Housing Solutions (202307499)

REPORT

COMPLAINT 202307499

Housing Solutions

30 September 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. Insulation within the property.
2. The resident’s reports that the soil pipe was not compliant.
3. The resident’s reports of repairs required and mould in the bathroom.
4. Communication regarding fire compartmentation.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is an assured tenant of the landlord, a housing association. The tenancy commenced from November 2006. The property is a 1-bedroom flat on the top floor of the block. The resident has a health condition that affects his lungs.
On 28 December 2022 the resident complained to the landlord that mould had been left exposed for over a month. He had a new bathtub installed on 17 October 2022 and was told by contractors that they would return. He said due to the time taken, and repairs left incomplete, there was growth of mould. He informed the landlord of his vulnerability. He also complained about the compartmentation of the flats, and said the property was not within legal requirements and posed a fire risk to him, and other residents of the block. The landlord acknowledged the resident’s complaint on 3 January 2023.
The resident called the landlord on 9 January 2023 and said he was unhappy with the proposed works. He said there was still mould under the bath and further works were needed. He did not want to go ahead with the appointment scheduled for 10 January 2023 while he had an active complaint.
The landlord sent its stage 1 complaint response on 14 February 2023 to the resident. It apologised that it was unable to complete the bath replacement during its first visit. It acknowledged the exposed plasterboard had become damaged by water. It confirmed it had replaced the plasterboard with a water-resistant panel, which needed to be tiled. It said the resident felt more repairs were needed. It offered £50 in compensation for the delay and inconvenience caused. It asked a fire safety contractor to carry out an inspection regarding the compartmentation.
On 8 March 2023 the resident requested his complaint is escalated to stage 2 of the landlord’s internal complaints procedure. He remained unhappy as he could smell the presence of mould, despite the wall replacement. The fire safety contractors attended on 7 March 2023 and told him there was an issue with the compartmentation and discussed potential next steps with him. The resident added that the soil pipe was not compliant as it deviated from the height requirement and was allowing smells to enter his property.
The landlord issued its stage 2 complaint response to the resident on 12 April 2023. This was after it had spoken to him on the phone. It was mutually agreed to complete repairs to the bathroom, which involved the water-resistant plasterboard above and below the bath tub level, aqua board installation, re-installing the bath tub, and tiling the surrounding walls. It had also authorised for its fire safety contractors to undertake works and that they would contact the resident directly. It offered £25 in compensation for the delay in responding to the complaint escalation.
On 4 May 2023 the resident said to the landlord that he agreed to the proposed repairs to the bathroom. He felt the total compensation amount of £75 was insufficient. He said fire safety contractors had not contacted him, and he was unsure what works would be carried out, and when. He noted that when the landlord reviews this correspondence, for it to consider his previous emails prior to responding to him.
The resident called this Service on 31 May 2023 and asked for us to investigate his concerns, since he did not receive a stage 3 complaint response from the landlord.
On 10 January 2024 the resident emailed the landlord asking when works would be completed to his bathroom. He said there was no sealant, which was causing the damp issue to worsen.
On 12 February 2024 the landlord told this Service it would arrange a visit to the property to inspect any damp and mould, but there had been no further reports of mould since its stage 2 complaint response. It also told this Service that it had communicated with the resident about compartmentation, and it was arranging a call with him.

