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Harlow District Council (202012770)

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REPORT

COMPLAINT 202012770

Harlow District Council

14 December 2021


Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the 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 regarding mould at her property;
    2. request for her priority banding on the social housing register to be increased;
    3. request for a management move.

Jurisdiction

  1. What the Ombudsman 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.
  2. Paragraph 39(m) of the Housing Ombudsman Scheme notes as follows:

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

m) fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.

  1. The Local Government and Social Care Ombudsman (LGSCO) has jurisdiction over complaints regarding social housing applications for local authority landlords. Throughout the course of the resident’s complaint, she has requested that the landlord increase her priority on the social housing register based on the condition of her property and the medical evidence she presented. The landlord has at each stage of the complaint kept her banding and medical priority on the social housing register at the same level, leading her to escalate her complaint through the landlord’s internal complaints procedure.
  2. After carefully considering all the evidence, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the complaint about the landlord’s response to the resident’s request for her priority banding on the social housing register to be increased is outside of the Ombudsman’s jurisdiction. The Ombudsman understands that the resident is pursuing this element of the complaint with the LGSCO, who are the correct body to investigate this.

Background and summary of events

Background

  1. The resident has been a tenant at the property of the landlord since 23 April 2018, and a secured tenant since 29 April 2019. The landlord is a local authority.
  2. The landlord operates a management transfer policy. The policy notes that a management transfer will be considered where there is an “exceptional” case where a “tenant is unable to continue living in their own home and needs to move out as a matter of urgency and the circumstances around their need to move are outside of the Choice Based Lettings policy.” The policy further notes that any transfer will be on a like-for-like basis.
  3. At the time of the complaint, and currently, the landlord operated a three stage complaints procedure.
  4. The tenancy agreement notes that the landlord is responsible for the external structure of the building. Neither the tenancy agreement, nor the landlord’s online guidance about responsive repairs makes reference to condensation, damp, or mould.

