London Borough of Hackney (202308223)

REPORT

COMPLAINT 202308223

London Borough of Hackney

14 December 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 a toilet leak, and the subsequent damage to the kitchen.
2. The resident’s reports of damp and mould and the associated repairs.
3. The resident’s complaint and request for compensation.

Background

The resident has lived in the property since 2018 with his wife and 3 children. It is a 2 bedroomed maisonette. The resident advised the Ombudsman he is registered as disabled.
The resident reported his toilet was leaking on 13 April 2022. The landlord fixed the dripping water syphon on the same day. The resident reported another toilet leak in March 2023. Following a few appointments, the landlord fixed this in July 2023. When the resident reported the leaks, he mentioned his concern that the leak was dripping through to his kitchen.
The resident has told the Ombudsman he had previously reported issues with damp and mould from the winter of 2018 until September 2020. In October 2020, the landlord fell victim to a cyber-attack which limited the accessibility of records prior to this date. Neither the landlord nor resident have provided the ombudsman with evidence of the reports from 2018-2020. The landlord has checked and not found any jobs relating to the toilet leaking or damp and mould.
The first evidenced report of damp and mould was made by the resident on 17 November 2022 when he wished to raise a complaint about the landlord’s handling of the issue. As the landlord did not have any previous records concerning this, it viewed the complaint as a request for service and organised for a surveyor to visit on 24 November 2022. The landlord passed a works order to the contractor on 30 January 2023.
The resident raised a complaint on 22 March 2023 about the length of time the repairs were taking. This prompted the landlord to chase the contractor, who then visited the resident on 28 March 2023. The contractor produced a specification of works and agreed a start date of 9 May 2023. On 24 April 2023, the resident advised he would not agree to allow the works to begin until the landlord had settled his compensation claim and complaint.
The damp and mould are affecting the resident’s kitchen, bathroom, and both bedrooms. The resident advised the Ombudsman every winter the whole family become ill with chest infections. The resident describes how devasting it is watching his 3 young children struggling to breathe.
In his complaint escalation the resident said the landlord had left him to deal with the damp and mould alone and had ignored him due to the cyber-attack. The resident had replaced the kitchen and tiled the bathroom, he requested compensation for this, for his family’s health concerns, and for the personal possessions they had to dispose of.
In its final response the landlord recognised and apologised for the repair delays from November 2022 to March 2023. The landlord offered the resident compensation totalling £735. This was made up of £250 for the stress caused, £10 per week for running dehumidifiers for 24 weeks from November 2022 to March 2023, £170 for the repair delays, and £75 for the delays to escalating the complaint to stage 2. The landlord encouraged the resident to permit the works to begin and asked he starts an insurance claim to account for the other damages the resident wished to bring.
It is understood on 13 October 2023 the resident agreed to the works being carried out. The landlord was to call the resident on 26 October 2023 to arrange the dates for a 4 week decant. The resident advised the Ombudsman this has not happened despite numerous calls and emails to the landlord.
As a resolution the resident would like the landlord to complete the works, and to acknowledge the position it left the resident, and to receive adequate compensation for this.

Assessment and findings

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only 3 principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes;
2. put things right, and;
3. learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Scope of investigation

The resident has raised concerns that the delayed resolution to the repairs have negatively affected his family’s health. The Ombudsman does not have the expertise to determine any causal link between the landlord’s actions or inactions and any reported health conditions. The resident may therefore wish to seek independent advice regarding this if he has not already done so. It is however the role of the Ombudsman to assess how the landlord responded to the reports made by the resident regarding how this was affecting his health and wellbeing, whether its response was reasonable and proportionate in all circumstances of the case. The Ombudsman can also review whether the landlord followed its own policies and procedures, the law and industry best practice.
The Ombudsman is aware the landlord suffered a cyber-attack in 2020, the ramifications of which affected all its residents, including in this case. The Service cannot determine on matters it has not seen evidence of. Therefore, as we have not seen evidence the resident reported the damp and mould prior to 2022, the Ombudsman will not consider this in the investigation. It is not clear why the resident did not report any issues from the end of 2020 to November 2022.
On 24 April 2023, the landlord’s contractor was advised the resident would not allow it to start the work. The resident changed his mind in October 2023. Therefore, the Ombudsman will not account for this period in this determination. The resident prioritised seeking compensation over resolving the problems. This resulted in his family having prolonged exposure to the conditions he is complaining about. The landlord appropriately reviewed its options with respect of this tenancy breach. The Ombudsman is pleased to understand the resident is willing for the works to commence without legal action being necessary.

The landlord’s handling of the resident’s reports of a toilet leak, and the subsequent damage to the kitchen.