Assessment and findings

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the 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, or part of a complaint, will not be investigated.
Paragraph 42.a. of the Scheme states that the Ombudsman may not consider complaints which are made prior to having exhausted a landlord’s complaints procedure, unless there is evidence of a complaint handling failure.
This investigation is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of this Service. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required.
The resident told this Service he wants us to investigate his concerns about insulation within the property. The resident wants improved insulation material in the walls. However, this did not form part of his original complaint submitted to the landlord on 28 December 2022.
The first mention to the landlord of concerns around the insulation material, was in an email on 18 September 2023 by the resident. This was several months after the landlord’s stage 2 complaint response. In the email of 18 September 2023, the resident stated that he had not raised this issue before and from the evidence, it concerned the insulation material itself. There is no evidence this matter had been subject to a formal complaint. The initial complaint referred to gaps in the kitchen’s plasterboard, however this was not the same complaint that has been referred to this Service. Therefore, the complaint about the landlord’s handling of insulation in the property has not exhausted the landlord’s complaints procedure and is outside the Ombudsman’s jurisdiction.
Similar to the above, the resident’s reports that the soil pipe was not compliant did not form part of the initial complaint made on 28 December 2022 to the landlord. The first time the resident reported that the soil pipe was not compliant was in an email to the landlord on 8 March 2023. This was 22 calendar days after the landlord provided its stage 1 complaint response.
As such, the resident had already received a stage 1 complaint response and there were no other records of a complaint being made about the soil pipe beforehand. The resident had not included it in his initial complaints prior to the landlord’s stage 1 response. The landlord has not provided commentary on this issue in its complaint responses either. As such, the resident has not exhausted the landlord’s internal complaints procedure regarding any soil pipe issue he had experienced. Therefore, this Service will not comment on the landlord’s handling of the resident’s report that the soil pipe was not compliant in accordance with paragraph 42.a. of the Scheme.

Scope of investigation

After carefully considering all the evidence, the Ombudsman is satisfied that the resident’s complaints about the landlord’s handling of his reports of repairs required and mould in bathroom, as well as its handling of communication regarding fire compartmentation can be considered. Although the landlord told this Service the resident had not exhausted its 3-stage complaints procedure, there is evidence the resident escalated his complaint on 4 May 2023. This was not responded to by the landlord. With this in mind, this investigation has also considered the landlord’s complaint handling.
In the resident’s initial complaint to the landlord, he noted he had a lung condition, and the presence of mould could be detrimental to his health. While the Ombudsman does not doubt the resident’s concerns about his health, this Service is unable to draw conclusions on the causation of, or liability for, effects on health and wellbeing. Therefore, we cannot confirm the effect of the landlord’s actions or inaction on health, and the resident may wish to seek independent advice. However, this Service will consider the landlord’s handling of the resident’s concerns, and any distress and inconvenience caused, and the landlord’s consideration of the resident’s vulnerability.