Summary of events

  1. The resident moved into the property along with her partner and young child in April 2018. In or around May 2018, the resident experienced a leak at the property, which the landlord subsequently took action to rectify. The landlord also gave the resident advice around this time regarding tackling mould at the property.
  2. In November 2018, the resident advised the landlord that she had been experiencing mould in the bathroom at the property, and that the mould had now spread to the bedroom as well. She also expressed her concerns that the mould could have a negative impact on her child’s health.
  3. The landlord’s surveyor attended the property in December 2018 and concluded the cause of the mould was condensation. The landlord subsequently arranged for a ventilation survey and heating survey of the property. Additional internal doors were fitted to the property to prevent the spread of moisture between rooms, and the affected walls were treated and repainted. Following the ventilation survey, an extractor fan was added to the property in January 2019. Additionally, following the heating survey, additional radiators were installed in the property.
  4. In or around December 2019, the resident reported that mould had returned to the property. The landlord’s surveyor attended the property and noted that the resident’s tumble dryer was not externally vented, the resident was drying clothes on the radiators, and the heating was not on. The surveyor concluded there was no rising or penetrating damp at the property and provided the resident with further advice about addressing condensation in the property.
  5. The surveyor also suggested that the landlord could relocate one of the radiators to one of the walls that was experiencing mould, however, the resident declined this offer and advised that when the previous radiators had been installed, they had temporarily lost heating, which she did not want to occur again.
  6. In or around December 2020, the resident reported that, once again, mould had returned to the property, specifically in the bedroom. She advised she had followed all the landlord’s condensation advice and was using a dehumidifier and stand-alone heater to address the issue, but that the mould was still growing. The landlord replied that, as it was a condensation issue, it did not consider it a repair issue for which it was responsible and as such, it would not be attending. It also advised the resident to ensure the windows were open in order to disperse any moisture.
  7. In January 2021, the resident reiterated she had followed the landlord’s advice, but the mould was still an issue. She reiterated her concerns for the health of her child and advised she now had a second child. The resident and her partner, along with their two children all slept in the same bedroom and the resident believed the excessive moisture from four people in one room was the cause of the mould. She subsequently requested the landlord assist her in moving to a suitable two-bedroom property.
  8. The resident followed this up with a formal complaint on 20 January 2021, in which she reiterated her concerns and noted she had provided letters from her GP regarding the medical issues her partner and son were experiencing. She noted the landlord had advised her it would take six weeks to assess these letters to determine if they increased her priority for a transfer, but that she wanted it done faster considering the mould issues she was experiencing.
  9. The landlord provided its stage one response on 26 January 2021. It confirmed that the resident had ‘priority 2’ banding for a transfer. It also advised it had carried out a space assessment of the property in September 2020 and that the property was not statutorily overcrowded. It further advised there was a high demand for transfers affecting the timeframe in which it was likely a property would be available. It noted that the resident also had a ‘moderate medical priority’ in relation to her partner’s requirement for a second bathroom at the property. Regarding its assessment of the additional medical letters she had provided, it advised it was processing these in line with its policy and that it was unable to expediate this process. Regarding the mould at the property, the landlord outlined the steps it had taken to assess the mould and reiterated its advice regarding ventilation of the property.
  10. The resident subsequently requested her complaint be escalated and noted she had previously been informed the landlord considered the property was overcrowded, and so she was confused it was now saying it was not overcrowded. She also noted that the space assessment had been carried out before her second child was born and so queried if this would now mean the property was statutorily overcrowded. She reiterated she was taking every step possible to address the mould, but that it remained an issue and she was concerned at the health impact on her children.
  11. The landlord provided its stage two response on 24 February 2021. It reiterated its position on the mould and that it was caused by the resident’s “lifestyle” and was not a maintenance issue for which it was responsible. It also reiterated its offer to relocate the radiator in order to assist with the heating of the property. Regarding overcrowding, the landlord advised that by its standards it considered the property to be overcrowded, which is why the resident had been given priority two banding. It further advised that the space assessment had determined the property was not statutorily overcrowded (which was a different standard to its own) and so it could not increase the banding on this basis. It signposted the resident to an explanation about statutory overcrowding and explained it did not consider the resident’s additional child to make the property statutorily overcrowded.
  12. Regarding the additional medical letters, the resident had provided, the landlord advised they did not increase her medical priority from the existing ‘moderate’ level. It also noted that the resident had enquired as to whether the landlord could offer a ‘management transfer’, but it advised it was unable to offer one on the basis of the resident’s current circumstances.
  13. The resident subsequently requested her complaint be escalated to the landlord’s final complaints stage. She noted the landlord had advised her there was no cavity wall insulation in the building and expressed concern this was a defect causing the mould she was experiencing. She also expressed her dissatisfaction that the landlord had refused to increase her priority as a result of the medical evidence she had presented.
  14. The landlord provided its stage three response on 31 March 2021. Regarding the cavity wall insulation, it advised it was assessing the block for installation of cavity wall insulation as an improvement to the property, but that it did not consider this to be the cause of the issues experienced by the resident. It reiterated its advice regarding condensation, and also its offer to relocate the radiator in the resident’s property. It noted that the resident had also provided further additional medical letters and that it would reassess its position on a management move following its assessment of the letters.
  15. The resident subsequently noted she did not want a ‘like-for-like’ management move and that any offer made by the landlord should be for a two-bedroom property. In May 2021, the landlord advised that the resident’s medical letters had been assessed but that her medical priority remained at ‘moderate’. It advised that its management move criteria were for exceptional cases where a property was uninhabitable. It further advised that while it considered the resident’s property to be overcrowded, it nevertheless considered the property to be habitable. It was therefore unable to offer a management move but would continue to assess this position if presented with new evidence.
  16. In June 2021, the resident queried if the space assessment for whether the property was statutorily overcrowded would change as her children got older. It is not evident whether the landlord has replied to this query.

