‘Johnnie’ Johnson Housing Trust Limited (202011944)

REPORT

COMPLAINT 202011944

‘Johnnie’ Johnson Housing Trust Limited

19 August 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

The complaint is about the landlord’s response to the resident’s request that it install extractor fans in the resident’s bungalow at its cost.

Background and summary of events

The resident occupied his home in a leasehold retirement scheme under shared ownership. The lease was dated 28 February 1990 and began on 15 January 1991. The property is a two-bedroom bungalow.
The complaint was made on his behalf by the resident’s daughter. While there were no vulnerabilities recorded, the resident was elderly, and had authorised his son and daughter to manage his property and affairs. His daughter reported he had health issues.

Legal framework

The respective repair rights and obligations of the parties were contained in the resident’s lease.
Clause 3(3)(a) of the lease stated that the leaseholder was responsible for keeping the interior of the premises clean and substantially repaired and maintained and decorated.
Clause 4(3) stated that the landlord was obliged to keep the premises in good and substantial repair (except internal repair).
Under clause 6(2), the resident was responsible for paying service charges which would cover the costs of the landlord’s obligations under clause 4(3). The resident was liable to pay 1/15 of the service charges for the scheme, comprising of 55 units.

Chronology

On 29 September 2020, the landlord arranged for the property to be inspected for damp, which the landlord stated was situated mainly in bedroom/bathroom, with black mould on ceiling and walls. A dehumidifier was running in the property.
The landlord arranged for an independent inspection of the property on 1 October 2020. According to the inspection report, it noted that the resident had reported that that he could smell mould in the bedrooms and bathrooms, and that in the mornings most of the windows were streaming with condensation. The report concluded that:
1. Having tested the walls and ceilings with a damp meter, there was no rising damp.
2. There were mould spores on the ceilings and walls.
3. The roof and walls to the property were in good condition.
4. Lack of ventilation was an issue in the bathroom. The extractor fan did not appear to be adequate for the purposes of removing steam generated by the shower.
5. There was no extractor fan in the kitchen. Cooking activities generated much of the steam which could then condensate on cold surfaces.
The solution was to replace the extractor fan in the bathroom and install extractor fans in the kitchen and elsewhere, together with ensure a good supply of fresh air into the property.
On 6 October 2020, the resident’s daughter made a complaint. She was not happy that all the costs of the work required would be the responsibility of the resident under the terms of the lease. She stated it was unfair to expect her father to pay and that the current extractor fan in the bathroom was not “fit for purpose”.
On: 23 October 2020, the resident’s daughter wrote as follows:
1. There had been abnormal and excessive levels of condensation throughout the resident’s occupancy. There had been “numerous protestations”.
2. Black mould had formed on walls and ceilings, in addition to dampness in wardrobes and on bed linens. The worst affected areas were the two bedrooms, bathroom and kitchen.
3. The resident had purchased and run two dehumidifiers for the past 20 years. They collected significant amounts of moisture. This had meant that the resident had incurred electricity charges.
4. The resident was 91 years old and suffered from cardiovascular problems which were exacerbated by the humid environment. He found it difficult to breath normally.
5. She had requested a property inspection. She reported that the surveyor had informed her of the conclusions of his inspection including his recommendations and that the situation was exacerbated since there is no window in the bathroom.
6. She felt the property inspection was comprehensive. She felt it had identified multiple structural features of the property which were currently insufficient to provide a safe and comfortable living environment “for any inhabitant”.
7. The structural deficiencies had caused mould and excessive condensation, exacerbating her father’s cardiovascular problems.
8. Her view was that not only the landlord had disregarded its structural and design deficiencies, but the resident was expected to pay for the repairs as if it were maintenance. She felt this was unethical and contradicted the landlord’s ethos “Living Longer, Living Better, is simply about helping people age well and live independently for longer.”
On 10 November 2020, the landlord responded as follows:
1. Under the terms of the lease, the relevant remedial works were the responsibility of the leaseholder. Her request that the landlord organise and fund the work was declined.
2. The inspection established that the building components, that would be the landlord’s responsibility, were all in good condition and were not contributing to the condensation.
3. The landlord had a duty to consider carefully its repairs obligations, as works were charged to all the residents in the scheme, via the service charges.
On 16 December 2020, the resident’s daughter requested that the landlord escalate the complaint on the grounds that the inspection highlighted that the building components installed by the landlord were inadequate and were the cause of the damp and mould.
On 4 January 2021, the landlord responded with its second stage response as follows:
1. It noted that the resident was happy to contribute to the cost of the fans and subsequent work, but the resident’s daughter disagreed as the resident was on a limited income and in declining health.
2. It noted that she proposed that the landlord carry out the work with some contribution paid from the resident if required.
3. It noted the inspection report and the contents of the lease, and given these works were the resident’s responsibility, it declined the request.
4. It adhered to its policies in order to provide a fair and consistent service to all its residents and leaseholders.
5. It apologised for any distress or inconvenience this situation may have caused the resident’s daughter.

