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Islington Council (202220598)

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REPORT

COMPLAINT 202220598

Islington Council

18 October 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 reoccurring damp and mould at the resident’s property.

Background and summary of events

  1. The resident is a secure tenant of the landlord who is a local authority. The property is a one bedroom first floor flat. The landlord is aware of the resident’s physical and mental health issues related to sciatica, asthma and depression.

Landlord’s policies and procedures

  1. Under the terms of the tenancy, the landlord’s repair obligations include that it is responsible for keeping the structure and exterior of the property in repair, including:
    1. External walls, external doors, external window frames and sills;
    2. Drains, gutters, external pipes;
    3. The internal structure.
  2. The landlord’s damp procedure states:
    1. The landlord should raise a new inspection if it has not done so within the previous 6 months. The inspection should be completed by a Repairs Diagnostic Surveyor (RDS) within the target time of 10 working days.
    2. That condensation “will only be attributed by the RDS as the cause of any ongoing damp or mould in the property if there are no associated repairs required or if any works raised as a result of the above actions have been fully completed but the mould problem persists.”
  3. Landlords are required to look at the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not set out any minimum standards, but it is concerned with avoiding, or minimising potential hazards. Damp and mould are potential hazards that can fall within the scope of HHSRS.
  4. Landlords should be aware of their obligations under HHSRS, and they are expected to carry out additional monitoring of a property where potential hazards are identified. Local authorities have powers to act under HHSRS, but enforcement is seen as a last resort. Typically, landlords and local authorities work together, and a programme of improvement works is usually the starting point.
  5. Under the Decent Home Standards, thermal insulation is a requirement.
  6. The Ombudsman’s Spotlight Report on Damp and Mould (published October 2021) provides recommendations for landlords, including that they should:
    1. “Adopt a zero-tolerance approach to damp and mould interventions. Landlords should review their current strategy and consider whether their approach will achieve this”.
    2. “Identify where an independent, mutually agreed and suitably qualified surveyor should be used, share the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps. Landlords should then act on accepted survey recommendations in a timely manner”.
    3. “Ensure they treat residents reporting damp and mould with respect and empathy. The distress and inconvenience experienced by residents in this area is some of the most profound we have seen, and this needs to be reflected in the tone and approach of the complaint handling”.