Reports of repairs required and mould in the bathroom

When investigating a complaint, the Ombudsman applies its dispute resolution principles. The principles of effective dispute resolution are:
1. Be fair, treat people fairly, and follow fair processes.
2. Put things right.
3. Learn from outcomes.
Section 11 of the Landlord and Tenant Act 1985 places statutory obligations on the landlord. The landlord is to keep in good repair the installations for sanitation including basins, sinks, baths, and toilets.
The landlord also has a responsibility under the Housing Health and Safety Rating System (HHSRS), to assess hazards and risks within its rented properties. Damp and mould is a potential hazard. Therefore, the landlord is required to consider whether any presence of damp, or mould growth in its properties amount to a hazard and require remedying.
The landlord’s repairs policy sets out that emergency repairs are responded to within 4 hours. Where non-emergency repairs are reported, appointments are provided to the resident within 21 days.
It was not disputed by either party that a new bathtub needed to be installed. Prior to the landlord’s stage 2 complaint response, the resident had said the quality of the bathtub installation was not adequate. The bathtub was not stable and the plasterboard was exposed to damp.
After the bathtub was installed on 17 October 2022, the landlord’s contractor was to return to the property to carry out re-tiling and renew the plasterboard in the bathroom. This was only for 1 side of the wall, where the bathtub was situated. The resident reported the presence of mould to the landlord on 24 October 2022. The landlord visited the property on 9 November 2022 and concluded that there was no damp and mould. At that stage, the landlord’s response time was appropriate and in line with its repairs policy.
The Ombudsman’s spotlight report on damp and mould, published in October 2021 said that landlords should have the ability to identify and report early signs of damp and mould. This Service acknowledges that an inspection had taken place by the landlord on 9 November 2022, but the extent of the inspection and whether the landlord completed a damp survey was unclear.
The landlord’s next repair for the bathroom was rescheduled from 6 December 2022 to 10 January 2023. Between this period, the resident would go on to complain about the presence of mould again on 28 December 2022 and that the plasterboard was damp, he provided photographic evidence of this. The landlord accepted in its stage 1 complaint response that it was unable to complete the repairs in the bathroom the first time. It had left tiling incomplete, which it said caused water damage to the plasterboard. Although it accepted this as a failing, it had not demonstrated that its staff or contractors were able to identify early signs of damp and mould. It made no reference to the photographic evidence provided by the resident, which was unreasonable.
The resident said he did not wish for the repairs to take place on 10 January 2023 as he was unhappy with the landlord’s position that the entirety of wall would not be repaired, and the other walls were not being addressed. He was distressed that the mould growth would occur to the other walls, if not repaired. Although the landlord attended and made some repairs on 10 January 2023, it would later accept the resident’s position that further repairs were required to the bathroom on 12 April 2023. By 4 May 2023 it was agreed by both parties that the bathtub would be reinstalled, to allow for aqua panels to be added, as well as tiling to all walls surrounding the bath. Despite this, although the landlord inspected the property on 9 November 2022, it is the Ombudsman’s opinion it had overlooked addressing mould in the property from when the resident complained on 28 December 2022.
To elaborate, the landlord’s damp and mould policy says it would ensure residents have access to, or are provided with advice, and guidance on managing and controlling damp. There is no evidence the landlord had done so at the outset of the resident’s reports of mould, which was inappropriate.
Additionally, it is evident the landlord missed clear escalation of risk when the resident formally complained. The resident’s complaint said there was presence of mould (despite the landlords inspection on 9 November 2022), and provided photographic evidence of the bathroom’s condition at the time. The resident also put the landlord on notice of his vulnerability. Following this, we would have expected to see the landlord’s clear decision making regarding the risk to the resident. It should have assessed the risk of continuous living with signs of damp and mould for any period of time. The risk assessment ought to have considered the known vulnerabilities, and the landlord failed to demonstrate it had considered interim mitigations in line with its damp and mould policy.
Ultimately, the resident agreed to the repairs in the bathroom first proposed by the landlord on 12 April 2023. Although the resident accepted this position, the landlord told this Service that it has been unable to gain access to the property. The landlord said the resident was not willing to allow repairs to go ahead in the bathroom, until the issue regarding compartmentation is resolved. While this Service understands there has been obstacles conducting repairs to the property, lack of early support meant it had failed to identify and manage risk, using appropriate interventions at the earliest opportunity.
The landlord had not evidenced that it provided advice regarding damp and mould. After the resident complained, a damp survey of the property was not attempted until February 2024. The last inspection regarding damp and mould was 9 November 2022. This meant it had been more than 1 year and 3 months since an inspection of the property. The landlord’s damp and mould policy states after a report of damp and mould it would reactively take photographs of the area and provide a description. It would then categorise the severity of any damp and mould into 3 tiers and take action dependent on the severity. This would include measures such as a mould wash-down. There is no evidence that after the resident’s complaint, the landlord had done so within 21 calendar days which was inappropriate and not in line with its own damp and mould policy.
Under this Service’s remedies guidance, consideration is given for distress and inconvenience caused to a resident by particular service failures, considering the severity of the situation and the length of time involved as well as other relevant factors, such as vulnerabilities. In its stage 1 complaint response the total award for delays in repairs to the bathroom and the inconvenience caused was £50. Due to the prolonged period that the resident experienced issues in the bathroom and the effort expended, this amount was unreasonable. A suggested amount for this level of detriment in the Ombudsman’s guidance on remedies, is in excess of £100.
In consideration of the circumstances of this case, the resident has a respiratory condition, which he made the landlord aware of at the start of his complaint. It is evident he has experienced distress and inconvenience due to the presence of mould, and the landlord’s inactions. He had attempted to cancel the appointment on 10 January 2023 as he was concerned the landlord was not addressing the entire area of mould. There is evidence as late as 10 January 2024 where works had not been completed, and he was distressed that the damp issue would worsen. The landlord’s own compensation policy suggests discretionary payments between £250 to £700 where there had been contradictory or incorrect information given, and a lack of ownership.
Overall, while the landlord did take steps to prevent further water damage to the exposed plasterboard in the bathroom, and mutually agreed repairs, it did not do so in line with its policies when it received complaints about damp and mould. As such, it has not identified all its failings and not taken ownership of its actions and inactions. The resident experienced distress, inconvenience and expended time, and trouble. It is the Ombudsman’s opinion the landlord has not done enough to put things right with its offer of £50.
From the information submitted by the landlord, the work remains outstanding. This prolonged period of uncertainty of damp and mould presence in the property, coupled with the resident’s vulnerabilities, and its failure to proactively manage damp and mould work at the outset, cumulatively amount to maladministration. The landlord said it faced access issues, but it had not demonstrated ownership of its failure to adhere to its damp and mould policy. Orders have been made that take into consideration the detriment to the resident.

