Lambeth Council (202221633)

REPORT

COMPLAINT 202221633

Lambeth Council

31 August 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

The complaint is about:
1. The landlord’s handling of the resident’s reports of damp and mould.
2. The response to the resident’s request to be rehoused.

Jurisdiction

What we 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.
Paragraph 42(k) of the Housing Ombudsman Scheme states that “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”. After carefully considering all the evidence, in accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the resident’s complaint about the response to her request to be rehoused is outside of the Ombudsman’s jurisdiction.
The assessment of applications for housing and any subsequent allocation of property to applicants is carried out by a local housing authority under part 6 of the Housing Act 1996. All Local Housing Authorities are required to have a published allocation scheme which sets out how they assess and prioritise applications for housing. Local housing authorities are required to give ‘reasonable preference’ to certain categories of people:
1. Applicant has become homeless (for example because it is no longer reasonable for the tenant to continue to reside at the property).
2. Applicant is occupying unsanitary/overcrowded housing, or living in unsatisfactory housing conditions.
3. Applicant needs to move on medical, welfare grounds or due to disability or needs to move to a particular area to avoid hardship.
The allocation scheme should set out how these groups will be given ‘reasonable preference’ as well as any local priorities i.e. under occupiers.
The Local Government and Social Care Ombudsman (LGSCO) will consider complaints that concern the handling of an allocation under Part 6 of the Housing Act 1996. The LGSCO will therefore consider complaints concerning applications from a tenant for a transfer if they fall within one of the ‘reasonable preference’ categories. The resident has made a transfer application citing priority on the grounds of being overcrowded and medical grounds. Therefore, her complaint about the response to her request to be rehoused falls under the remit of the LGSCO. Consequently, in accordance with paragraph 42(k) the complaint is outside the jurisdiction of this Service.

Background and summary of events

Policies, Procedures and Good Practice Guidance

The landlord has confirmed through its Complaint Handling Code self-assessment that it responds to housing complaints within the timescales in the local authority’s overarching Corporate Complaints Policy. As such, the landlord operates a two stage complaints procedure. The policy requires that the landlord acknowledges a formal complaint within two working days and provides a written response within 20 working days at stage one – ‘Local Resolution’. At stage two –‘Final Review’, the landlord is required to acknowledge the complaint within two working days and provide a final response within 25 working days.
The landlord’s Compensation Policy dated March 2022 recognises “A compensation payment [is] required to remedy an adverse effect on a resident or several residents caused by a serious failure made by Lambeth Housing”.
Regarding “Loss of amenity (unusable rooms)”, the policy states “A loss of the use of a room, or rooms, as a result of substantial disrepair rendering them unusable (this scheme does not apply to leaseholders) – The allowance is calculated as a percentage of the net rent of the property from when the room becomes unusable until the date repairs are completed”.
The landlord Housing Repairs Policy (August 2015) states “Lambeth Housing Management (LHM) has a responsibility to maintain the external and internal structure of the properties including fittings and services, to provide tenants with a suitable warm and safe living environment.

We are responsible for recording, implementing and monitoring repairs undertaken to the housing stock, completing checks to monitor the quality of contractors’ work and performance whilst ensuring value for money. We are responsible for the majority of repairs to our housing stock. The list below outlines the types of repairs we are responsible for;

Repairs to main structure and fabric including roof, walls, doors, windows, gutter and drains.
Repairs to services including electrics.
Fixtures and fittings including sanitary goods, kitchen units, floor and wall tiles, switches and sockets, internal doors and softwood goods”.