Assessment and findings

Mould

  1. The Ombudsman understands that the circumstances experienced by the resident have caused her significant distress and it is understandable that she is concerned about the ongoing impact of the issues that she has reported on her family. The purpose of the Ombudsman’s investigation is to determine whether the landlord’s actions in the circumstances were in line with its policies and procedures, as well as best practice in the circumstances.
  2. Based on the tenancy agreement, and the landlord’s published repairs information, the landlord does not have a specific policy relating to damp and mould. This service published recent guidance (viewable here: Housing Ombudsman Spotlight report on damp and mould (housing-ombudsman.org.uk)) in relation to landlord obligations regarding damp and mould. Whilst this guidance was published in October 2021, and therefore after the landlord had considered the issues raised in this particular complaint, the guidance does bring together existing good practice in the sector, and it is therefore relevant to refer to it in this investigation. In particular, the guidance makes recommendations about implementing specific policies and action plans in relation to how a landlord will investigate and tackle damp and mould. Having a specific written policy allows for transparency as to what steps a landlord will take and helps residents understand what to expect from landlords. A recommendation has been made below that the landlord read this guidance and implements the recommendations made therein.
  3. When a landlord receives reports of damp and mould at a property, the Ombudsman expects it to take proactive steps to investigate the issue and determine the cause, and then take any remedial action. Following the resident’s reports in November 2018 that she was experiencing mould at her property, the landlord appropriately arranged for its surveyor to attend within a reasonable timeframe to assess the property. Following their assessment that there was no rising or penetrative damp, and that the issue was likely to be condensation related, the landlord appropriately arranged for specialist reports for heating and ventilation at the property to determine what further action could be taken. This is in line with what the Ombudsman would consider best practice in such circumstances.
  4. Based on the reports, the landlord appropriately implemented the expert recommendations, being to install an air vent to assist with ventilation and also to install additional radiators to assist with heating.
  5. Following the resident’s further reports in December 2019, the landlord also appropriately arranged for its surveyor to reattend and assess whether there had been any change to the cause of the reported mould. Having assessed that there were factors present in the property which are known to contribute to condensation issues, the landlord appropriately provided advice on how to mitigate condensation issues. The landlord also identified that the relocation of a radiator may provide further assistance, and while the resident has explained why they did not want this to occur, the landlord’s offer to relocate it was nevertheless appropriate, as were its continued offers made in its formal responses.
  6. It is not disputed that, by following the advice given by the landlord, the resident did not experience further issues with mould in the property, other than in the bedroom. Following the return of the mould in the bedroom in December 2020, the resident articulated to the landlord that she was following all the advice it had given and was also using an additional heater and dehumidifier. As the resident had not reported any changes to the property, such as water ingress, it was reasonable for the landlord to conclude that the cause of the issue was unchanged. The resident at this time suggested that the reason there was increased moisture in the bedroom was due to the fact four people were sleeping there. This service cannot conclusively diagnose if this was the cause or a contributory cause, although it is noted that there are no outstanding repair issues identified. Should this be the cause, however, it is evident that there is no additional repair works that the landlord can provide to assist, and the correct course of action for the landlord is to advise the resident to seek a transfer to a more suitable property, which the resident was actively seeking at this time.
  7. As noted above, an investigation into the priority given to the resident by the landlord is outside of the Ombudsman’s jurisdiction. It is not disputed, however, that throughout the period of the complaint, the landlord was processing the resident’s application for a transfer, in line with the priority it had assigned. It also appropriately continued to provide advice at each stage of its complaints procedure as to how the resident could mitigate condensation at the property. While this caused frustration for the resident as she was already following every step of the advice without success, this was the only step available to the landlord as it was not disputed that condensation was the cause of the mould.
  8. The Ombudsman notes the landlord’s use of the word “lifestyle” in its stage two response in reference to the cause of the mould. While it may have been correct to note the cause of the mould was not a maintenance issue, the use of the term “lifestyle” suggests that the resident is choosing to live in a way that is causing mould. This is clearly not the case, given that she had explained she was doing everything possible to alleviate condensation and that she considered the cause of the mould to be that there were four occupants in a one-bedroom property, which she also had not chosen and was attempting to transfer. A recommendation has been made below for the landlord to avoid this terminology in future.
  9. The resident has also expressed her concern that the lack of cavity wall insulation at the property has contributed to the condensation issues. This service has not been provided with evidence to suggest that when the property was built, it was required to have cavity wall insulation. The lack of cavity wall insulation is, therefore, not a defect with the property for which the landlord is required to rectify but is considered an improvement at its discretion. The landlord has advised the resident it is considering adding cavity wall insulation to the property as part of its improvements programme at some point in the future, which was reasonable in the circumstances.
  10. In summary, the landlord took appropriate steps to investigate the resident’s reports of mould at the property, and arranged for expert reports to be carried out, following which it implemented the recommended works to mitigate the mould. Its conclusion that the mould was occurring due to condensation was reasonable based on its investigations, and its continued advice to mitigate condensation, along with its processing of the resident’s transfer request to a more suitable property, is the appropriate course of action in the circumstances.