Communication regarding fire compartmentation.

The resident’s complaint centres on his disagreement with the landlord as to what constitutes adequate compartmentation between the properties for fire safety purposes. It is not the role of the Ombudsman to determine whether the property has compartmentation and whether this is adequate. The role of the Ombudsman is to determine if, in responding to the resident’s concerns about this, the landlord complied with its relevant policies and procedures and whether its response was reasonable in all the circumstances of the case.
The resident said to the landlord on 3 November 2022 that smoke and odours would enter his property when his neighbour burnt food, and that there were compartmentation issues. He called the fire brigade in this instance. The landlord noted his concerns and advised its fire safety team would consider it. It is unclear exactly when (but before the resident’s formal complaint), a surveyor assessed the property and said a viewing hatch would need to be installed in the airing cupboard. This was reasonable as it demonstrated it was taking the resident’s concerns seriously. It did however say that the resident would need to then email pictures of the airing cupboard, which was unreasonable.
It was not until 17 January 2023, that the landlord had arranged for a compartmentation survey to take place in the property, but from the records it is unclear when the target date for this was. It was not until 7 March 2023 that the fire safety contractors visited the resident’s property and confirmed there was compartmentation issues. This was 124 calendar days since the resident’s report in November 2022, which was unreasonable, and a significant failing given the fire risk. It was clear the resident had expended time in pursuing the matter. He relayed the fire safety contractors findings to the landlord on 8 March 2023 and was distressed about the fire safety risk posed to him, and other residents of the block. There has been no contrasting information in terms of the fire safety contractors findings provided to this Service by the landlord.
The landlord’s fire safety policy says residents will regularly be signposted to the website in communication relating to fire safety. Additionally, all letters in connection with the fire safety inspection including appointment letters, no access letters and general communication will reference the need for fire safety in the home providing advice. Also, information will be available in different formats upon request.
It was not until 12 April 2023 in the landlord’s stage 2 complaint response that it confirmed to the resident it had authorised the fire safety contractors to carry out any works needed for compartmentation. However, the landlord’s communication about this was unclear and poor. This is evident by the resident questioning the landlord on 4 May 2023 about what type of works were going to be carried out and when. This is not in line with the landlord’s fire safety policy where it would clearly communicate concerns of fire safety, and therefore was inappropriate action by the landlord.
There are no further records to support that the landlord had been proactive in communicating with the resident with regards to compartmentation, until 12 February 2024. As touched on above, no evidence has been provided that the fire safety contractors findings were different to what the resident had said. If it was established by its contractors that there were compartmentation issues, the findings should have been recorded and communicated clearly.
Therefore, while the landlord did communicate that it had authorised works, it failed to manage the resident’s expectations, and the issue had still not been resolved. This caused the resident further inconvenience and meant he had to resort to this Service for assistance. It is clear from the evidence he remains distressed that the property does not have adequate compartmentation and poses a risk to him and the block.
The landlord has not provided any evidence that safeguarding measures are in place, to mitigate the ongoing risk until issues with compartmentation are resolved.
As such, the Ombudsman finds maladministration in the landlord’s communication regarding fire compartmentation. The landlord has not acknowledged its communication failures. Under its complaints policy, a discretionary payment of up to £700 can be made for service failures causing detriment. Orders have been made that consider the resident’s distress and inconvenience caused by its poor communication.

