Leicester City Council (202013851)

REPORT

COMPLAINT 202013851

Leicester City Council

15 July 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 resident’s complaint is about:
1. The landlord’s response to the resident’s reports of mould.
2. The resident’s report of the conduct of the operatives carrying out remedial work to the mould on 3 December 2020.
3. The landlord’s response to the resident’s reports of anti-social behaviour (ASB).
4. The landlord’s response to the resident’s reports of issues in relation to the communal lifts.
5. The landlord’s response to the resident’s request to move.
6. The landlord’s response to the resident’s report in relation to an interrupted water supply.

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 would not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following complaints are outside of the Ombudsman’s jurisdiction.
1. The landlord’s response to the resident’s request to move.
2. The landlord’s response to the resident’s report in relation to an interrupted water supply.
This is because the Housing Ombudsman Scheme, which gives the Ombudsman his investigatory powers, states that we are unable to investigate complaints that have not exhausted a member’s complaints procedure, unless there is evidence of a complaint–handling failure, and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale. As there is no evidence of the above complaints having progressed through the landlord’s complaints process, the Ombudsman is unable to consider them for formal investigation. Moreover, a complaint in relation to a move would come within the jurisdiction of the Local Government and Social Care Ombudsman which considers complaints about how a local authority prioritises and manages applications for housing, including transfer applications.

Background and summary of events

The resident was the secure tenant of the landlord, a local authority, jointly with her partner. The tenancy began on 23 September 2019. She occupied a flat on the fifth floor of a 17-floor, 85-flat tower block. The resident reported that she suffered from anxiety, and her partner suffered from asthma. They were both in their early twenties. During the course of the events below, the resident became pregnant.

Legal and policy framework

The tenancy agreement provided that the landlord would not repair damage to decoration caused by improvement or other work as a result of undertaking its repair responsibilities unless it had agreed this with the resident before it had carried out the relevant work.
It would maintain the communal areas of the building, including the lifts.
The tenant, or anyone living with the tenant or visitor, must not act in any way which would cause or was capable of causing nuisance or annoyance to any person, including loud noise, intimidation, or carry out any activity that was unlawful, including misuse of drugs.
The tenancy sustainment policy stated that the landlord was committed to tacking tenants who cause serious nuisance, and would support victims including by taking all complaints of ASB seriously. The procedure set out steps the landlord would take on receipt of reports of ASB including a 24 hour acknowledgement and interview within five days, investigation and providing support.
The complaints policy made no reference to a complaint being referred to a designated person. The Ombudsman notes that, while the resident was provided with this information in the landlord’s response to her complaint, it has made a recommendation to the landlord at the end of this report in respect of this.
The resident handbook contained information and advice on condensation. The policy on priority stated that “routine repairs”, such as repairs to ceilings and cupboards (priority repairs), would be completed within 10 working days. Programmed repairs, which included repairs to paths, guttering and communal areas, were “priority three” and would be completed within 8 weeks to 12 months, “according to the job”.