Under the Landlord and Tenant Act 1985 and through its tenancy agreement the landlord has responsibility to ensure it keeps the installations for sanitation in good repair and in working order.
The landlord’s repairs policy states it will complete repairs either as
1. an immediate repair within 2 hours
2. an emergency repair within 24 hours
3. an urgent repair within 5 days, or as
4. a normal repair within 21 days.
The policy is to deliver a friendly and effective repairs service within agreed timescales and deliver repairs right first time. The landlord commits to closely monitoring the effectiveness of any contractor working in the resident’s home.
The landlord completed the initial toilet leak repair within its policy time limits. Nearly a year later, on 23 March 2023 a further leak was reported. This was investigated and attended to within the landlord’s policy time limits. The toilet required follow up work. The contractor visited the resident on 28 March 2023 and scheduled to install a new toilet and cistern during its planned visit on 9 May 2023. The resident did not allow the contractor to start the work meaning the toilet repair was outstanding until July 2023. The resident contributed to these delays and as such this is a mitigating factor.
The resident reported to the Ombudsman his concern the leak was disturbing the asbestos in his kitchen ceiling. Therefore, he was concerned about the implications for his family. This was a reasonable concern as the resident’s neighbours had advised him there was asbestos in the kitchen ceiling. This was raised to the landlord in November 2022.
The landlord should have detailed records concerning which parts of its stock contains asbestos. The landlord should be able to cross reference to establish if a repair might have implications for the safety of the resident. The Ombudsman has not seen evidence the landlord considered this until May 2023 when the landlord asked its contractor about the damage to the kitchen ceiling. The contractor stated the resident had not been exposed to asbestos and the damage to the ceiling was not that bad. While this is reassuring, this does not appear to be a full asbestos survey, and this will be a finding of the report.
The Ombudsman has not seen any evidence the resident was informed of this reassuring news. It is concerning the landlord did not prioritise this investigation or inform the resident of the outcome prolonging his worry on this matter.
The landlord has an asbestos team, the contact details can be readily found on its website, which the resident could have contacted to raise his concerns.
The landlord managed the leak in accordance with its policy and as best it could with the resident’s access constraints. However, it did not prioritise answering the resident’s asbestos concerns which led to further distress and worry.
In accordance with the Scheme the Ombudsman finds there was service failure from the landlord in its handling of the resident’s reports of a toilet leak, and the subsequent damage to the kitchen.

The landlord’s handling of the resident’s reports of damp and mould and the associated repairs.

Under the landlord’s tenancy conditions the resident must give it, its contractors, and agents reasonable access to the property to carry out repairs. If this is not provided the landlord may take legal action. The landlord would usually give at least 48 hours’ written notice when access is needed.
The landlord appropriately organised a surveyor to visit when it received the damp and mould report. This was within the time limits of the landlord’s repairs policy.
The landlord then took over 2 months to pass the works order to a contractor. The landlord was prompted to do this by the resident’s telephone call to chase the repair. The works order had a completion date of 1 month later. In contradiction to its policy, the landlord did not closely monitor the effectiveness of the contractor as the contractor did not meet the completion date. The landlord was again prompted to chase the contractor when the resident raised a complaint about the length of time to resolve the repair. The contractor visited the resident within 4 working days and again 2 and a half weeks later, agreeing the works and a start date of 9 May 2023.
Without the resident’s telephone calls, the landlord may not have progressed the repair. The landlord blamed an issue with the “mobilisation of contractors”. However, this should not impact on the service to residents and the landlord should keep residents informed of any delays.
The landlord did not adhere to its policy which led to increased frustration for the resident, with his family living with the damp and mould for longer. The Ombudsman has not seen any evidence the landlord risk assessed the harm to the resident’s family or prioritised any works because of this.
The resident then would not allow the landlord to start the works. The resident communicated this well to the landlord, therefore it did not result in wasted time or expense on the contractor’s part. However, this is still a breach of the resident’s tenancy which is a mitigating factor in this determination.
By not adhering to its policy and procedures the landlord has exhibited maladministration in the management of the damp and mould in the kitchen.
The Ombudsman was concerned to hear the works remain outstanding, despite the resident consenting to them starting. Specifically, the resident reports he has tried to contact the landlord to progress the works and decant, but it has not contacted him back. The landlord has failed to complete the repairs both before and after the access issues. These will form orders of this report.

The landlord’s handling of the resident’s complaint and request for compensation.