Summary of events

  1. The resident had a previous complaint related to damp and mould, which was determined in November 2021 by the Housing Ombudsman under case ref. 202016605. Following the Ombudsman’s finding of maladministration and award of £2500 compensation in that case, the landlord attempted to complete the repairs it had identified as required to ensure a long-term resolution to the damp/mould issues at the property. However, the repairs do not appear to have been completed to a satisfactory standard. The resident was subsequently temporarily decanted in 2022, so that the repairs could be properly completed. On 29 March 2022, the resident returned to the property, the landlord awarded additional compensation of £2000 to a total of £4500 for its failures to date. It considered the matter concluded.
  2. Correspondence between the landlord and the resident shows that the resident reportedon 15 November 2022 that the damp and mould had reoccurred and expressed doubt that the works had been properlycompleted.
  3. An independent survey was conducted at the property on 28 November 2022 and a specialist damp report was issued on 29 November 2022. The survey identified severe mould and raised concerns of the possible impact to the health of the resident related to respiratory issues. It identified the issues with the property as being condensation related. It recommended as follows:
    1. The condensation to be controlled by a balance between heating and ventilation. As such the landlord should consider installing a humidistat-controlled fan.
    2. Whilst the thermal boards to the external walls were completed as part of the previous complaint, a further specialist thermal insulation was also required.
    3. Treatment for severe mould. The report provided the specification of the treatment required and also recommended that the mould be further investigated by lifting the thermal boards.
    4. Following treatment and insulation, the walls should be decorated with two coats of specialist fungicidal emulsion.
    5. The landlord should encourage the resident not to push furniture against the walls, to allow airflow.
  4. On 5 December 2022, the resident raised a new complaint providing photographs of the property. He said:
    1. The property was very cold which affected his heating costs.
    2. Due to the damp conditions, he was suffering with asthma and a chest infection. He also had a fungal skin infection.
    3. Since he had reported the issue, only a damp survey had been performed. An external building survey should be considered given the landlord had failed previously to resolve the issue.
    4. He requested alternative accommodation suitable for his complex issues related to mental and physical health. He stated that his mental health had been affected by the ongoing situation and by the thought of Christmas in the property in the condition it was in.
  5. On 15 December 2022, in internal correspondence the landlord stated that the resident considered the cause for the damp and mould to be structural issues and the lack of cavity wall. The landlord acknowledged that the resident had mental health issues, which he found difficult to manage due to the property condition. The landlord also stated that the property condition had affected his asthma. The following day (16 December 2022) the landlord’s insurer raised an independent structural survey.
  6. The landlord issued stage 1 response on 19 December 2022 and provided a copy of the damp survey report. It said:
    1. In previous emails, the resident had raised concerns about the landlord’s suggestion to install an extractor fan in his bedroom (this service has not seen those emails). The resident was concerned about the running costs and the noise. This perception was inaccurate as the landlord planned to raise an order for Positive Input Ventilation (PIV) in the hallway. The PIV was different from an extractor fan. If the resident wished to, the landlord could arrange a visit by the specialist contractor to explain the PIV Units and System to the resident.
    2. The landlord had asked its contractors to remove the ivy which was covering the first-floor brickwork of the building.
    3. It had referred the resident’s request for a structural survey to its building insurers.
    4. With regards to the resident’s health issues and rehousing request, the landlord was aware of them and had asked the relevant team to contact him.
    5. In response to the resident’s request to carry out his own survey, the landlord stated it would not prevent him from doing so.
    6. The landlord partially upheld the complaint and apologised that the works carried out that year and the previous year had not resolved the matter. It reassured him that it would take the necessary steps to readdress the matter.
  7. The resident responded the same day, stating that due to an uneven pavement outside his property he had fallen and had been hospitalised and bedbound “with a boot and crutches”. He advised that he would respond once he felt better, but overall, he believed that previous works insulating the problem window had not been completed. The uneven pavement was dealt with separately by the landlord and does not form part of this investigation.
  8. The resident escalated his complaint on 9 January 2023. He stated as follows:
    1. He was dissatisfied that the existing works had not being completed and as such, he had to go through “all this again”.
    2. Someone with knowledge of the property should attend and assess the works.
    3. He would agree to the fan (PIV) installation, but not until all other works required had been completed. He did not believe the treatment of the mould itself was going to change anything.
  9. In response to the resident’s emails of 19 December 2022, 21 December 2022 and 3 January 2023 (this service has not seen the emails from 21 December and 3 January), the landlord wrote to the resident on 11 January 2023 and said:
    1. Following its stage 1 response and the correspondence from December 2022, it had booked an external structural survey for 23 January 2023.
    2. It could not provide any information about how harmful the treatment materials were in response to his query from 21 December 2022, which this service has not seen.
    3. The resident’s safeguarding concerns for discharging him from hospital were raised with the tenancy team.
    4. The landlord asked the resident to confirm whether he would agree for the works to be completed when he returned from hospital and whilst awaiting a permanent transfer.
    5. It acknowledged the resident’s escalation request, where he agreed to the installation of the PIV, but raised concerns about the mould treatment not being efficient without the completion of works. It arranged for a specialist surveyor to attend on 23 January 2023 to discuss the damp report and the PIV system further with the resident.
  10. On 13 January 2023, in a correspondence between a representative of the hospital and the landlord, the representative raised concerns about the resident’s asthma as part of his safeguarding plan for discharge. The landlord confirmed that the property was safe for the resident to be discharged from the hospital and explained that the repairs were not excessive. However, subsequently, due to his health condition the landlord reconsidered this, and the resident was offered hotel accommodation on 18 January 2023.
  11. On 23 January 2023, the external structure survey was conducted, and the report was issued on 26 January 2023. It found no issues with the building structure or any movement but made a note of the ivy obstructing the brickwork.
  12. This service chased the landlord on 5 February 2023, requesting a formal response at stage 2 by 13 February 2023.
  13. On 21 February 2023, the landlord issued its final stage 2 response. It said:
    1. If had offered the resident further clarification on the damp report and the PIV system but he had declined this due to his concerns of numerous people being at his property and his admission to hospital.
    2. He had said he had “points for a new flat” and as such no further inspections were “relevant”.
    3. The external survey of the property had ruled out possible subsidence and had not established any significant external damage to the property. However, it was acknowledged that there was no cavity wall in the building, which would cause the properties within the building to be “susceptible to cold weather”.
    4. It apologised the information about the PIV had not been sent before it had issued its stage 1 response of 19 December 2022 as this could have affected the resident’s decision. It offered £50 compensation for this failure.
    5. It apologised and to acknowledge its delay to respond at stage 2 it offered £50 compensation.
  14. In a further correspondence to this service of 31 August 2023 and 12 October 2023, the landlord explained:
    1. The resident was for long term in hospital and recently returned to the property. The resident was quite vulnerable on account of mental health.
    2. He refused two previous offers of accommodation and decided to bid for a property.
    3. He refused the installation of PIV system and said there was no damp and mould at the property.
    4. It would pay £50 to the resident as per its final response.

