Newlon Housing Trust (202009618)

REPORT

COMPLAINT 202009618

Newlon Housing Trust

15 April 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 complaint concerns:
1. the landlord’s handling of the resident’s reports of excessive heat and cold in the property.
2. the landlord’s complaint handling.
3. the landlord’s handling of the resident’s reports of mould and condensation in the property.
4. the impact the condition of the property had on the resident and her family’s health.

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.
Under paragraph 39(i) of the Housing Ombudsman Scheme, the Ombudsman will not consider complaints which “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
Throughout her complaint the resident has explained how the condition of the property has impacted her family’s health. However, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts. The Ombudsman cannot consider the effect of the cold on health, but we have taken into account the distress and inconvenience the resident and her family experienced as a result of the situation.

Background and summary of events

The resident is a tenant of the landlord.
According to the landlord’s records, a building developer attended the property on 21 February 2019 during the defect period (the period of time after a building project has been completed when the contractor is liable to remedy any defects) and carried out a “thermal heating review” using a “thermal imaging device”. He concluded that the property appeared to be cold because:
1. “The [resident] has turned off the radiator in the main bedroom and placed a full wall floor to ceiling wardrobe in front [of] it.
2. The supply air valve/vent for the main bedroom is now above the wardrobe and plastic boxes are placed within 100mm of the vent.
3. The [resident] has the MVHR (Mechanical heat recovery ventilation) unit running constantly in summer by-pass with the boost at 70%
4. The [resident] has admitted switching off the heating after approx 1.5hrs of running time”.
The defect period for the property ended on 17 April 2019.
On 16 July 2019 the resident contacted the landlord. She said that she had been waiting since April 2019 for an appointment to carry out temperature checks. She said that she was experiencing excessive heat in the property.
The landlord told the resident on 15 August 2019 that the building developer had confirmed that the property was “constructed as designed”. It said that it would organise a final check of the property during the “end of year defects inspection”.
On 19 August 2019 a building developer attempted to access the property, but as nobody was there, he left a letter at the resident’s door to make her aware of the visit.
On 8 October 2019 the resident contacted the landlord to make it aware that she had not yet had an inspection. She also said that she had read the letter that was left at her door on 19 August, but had been unaware that an inspection had been booked for that date. She said that she tried to rebook an appointment but was unable to. She said that there was still the “ongoing issue of the [property] being cold”.
According to the landlord’s internal correspondence from 17 October 2019, a building developer said that the resident was “written [to], carded and door knocked” in order to arrange an inspection. The building developer said it had completed an audit “of the external wall build up” and concluded that after having “thoroughly investigated” the property, there were no issues as the building was built as designed.
On 4 November 2019 the resident emailed the landlord to ask when the inspection would take place. She clarified that her issue was the property “being too cold and too hot during certain seasons”.
The resident made a formal complaint to the landlord over the phone on 2 December 2019. According to the landlord’s records, she complained that there had been excessive heat in the smaller bedroom in her property since July 2019, and that nobody had attended to investigate the issue nor attended to complete the end of defects inspection.
The landlord issued its stage one complaint response on 16 December 2019. Its response is not wholly clear as it refers to several different officers and departments, but does not always make clear which actions it took, and which were taken by the original building developers. It acknowledged that the resident had complained about excessive heat and cold and that the end of defects inspection had not been carried out. It said that, a “project manager” had called the resident, following which the project manager had explained that the resident was reporting that her property was cold. The project manager had also told the landlord that he had attended the resident’s property earlier in the year, and that the heating was working. The landlord explained to the resident that the matter had been closed, following this conversation with the project manager and the findings from the building developer in its inspections early in the year.
The landlord offered the resident £50 of vouchers as gesture of goodwill in light of the length of time it had taken to formally respond to her concerns. It apologised for the inconvenience this had caused her. It concluded by advising how she could escalate her complaint to the next stage if she remained dissatisfied.