Chronology

The landlord carried out an inspection of the mould in the resident’s property on 20 January 2020.
According to the inspection report, it found visible black mould to the walls and ceilings in all the rooms. The landlord concluded that the mould was caused by condensation due to the resident’s “lifestyle”. The report noted that the resident was given detailed advice on condensation management and no remedial action was required. However, on the form, it was marked that the landlord would apply mould treatment to the “all affected areas” in the bedroom, being an area of two metre square. It stated that if the humidity were over a certain level, which applied to the property in this case, the landlord would take remedial works. The work was categorised as ‘priority 2’ with a timescale of eight weeks. The guidance to operatives was to take note of any damage to the tenant’s possessions, if the attending operative was shown any.
The resident wrote to the landlord by post on 10 July 2020 in relation to the inspection of 20 January 2020, in order to chase the landlord to attend and clear the mould, as she was expecting it to do. She informed the landlord that her partner suffered with asthma. In addition, clothes that were stored under the bed were so damaged that she had had to dispose of them. She also reported that there had been used needles and human faeces in the communal stairs she had used when the lifts were out of order, as well as ‘druggies’ knocking on her door at 6am. The landlord has since informed this service that it did not receive the letter.
There is a gap in the evidence until 30 September 2020 when the resident reported noise from neighbours, including banging and shouting. She said it was not the first time this had happened. She said it was affecting her health and wellbeing. The landlord responded on 2 October 2020 to request she provide further details, including the address from where the noise was coming. It would then forward the details to its environmental health officer to investigate.
There is no evidence from either party that the resident followed up her report as requested. However, on 2 October 2020, she wrote to the landlord by either email or through its website as follows:-
1. She referred to a previous letter to her housing officer that she had not received a response to.
2. She reported there were drug addicts and alcoholics harassing her for money and had knocked on her door at 6am, and it was very noisy.
3. She had seen needles and human faeces on the stairwell.
4. The lifts were constantly not working.
5. Non-residents she described as ‘randomers’ were being let in by other residents.
6. The mould treatment was outstanding.
The landlord has informed this service that it did not receive this communication of 2 October 2020.
The resident made a complaint on 8 December 2020 to say the landlord had treated the mould but that the operatives were “rude”. She said that they had made comments on her and her partner’s health, denying that the mould would have affected either, and that it had taken 11 months for the works to be carried out and the mould had damaged possessions of hers.
According to the landlord’s records, it investigated the matter and subsequently responded on 15 December 2020 that it had received conflicting reports, so it felt unable to come to a reliable conclusion at that time. However, it had discussed the resident’s concerns with the officer concerned and “all” would be reminded of the aspects of good practice and the importance of customer care. It would close that complaint but if she was unhappy with the response, the resident was entitled to refer the complaint to the complaints team.
On 12 January 2021, the resident made a formal complaint as follows:-.
1. The building was not cleaned sufficiently.
2. The rubbish chute repeatedly jammed leading to residents storing rubbish inside the property which in turn encouraged vermin.
3. There were a high number of intravenous drug users accessing the building, leaving used needles in the communal areas, again a major health risk. Drug users accessing the building were using the stairwells to defecate.
4. ASB included individuals harassing her for small change. In order to avoid them, she would get off the lift on a different floor. This caused her anxiety. Individuals were knocking on her door in the early hours of the morning. The police would attend but there was no reduction of ASB.
5. The security for the building was poor as tenants often allowed “random strangers” into the property via the intercom.
6. The lifts were constantly out of service.
7. The mould treatment took 11 months. This was a risk and affected her partner’s health.
8. The operatives stated that the mould was “not bad”, and they painted over the mould leaving mismatched colours in the bedroom.
9. She reported that the level of distress and disruption in the building was having an adverse effect on her work. It was affecting her sleep, and she felt unsafe.
The landlord recorded this as a formal complaint on 19 January 2021. According to the landlord’s records, it telephoned the resident and provided her with advice regarding controlling mould and condensation. It stated that fresh condensation had not arisen. The resident added to her complaint of ASB that she was receiving hoax calls to her intercom.
The landlord responded with its first and final response on 8 February 2021 as follows, referring to a complaint submitted on 20 January 2021.
1. Any bags of rubbish left on the floor were removed and cleared as soon as the landlord was notified. In addition, wardens also walked about and checked all bin rooms regularly.
2. The building cleaning was reported was shortly after Christmas. Building cleaning was not scheduled during the Christmas break. It apologised for any upset and it stated that the holiday cleaning arrangements would be reviewed.
3. The landlord could only trace one report of door knocking. It reiterated that this may have been a genuine mistake, but to monitor it by noting dates and times in order for its team to review any cctv. It assured the resident that where it found evidence of anti-social behaviour involving tenants or residents, it acted swiftly to deal with it, in conjunction with the local police. There was currently no evidence to suggest the building was unsafe. It had recently refurbished all its tower blocks and made major improvements, including fire safety.
4. It informed the resident that noise–related enquiries should be reported directly to the noise team. It added that no cases had been reported by the resident to the noise team.
5. Drug abuse needed to be reported to the police, with whom the landlord worked closely, so that this could be recorded appropriately, and action taken. Local beat officers regularly walk the building on their late shifts as a preventative measure, and in order to provide reassurance to all residents.
6. Lifts were serviced and checked monthly. Its aim was to attend any reported breakdown on the same day and to repair as effectively as possible. There were two lifts within the block.
7. The remedial works to the mould was categorised as work to be carried out within 12 months. The job was to treat a 2-metre square, being the affected part. The aim had been to complete the work within 8 weeks. However, within this timeframe it was hit with a global pandemic and works of that nature were put on hold until September 2020.
8. It apologised for “the unavoidable unique circumstances” “during the pandemic that only emergency work was prioritised.” Any further decorating would be the tenant’s responsibility to carry out.
9. It referred the resident to its previous response regarding the report of the operatives’ rude behaviour.

