London Borough of Ealing (202213529)

REPORT

COMPLAINT 202213529

London Borough of Ealing

28 November 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 the landlord’s handling of:
1. The resident’s reports of damp and mould.
2. The resident’s reports of leaking taps.
3. The decant process.
4. The associated complaint.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction – the landlord’s handling of the decant process and its handling of the resident’s reports of leaking taps.
Paragraph 42(a) says that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters which are made prior to having 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.
We can see that the resident raised the landlord’s handling of the decant with the landlord as a formal complaint and a stage one complaint response was issued in June 2023. Last month, following contact from the resident, we asked the landlord to escalate this complaint to stage two. It is open to the resident to return to the Ombudsman should she remain unhappy with the landlord’s final complaint response.
The landlord has not considered its handling of reports of leaking taps. We note in its complaint handling the landlord said it should not have asked her to contact the repairs team after contact from her MP about the leaking taps. The landlord said it should have logged it as a repair immediately and confirmed it had now done so and gave details of the appointment to attend. However, its investigations into this did not cover the leaks themselves. It is open to the resident to make a fresh complaint about this issue to the landlord.
This report will therefore focus on the landlord’s handling of the resident’s reports of damp and mould. We will also consider the landlord’s complaint handling.

Background and summary of events

Background

The resident has a secure tenancy with the landlord that started mid-2018. The property is a 3 bedroomed semi-detached house. The landlord is a local authority. The resident experiences serious mental health difficulties as does one of her children and another child has special educational needs. The landlord told us that the family has support from social services.
Under the tenancy agreement the landlord is responsible for all repairs to the structure, exterior of the building, common parts and all installations for the supply of water, gas, electricity, heating and sanitation, including baths, basins, toilets and sinks provided by the landlord. This reflects the obligations in section 11 of the Landlord and Tenant Act 1985.
The tenancy agreement says residents must report all repair and defects in the property to the landlord immediately and that it will carry out repairs within a reasonable period given priority to emergency repairs. The landlord’s responsive repairs operational procedure (in place at the time of the events complained about) gives details of three response times to reports of repairs:

Emergency repairs – within same working day.

Urgent and routine repairs – next available date but no later than 15 working days.

Planned – 60 working days.

The landlord’s complaint policy notes that a complaint is ‘any expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual or several individuals.” It aims to respond to complaints at stage 1 and 2 within 20 working days.
The landlord’s housing and regeneration guidance on compensation payments says that it may decide that an award of financial compensation is appropriate to remedy a service failure causing injustice to the complainant. It explains that time and trouble payments should be considered when sufficiently justified. A guideline figure for a time and trouble payment is between £10 and £250.
The Ombudsman’s Spotlight Report on Damp and Mould (published October 2021) provides recommendations for landlords, including that they should: a. Adopt a zero-tolerance approach to damp and mould interventions. Landlords should review their current strategy and consider whether their approach will achieve this. b. Ensure they can identify complex cases at an early stage and have a strategy for keeping residents informed and an effective resolution. c. Ensure that they clearly and regularly communicate with their residents regarding actions taken or otherwise to resolve reports of damp and mould. d. 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.
We note the landlord introduced a new damp, mould and condensation policy in July 2023. This includes a damp and mould register from which a monthly report is drawn which includes progress and risk to the resident.