Assessment and findings

The Ombudsman notes that the resident’s daughter had suggested that his health was affected by the condition of the property. The Ombudsman does not have the expertise to assess whether the condition of the property contributed to or exacerbated a complainant’s physical and/or mental health
There was no dispute between the parties that the property suffered damp and condensation that could be alleviated by the installation of extractor fans.
The starting point for the decision in this case is whether the landlord had any legal obligation to organise and pay for some or all of the remedial works in the resident’s property. Even if it were not responsible, the Housing Ombudsman would expect the landlord to consider the resident’s request, together with his circumstances, before reaching a decision. It should then offer an explanation as to the reasons why a request had been agreed or not.
The parties’ relevant obligations were set out in the resident’s lease. Effectively, the landlord was responsible for the external upkeep of the property, while the resident was responsible for the interior of the property. The resident had an obligation to pay a share of the cost of the repairs the landlord was responsible for, by way of service charges.
The resident’s daughter’s point was that the extractor fans were structural features, or building components, and required replacing, and therefore the landlord was responsible. The surveyor inspected the ‘building components’ the landlord was responsible for, such as the roof and walls, and considered whether there was rising damp. The inspection, that the resident’s daughter found to be comprehensive and did not dispute, found that the elements (such as the roof) for which the landlord was responsible were in good condition, and there was no rising damp. There is no doubt or even dispute that the extractor fans were within the interior of the property, for which the resident was responsible. In the circumstances, the landlord had no obligation in relation to the condition, or even lack, of extractor fans.
The resident’s daughter’s position also appeared to be that the landlord had an obligation to effect the repairs because it had installed, or not installed, the extractor fans. A property purchase differs from a purchase of goods in that it is the purchaser’s responsibility to seek a surveyor’s report in order to identify any issues. Finally, extractor fans are likely to require replacement after 30 years, and if anything manufacturing standards will have improved. No goods could be deemed to be ‘unfit for purpose’ after a period of 30 years.
The resident’s daughter’s complaint was also that replacing and fitting extractor fans constituted an upgrade as opposed to maintenance. Presumably, this was in reference to the lease, which referred to the resident’s obligation to ‘maintain’. However, there was no obligation on the landlord to ‘upgrade’ and no obligation on its part in relation to the interior of the property. Moreover, the resident had an obligation to keep the property in good repair.
The resident’s daughter considered that the landlord had a moral responsibility towards the resident given its ‘ethos’ and aims. The landlord acted reasonably in investigating the condensation. It duly considered its obligations and provided an explanation why it did not go beyond its legal obligations. It was reasonable that it considered that any works it carried out would have to be passed on by way of service charges, which would not be fair on other residents, who were over 55, and that its decisions had to be consistent, and fair to all residents.
While the condensation would have caused the resident distress and inconvenience, , and potentially could be a health risk, there was no evidence of service failure on the part of the landlord. It had no obligation to meet the resident’s request in these circumstances, and provided a reasonable explanation for not doing so.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman’s Scheme, there was no maladministration by the landlord in relation to the resident’s request that it install extractor fans in the resident’s bungalow at its cost.

Reasons

The landlord had no legal obligation to remedy the condensation and fund or install extractor fans. It duly considered whether to exercise its discretion and provided a reasonable explanation for not doing so.

Recommendations

The landlord signpost the resident to organisations which may provide him with support in relation to organising the recommended works, such as Age UK, or any local contractors and/or any local organisations.
The landlord considers amending its policies to make clear the distinction between leaseholders and tenants in relation to its repair obligations.