and that her toilet was still leaking. In January 2022 the landlord replaced the resident’s toilet. The damp and mould issues were resolved in March 2022.

Repairs

Section 11 of the Landlord and Tenant Act 1985 obliges the landlord to repair the structure and exterior of the building. It is also obligated to keep sanitation installations including the toilet in good working order.
The landlord provides the following timescales for responding to repairs. It will:
1. Attend to an ‘emergency’ repair (including “uncontrollable” water leaks and unusable toilets) within 24 hours to make safe and will then arrange follow-on work.
2. Attend to ‘urgent’ repairs within 5 working days. Examples of urgent repairs include a surveyors appointment following a report of damp and mould and “blocked sink, bath or basin”.
3. Respond to ‘normal’ repairs within 21 working days.
The landlord’s website states that it takes damp and mould “extremely seriously” and has an action plan to tackle the issue. It states that “a plumber will visit all reported leaks…by at the latest the end of the following day”. The action plan also states that the landlord will inspect reports of damp and mould within 5 working days. This action plan was published in December 2022, after the events of this investigation.

Complaint process

The landlord operates a 2-stage complaints procedure and aims to respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days. The same policy states that the landlord considers the Ombudsman’s remedies guidance when calculating compensation.

Scope of the investigation

It is noted as background context to this investigation that the resident initially reported the damp and mould to the landlord in 2016, and that she had repeatedly reported the issue between 2016 and 2021. This investigation has however primarily focussed on the landlord’s handling of the resident’s recent reports from December 2020 onwards that were considered during the landlord’s recent complaint responses. However, the resident’s repair reports of 2016 to 2020 have been considered in respect of the landlord’s handling of the issues raised from December 2020 onwards.

Events prior to the period of this investigation

In October 2020, the landlord was the victim of a cyber-attack. The landlord has previously advised this Service, in relation to another investigation, that the cyber-attack resulted in “major disruption” to its repairs services as it was unable to track the progress of the reported repairs, and additionally meant that it was unable to review its repairs database.
The landlord has acknowledged that the resident has been reporting damp and mould in the property since 2016. Repair records show that damp and mould surveys were carried out in December 2017, November 2018, March 2020 and August 2021. The landlord has been unable to provide full logs of any repairs raised prior to the cyber-attack.
The landlord’s repair history demonstrates that on 20 September 2019 a repair was raised for a plumber to attend the resident’s report of a “containable leak around the toilet”. This repair was recorded as complete.
The resident emailed the landlord in January 2020 and stated that the mould in the property was impacting the health of herself and her partner and that they desperately wanted to move.
In February 2020 the landlord’s records show that a repair was ordered for a plumber to fix a leaking shower which had caused damage to the ceiling. It had also caused mould to the ceiling of the bathroom. The landlord’s contractor reported that the repair was completed in March 2020 however in June 2020 the repair was raised again as a ‘re-call’ and recorded as complete.