In the landlord’s complaint policy, it commits to responding to a stage 1 complaint in an average of 10 working days and stage 2 in an average of 20.
The landlord’s compensation policy states, where there are serious repair cases it will work out compensation according to loss of habitable rooms. If a liability claim is needed this should be managed through the landlord’s insurance section. Any compensation will be reduced accordingly if the resident has added to the delays or a failure to resolve.
In the landlord’s tenancy conditions and repair guidelines, it states the resident must get written permission from the landlord prior to conducting any improvements or alterations in the property.
The landlord investigated the resident’s complaint and provided its stage 1 response in the specified timescales. When the resident asked to escalate his complaint, the landlord chose to amend its stage 1 response. It gave more details about the proposed remedial works, and it increased its offer of compensation by £250 to account for the stress caused. The resident still wished to escalate the complaint. It took the landlord a month to acknowledge the escalation request. The landlord provided its final response 35 working days after the resident requested to escalate it.
In the evidence the landlord provided to the Ombudsman, it shows the motivation for issuing the amended stage 1 was to try and stop the resident escalating the complaint to stage 2. The complaints process should be used to try to achieve a resolution, not to try to stop complaints following due process. The landlord should make an offer it believes to be fair and reasonable in all the circumstances. This should not alter if the landlord believes a complaint will be escalated. The result of producing the amended stage 1 delayed the final response to the resident.
The landlord’s motivation was called into question again when, in the evidence provided to the Ombudsman, it made the remark that its stage 1 offer and the resident blocking the works would put it in a good position if the resident went to legal or the Ombudsman. The landlord’s focus should be on finding a satisfactory resolution to the problem, providing responses which are fair and reasonable, and not positioning itself if the resident takes the complaint further.
The landlord has not adhered to its policy in handling the complaint due to the delays in escalating the stage 2 response. This left the resident further dissatisfied with the landlord’s actions and unsure at the course it would be taking.
In the resident’s request to escalate his complaint he asked the landlord to reimburse him for the costs of a new kitchen and for tiling the bathroom. The landlord did not consider this as it had not been given an opportunity to assess whether, in its opinion, it believed works were needed in the kitchen and bathroom.
The resident did not have the landlord’s permission to carry out these works which was a breach of his tenancy. The resident advised the Ombudsman the landlord was aware of the kitchen conditions, and he needed to carry out the improvements. Despite this, written permission to remove and dispose of the kitchen should have been sought prior to carrying out the work. The landlord advised the resident to seek remedy for this through its insurance.
The resident asked for compensation for the cleaning materials, the impact on his family’s health, and ruined personal belongings. The landlord was correct in repeatedly advising the resident to claim on its insurance for these matters and the Ombudsman would encourage the resident to do this.
The resident also requested the landlord to reimburse him for the costs of three dehumidifiers. The landlord agreed to this if the resident could provide receipts, however he could not. The landlord or its contractors has seen the dehumidifiers in the resident’s property. The landlord agreed to cover the running costs of the dehumidifiers at £10 per week for 24 weeks from November 2022 to March 2023. It has not been disputed that the resident needed dehumidifiers and that the landlord has seen them in the property. To be fair in all the circumstances, this should be justification enough to provide a nominal amount to compensate the resident for this.
The landlord has appropriately responded to each of the resident’s requests for compensation. However, the landlord did not apply its policy for considering affected rooms in its compensation offer and offered the resident a blanket £250 for the stress endured. The landlord offered the resident £75 in recognition for the delays in escalating the complaint. These offers were not proportionate with the failings.
In accordance with the Scheme the Ombudsman finds there was maladministration from the landlord. The landlord has not evidenced it closely adhered to its complaints and compensation policy which resulted in the resident experiencing distress and suffering a loss of confidence in the landlord.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of a toilet leak, and the subsequent damage to the kitchen.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of damp and mould and the associated repairs.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s complaint and request for compensation.

Orders

The landlord is to issue a written apology to the resident for the failings in this report.
The landlord is to conduct an asbestos survey urgently to advise whether there are any risks posed by the hole in the kitchen ceiling. The landlord is to share these findings with the resident and the Ombudsman.
The landlord is to pay the resident compensation totalling £2,385 inclusive of any previous compensation made in this case. This comprises of:
1. £1,535 to reflect the impact on the resident’s use and enjoyment of his property due to having 4 out of the 5 rooms comprised for 7 months from 24 November 2022-24 April 2023, and again 13 October 2023 to 14 December 2023.
2. £200 for the resident’s time and trouble in chasing updates.
3. £500 for the distress and inconvenience caused to the resident.
4. £150 for the landlord’s failure to handle the complaints and compensation appropriately.
The landlord is to offer a meeting with the resident within 4 weeks of this report. This is to agree the outstanding works, the next steps, a timeline for the completion of works, and review meetings to ensure the landlord makes appropriate progress.
The landlord is to confirm compliance with these orders to the Ombudsman within 4 weeks of the date of this report.
The completion date of the works is to be before 4 March 2024. The landlord is to confirm compliance of this with the Ombudsman.

Recommendations

In line with its self-assessment against the Housing Ombudsman’s damp and mould recommendations the landlord should investigate if the design of the property contributes to the damp and mould. If this is the case the landlord should proactively review similar blocks and take steps to ensure it treats any damp and mould.
The landlord to consider cross referencing its asbestos records when residents raise repair requests to establish if there is any risk to the resident from disturbed asbestos.