Assessment and findings

The Housing Ombudsman would expect the landlord to provide all documents, including memos and attendance notes, relevant to the complaint being investigated, without the need for further enquiries. The landlord would expect to organise, maintain and keep records in good order so that there was a clear audit trail that it can track, and to inspire confidence in its organisation. In this case, the Ombudsman made repeated requests for evidence, having received limited records in some areas. For example, the Ombudsman would have expected to have been provided, as a matter of course, the resident’s report of the conduct of the operatives, and a dated note of the resident’s report in relation to door knocking.
There is a dispute over the receipt of two documents from the resident, dated 10 July 2020 and 2 October 2020 respectively. The landlord has informed this service that it received neither. The first was a letter the resident provided a copy of and which she informed the service she sent by post on 10 July 2020 which could have been mislaid in the post. The second was a message dated 2 October 2020 which was sent either by email or through the contact centre of the local authority. Having seen a screenshot of the message, it is not clear how it was sent. It would be concerning if the landlord’s systems failed and even more so if the landlord had received it and not dealt or addressed it. It is reasonable to conclude, however, that the landlord did not receive and ignore the message, and in the circumstances, no fault will be attributed to the landlord that it did not respond to either communication.

The landlord’s response to the resident’s reports of mould.

Mould is often caused by condensation which can be prevented by good management by the resident rather than being due to negligence by, or fault of, the landlord. The landlord was entitled to conclude from its professional inspection that this mould could be controlled by good management by the resident, and this has not been disputed. The landlord’s report referred to ‘tenant’s lifestyle’ which was not a helpful term as it implied fault on behalf of the resident, when many tenants are not aware of the causes of condensation and mould. However, the evidence indicates that the landlord provided constructive advice that was particularly necessary for residents that may have been new to managing a tenancy. The landlord, however, acted appropriately in taking responsibility for removing the mould, given the humidity was over a certain level.
The inspection report was self-contradictory and not in line with the policy. The landlord categorised the repair as “priority two” which according to the policy provided a timescale for repair as 10 working days. The inspection report provided a timescale of eight weeks. The eight-week to twelve-month delay applied to communal works and this was not communal works. The inspection report may have been incorrect. Either way, the delay of 11 months to treat the mould was inappropriate as it was out of line with both the landlord’s policy and the report and promise to the resident.
The impact of the delay was exacerbated by the apparent lack of communication and management of the resident’s expectations by the landlord. In its complaint response, the landlord blamed the delay on the lockdown. However the lockdown began on 23 March 2020, which was after the eight-week time scale noted in the landlord’s own inspection report (which expired 16 March 2020) to carry out the works had elapsed. It was inappropriate to blame the length of the delay on the lockdown. The Ombudsman would expect the landlord to accept its errors and to be transparent, open, and frank. Moreover, such a response could damage the landlord-tenant relationship.
There is no evidence that the landlord contacted the resident to explain its delay, or to manage her expectations, even if the landlord did not receive her chasing letter of 10 July 2020.
The scale of the treatment was however appropriate. The inspection report stated that that the landlord would only be treating two metres square in one room. There is no evidence that the mould had worsened between the time of the inspection and the time of undergoing the remedial works. It is reasonable to conclude that the landlord treated the mould appropriately, as it noted that there was no evidence of further condensation.
The tenancy agreement stated that the landlord would not be responsible for damage to decoration caused by carrying out works, unless it had agreed this with the resident prior to carrying out the remedial works. If the mould had been the fault of the landlord, or if the property had been unfit for habitation, the resident may have had a case for expecting the decoration to have been carried out. However, there is no evidence of either. In the circumstances, the landlord would not have an obligation to redecorate and therefore it was reasonable not to have done so. However, there is no evidence that the landlord communicated clearly to the resident what work it was intended to carry out. It would also have been good practice to have explained to the resident that the mould treatment would have discoloured the walls and she would have to redecorate, in order to manage her expectations. It would have been a reasonable exercise of its discretion to have considered providing decoration vouchers, given the financial circumstances of the resident, the length of time the works took, and her reports.
It is not the role of the Ombudsman to consider whether the resident’s or her partner’s health was affected by the mould, and in any event, the resident only refers to potential rather than actual harm. While the resident could have taken steps to clean the mould, without treatment it was more likely to persist, and it was not disputed that it required treatment. Because of the delay, the resident had the frustration of chasing the landlord, as well as the stress and anxiety of having unsightly mould in her bedroom.
There is no evidence that the landlord investigated the damage to the resident’s possessions. However, there is no evidence that the resident raised the issue at the inspection of 10 January 2020, when, if so, the contractor should have taken photographs according to the guidance on the inspection form. There is no evidence of the damage, and the resident did not raise this in her complaint of 12 January 2021. It is open to her to raise this, and for the landlord to consider whether it was responsible for the damage, which, as noted above, it may or may not be. For the absence of doubt, this report is not suggesting that the landlord was responsible, however it was an issue that the landlord ought to have considered in response to the resident’s complaint of 8 December 2020, as she had specifically raised it.