Summary of events

On 10 March 2021 the repair log noted that the resident was vulnerable and there were damp and mould issues in the property. The log noted contact from the resident’s case worker who had said that no action had been taken in relation to the damp and mould which had been brought to the landlord’s attention. They said “I am quite concerned that this mould problem may have an adverse effect on [the resident’s] mental health and physical health and as it has already with one of her daughters and is becoming uninhabitable for them to live in. Also the daughter had to move to …”. The screenshot of this note was incomplete; the resident told us that her daughter had to live elsewhere for a time due to her mental health deteriorating as a result of not having her own space, on the advice of children’s services. The log noted a target date of 15 March 2021.
On 23 March 2021 the landlord noted a call from the resident about various repairs including damp and mould. In an internal email following this call the landlord noted there was damp and mould in all rooms in the property but mainly on the external walls; the walls that were very bad were in her daughter’s bedroom and the hallway and stairs. It added that the damp could be seen around the electric fuse box and the children had to sleep in one bedroom due to the damp and mould. The landlord noted it had told the resident there had been delays due to COVID and lockdowns.
In an internal email the same day, the landlord noted it had logged a job on 12 February 2021 with its damp contractor and would chase them up.
On 19 April 2021 the contractor wrote to the landlord following an inspection of the property the previous week. They said they had found substantial mould growth on all external walls throughout the property and noted there was inadequate ventilation. They said moisture levels were within the normal range which suggested the mould was caused by condensation, and not as a result of damp. They recommended remedial works to carry out a fungicidal treatment of the walls and then install thermal insulating boards and vents.
On 20 April 2021 the landlord asked the contractor to carry out all works as per its quotation; no further details were given. The log also noted these works had been “abandoned”; no further explanation was given.
On 17 December 2021, following contact from the resident, the MP wrote to the landlord expressing their concern about the state of the property. They included photos of the property which they said demonstrated that it was “in the most appalling state. There is evidence of severe damp …”. The MP explained that the resident lived in the property with her three children, one of whom had special educational needs and one had severe anxiety; it added the resident also had mental health problems. They noted concern about these living conditions, especially in respect of the health of the children. The MP said that a housing charity had recommended that the family were moved to alternative accommodation whilst the repairs were carried out. They asked the landlord to consider this as a matter of urgency and, if the situation was as bad as it looked in the photos, then consider a transfer for the family or carry out urgent repairs.
The evidence suggests the landlord responded by email in January 2022. It said its damp contractor had visited the property last year but were unable to undertake damp works because there were too many items in the rooms for them to reach the walls to do mould treatment and dryline the walls. It said that, following its surveyor’s inspection on 13 January 2022 (a copy of which has not been seen by us), it had agreed to carry out the repairs to the property; however, it noted the resident must clear the items in the rooms before its contractors could proceed. The landlord added that it was willing to work with the resident to help clear the property. The landlord apologised for the delay in responding. It noted that the resident had raised a formal complaint about these same issues and asked her to accept this response to the MP as a stage one response to her complaint.
On 18 January 2022 the resident said she did not accept the correspondence with the MP as a response to her complaint. (We have not seen that a further stage one response was issued to the resident.)
On 21 February 2022 the landlord asked the contractor to carry out a fungicidal wash of the hall in the property and install a passive vent. It noted these works were completed on 25 February 2022.
Almost 5 months later, on 14 July 2022 the landlord told the resident that it was visiting the property on 22 July 2022 to discuss outstanding issues with her and ensure that the property had been cleared sufficiently in order that any works could be carried out by the contractor. It said it would pass on its findings to the surveyor whose responsibility it was to make a decision as to what works were necessary and arrange for them to be carried out. There is no evidence the appointment of 22 July 2022 took place.
On 15 July 2022 the resident told the landlord that her daughter had gone to stay with her mother because of the severity of the situation and they were now on a child protection plan. In that email the resident also spoke about the replacement of items that had been damaged by the mould. She said “I just really, really need the damp to be rectified because it doesn’t make sense replacing things until the main problem is sorted. The social worker has also applied for beds, I have tried to explain to her about the damp and having to keep it clear for the repairs but she said them having beds is more important. So I’m concerned once they get beds we will be told there’s no space to do the work again, or once it gets cold again the damp will rot the beds like it did to the others. Social services are pushing for my daughter to come home ready to go back to school in September. So they want her to transition during the school holidays (start next week), but it’s not possible until the damp is done”. The resident added that this was having an impact on of their wellbeing and her mental and physical health conditions.
On 30 August 2022 the landlord noted that it should find out what works were required as the resident was complaining that there was still an issue.
On 8 September 2022 the resident’s MP told the landlord that her children were on a child protection plan, and she had said that the Child and Adolescent Mental Health Service (CAMHS) could not support the children’s needs until their home life was more stable and much of that was dependent upon their environment. They asked if there was a plan in place to complete the works or if the resident needed to be decanted temporarily until the works had been carried out.
On 29 September 2022, following contact from the resident, we asked the landlord to escalate her complaint. It acknowledged this a few days later and said it would respond by 28 October 2022.
On 12 October 2022 the MP wrote to landlord saying the walls of the property were starting to get wet again and the resident was worried that this would affect the health of her children who constantly had coughs and chest infections. They said the resident was trying to keep the windows open, but this was becoming more difficult in the winter. The MP added that this experience was having a negative impact on the resident’s mental health.
On 26 October 2022 the landlord told the MP that a temporary decant was required for the resident so that it could carry out damp proofing works. It explained that a decant would depend on the availability of a suitable property and, unfortunately, those were in short supply.
On 25 November 2022 the landlord responded to the resident at the final stage of its formal complaint procedure. The main points were:
1. It acknowledged it was responding after contact from the Ombudsman and apologised for the significant delay in doing so.
2. It explained it was scheduled to carry out a mould treatment throughout the property but needed to decant her to do so. It added that it had offered her a temporary property, but she had declined it as it was not suitable.
3. Three-bedroom properties were in short supply; however, it would contact the resident as soon as a suitable property became available.
The landlord upheld the complaint and offered £150 for the time and trouble the resident had taken in pursuing these matters. The landlord signposted the resident to the Ombudsman.
On 23 December 2022 the family were decanted.
When the resident approached the Ombudsman, she spoke about impact of the events complained about: the severe distress, frustration and inconvenience caused to her and her children. She said she had recently returned to the property after completion of the works, but she was struggling as so many of their belongings had been destroyed by the mould including carpets, clothes, bedding, shoes, curtains, blinds and furniture. She said that the landlord would not reimburse her as it had taken the view she should have had tenant’s insurance. She explained that 1 bedroom had been unusable because of the mould from 2019 and another for at least 18 months.