The landlord’s Repairs Handbook 2021 provides advice to residents on reducing condensation stating “You can greatly reduce condensation in your home by taking these few simple precautions:…”. It further advises “Please contact us if you still can’t remove black mould or damp after taking this advice”, although it does not set out the steps it will take.
The handbook states that it should fix Emergency repairs within 24 hours, attended to R1 Routine Repairs within 7 working days, R2 Routine Repairs within 28 working days and completed Planned Repairs within 90 days.
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”.
In January 2023, the landlord finalised its Damp Strategy. It noted:
1. “We have put in place a rapid response mould removal and treatment team within our flagship in-house repairs team – Community Works. All operatives have now been trained on the removal and treatment of mould. Surveyors have also undertaken specialist training on the diagnosis and prevention of damp and mould.
2. “The Repairs Handbook was updated in 2022 to change some of the language to reflect the current work being done around damp and mould – and to better support vulnerable residents, and create a more empathetic and accountable culture. It will be updated again following the resident Damp and Mould Task and Finish Group project (this was formed in 2023)”.
3. “We have launched a Damp Charter which sets out a series of no blame commitments to residents (the first Charter commitment to residents is: “It’s not your fault. The council is committed to resolving issues in partnership with you and will communicate with you in a sympathetic way. The council has created a Healthy Homes Partnership to make sure this happens). The Charter fundamentally challenges and changes culture to ensure damp and mould issues are remedied in partnership with residents and without blame”.
The strategy also states, “After any damp and/or mould treatment works, the council will undertake an annual survey of those homes to check that the remedial work/treatment continues to be effective”.
Lambeth Housing Allocation Scheme sets out the Council’s arrangements for allocating housing accommodation The scheme is framed so as to give additional priority to households identified as having the most urgent needs. The Scheme contains the following bands:
1. Band A – Emergencies and Strategic Priorities
2. Band B – High Priority
3. Band C- Medium Priority. This includes “Those who are overcrowded (lacking one bedroom) …and those with a less urgent medical need”.
4. Band D – Low Priority

Scope of Investigation

This Service has investigated the issues raised in the resident’s formal complaint of September 2022 and only with respect to events occurring after March 2022 which is six months prior to the complaint. This is in accordance with paragraph 42(e) of the Scheme, which states that the Ombudsman will not consider complaints which were not raised with the landlord as a formal complaint within a reasonable time, which would normally be within six months of the matter arising. Issues prior to March 2022 have been noted as background context to the complaint and considered only with respect to the landlord’s handling of the issues occurring from March 2022.

Summary of Events

The resident is a secure tenant of the landlord. Her tenancy commenced in 2013. The resident has three children including her partner. The eldest child was 8 at the time of her complaint and has asthma which is worse in the winter months. Her property is a 2 bedroom (a double and a single bedroom) flat on the first floor.
Following a damp and mould inspection in January 2016, the landlord installed thermal boarding in both bedrooms, 2 walls in the 2nd bedroom and 1 wall in the main bedroom, the hallway and the bathroom according to its repair records. The resident has advised this Service that plasterboard was only installed in the bedrooms. The landlord’s internal records indicate that it had identified condensation which was causing paper lining to come off. There is no evidence that the resident reported damp and mould again until July 2022. The resident has advised this Service that after the landlord put in the boarding the mould was coming back so she was cleaning the property. She further advises that she cannot see mould in the hallway but can smell it so she believes that there is mould behind the wall.
On 27 July 2021, in response to a report by the resident of damp on an external wall, the landlord checked the guttering but did not identify any leaks or blockages.
On 15 December 2021 the landlord confirmed it had carried out a medical assessment of the resident’s household taking account of the resident’s eldest daughter’s medical condition. It advised that the resident could bid for Band C No Cat properties.
On 18 July 2022, the landlord raised an order to inspect the resident’s property. Its repair records state “No work required, Tenant does not want mould wash, property is overcrowded”.
On 22 July 2022 the landlord confirmed it had carried out a medical assessment of the resident’s household taking account of the resident’s eldest daughter’s medical condition. It advised that the resident could bid for Band C No Cat properties.
On 27 July 2022 the landlord raised an order to carry a mould wash at the resident’s property with a target date of 5 August 2022. The works were carried out on 6 September 2022. The contractor noted that it had “Treated mould in property in two different rooms tenant happy with the result after it was cleaned off”.
On 26 September 2022 the resident raised a formal complaint. The resident highlighted that her property had a mould/humidity issue that could not be fixed with spraying anti-mould products on the wall; the property was poorly insulated which worsened the situation. She noted that as the cold weather had returned, she had to leave the heating on every day to lower the humidity level in the rooms, but energy prices were increasing. The resident asked the landlord to provide her with new accommodation.
On 28 September 2022 the landlord sent the Stage 1 response. The landlord advised that:
1. The resident’s housing application had a Band C2 award for a 3 bed which was medium priority. It explained the priority bands.
2. It explained the circumstances the Medical Adviser would consider when assessing a need to move on welfare grounds. It provided a link to the webpage where she could provide medical information.
3. It was not uncommon for households to lack one bedroom. The supply of social housing was strained with demand far exceeding supply.
On 10 October 2022, the landlord raised an order to carry out another mould wash with a target date of 19 October 2022. It completed the works the following day, on 11 October 2022.
There followed further correspondence from the resident including the provision of medical information on her daughter’s asthma condition. She stated that the asthma was triggered by mould and condensation which she attributed to a “potential leak on the roof, poor insulation of the apartment, small space for the numbers of people living in which increase humidity levels in the rooms”. The landlord considered medical assessment provided to allow a review of the medical assessment.
On 3 November 2022, the landlord sent the Stage 2 response by email although it was dated 11 October 2022. The landlord:
1. confirmed that the application was in Band C and that the resident had been advised how to request a review of the Medical Adviser’s decision. However, the Allocations Team would consider the further information she had provided about her daughter’s asthma as a basis for a review of the Medical Adviser’s decision.
2. informed the resident she could contact the surveyor for her estate to arrange an inspection with a view of raising a works order for the mould, repair and decoration.
3. acknowledged that many people were living in unsatisfactory circumstances but because of the shortage of housing it had to try to fairly decide on the relative priority of all cases.
4. stated gas rates in winter were not a factor that could be taken into account.
5. concluded that it had carried out a sufficient investigation of the circumstances and that the review of the medical assessment would be the final outcome of the complaint.

