Kirklees Council (202345536)

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REPORT

COMPLAINT 202345536

Kirklees Council

20 August 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

  1. The complaint is about the landlord’s response to the resident’s concerns about:
    1. A damp and mould problem.
    2. Adequacy of the heating system.
    3. Accuracy of information about the property including an oven and hob.

Background

  1. The resident has an introductory secure tenancy with the landlord. She has lived in the new build 2-bedroom bungalow since August 2023 with her children, one of whom has a chronic health condition.
  2. In mid-December 2023, the resident complained about a number of snagging issues that were still outstanding. She was also unhappy that several rooms were affected by damp and mould, which had damaged some of her personal belongings. The resident complained that the heating system was not suitable because she could not heat her home to a comfortable temperature without using additional heaters. She also said she was misadvised by the landlord that the property would include an oven. The resident asked the landlord to resolve the issues, but to prioritise the mould treatment because of her child’s vulnerabilities.
  3. In the landlord’s stage 1 response of 12 January 2024, it said it asked the new build developer (the developer) to identify and resolve the cause of the damp. The landlord explained that it was awaiting proof that the heating system was appropriately sized for the specification of the rooms. It also apologised that the resident was given incorrect information about the oven and said these were only included as an adaptation where a resident was assessed as having a medical need. However, the landlord said it would not provide an oven. It though assured her that the costs arising from the damp and heating issues would be reimbursed.
  4. The resident escalated her complaint on 25 January 2024 because there were unresolved issues from the snagging list, and she said some aspects of her original complaint were not addressed. She was also unhappy that no solution to the damp problem had been shared with her. She was dissatisfied with the lack of information about the adequacy of the heating system. The resident disagreed with the landlord’s explanation about why her property did not include cooking facilities.
  5. The landlord said in the stage 2 response, from early March 2024, that it was monitoring the humidity levels. It advised that the heating system was calculated using the correct specifications. It clarified its position on the reason the resident’s property did not include an oven. In resolution to the complaint, the landlord offered £250 for the inconvenience caused by having to accommodate multiple visits to address the snagging issues.
  6. After the complaints process ended, the landlord sent the resident an update in June 2024. It advised it had carried out works to address the damp problem and its technical operatives would continue to monitor it. The landlord said it had reviewed its position on the heating system and would look to upgrade it before winter. It also advised this Service that it reimbursed the resident for electricity costs and damaged belongings.
  7. The resident referred her complaint to this Service because she was unhappy with the pace of the landlord’s investigations into the cause of the damp. She was also dissatisfied with its response to her concerns about the adequacy of the heating system and the incorrect information about the inclusion of the oven. According to the resident, the circumstances of her complaint have caused her family considerable distress and worry. To resolve the complaint, she is seeking for the landlord to provide a timeline for the outstanding works, reimburse her for the cost of an oven, and pay compensation.

Assessment and findings

Scope of investigation

  1. In July 2024, the resident advised that she had been evacuated from her home because a fault on a pumping station caused sewage to overflow into her property. She was unhappy with how the landlord handled this and the appropriateness of the temporary accommodation provided for her family. While it is understandable that the resident has raised this, the more recent events were not part of the original complaint. The resident would need to make a separate complaint first with her landlord and, if she remains dissatisfied, may refer it to the Ombudsman for investigation. This decision is in line with paragraph 42(a) of the Scheme, which states the Ombudsman will not usually consider complaints which are made prior to exhausting a landlord’s internal complaints procedure.
  2. The resident has explained to this Service that her and her family’s mental health have been impacted. She asked for one of the outcomes of this investigation to be that she is reimbursed the costs she has incurred for private counselling. It is outside the Ombudsman’s remit to establish whether there is a direct link between the actions or inaction of the landlord and the effect on her family’s health. Matters of liability for personal injury are better suited to a court or liability insurer to determine. However, consideration has been given in our investigation to the landlord’s response to the resident’s concerns and to any distress and inconvenience arising from any service failings on the part of the landlord.