Assessment and findings

Scope

The resident has told us that she initially reported the damp and mould in early 2019. This report has considered events from the start of 2021 which led to the formal complaint later that year to the date when the family were decanted in December 2022, which was soon after the landlord’s final complaint response.
The resident also told us that her and her children’s mental and physical health was affected by the events complained about. The Ombudsman does not doubt the resident’s comments regarding their health, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Matters of personal injury or damage to health, their investigation and compensation, are not part of the complaints process, and are more appropriately addressed by way of the courts or the landlord’s liability insurer as a personal injury claim.

The resident’s reports of damp and mould

The evidence suggests that the resident contacted the landlord in early 2021 about the damp and mould because, in February 2021, it asked the contractor to attend. There is no evidence that the landlord monitored its request to ensure that an inspection was carried out within a reasonable time. As a result, the resident had to chase this again in March 2021 before an inspection was carried out in mid-April 2021. The time taken to investigate this issue was not reasonable because it meant there was a delay by the landlord in finding out the extent of mould problem and therefore taking steps to resolve it.
That inspection found “substantial mould growth” on all external walls in the property as well as inadequate ventilation. There is evidence that, within a week, the landlord asked the contractor to carry out the recommended works. There is no evidence of any such works being carried out at that time and the repair log note that it was “abandoned”. The reasons for that from the repairs log were not clear. However, in later correspondence with the MP, the landlord explained that the contractors had been unable to undertake damp works because there were too many items in the rooms for them to reach the walls to do mould treatment and dryline the walls. The landlord has not provided evidence to support that statement. However, if that was the case, given the resident’s known vulnerabilities, the landlord should have taken steps to work with the resident in April/May 2021 to help her get the property to a point where the works could be carried out (as it later suggested in its email to the MP in January 2022). The landlord did not act reasonably in allowing the damp works to be cancelled in early 2021.
By that time, the landlord should have been aware of the full extent of the impact of the mould on the resident and her family. The property had been described to it as “becoming uninhabitable” in March 2021. That note also included the family’s vulnerabilities which means the landlord should have been sensitive to the effect of the mould on the family’s mental and physical health. Also, by the end of the month the landlord was aware that the children were sleeping in one bedroom.
The landlord should have an understanding of the resident’s vulnerabilities and any reasonable support they require. The landlord has a duty of care to its residents, and where a landlord has information which points to a safeguarding risk, it should assess the information, risk assess and act promptly. There is no evidence that the landlord acted on the information in March 2021. That, along with its failure to chase up the contractors, meant that the resident and her family continued to live in a property that had substantial mould growth. That was a significant failing.
After contact from the MP at the end of 2021, a surveyor inspected the property and recommended that the contractor carry out the work that had previously been recommended in April 2021. By that time, there had been a delay of some 9 months.
In February 2022 the damp contractor did some, but not all, of the works they had previously recommended – the drylining of the walls remained outstanding. There is no evidence that this work was completed until after the resident had been decanted at the end of 2023. An inspection of the property was arranged for 22 July 2022. The landlord provided no evidence that took place, and we note at the end of the following month the landlord was unclear why the resident was still complaining, and it should find out what works were required. This lack of action by the landlord was not reasonable.
In emails to the landlord the resident and her MP set out the family’s circumstances describing how their home life was not stable and much of that was dependent on the environment of the property; there was a child protection plan in place and the family were not living altogether; they did not have permanent beds (we understand they used fold up beds); and that their wellbeing and mental and physical health were being affected. Given this significant impact and evidence of multi-agencies being involved with the family, it would have been reasonable for the landlord to have met with social services to learn the full impact on the family, to discuss what steps it could take to lessen this impact and to explore how it might resolve matters quickly. There is no evidence of the landlord taking such a proactive approach here and that was not reasonable in all the circumstances of the case.
After further contact from the MP, the landlord decided that the family should be decanted to allow the works to be carried out. Given the vulnerabilities of the family and the impact the condition of the property was having on the household, it would have been reasonable for the landlord to have reached that decision much sooner than it did.
The failings identified amount to severe maladministration because there were significant service failures that, given their vulnerabilities, resulted in a serious detrimental impact on the resident and her family.
In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. That is, to consider the impact of the landlord’s failings on the resident which can include distress, inconvenience, time and trouble and what is fair.
Had the landlord acted appropriately it would have ensured a damp survey was carried out quickly and its recommendations carried out in full. Had it done so it is reasonable to presume that the works would have been completed by the end of April 2021 (taking account either a temporary decant or assistance to clear the property to allow the works to take place). The recommended works had not been competed at the time the resident was decanted in December 2022 some 20 months’ later.
Financial compensation is appropriate here for the evident significant impact on the resident and her family. We recognise that some of our residents’ circumstances mean that they are more affected by landlords’ actions or inactions than others. This might be due to their particular circumstances, or as a result of a vulnerability. Consideration of any aggravating factors (such as a resident’s poor physical and/or mental health) could justify an increased award to reflect the specific impact on the resident.
Financial compensation has been calculated as follows:
1. The impact on the resident and her family’s use and enjoyment of the property after the mould had been identified of £2,860. (Calculated on the basis of rent of approximately £110 a week for 20 months at 30%.)
2. Distress, frustration and inconvenience caused to the resident and three children by the landlord’s failure to carry out repairs quickly to the property as recommended by the damp contractor: £3,000. (Calculated on the basis of £50 a month per resident for 20 months.)
The evidence suggests that the landlord was aware of the resident’s claims that some of her belongings (including beds) had been damage by the mould. The Ombudsman is unable to determine if the landlord should compensate the resident for the damage caused to her belongings because liability for the damage would be more appropriately decided by an insurer or the courts. It would have been appropriate for the landlord to have provided details of its own liability insurance. We have therefore ordered the landlord to provide the resident with these details, so that the resident can submit a claim for the damage to her clothing and furniture should she wish to do so.