Summary of events during the period of investigation

In December 2020 the resident emailed the landlord and said she was “fed up” with chasing the repair. She said that “countless” surveyors had inspected the issue but the problem was getting worse.
On 25 May 2021 the resident made a stage 1 formal complaint to the landlord. She stated:
1. She and her partner had been living with disrepair for “the past few years” due to mould.
2. Many surveyors had attended and had all advised that the issue was due to a lack of wall insulation.
3. The WC was leaking and causing “puddles” on the bathroom floor.
4. Both residents were asthmatic and were living with black mould throughout the property.
5. The property had “an awful mouldy smell” and never felt clean “no matter what we do”.
6. She had to throw away a lot of her belongings due to mould damage.
The landlord provided a stage 1 complaint response on 24 June 2021. The response stated:
1. Due to the “major cyber-attack” suffered by the landlord, it did not have access to the full repair records for the property.
2. Its surveyor confirmed that he had carried out an inspection via video call on 17 December 2020. The inspection identified black mould in the kitchen, bathroom, bedroom and hallway.
3. The surveyor had raised a repair order for a mould wash as a “temporary measure” and said that an in-person inspection was required.
4. The surveyor had failed to update the resident after the video inspection due to the national COVID-19 lockdown as “no physical surveys were being undertaken unless it was an emergency eg flooding, fire”.
5. As restrictions had been eased the landlord had raised a physical inspection for 16 September 2021 which was the landlord’s “earliest available appointment”.
6. The landlord apologised “for not providing [the resident] with the update following the video inspection”.
The resident responded to the landlord on 24 June 2021 and stated that she was unhappy with the complaint response and wanted her complaint to be escalated to stage 2 of the complaint process. She said she was not happy to wait 3 months for a surveyor to attend and that she did not accept that the cyber-attack was the reason for the delay as the issue had started long before that.
The landlord’s records show that an operative attended to inspect the resident’s WC on 29 June 2021. Following the appointment the resident emailed the landlord and stated that the plumber who had attended had advised that a replacement WC was required.
The landlord contacted the resident on 26 July 2021 and advised that it was attempting to bring forward her appointment for a damp and mould survey. It stated it would update her.
On 9 August 2021 another plumber attended the resident’s property to inspect the WC. The resident said that the plumber attended later and with no tools, he “wobbled” the toilet and said he was “absolutely certain” a replacement was needed. The landlord responded and stated that the plumber who had attended in June 2021 had reported that a new WC was not required. The resident replied that she was “beyond upset now I am furious” as she had been “waiting for this and sending email after email chasing this for over 6 weeks”.
The resident contacted this Service on 25 October 2021 and said she had been dealing with damp and mould in the property for more than 4 years. She said that the landlord’s surveyors had told her on 3 occasions that the property required more insulation but this had not been installed. The resident also said that the toilet in the property had been leaking for over a year.
On 26 October 2021 the Service requested that the landlord provide the resident with a complaint response. On 19 November 2021 the landlord provided a copy of its stage 2 complaint response which was dated the same day.
The landlord’s stage 2 complaint response sent on 19 November 2021 stated:
1. The landlord apologised for the delay that the resident had experienced regarding outstanding repairs.
2. The landlord had brought forward the damp and mould survey, this had now been carried out.
3. Following the survey the landlord had raised a works order to resolve the outstanding damp and mould repairs.
4. The contractor would be in contact to arrange access to complete the works.
5. The landlord offered £100 compensation for the delay to the repairs.
The resident contacted the landlord on 8 January 2022 as she was upset having received a call from the repairs team stating that their property was leaking into the property below. The resident expressed frustration that she had been reporting her leaking toilet for months with no resolution but the landlord was now acting as the toilet was leaking into her neighbour’s property.
On 21 January 2022 the landlord raised an emergency repair to replace the resident’s toilet.
On 21 February 2022 the resident emailed photographs to the landlord and stated that they showed the “horrible state” they were living in. She said that they were always having to throw away their belongings due to the mould and were “continuously ill”. The photographs show a large amount of black mould on the walls and ceiling of the property. The landlord responded on the same day and said it would “find out further information and get back to you”.
The resident advised the Service that on 25 February 2022 the landlord’s contractor contacted her and booked to complete the outstanding repairs on 9 March 2022.
The resident confirmed to this Service on 13 April 2022 that the works to her property had been completed.

Assessment and findings

Response to the resident’s reports of damp and mould throughout the property.