The resident escalated her complaint on 15 January 2020. She said that in February 2019 the building developer had “promised he would provide” the resident with temperature reading equipment, but this had not happened. She said that the smaller bedroom was “unsuitable and not in use” due to the temperature being “13/15 degrees”. She said that she believed that there was a design issue with the property. She complained that she had never received the end of defect inspection as she had been promised. She contested the findings from 21 February 2019.
She also mentioned that there was mould growing and condensation forming on the bottom of all doors. She said that this supported her theory that the property was too cold.
On 17 January 2020 the landlord confirmed with the resident that her complaint had been escalated to the appeal stage of its complaint process. It advised the resident that her appeal “might not be reviewed until May this year”.
According to the landlord’s records on 21 January 2020 the resident was referred to “LEAP” (a service providing residents with advice and support on energy saving measures). This service was then due to install “draught-proofing” in the resident’s property. However, it is unclear whether this happened or not.
The landlord emailed the resident on 22 January 2020 to clarify certain aspects of her complaint. It asked her to confirm what form of ventilation and/or extraction she had in place and whether this was in use. It also asked whether her radiators and heaters were in use and working correctly and whether the excessive heat persisted during colder weather.
The resident responded to the landlord’s questions on 29 January 2020. She said that she had an air filter in her property for ventilation. She said that only the heater in her living room worked correctly and was the one room that “heat[ed] up well”. She said that the radiator in the smaller bedroom worked but did not heat up the room sufficiently.
On 12 March 2020 the landlord confirmed that contractors would attend the resident’s property. An electrician was due to check the ventilation system, a plumber would check for any leaks, and a painter would remove and treat any areas affected by mould.
On 26 March 2020 the resident confirmed that a plumber had attended on 13 March to check the heating system. She also said that on 25 March an electrician and plumber had attended. She said that the areas of mould in her property were also cleaned and treated. However, she said that certain belongings in the smaller bedroom had “fungal mould” growing on them and that certain items had been “completely ruined”.
On 8 June 2020 the landlord confirmed that the resident’s complaint would be reviewed at the next panel review on 12 June. It also signposted the resident to a leaflet which detailed how to keep a property “free from condensation and mould”. It explained that if the resident could not remove the mould from her items by cleaning them, she could make a claim through her home contents insurance. It also said that if she believed the landlord to have been negligent when handling her reports, she could also make a claim against its insurers for damage. It explained that in order to do this she would have to prove that there “was fault and responsibility”.
The landlord issued its stage two complaint response on 10 September 2020. It apologised for the delay. It also apologised that the resident was experiencing “seasonal variations greater than [she found] acceptable”. It said that as the resident’s property was recently built, a heat loss survey would have been formed as part of the building specification and would therefore not be appropriate or necessary.
It suggested ways that the resident could “make the rooms more comfortable” (for example, electric oil filled radiators). It also suggested that the resident could contact the landlord when the temperature in her property was not adequate, despite the heating and ventilation working, so that it could send her “temperature loggers” as a way of “obtaining evidence”. It said that it hoped some improvement could be made to the ventilation and heating operation, but that the matter was “still in progress”.
It said that a “thermal imaging device” had been used by the building developer to investigate the resident’s concerns in her property but “no significant solution had been found”. It confirmed that thermal imagining was measured in the smaller bedroom in the resident’s property and no defects were found. It said that the audit plan was also checked and found to be satisfactory.
It said that it could not investigate the resident’s concerns that the mould had damaged some of her belonging as its complaint appeal did not extend to this area. However, it said that it hoped the upcoming investigations into the ventilation system would “reduce the appearance of mould”.
It offered the resident £75 compensation to “cover the delay in reviewing the appeal, [and] the delay in sending the outcome and goodwill”.
It concluded by explaining how the resident could refer her complaint to this Service if she remained dissatisfied.
On 25 November 2020 the landlord emailed the resident. It said that its contractor had attended the property on 18 November in order to check the ventilation system. It said that its contractor had concluded that the ventilation system was in working order.