 

Management move

  1. The landlord’s management transfer policy notes that it will consider a management move in “exceptional” circumstances, where there is a “matter of urgency,” and the circumstances are outside of the housing register system.
  2. The resident has presented medical evidence on a number of occasions to the landlord regarding the medical issues experienced by her partner and children. On each occasion, the landlord has considered the medical evidence in line with its policies, in the context of determining the relevant medical priority for the housing register. Following its assessment, on each occasion, the landlord has determined that the medical priority for the resident’s transfer application is a “moderate” medical priority. This service does not have expertise in assessing the medical conditions of residents. Additionally, as noted above, the application of medical evidence in the context of the housing register is outside of this service’s jurisdiction.
  3. The landlord has advised in the context of the resident’s request for a management move, that the requirements for the management move had not been met. Given that based on the medical evidence it had only determined there was a moderate priority, it was reasonable for it not to have considered this to be an ‘exceptional’ need in the context of its management move policy. Additionally, as medical needs are already considered as part of the priority categorisations for the housing register system, it was also reasonable for the landlord not to rely on the medical evidence for its decision regarding the management move, as per its policy.
  4. While the Ombudsman appreciates that it is distressing for the resident to live with the mould issues at her property, it is also not disputed that there is no structural damage or defects at the property. It was therefore reasonable for the landlord, in its explanation regarding its decision not to offer a management move, to have explained that as it considered there to be no urgent issues which made the property uninhabitable, it did not consider the resident’s need to meet the threshold to offer a management move.
  5. The priority for the resident’s housing register application has been based on her need to move from a one-bedroom property to a two-bedroom property. The landlord’s management move policy notes it may only make an offer on a like for like basis. The resident has already identified that this would not be appropriate for her circumstances. As it would be unable to offer the two-bedroom property required by the resident, on this basis it was also reasonable for the landlord not to have offered a management move to the resident.
  6. Given that the landlord’s assessment of the resident’s medical evidence did not lead it to believe there was an exceptional need to relocate the resident, and additionally that it considered the property, while not suited to the resident’s circumstances, not to be materially uninhabitable, it was reasonable that it did not offer a management move. The Ombudsman notes that the landlord has appropriately advised the resident that it will continue to reassess its position on a management move should it be in receipt of new evidence.

Determination (decision)

  1. As referred to above, in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, the complaint about the landlord’s response to the resident’s request for her priority banding on the social housing register to be increased is outside of the Ombudsman’s jurisdiction.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s:
    1. reports regarding mould at her property;
    2. request for a management move.

Reasons

Mould

  1. The landlord carried out a timely investigation of the property following the resident’s reports, and also arranged for expert reports to be made. It implemented the recommendations of those reports as well as carrying out further investigations following further reports from the resident. Throughout the complaint period, it has provided the resident with advice about mitigating condensation in the property. Given that the resident considers the number of occupants in the property to be contributing to the condensation, the landlord has also appropriately taken steps to process her application for a transfer to a more suitable property.

Management move

  1. The landlord appropriately applied its management move policy when deciding not to offer a management move to the resident and explained its reasoning to her in its formal responses and subsequent communications.

Recommendations

  1. The landlord’s repairs and complaints teams should read this service’s guidance on damp and mould and implement the recommendations made therein.
  2. In particular the landlord should take note of recommendation 11 in this guidance which states that ‘Landlords should review, alongside residents, their initial response to reports of damp and mould to ensure they avoid automatically apportioning blame or using language that ensure that staff are trained around how the landlord describes living conditions in the future, to ensure that it avoids using language that could leave residents feeling blamed.’
  3. The Ombudsman notes that the landlord operates a three stage internal complaints procedure. This is not in line with the Ombudsman’s complaint handling code (viewable here: The Housing Ombudsman’s Complaint Handling Code (housing-ombudsman.org.uk)) and the landlord should therefore review this to ensure that its complaint handling process is effective. This should give particular consideration as to whether it is still appropriate to have a three stage complaints procedure. The landlord should report back to the Ombudsman on the outcome of this review within six weeks of the date of this determination.
  4. The Ombudsman notes that the landlord’s self-assessment against the Ombudsman’s Complaint Handing Code is not currently available on its website. All landlords were required to complete and publish this self-assessment by 31 December 2020. The landlord should therefore ensure that its self-assessment is published immediately and no later than within seven days of the date of this determination. The landlord should report back to the Ombudsman once it has been published.
  5. The landlord to contact the resident within four weeks of the date of this determination and provide advice regarding how her children’s ages affect the assessment of statutory overcrowding. The landlord to also reiterate its offer to relocate the radiator at the resident’s property.