It is recognised that this situation has caused the resident severe distress as she has experienced damp and mould in the property over a prolonged period. Aspects of the complaint relate to the impact of her living conditions on the health of the resident and her partner. Where the Ombudsman identifies failure on a landlord’s part, we can consider the resulting distress and inconvenience. However, unlike a court, we cannot establish liability or calculate and award damages, this would usually be dealt with as a personal injury claim through the courts. Though the Ombudsman is unable to evaluate medical evidence, it will be considered when considering the resident’s circumstances.
The landlord has a responsibility under the Housing Health and Safety Rating System, introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
The landlord’s records show that its surveyors carried out inspections of the damp and mould in 2017, 2018, 2020, and 2021. The landlord has been unable to provide detailed findings from these surveys as it states lost much of this information due to a cyber-attack in October 2020. The resident states that she was advised by the landlord’s surveyors following these inspections that the damp and mould in the property was due to insufficient wall insulation.
The landlord has acknowledged in its stage 1 complaint response that when it inspected the property by video in December 2020, it had found there to be damp and mould throughout the property. The landlord had determined that an in-person inspection was required but stated that, due to COVID-19 restrictions, this was not possible at that time.
In respect of COVID-19 pandemic restrictions, the Ombudsman will consider what was reasonable and appropriate in all the circumstances of the complaint along with the law and government guidance in place at the time. The Ombudsman expects the landlord to have acted within the law and guidance, unless there was a clear justification to do otherwise and this achieved a fair outcome for the resident.
On 23 March 2020 the UK government announced a national lockdown from 26 March 2020. Several periods of lifting of restrictions and further lockdowns followed during 2020 and 2021. On 18 May 2020 the government issued a letter to all social housing residents regarding the easing of lockdown measures. The letter detailed that landlords could resume routine repairs and planned works.
The resident advised the landlord on at least 3 occasions that she and her partner had asthma and that the conditions in the property were impacting their health and making them “continuously ill”.
The landlord was aware in December 2020 that there was a serious issue with damp and mould in the property and that the resident and her partner both had health issues. This Service therefore does not consider it reasonable that an in-person inspection was not completed at that time and, in fact, was not completed until 8 months later in August 2021. It is the view of this Service that it was possible for the landlord to carry out an in-person inspection of the property in December 2020 providing the correct guidance was followed regarding social distancing and protective equipment.
Following the in-person inspection in August 2021 the landlord failed to complete the required works to the property until 7 months later in March 2022. This was a further unreasonable delay.
The landlord’s own repair policy states that it will attend to urgent repairs within 5 working days. This includes arranging a surveyors appointment following a report of damp and mould. It also states that it will respond to routine repairs within 21 working days. The landlord has far exceeded these timeframes and this was unacceptable.
This Service is encouraged to note that, since the events considered in this investigation, the landlord has introduced a damp and mould action plan. This is a positive step that the Ombudsman hopes will assist the landlord in reducing the future impacts of damp and mould in its homes.
The actions within the landlord’s plan are consistent with recommendations made in the Ombudsman’s Spotlight Report on Damp and Mould published in October 2021. The landlord introduced their strategy in December 2022. This strategy commits the landlord to inspect reports of damp and mould within 5 working days. It is acknowledged however that both the spotlight report and the landlord’s strategy were published after the events of this case and therefore the landlord cannot be held to these recommendations.
Overall, the landlord failed to effectively respond to the resident’s reports of damp and black mould in the property for an extremely prolonged period. The landlord failed to acknowledge that the resident and her partner had disclosed that they had asthma and therefore the impact of the damp and mould on them was likely to be exacerbated. The resident was clearly distressed by the state of the property and had to invest a considerable and unreasonable amount of time and effort to ensure that the landlord acted on her reports. This Service therefore considers that there was severe maladministration in the landlord’s handling of the resident’s reports of damp and mould.

Handling of the resident’s reports of a leaking WC.

It is noted that the resident initially reported that the WC in the property was leaking in September 2019. As explained above, this investigation has primarily focussed on the landlord’s handling of the resident’s recent reports from December 2020 onwards that were considered during the landlord’s recent complaint responses.
The resident stressed in her May 2021 complaint that she continued to experience a leak from the WC and that this was resulting in “puddles” on her bathroom floor. The resident stated that an operative who attended to inspect the leak in June 2021 had told her that a new WC was needed. This Service has not been provided with evidence that the attending plumber recommended a replacement WC as limited records are available due to the cyber-attack.
In August 2021, when the resident chased the landlord for an update on the WC replacement, she was told that a new WC was not required. This caused the resident clear distress and she stated that she was “beyond upset”. It also caused the resident to invest unnecessary time and trouble in chasing the landlord for an update on the repair over several weeks.
The landlord eventually replaced the WC in January 2022. The resident had been reporting this repair and requesting an update for over a year. She therefore believed that the landlord had only carried out the replacement because her downstairs neighbour had reported being impacted by water ingress from the leak in January 2022. This assumption was understandable and caused the resident distress as she felt she was being ignored while other tenants were receiving a timely repair service.
Overall, the Service does not consider it reasonable that the resident had to wait 16 months for the leak to be resolved and the toilet replaced. The resident was forced to invest an unreasonable amount of time and trouble requesting updates from the landlord. She also experienced distress due to the belief that she had been treated unfavourably compared to other tenants. Therefore, there was maladministration in the landlord’s handling of the leaking WC.