Damp and mould problem

  1. The landlord has a contractual obligation under the tenancy agreement to carry out repairs on the resident’s property. According to its repair policy at the time, it aimed to complete non-urgent repairs within 25-working days. It is important to note in this case that the events concerned in this report occurred within the first 12 months of the resident moving into the new build property. For new build properties, this is known as the “defect period”, during which the building developer is usually responsible for rectifying issues. While the landlord has no separate policy or guidance regarding repairs during the defect period, it explained in its initial response that repairs should be reported using its usual channels. This was so it could keep a log and ensure repairs were dealt with within its repair timescales.
  2. In the resident’s complaint of 12 December 2023, she said she reported problems with the property between the end of September 2023 and mid November 2023 directly to the developer, on the advice of the landlord. However, this was the wrong process as it meant the landlord did not have oversight of the issues. The landlord apologised in the stage 1 response for misadvising her about who to report snags to and explained the correct process. This Service has also seen indications that the landlord shared learning with its staff. The landlord’s remedy to this issue was in line with its complaints policy, and the Ombudsman’s Complaint’s Handling Code (the Code), both of which encourage a culture of accountability and learning.
  3. The resident recounted that she made several reports of her bathroom, living room, and hallway being affected by damp and mould. She said that the developer carried out some investigations and work prior to her making a complaint. The resident advised they also provided a dehumidifier on 7 November 2023, but the humidity readings continued to be higher than normal. The developer’s repairs records have not been provided to this Service; however, the resident’s account is not in dispute. The landlord acknowledged in the stage 1 response that the humidity levels were higher than expected. It advised that it had asked the developer to propose a solution and that it would “continue to press them” on the issue. It also advised that additional tiles would be added in the bathroom, to prevent mould regrowth, and apologised for not meeting its 25–working day target for this particular issue.
  4. While the landlord had not identified a solution to address the damp in all rooms within its timescales, it is not an indication of a failing in this case. The available records support that the landlord was communicating regularly with both the developer and the resident about a possible cause of the damp, which at that time was thought to be due to the concrete foundations of the property still drying out. The landlord’s own technical operatives also inspected the property on 4 January 2024, where they identified another possible or contributing factor to the damp in the hallway from a missing seal on the front door. This demonstrates that the landlord was actively involved and did not solely rely on the developer.
  5. The Ombudsman’s 2021 Spotlight report on damp and mould recognised that the causes can be complex and can require multiple investigations to identify and resolve. Sometimes there are several causes. In such cases, the landlord would be expected to look for interim solutions to improve the conditions for resident’s living in properties effected by damp and mould. This was particularly important in the resident’s case because of the vulnerabilities in the household as mould is considered a potential health hazard. As already mentioned, the resident was given a dehumidifier, and this was reported to have reduced the moisture levels. Mould treatment was also applied to effected rooms, which records indicate was completed in mid to late December 2023. Further, the landlord assured that the resident’s expenses would continue to be reimbursed. This was both appropriate in terms of the landlord’s redress policy to cover quantifiable losses, but also to alleviate the worry to the resident of the financial burden.
  6. One of the resident’s reasons for escalating her complaint on 25 January 2024 was because she said the developer had not shared its findings on the root cause of the damp. However, she also said that she was aware that the concrete foundation was still wet, which was thought to be the main reason for the damp. In its stage 2 response dated 6 March 2024, the landlord advised that its own technical operatives were still exploring the possible causes and would continue to monitor the issue. The records support that the landlord was furthering the matter with the developer through regular discussions. It is also apparent that they both held differing views on whether the damp had been resolved. The landlord’s technical operatives continued to carry out investigations in February 2024 and reported finding high readings in the hallway skirting board. While the resident’s frustration was understandable it is clear the landlord was investigating the matter and is entitled to rely on the findings of its operatives.
  7. The landlord apologised that the resident had been inconvenienced by having to accommodate multiple visits. It is a requirement of the tenancy agreement for the resident to allow access for repairs to be completed. However, it was appropriate to recognise the inconvenience in this case, both in terms of the number of visits, but also because the resident had advised, and the developer acknowledged, that some appointments were not agreed in advance. The landlord also offered £250 compensation, which is within the scale the landlord’s redress policy states it will pay for matters where service failure has caused “severe stress, disruption or inconvenience.” This figure is also in accordance with the Ombudsman’s Guidance on Financial Remedy for cases where a degree of distress and inconvenience has been caused and there is no lasting impact, as was the case in this complaint.
  8. Although not referenced in the stage 2 response, the evidence shows the landlord had previously agreed with the resident that it would reimburse the energy costs and damaged personal belongings itself. This was reasonable because the developer had disputed its liability to cover the costs. The resolutions the landlord offered were reasonable, in the Ombudsman’s view, to put the matter right, both in line with its complaints policy, the Code, and the individual circumstances of the complaint.
  9. After the complaints process ended, the resident reported worsening damp in the hallway. The landlord advised in an update letter on 7 June 2024 that a few days prior some work had been undertaken on external drains, which it believed would resolve the damp in the hallway. It said it would continue to monitor the effectiveness of the works. According to the resident, the damp has improved, but she is concerned that it is unresolved. The resident’s wariness is understandable, but nothing this Service has seen suggests that the landlord will not continue to monitor the issue and take necessary action, as it has done so far in this case. If the landlord fails to deliver on its commitment in future, it would be open to the resident to make a new complaint. As things stand, the landlord’s response and the actions it took were reasonable.