Assessment and findings

Excessive heat and cold

According to the tenancy agreement, the landlord is responsible for keeping central heating installations in working order. It is therefore understandable that the resident would have reported to the landlord her concerns of excessive heat and cold in her property. In its stage one complaint response, the landlord reiterated what the building developer had found following their previous investigation and audit. However, its response was issued in December 2019 and the findings it referred to were from February 2019. It was not reasonable for it to have relied on these findings as they were not recent, and the resident had reported problems which post-dated those early inspections. At this point, the landlord itself had not taken any steps to investigate the resident’s concerns in order to ascertain whether there was in fact an issue that required its attention. It therefore failed to adequately respond to the resident’s reports of excessive temperatures.
The landlord’s complaints policy says that in its responses it will “provide an explanation or information to clarify a decision” it has made. In this circumstance the landlord did not provide an explanation or any clarity in its stage one complaint response as to why the matter had been closed. It based its decision on what appears to be one telephone conversation between a project manager and the resident, and potentially outdated findings from the building developer. It referred to several different departments without making it clear who was acting as part of its internal team. Its response did not propose any resolutions that would have helped or clarified the resident’s reports. Rather, it confirmed that the building had been built “according to the agreed design”. However, even if a property had been built as designed, this would not necessarily mean that it was free from structural faults which could cause problems such as excessive heat or cold. The landlord would have been expected to carry out investigations regardless of how the building had been built, in order to ascertain whether the resident’s reports had any merit. This was therefore an inadequate response and did not provide the resident with any reassurance or justify the landlord’s lack of action.
It is not clear whether the landlord was obliged to carry out an end of defects inspection, or whether this would have been discretionary. Nevertheless, it confirmed with the resident that it would do one. As the first attempt for an inspection was unsuccessful, it would have been good practice for the landlord to have arranged another inspection, especially as the resident had attempted to rebook it and had explained that she had issues with her property. Also, the landlord’s complaints policy stipulates that in its responses it will aim to ““provide the service that we should have provided”. In its stage one complaint response, the landlord acknowledged that the inspection did not go ahead as the resident had been advised, but it did not take steps to put things right and provide this service.
Despite these omissions, the evidence provided for this investigation indicates that the landlord did take steps to address the resident’s concerns following its stage one complaint response. For example, it arranged for an electrician and plumber to attend and inspect the property in March 2020. The landlord also advised the resident in its stage two complaint response of other “practical steps” she could take to alleviate the excessive temperatures, and explained that it would send her “temperature loggers” in order to obtain evidence of the heating operation. It also said that it hoped to make “some improvement” to the ventilation and heating operation. A subsequent investigation into the ventilation was carried out in November 2020 and the findings were communicated back to the resident.
These actions taken after the resident made a complaint were reasonable as they demonstrated that the landlord had acknowledged her concerns and taken steps to investigate the issue. However the landlord’s initial responses to the residents reports and complaint of excessive temperatures were unreasonable. It relied on the findings of others without having taken steps itself to investigate the resident’s reports. It did not consider the resident’s complaint in its entirety, or provide a clear complaint response.

Complaint handling

In the landlord’s stage one complaint response it recognised that it had delayed in formally responding to the resident’s concerns and offered her £50 in the form of vouchers as gesture of goodwill for this. According to the landlord’s complaints policy, it aims to review stage two complaints during a review panel within 30 days of the appeal being made. It is apparent that in this case the landlord did not meet this timeframe. The resident asked to escalate her complaint on 15 January 2020 and the panel was subsequently held on 12 June. The stage two written response was then issued on 10 September.
The landlord tried to manage the resident’s expectations by explaining that the panel would potentially be delayed until May, but it still significantly exceeded its expected response timeframe, and its extended timeframe. The delay was excessive, even when allowing for the pandemic situation over the same period, and the impacts it was having on landlord operations. The landlord recognised the further delays in its stage two complaint response, and offered the resident £75 compensation. However, it did not explain why the response had been so delayed, and there is no evidence of it having updated the resident over the period. Because of that, the compensation and complaint response were not proportionate remedies to the landlord’s complaint handling service failure.

Mould and condensation

The resident raised her concerns about mould and condensation in her escalation request on 15 January 2020. In response, the landlord arranged for a painter to visit in March 2020 to paint and treat the affected areas in the property. The landlord’s repairs policy does not detail whether it is responsible when a resident reports mould and condensation. Nevertheless, in general, if such conditions of mould and condensation are due to something the landlord is responsible for (such as water ingress through a leaky roof for example), the landlord would then usually be considered to be responsible for any resulting mould or damp issues. In this case, the landlord took responsibility by arranging for the painting and treatment of the affected areas. It therefore took reasonable steps to resolve the resident’s reports.
Also, on 8 June the landlord signposted the resident to its information guide on mould and advised her to make a claim on her insurance for any damage to personal items. The landlord’s compensation policy stipulates that the landlord is not liable for any damages caused by disrepair unless it is demonstrated that the landlord has been negligent. If this is the circumstance, the resident will then be advised to make a claim on their own household contents insurance for any damaged belongings. Therefore, the landlord’s referral was in line with its policy as (at least at that stage) no evidence had been found which might indicate the landlord had been negligent.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in way it handled the resident’s reports of excessive heat and cold in the property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its complaint handling.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord’s handling of the resident’s reports of mould and condensation in the property.

Orders and recommendations

The landlord to pay the resident £175 for the distress and inconvenience delay experienced as a result of the service failure identified with the landlord’s initial handling of the resident’s reports of excessive heat and cold in the property.
The landlord to pay the resident £125 for the inconvenience and delay experienced as a result of the service failure identified with the landlord’s complaint handling.
These payments should be made within four weeks of the date of this report. The landlord should update this Service when the payments have been made.

Reasons

The landlord did not initially respond reasonably to the resident’s reports of unusual temperature extremes in her home. Its actions after the resident complained were reasonable.
The landlord’s stage two complaint response was excessively delayed, and there is no evidence of updates to the resident. The landlord acknowledged the delay, but did not appropriately remedy it.
The landlord’s response to the resident’s reports of mould and damp were reasonable and appropriate.