North Tyneside Council (202109787)

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REPORT

COMPLAINT 202109787

North Tyneside Council

10 December 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 is about Is about:
1. the landlord’s handling of reports of damp to the property.
2. the priority awarded to the resident’s request to be re-housed.

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.
After carefully considering all the evidence, in accordance with paragraph 39 (m) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
The issue of the priority awarded to the resident’s request to be re-housed falls under the remit of the Local Government and Social Care Ombudsman (LGSCO) due to the landlord being a local council. Therefore, in accordance with paragraph 39 (m) of the Housing Ombudsman Scheme which says, ‘the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body’, it has not been investigated here. References in this report, to the banding and actions taken by the landlord in that regard, are for contextual purposes with respect to this Service’s consideration of the substantive issue of the resident’s reports of damp in the property.

Background and summary of events

The resident has a secure tenancy for a 2-bedroom flat where she lives with her daughter. No vulnerabilities are recorded by the landlord, but the resident’s daughter has asthma.

The tenancy agreement

The tenancy agreement sets out the rights and responsibilities of both the resident and the landlord. Section 8.1.1 covers the landlord’s responsibility for repairs and maintenance, to include the structure of the property. Section 9.5 says that the resident must give reasonable access to the landlord or agents to inspect the condition of the property or carry out repairs.

The repairs handbook

The landlord’s repairs handbook provides, at page eight, that every effort will be made to complete all appointed repairs within 45 working days once reported. Pages 14 – 17 show that interior decoration is the responsibility of the resident. Page 20 covers how to avoid condensation.

The complaints procedure

The landlord’s complaints procedure lists three stages, stage one (local resolution) to be responded to in 15 working days, stage two (review) in 15, and if stage three is agreed by the senior complaints officer, a final decision (determination) will be made by the appeals and complaints committee, for which no time frame is given.

Summary of events

On 21 May 2019, the landlord and resident signed a 25-point checklist, ‘Moving in Standard’, which confirmed that both parties had checked the property and it met the moving in standard. One box was not ticked, relating to wheelie bins, and the list of follow-on repairs related to bins, the garden, and the cooker electrical point. The list of ticked items included that any ‘condensation mould has been wiped clean and treated with anti mould spray’. The resident moved into the property on 22 May 2019.
On 6 January 2021, the landlord property history log shows ‘routine 30 day’ repair to inspect bedroom as walls covered in black mould, which the resident keeps washing off but was returning. An inspection was arranged for the following day, but the resident deferred this as she had to take daughter to hospital.
The inspection took place on 13 January 2021. The report stated that there was ‘relatively minor BSM to walk-in cupboard in rear bedroom, however tenant’s daughter has respiratory issues and is currently on steroids so a higher priority. Air brick fitted to cupboard and to bedroom, window and trickle vent open, well maintained’. The order of work shown as ‘anti fungicidal wash to 2 external walls of walk-in cupboard in rear bedroom’ and ‘warm wall to all areas’ and it was noted that a condensation leaflet was issued to the resident. It said that the work was to be done with the resident in situ and noted that due to the daughter’s vulnerability, masks and gloves must be worn by operatives.
An internal landlord email from the surveyor said that there was difficulty with the resident arranging an appointment due to concerns for her daughter’s health and hospital appointments. It was a relatively minor case of mould, but given the daughter was on steroids, it was not minor for the resident. The surveyor recommended ‘biocheck/warm wall’ and asks for the work to be raised as soon as possible and that operatives would need to wear masks and gloves and that the resident said she had a GP letter recommending that she moved house.
On 16 February 2021, the resident submitted a complaint form which stated that someone had looked at the damp, they were going to come and put some paint on it, but her uncle had already done this, and it had not worked. She was not allowing anyone in, as her daughter was extremely clinically vulnerable and was shielding. The resident stated that the damp in her daughter’s room was causing her health problem, and she had a doctor’s note to support this, which had been given to her housing officer. She had won her application to improve her banding on appeal, however her banding had not been changed. She was living in a property which was a health hazard to her daughter. The resident was unhappy that:
1. The landlord had not placed her in a higher band for re-housing.
2. It had not advised her what was happening.
3. It had not moved the family to a suitable property.
4. To resolve the issue, she wanted the landlord to take on board the doctor’s letter and change the housing band and to ensure that they were moved to a property that did not cause a health hazard to her daughter.
The landlord issued its response on 23 February 2021:
1. The initial banding set by the landlord in September 2020 was ‘4, reduced preference for rent arrears’, and ‘band 3 medical, reduced for rent arrears’.
2. The resident appealed the decision in January 2021, and the banding was amended to remove the reduced preference for rent arrears, but the landlord considered the band 3 medical banding to be correct, as ‘the applicant or a member of the household has a medical need that could be eased or improved by rehousing’.
3. The banding decision had no further appeal rights without further evidence.
4. Since this time, the resident had bid for one property but was unsuccessful, the landlord advised the resident to submit further bids if she wished to be rehoused.
5. The dampness was reported to the repairs team on 11 January 2021, a surveyor attended on 13 January 2021 and recommended that work should be completed. This was booked for 9 March 2021. The landlord said that based on the surveyor’s response the property may be suffering from condensation rather than damp.
6. The complaint was not upheld as the landlord found no fault in the actions it had taken. Further appeal rights were given.
No reply to the above has been provided, but on 14 March 2021, a further complaint response (headed ‘request for stage three’), was issued by the landlord in which it stated as follows:
1. According to its reports and systems back to 2010, there had been no previous issues raised for alleged damp at the property.
2. The source of the problem in the property was identified by the surveyor as condensation. The resident had advised the landlord that she was unable to open windows due to the impact of cold air on her daughter’s asthma.
3. The offer of a ‘positive air unit’ and an inspection of the resident’s cavity walls and loft insulation had been made, but these were declined due to her daughter shielding.
4. The landlord noted the resident’s concerns but as the Government’s advice around shielding had been reduced and all operatives would be wearing full PPE and maintain social distancing, the landlord hoped she would reconsider.
5. The resident had provided a letter from a respiratory consultant and the landlord had already awarded a band 3 for this medical condition. This further letter did not change the banding and the landlord was unable to progress her request to be moved.
6. Given that reasonable and appropriate action had been taken at stage one and two of the complaint process, the complaint would not be considered further by the landlord. Appeal rights to this Service were given.
No reply to the above has been provided, but on 17 March 2021, a further response to the resident’s request to have the ‘complaint reviewed at stage two’ was issued. This said that the resident did not believe the issue was caused by condensation and that her banding should be increased to allow her to move. The landlord responded:
1. The property had been inspected and the cause of the problem found to be condensation caused by stagnant air that contained a high ratio of water vapour. The resident was advised to keep vents and windows open to allow fresh air flow.
2. As condensation was most commonly caused by an individual’s lifestyle, a move would not be beneficial as the problem would reoccur. The landlord understood the resident did not agree, but this had been concluded by professionals in this field and therefore was what the landlord would follow.
3. The current banding was correct at band 3 on medical grounds. The GPs and other letters supported this but did not say a move was necessary or that the current property was detrimental to the resident’s daughter’s health. The landlord quoted from section 5.4(b) in the lettings policy which allows a band 3 medium housing need when ‘the applicant or a member of their family has a medical need which could be eased or improved by re-housing’. The landlord said that if the resident’s daughter’s condition changed, she should provide further evidence and the landlord would look to increase the banding further, as per section 5.3 (a) of the lettings policy.
4. The landlord understood that the resident had been offered a treatment of anti-fungicidal to address the mould issue but due to her daughter shielding, this could not take place.
5. A voucher for £35 for a DIY store was offered so the resident could purchase some anti mould paint herself. In conjunction with the advice regarding air flow, this should combat the issue of mould.
6. Further appeal rights were given to stage three of the complaints process, where the matter would be examined by a committee.
No reply from the resident to the above has been provided, but a further letter dated 23 March 2021 was issued by the landlord. This said it was in further response to the resident’s stage two complaint. Given the content of the letter dated 14 March 2021, referring to the refusal to progress the complaint to stage three, it may be that one of these letters are wrongly dated. The landlord said:
1. As the resident was not satisfied with the offer of vouchers to purchase anti mould products and was unable to ventilate the property by opening windows due to her daughter’s medical condition, it had a further offer to remedy the condensation and mould.
2. It offered the fitting of a ‘positive air unit’ (PAU) which would draw in fresh air from outside, heat it and pump it into the property. This was a proven mechanism for dealing with condensation and mould.
3. This would be fitted to the ceiling and would require a pre installation visit and then several hours to fit the unit. This could be done in the next three weeks If the resident wished or deferred until after the shielding period. The landlord assured the resident that all operatives would wear full PPE and maintain social distancing.
4. In addition, the landlord would arrange an inspection of the cavity wall and loft space to insure the property was up to standard, as this could also affect condensation and mould. No further appeal rights were given.