The resident’s report of the conduct of the operatives carrying out remedial work to the mould on 3 December 2020.

It was appropriate of the landlord to investigate the resident’s complaint, and to be frank with the resident in saying it had not fully investigated it at the time of writing. It is understandable that the operators’ reported comments would have been upsetting. However, it is accepted that there would be some difficulty for the landlord in reaching a definite conclusion, given the conflict of reports. In the circumstances, it did its best. It was appropriate that it took note, and delivered its message to the relevant team without necessarily attributing blame, in order to improve its service to its residents. This demonstrated effective complaints handling.

The landlord’s response to the resident’s reports of anti-social behaviour (ASB).

As set out above, there is a dispute about whether the resident’s letter of 10 July 2020 reached the landlord. There is no evidence that the resident ‘chased’ a response until her communication of 2 October 2020, when she refers to a ‘previous letter’, which communication itself the landlord may not have received. The landlord has acknowledged that the resident reported door knocking but due to the lack of evidence from the landlord, there is no evidence of when that conversation took place. There is no evidence of other reports received by the landlord. In the circumstances, the response that it was a one-off report was not unreasonable.
There was no evidence that the resident reported noise other than on 30 September 2020. She did not follow up the report with the further information about noise by a return email, as invited by the landlord, which the landlord would have required in order to progress matters. While it was not reasonable to expect the resident to have previously made complaints about noise to the correct team, if she was not aware of this, the landlord responded to the report on 30 September 2020, inviting her to respond by replying to the email. However, it was not appropriate that the landlord stated in its complaint response that she had made no reports regarding noise, as there is evidence of a report. It is understandably frustrating that two of the resident’s communications went astray, but the response by the landlord to the noise complaints was not inappropriate in the circumstances.
There was equally no evidence of the resident having successfully reported hoax calls on the intercom prior to her formal complaint. It was appropriate to state that a one-off incident of door knocking could have been a mistake by a visitor, but not if there had been several. The landlord’s invitation, therefore, for her to make specific reports was appropriate.
The landlord was entitled to refer to its security measures and the presence of the police. However it should have also noted that the resident stated that she had suffered anti-social behaviour despite the police presence. While reassuring, the police presence in itself indicated that there were concerns about the security of the building. The resident had not provided specific details of the ASB, or specific reports, and it was not clear whether the resident was complaining of a single incident or the several incidents described. However, the behaviour described fell into the landlord’s definition of ASB to which it promised a robust and supportive approach. It would have been reasonable for the landlord, in demonstrating its victim-centred approach, to have been proactive, particularly given that the resident reported that the behaviour she described had made her worried and anxious, she experienced distress as a result, she was expecting a child, and it caused her to take steps to avoid any perpetrators. The landlord could have requested more details and asked her to complete a report log so that it could investigate and consider taking steps in accordance with its ASB policy and procedure.
It was not appropriate for the landlord to simply refer reports of drug use to the police. While making reports to the police is desirable where possible, given the police’s greater investigative and enforcement powers, the landlord also has a part to play in not tolerating criminal behaviour. It would have been able to carry out its own investigations by monitoring the building and sharing intelligence with the police under its information-sharing protocols.
It is reasonable to assume that all the residents in the building were subject to the same tenancy terms as was the resident. The reports themselves potentially described breaches of the tenancy agreement of anti-social behaviour.
The majority of the reports were made in the resident’s letter of complaint, and there is no evidence that the landlord received the communications as discussed, thus limiting what action could have been expected of the landlord. However, while the period following the completion of the landlord’s complaint procedure is outside the remit of this report, the Housing Ombudsman would expect the landlord to follow those reports through as set out above, rather than as set out in its complaint response, now that it has more information from the resident.