The landlord’s complaint handling

When the resident complained to the landlord on 28 December 2022, the Ombudsman’s complaint handling code (the Code) in operation at the time permitted landlords to have a 3-stage internal complaints process. The landlord operates a 3-stage complaints procedure. At stage 1 it aims to acknowledge complaints in 5 working days and provide a response in 10 working days after acknowledgement. At stage 2 it aims to provide a response in 20 working days. Extensions can be agreed at both stage 1 and stage 2. If complaints are escalated to stage 3, it will hold a review meeting. It does not specify timeframes of when it would arrange the review panel, but after the meeting it would provide a response in 10 working days.
The Code stated that complaints should only go to a third stage if the resident has actively requested a third stage review of their complaint. Where a third stage is in place and has been requested, landlords must respond to the stage 3 complaint within 20 working days of the complaint being escalated. There is evidence the resident escalated his complaint to stage 3 in his email of 4 May 2023, however the landlord did not provide a response, this was inappropriate, not in line with its complaints policy or the Code.
The landlord told this Service that the resident had not exhausted all stages of its complaint procedure in February 2024, but this meant 9 months had passed since the resident’s escalation email of 4 May 2023. This was unreasonable and a complaint handling failure, therefore the Ombudsman had considered this complaint duly made.
The landlord’s stage 1 complaint response was sent 30 working days after it acknowledged the resident’s complaint. During this period, there was an email sent by the landlord on 17 January 2023 saying it was requesting an extension until 24 January 2024, yet the response was not sent until 14 February 2023. This meant it had exceeded the extended target response date by 15 working days, which is not in line with the Code or its complaints policy.
The landlord also failed to respond in time at stage 2 of its complaints procedure. It initially told the resident after his escalation email of 8 March 2023, which was received and acknowledged by the landlord the next day, that a response would be provided on 6 April 2023. However, it did not respond until 12 April 2023. This was 4 working days over the timescales set out in the Code and its complaints policy. Albeit a small delay, it was inappropriate as it did not update the resident about a potential delay or agree an extension.
At stage 2 of the landlord’s internal complaints procedure, it apologised and acknowledged the delay in its complaint handling. It offered £25 in recognition of the delay. It is the Ombudsman’s view that this was not enough to put things right or reflective of the cumulative effects on the resident’s complaint journey. The Code sets out that landlords should seek feedback from residents in relation to the landlord’s complaint handling as part of the drive to encourage a positive complaint and learning culture. The landlord had not recognised any learning from the complaints procedure which was not appropriate.
In considering the above and the landlord’s failure to acknowledge the resident’s continued concerns in his email of 4 May 2023, and not proving a stage 3 complaint response, this Service finds maladministration in the landlord’s complaint handling. The Code is now statutory. However, orders to put things right have been made, that consider the resident’s complaint journey, the time and trouble expended, in line with this Service’s remedies guidance.

Determination

In accordance with paragraph 42.a. of the Scheme, the resident’s complaint about the landlord’s handling of insulation within the property is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 42.a. of the Scheme, the complaint about the landlord’s handling of the resident’s reports that the soil pipe was not compliant is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52. of the Scheme, there was maladministration in:
1. The landlord’s handling of the resident’s reports of repairs required and mould in the bathroom.
2. The landlord’s handling of communication regarding fire compartmentation.
3. The landlord’s complaint handling.

Orders

Within 4 weeks of the date of this report the landlord is ordered to:
1. Write to the resident and apologise for the failings identified in this report.
2. Pay the resident compensation totalling £1,350 which is comprised of the following:
  1. £600 for the detriment caused to the resident in the landlord’s handling of reports of repairs required and mould in the bathroom.
  2. £600 for its communication failures regarding fire compartmentation and the distress and inconvenience caused to the resident.
  3. £150 for its complaint handling failures, as well as in recognition of the time and trouble expended by the resident.

If any of the £75 previously offered in the landlord’s complaint responses has been paid, it can be deducted from this total. For the avoidance of doubt, the £75 is a total made up of the £50 offered at stage 1, and £25 offered at stage 2 of the landlord’s internal complaints process.

If it has not done so already, it is to conduct a damp survey of the resident’s property and share the findings with this Service and the resident. If any works are required to treat damp and mould, it is to set out timescales and consider the resident’s vulnerability.
If it has not done so already, to provide a report detailing its current understanding of fire compartmentation within the property. It is to outline the works that were approved for fire compartmentation in its stage 2 complaint response. It is to also explain why any approved works had not taken place and timescales for any repairs in relation to fire compartmentation. It is to share this report with the resident and this Service.

The landlord must provide evidence of compliance with the above orders to this Service.