The landlord’s complaint handling.

It took the landlord 21 working days to respond to the resident’s stage 1 complaint, this was outside of the timeframe within its own complaint process.
The redress proposed by the landlord’s stage 1 complaint response, an apology and an inspection 3 months later, was not sufficient considering the conditions that the resident was reporting at that time.
The landlord did not provide a response to the resident’s stage 2 complaint until November 2021, almost 5 months after it was raised. This constituted an unacceptable delay.
The landlord’s stage 2 complaint response stated that its contractor would be in touch to arrange the works but gave no further information. This was not appropriate, particularly as the contractor did not arrange a start date for the work until February 2022, 3 months later.
The landlord failed to resolve the leaking WC until January 2022, 8 months after the stage 1 complaint and 2 months after the landlord’s final response letter. The damp and mould in the property were not resolved until March 2022, 10 months after the resident’s formal complaint and 4 months after the landlord’s final written response.
The landlord offered the resident £100 compensation for delays to the repairs to her property. This Service considers that this amount falls considerably short of providing adequate redress for the distress, inconvenience, time and trouble experienced by the resident. Orders for further redress have therefore been made.
The primary purpose of a complaints process is, as outlined in the Ombudsman’s Dispute Resolution Principles, “put things right”. Given the considerable delay between the resident’s complaints and the resolution of the issues this Service does not consider that the landlord’s complaint handling effectively fulfilled this purpose.
Overall, the landlord’s complaint handling failed to affect a timely resolution to the outstanding repairs reported by the resident. While the landlord apologised for delays in its repairs and communication failures, it failed to put this right within a reasonable time and failed to offer sufficient redress. The landlord’s stage 2 complaint was unreasonably delayed and caused the resident further distress and inconvenience.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Severe maladministration in the landlord’s response to the resident’s reports of damp and mould throughout the property.
2. Maladministration in the landlord’s handling of the resident’s reports of a leaking WC.
3. Maladministration in the landlord’s complaint handling.

Reasons

The landlord failed to effectively respond to the resident’s reports of damp and mould in the property for a protracted period. It failed to acknowledge the resident’s existing health issues or the impact that the condition of the property was having on the resident and her partner. The resident reported experiencing distress at the condition of the property and had to invest an unreasonable amount of time and trouble to ensure the issue was resolved.
It took the landlord 16 months to resolve the leaking WC. During this time the resident again invested an unreasonable amount of time and trouble requesting updates from the landlord. The resident experienced distress due to the belief that she had been treated unfavourably compared to her downstairs neighbour.
The landlord’s complaint handling failed to resolve the resident’s issues in a timely way. The landlord’s responses were not provided within the timeframes outlined in the landlord’s complaint policy and they failed to offer sufficient redress.

Orders

Within 4 weeks of the date of this report a senior officer of the landlord to apologise to the resident for its failures in this case.
Within 4 weeks of the date of this report the landlord to pay the resident £1,650 comprising:
1. £800 for distress and inconvenience due to the landlord’s handling of the resident’s reports of damp and mould.
2. £200 for time and trouble due to the landlord’s handling of the resident’s reports of damp and mould
3. £250 for distress and inconvenience due to the landlord’s handling of the resident’s reports of a leaking WC.
4. £200 for time and trouble due to the landlord’s handling of the resident’s reports of a leaking WC.
5. £200 for time and trouble associated with the landlord’s complaint handling.
6. This amount replaces the landlord’s previous offer of £100. If the landlord has already paid the resident £100 this should be deducted from the £1,200 ordered.
The landlord to review its current performance against its damp and mould action plan. The review should consider whether the action plan has sufficiently improved its response to damp and mould and whether any further improvements are required. The landlord should publish the results of its review within 8 weeks of the date of this report.