The landlord’s response to the resident’s reports of issues in relation to the communal lifts.

Maintaining the lifts in good repair is an obligation of the landlord, in accordance with the tenancy agreement. It would not be expected that lifts functioned all the time, however it would be expected that it would respond speedily to any reports of disrepair, and maintain and check the lifts, in order to reduce the incident of breakdown. This would be particularly crucial in a high-rise block of flats. The evidence shows that there were reports of lift breakdowns most months and sometimes two or three times a month. According to the records, each defect was treated as a priority, and according to the landlord the lifts were serviced monthly. The role of the Ombudsman is to consider the response by the landlord to the resident’s reports. In the spirit of openness, and, in order to inspire confidence, the landlord should have acknowledged in its complaint response that on two occasions, both lifts were affected. However, the explanation that the resident was able to use an alternative lift (albeit when available) was reasonable. Equally, its assurances regarding lift maintenance, which there was no evidence to doubt, were appropriate.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman scheme there was:
1. Maladministration in relation to the landlord’s response to the resident’s reports of mould.
2. No maladministration in relation to the resident’s report of the conduct of the operatives carrying out remedial work to the mould on 3 December 2021.
3. Service failure in relation to the landlord’s response to the resident’s reports of anti-social behaviour.
4. No maladministration in reliant to the landlord’s response to the resident’s reports of issues in relation to the communal lifts.

Reasons

While there is no evidence that the mould itself was due to the landlord’s negligence, there is evidence that the landlord treated the mould appropriately. However, the delay in carrying out the remedial works was significant and inappropriate. Moreover, it did not manage the resident’s expectations. It is a matter of concern that the landlord misattributed the delay to the lockdown.
The landlord’s approach was reasonable in addressing the resident’s report in relation to the operatives who carried out the remedial works, even while it was unable to reach any firm, evidenced-based conclusion.
There was no evidence of the landlord having received meaningful reports of ASB. The reports were essentially made in the resident’s letter of complaint. In the circumstances, the compensation order that the Ombudsman has made is modest. However, the landlord should have been more proactive in its response of 8 February 2021 to her reports of ASB, given the impact of the reported ASB, that the resident described as having had on her.
The evidence showed that the landlord followed up the reports of lift breakdowns appropriately. If they increased in frequency, the Housing Ombudsman would expect the landlord to investigate the reason for breakdowns occurring, where these were more frequent than average.

Orders

The Ombudsman orders the landlord to pay the resident a total amount of £400 within 28 days, as follows:-
1. The sum of £300 in recognition of the landlord’s delays and lack of communication in relation to the landlord’s response to the resident’s reports of mould.
2. The sum of £100 in recognition of the landlord’s poor communication in response to the resident’s reports of anti-social behaviour.
The landlord is to confirm compliance to the Housing Ombudsman Service with the above order within 28 days of this report. .

Recommendations

The Ombudsman makes the following recommendations:-
1. The landlord carries out staff training in order to improve communication regarding the carrying out of repairs, in particular any delays to its stated timescales for repairs,
2. The landlord provides a more proactive response following the resident’s reports of ASB during the complaints’ procedure, including giving her clear guidance how to report ASB, and, as appropriate in the light of those reports, consider taking action, in accordance with its ASB policy and procedures.
3. The landlord considers any claim the resident may have in relation to damage to her belongings.
4. The landlord should ensure that its complaints policy sets out the resident’s right to refer their complaint to a designated person, once they have completed the landlord’s own complaints procedure. Suggested wording that can be used is provided on the Housing Ombudsman website – https://www.housing-ombudsman.org.uk/landlords-info/telling-residents-about-our-service/.
5. As set out in paragraph 23 above, the Ombudsman noted some difficulty in obtaining information relating to this case. The landlord should therefore review its current approach to record keeping and ensure that it is clearly able to evidence the actions it has taken in response to a resident’s concerns.