 

The efficiency of the heating system

  1. In the resident’s initial complaint, she said that she reported to the developer in mid-October 2023 that 1 out of 4 sections of the non-traditional heating system (set in the skirting boards) in the bedroom were not working. She also advised that, following the involvement of her landlord in late-November 2023, the developer provided heaters in early December 2023. While the available records do not cover the period prior to the resident’s formal complaint, the later records support the resident’s account.
  2. In the stage 1 response, the landlord said the heating system did not require pipes behind all areas of the skirting board to maintain pre-set temperatures for each room. The landlord advised that it had given the resident the ability to increase the temperature as needed. Even so, it stated that it was still considering her concern and was waiting for the calculations used by the developer, which it would share with the resident. It was appropriate for the landlord to investigate the resident’s concerns that the heating was insufficient because it had an obligation under the Home (Fitness for Habitation) Act 2018. It was not unreasonable for the landlord to obtain evidence to support its conclusions given the technical nature of the query. In the interim, the landlord took appropriate action in arranging for additional heaters and as advised in the stage 1 response, the resident was reimbursed the associated costs.
  3. In her escalation to stage 2, the resident said she was unhappy that she had not received the calculations from the developer over a month after they had been requested. She also added that the heating system was unsafe because it got too hot and was noisy, which posed a health and safety risk to her children. The landlord said in its response that its own heating operative had visited the property and were satisfied that the heating source was sufficient to heat the space. The findings of the landlord’s heating operative were not included in the available evidence, so it has not been possible to establish when the inspection took place. In general, though, a landlord is entitled to rely on the opinions of its technical specialists. Whilst this is the case, the landlord had offered to share the calculations used with the resident and it would have been fair for it to at least explain why it was no longer intending to do this. There was also no specific response to the resident’s concerns about the safety issues. The landlord’s response then was not in the spirit of the Ombudsman’s Dispute Resolution principle to “Be fair”, which the landlord’s complaints policy states it commits to follow.
  4. In the landlord’s update letter in June 2024, it advised that it had revised its decision and would be upgrading the skirting board system before winter. Based on the available records, this decision appears to have come following enquiries the landlord made directly to the developer’s heating contractor about the specific concerns the resident had with the heating system. The resident advised this Service that she is unhappy with the landlord’s proposal because she believes it may increase the cost of her heating bills, which she said were already higher than expected. She also stated, though, that the landlord is considering alternative heating options. While the resident’s concerns are understandable, it is clear that the landlord is working on a solution to the heating problems and has committed to finding one before the colder weather returns.
  5. The landlord has taken the resident’s concerns about the adequacy of the heating system seriously. It has not though given a view on her concerns about the safety of it for her household. This is not, however, sufficient grounds to support a finding of maladministration but the landlord is encouraged to continue to engage with the resident on the heating solutions.

Whether the property included cooking facilities

  1. The resident said in her original complaint that she was advised by the allocations team in August 2022 that the oven and hob would be included. She was disappointed to find, when she viewed the property, that this was incorrect. The resident specifically asked for an explanation for why some properties were fitted with cookers and hers was not.
  2. In the first response the landlord apologised that the resident was given incorrect information, which it said was due to staff being unclear about the specification of the properties on the development. The evidence the landlord used to base its decision was not supplied, so it is not possible to give an independent view on this aspect. However, where a landlord has acknowledged a failing, this Service will consider if the actions taken are enough to put right any resulting negative impact. The resident asked for explanations, which the landlord gave. It said the 2 properties on the estate that included cooking facilities were designed for applicants who were referred by the Accessible Homes Team and were assessed as having a medical need. The landlord’s response was consistent with how adaptations for a disability are determined.
  3. As well as providing the explanations the resident was seeking, the landlord said it had taken learning to improve its service. It said it had set up a working group whose sole focus was on improving the handover process between the development and allocations teams. While the outcome of the working group is unknown to this Service, its commitment to improvement is both in accordance with the landlord’s own complaints policy and the Code, which promote a learning culture.
  4. In her escalation to stage 2, the resident said the landlord’s explanation did not stand because she said her application had been referred via the Accessible Homes Team. The landlord clarified its explanation of why some properties qualified for the cooking facilities. This was that “the main occupant” was assessed as having a specialist medical need that required these as an adaptation. In other words, the resident herself was not the person in her home who had a medical need. Therefore, the landlord’s response was factual.
  5. The resident advised this Service that she remains unhappy with the landlord’s response and would like it to reimburse the cost she paid for a cooker. The purpose of the complaints process is to put the resident in the position they would have been had it not been for a service failure. In this case, the resident did not expect to have to purchase an oven due to the inaccurate information provided, thus had to deal with an expense which she was unprepared for. The landlord has not, in the Ombudsman’s opinion, done enough to put this impact right. Therefore, a determination of service failing has been found and we have made an order to remedy the impact on the resident.

Determination

  1. In accordance with paragraph 53(b) of the Housing Ombudsman Scheme (the Scheme), the landlord has offered redress to the resident, which, in the Ombudsman’s opinion, resolves the complaint about the landlord’s response to a damp and mould problem.
  2. In accordance with paragraph 52 of the Scheme, there was no maladministration in the landlord’s response to the resident’s complaint about the adequacy of the heating system.
  3. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s response to the resident’s concerns about the accuracy of information about the property including an oven and hob.

Orders

  1. The landlord is required to pay the resident £100 in recognition of the distress caused from the inaccurate information provided to the resident regarding the provision of an oven.
  2. The evidence the landlord has complied with this order should be shared with this Service within 4 weeks of this report.