After the complaints procedure

On 3 November 2022 the landlord raised an order for its contractor to carry out a mould wash and apply a fungicidal barrier, then to renew any defective plaster and repaint the walls and ceiling. The works had a target date of 14 November 2022 but were completed on 9 January 2023 according to the landlord’s repair records. The landlord has not provided evidence to explain the delay.
The resident wrote further to the landlord and other parties on 2 December 2022 stating that a surveyor had advised her that nothing could be done about excess moisture in the building and offering a mould wash. She advised that her son had recently been twice to A&E in a month for respiratory distress and that she would be asking Environmental Health to carry an assessment of the damp under the Health and Safety Rating System.
On 13 December 2022 the resident referred her complaint to this Service. She stated that her son was now showing signs of asthma and that she “believe[d] a rehousing its a best option at this point. The building has excess moisture issue, flat are poorly heated and it is a small flat (small 2-bedroom flat) for a family of 5 which do not help with condensation build up”. She advised that to resolve the issue the landlord had carried out a mould wash.
The resident wrote to the landlord on 12 January 2023 noting that she had been offered another mould wash as the mould had returned after the previous one at the end of November 2022. She reiterated that her children were continually coughing. The resident also stated she was trying to get a surveyor to inspect the roof of her building.
The resident’s MP in a Member’s Enquiry on behalf of the resident on 18 January 2023 reiterated that the mould had reappeared after a mould wash. She asked for a reinspection of damp and reassessment of the resident’s priority for a transfer.