Complaints handling

The evidence suggests that the landlord raised a formal complaint after contact from the MP. The landlord responded within an appropriate timescale. However, it should have issued a formal complaint response to the resident when she said that she did not accept the email to the MP as the stage 1 complaint response in January 2022. The evidence is not clear on when the resident tried to escalate her complaint, but we can see that she did so through us in September 2022. The landlord responded to the resident at the end of November 2022. The time taken of 41 working days was not appropriate because it took longer than the timescales of 20 working days set out in its complaint policy.
The landlord recognised this service failure in its complaint handling, apologised and offered the resident £150 for the time and trouble pursuing the complaint. That sum was reasonable to remedy the distress and inconvenience caused to the resident by the failures it had identified. It was also appropriate because it was in line with the landlord’s compensation guidelines.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was severe maladministration by the landlord in respect of its handling of the resident’s reports of damp and mould.
In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the Ombudsman considers that the landlord has made redress to the resident which, in the Ombudsman’s opinion, resolves the complaint with respect to its complaint handling.
In accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction – the landlord’s handling of:
1. The decant process.
2. The resident’s report of leaking taps.

Reasons

There were several failures by the landlord including delays in investigating the damp and mould and failing to take proactive action to remedy matters. In its complaint handling, the landlord failed to recognise these failings and the impact on the family.
In its complaint handling the landlord recognised there had been service failures and offered proportionate redress for its complaint handling failures.

Orders

The landlord should take the following action within four weeks of the date of this report and provide evidence of compliance to us.
1. A senior member of the landlord to apologise in writing to the resident.
2. Pay the resident the sum of £5,860 made up of:
  1. £2,860 for the impact on the resident and her family’s use and enjoyment of the property.
  2. £3,000 for the distress, inconvenience and frustration caused to the resident and her family by the failings identified in this report.
3. Provide the resident with details of its liability insurance, so that the resident can submit a claim for the damage to belongings, should she wish to do so.

Recommendation

It is recommended that the landlord pay the resident the sum of £150 for the time and trouble pursuing the complaint, if it has not done so already. The finding of reasonable redress is made on the basis that this sum has been paid.