Assessment and findings

Handling of reoccurring damp and mould

  1. It is not disputed that the resident reported the damp issue again on 15 November 2022. This was seven months after he returned to the property following the landlord’s completion of works in March 2022. Whilst he believed the issue was related to the works being incomplete or to poor standard, this was not confirmed by the damp survey from 28 November 2022. As per its damp procedure, the landlord’s actions to conduct another survey were reasonable due to the time that had elapsed since its previous works. The landlord acted in a timely manner to investigate the resident’s concerns. Additionally, it provided the resident with a copy of the inspection report in its stage 1 response from 5 December 2022. This was reasonable and in accordance with the Ombudsman Spotlight Report which recommends such information be shared.
  2. Following the recommendations within the damp report, the landlord raised repairs, and particularly the installation of a PIV. The resident was concerned about the type of fan the landlord intended to install and how this would affect his electricity costs. The landlord did not fully explain the outcome of the damp report or the nature of the works, which led to some considerable misunderstanding for the resident as to the purpose and function of the PIV system.
  3. Given the resident’s previous experience and the severity of the mould, it was reasonable that the resident felt doubtful as to the landlord’s ability to resolve the issue. In these circumstances, it would have been reasonable for the landlord to provide the necessary reassurance and fully explain the outcome and the required works. The landlord, however, could not demonstrate that it has done so. It did however identify this failure in its final response and awarded £50 compensation.
  4. The landlord was proactively trying to arrange another visit and further explanation but this failed due to the resident’s fall and deterioration of his health. It is appreciated that this caused additional difficulties to the landlord’s handling of the situation. However, the landlord demonstrated empathy and understanding of the resident’s condition and took a wider approach by suggesting alternative accommodation as a resolution. This was a customer orientated approached and showed the necessary duty of care by the landlord.
  5. Whilst the landlord adopted a holistic approach and provided an alternative option and support with the resident’s rehousing, it did not demonstrate that it considered all the problems at the property, and particularly the lack of cavity wall. The HHRSR requires the landlord to mitigate any hazards and to be proactive in dealing with damp and mould. As such, landlords should be inclusive and investigate all the concerns. This should have included the possibility that the lack of a cavity wall could be the reason for the reoccurring mould especially as its final response stated that the lack of a cavity wall would “cause the properties within the block to be susceptible to cold weather”.
  6. While it is appreciated that the landlord had raised works in line with the damp survey and conducted a subsidence investigation, it would have been reasonable for it to also have explored the cavity wall issue. This would have provided additional reassurance to the resident given the experience he had dealing with severe mould at his property over an extensive period of time and the impact he believed this had on his health.
  7. The landlord only stated in its stage 2 response that the cavity wall was not part of the structural survey. Given the severe mould and the impact on the resident’s health, it would have been reasonable to “identify where an independent, mutually agreed and suitably qualified surveyor should be used” as per the Ombudsman’s Spotlight Report on Damp and Mould. The landlord did not do so, which caused additional frustration and uncertainty for the resident, who had asked for such a survey. Furthermore, in its stage 1 response it addressed these concerns but advised the resident that it “would not stop him from conducting his own survey”. This was not in line with the recommendation in the Ombudsman’s Spotlight Report.
  8. Whilst the landlord admitted failure in explaining the report and the required works to the resident, it failed to adopt a proactive approach, to consider further the cavity wall issue or provide reassurance to the resident by arranging a mutually agreed surveyor. It did not demonstrate that it followed up on the ivy removal. As such, there was maladministration in the landlord’s response to the resident’s reports of reoccurring damp.
  9. This service takes into account the difficulties the landlord experienced with accessing the property, raising works while the resident was in hospital and arranging any meetings with him as mitigating circumstances. Additionally, the landlord demonstrated that it was willing to find a long-term solution and was responsive.  Whilst the Ombudsman appreciates that complex issues such as damp and mould are difficult to resolve, it remains the case that resident has gone through all of this again and has been in hospital and has complained about a deterioration in his health as a result.
  10. The landlord offered compensation of £4500 for its failures prior to March 2022, which was not being included as part of this investigation. As such, the compensation of £50 offered following the resident’s reports of mould in November 2022 is considered as not proportionate to the failure identified and the impact on the resident. Additional compensation of £850 is fair in the circumstance to reflect the distress and inconvenience caused to the resident. As the resident remains at the property, an order had been made for an independent, mutually agreed inspection to the property and arrangement of works.

Determination (decision)

  1. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the resident’s reports of reoccurring damp and mould at his property.

Reasons

  1. Whilst the landlord arranged a survey in a timely manner, attempted to resolve the recurring mould and offered an alternative option such as rehousing, it did not demonstrate that it had considered all the problems which might be the cause of the reoccurring damp and mould at the property. The “no cavity wall” issue was not explored further and an independent surveyor, mutually agreed with the resident was not appointed. As such, it could not provide reassurance to the resident that it was taking all reasonable action to provide permanent solution to the mould issue.

Orders and recommendations

Orders

  1. Within the next four weeks the Ombudsman orders the landlord to:
    1. Arrange for a senior member of the landlord’s staff to apologise to the resident for the failings identified in this report.
    2. Pay the resident compensation totalling £950.00 comprising of:
      1. £100 already offered to the resident at the end of the landlord’s complaints process if not paid.
      2. £850 for its failures in dealing with the resident’s reports of damp and mould.
    3. Arrange and complete the outstanding works and inspection of the resident’s property by a mutually agreed surveyor. It should consider providing the resident with decant accommodation if this is required to ensure completion of the works or offer hotel accommodation if appropriate.
    4. Follow up on the removal of ivy and confirm timescales with the resident of when the issue will be resolved.
    5. Confirm with the resident whether it will cover additional expenses reasonably incurred during his time in hotel accommodation and if so, to confirm with him how this will be arranged.

Recommendation

  1. Contact the resident and work with him in order to ensure that he is provided with support in his attempts to obtain alternative accommodation and assist him with any move.