Assessment and findings

Landlords have statutory obligations to ensure that their properties are in a good state of repair and free from hazards. The Ombudsman’s Spotlight Report, which was published at the time of the resident’s complaint, confirms that landlords should “adopt a zero-tolerance approach to damp and mould interventions”. The landlord’s works order of July 2022 indicate that it was made aware of dampness and mould in the resident’s property at this time. The resident initially refused a mould wash, but the landlord’s repair request of 27 July 2022 indicated that she had changed her mind. In carrying out a mould wash on 6 September 2022 the landlord took steps to deal with the mould present at that time. However, it did not meet the target timeframe, which accorded with the 7 working day timescale for R1 Routine Repairs. In fact, the mould wash was delayed by a month indicating a lack of urgency in dealing with an important issue.
The resident reported the recurrence of mould through her formal complaint of September 2022. After the landlord agreed to carry out another mould wash on 10 October 2022, it completed the works promptly, within the timeframe for her works which again aligned with the target for R1 Routine works. Given that it transpired that the mould was recurring, it was also appropriate that the landlord, through its complaint response suggested a surveyor visit. This is because inspections by appropriately qualified staff, who can diagnose recurrent mould and identify remedies to prevent or mitigate the recurrence, is crucial.
However, the works order of 10 October 2022 was raised two weeks after the resident through her complaint had reported the recurrence of mould. As such the landlord’s response to the report again lacked urgency, despite the resident describing her difficulties.
Furthermore, although the resident has not disputed that the surveyor attended, the landlord has not provided evidence of the inspection by the surveyor. The lack of an inspection report is concerning and a serious failing on the part of the landlord. Clear record keeping and management is a core function of a repairs service, not only so that a landlord can provide information to the Ombudsman when requested, but also because this assists the landlord in fulfilling its repair obligations. Accurate and complete records ensure that the landlord has a good understanding of the age and condition of the structure and its fittings within the property, enable outstanding repairs to be monitored and managed, and enable the landlord to provide accurate information to residents. With regards to reports of damp and mould, the landlord did not ensure that its records were “sufficiently accurate and robust” as highlighted by this Service’s good practice. This Service would expect records to show the areas of the property that were inspected, and any readings taken from instruments to measure moisture, such as a protimeter.
The resident advised of her view that her property lacked insulation and the coldness in her property exacerbated the dampness and mould in her property. However, there is no evidence that the landlord considered whether the temperature and/or energy efficiency of the property was a factor, or even acknowledged the concern. For instance, the landlord did not refer to the EPC or take temperature readings. The resident also suggested that a roof leak may have been a contributory factor; however, again there is no evidence that the landlord investigated. Therefore, aside from the failure to keep a record of the surveyor visit, there is no evidence that the landlord investigated the possible contributory factors the resident had identified. Similarly, there is no evidence that the landlord communicated the outcome of the inspection with the resident so she could be clear on the next steps, in line with good practice guidance of this Service.
The landlord evidently identified further action to take to resolve the mould as confirmed by its order of 3 November 2023, in particular carrying a mould wash, applying a fungicidal barrier and redecorating. The landlord’s repair records state that it completed the works. However, the works again were delayed, not being completed until eight weeks after the target date. There is also no evidence that the landlord took steps to confirm that all the works had been completed to the required specification and standard, for instance by asking for photographs of the works or post inspecting. The resident in her correspondence to the landlord after the complaints procedure and in her complaint to this Service stated that the landlord had simply carried out a mould wash, suggesting that all aspects of the works order may not have been completed. Without relevant records, the landlord does not have the evidence to refute her versions of events.
The resident in her complaint highlighted that she sought to keep her property warm to reduce the humidity but that increasing energy costs would create further financial difficulties. The landlord stated that gas rates during the winter are not a factor that could be taken into account. Whilst the cost of energy did not directly affect the landlord’s repair obligation, the bluntness of the response demonstrate that the landlord lacked empathy and was not appreciative, of the difficulties caused to the resident in trying to keep her property at a suitable temperature, to reduce the recurrence of mould.
Whilst this Service has found failings in the handling of the resident’s reports of damp and mould, this Service acknowledges that the landlord has carried out a self-assessment against the recommendations in the Spotlight Report on Damp and Mould, and that it has devised and is implementing its Damp Strategy.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the resident’s reports of damp and mould.

Reasons

Whilst the landlord responded to the resident’s reports of damp and mould by carrying out mould washes and other works, there were delays in completing the works.
Whilst it is not disputed that a surveyor inspected the resident’s property, it is not evident that the inspection was sufficiently robust and accurate as the landlord did not keep records of the inspection. Aside from this, there is no evidence that the landlord investigated the possible contributory factors the resident had identified. Furthermore, there is no evidence that the landlord communicated the outcome of the inspection with the resident so she could be clear on the next steps in line with good practice guidance of this Service.
There is also no evidence that the landlord took steps to confirm that all the works had been completed to the required specification and standard, for instance by post inspecting.

Orders and recommendations

Within the next four weeks the landlord is ordered 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 £400 for the distress and inconvenience caused by the failings in its handling of the resident’s reports of damp and mould.
3. Carry out another inspection of the resident’s property for damp and mould and keep a record that provides details of the inspection and findings. The landlord should then communicate the findings and an action plan with the resident with a timeframe.
Within the next six weeks the landlord is ordered to:
1. Consider the record keeping failings identified in this report, review its record keeping practices for repairs and maintenance, in particular for cases where damp and mould is reported. This is to ensure that accurate and accessible records are kept and maintained, both of inspections and surveys carried out, and of works raised and completed. As part of its review, the landlord should consider whether a record management policy and staff training are required. The landlord should write to the Ombudsman confirming this has been completed and detailing the outcome. All identified actions should be accompanied by a timescale for completion.