Since the final response

An internal landlord email of 22 April 2021 said the resident had agreed to the PAU and the landlord log for 6 May 2021 showed an appointment to ‘reassess following completion of recommended work’. An entry dated 9 May 2021 details a job to ‘remove two plaster vents to rear bedroom and rear bedroom cupboard. Clear cavity through to air bricks and install sleeves to ensure through flow of air. Supply and fit two hit and miss vents to exposed points’. Planned 45-day job – cancelled. The job to fit the PAU was shown as complete on 20 May 2021.
On 4 November 2021 the landlord provided its file to this Service and confirmed this was a minor condensation problem, and it had installed a PAU due to the reference that the resident’s child had respiratory problems. It said that there was no documentation in respect of a report that contractors attended the property without the correct PPE, but ‘a conversation was had with the team’. The landlord said that after a PAU is installed, a return visit is booked to check if it has been successful. That visit had yet to take place but there were no other outstanding works due.

Assessment and findings

As stated above, the issue of the banding for the resident’s rehousing application does not fall under the Housing Ombudsman’s jurisdiction, so this investigation and assessment focus solely on the landlord’s response to the resident’s report of damp.
From the evidence that has been submitted, the landlord’s surveyor inspected the property quickly and acted swiftly to provide a solution to improve the issue for the resident. The landlord’s repairs handbook says all repairs should be done in 45 working days, and in this instance a repair was offered to the resident straight away by the surveyor. The reason for the resident declining access to operatives due to her daughter shielding is appreciated by the Ombudsman, but the associated delay in a resolution being put in place would not appear to be the fault of the landlord due to this lack of access. In sending a surveyor and offering a repair promptly, the landlord has acted appropriately in accordance with its responsibilities as a landlord, and reasonably in the particular circumstances of the resident and her daughter.
The landlord then offered to send vouchers to cover the cost of the anti mould treatment if the resident preferred to undertake this without outside operatives. This was declined as the resident’s uncle had already tried this type of treatment, and it had not worked. However, the reported failure of her uncle’s efforts should not reasonably result in the landlord failing to take the same action if expert operatives recommended that this would help. Therefore, it was fair that the landlord made attempts to treat the wall and to offer that the resident did so if it was unable to get access to the property.
The Ombudsman notes that the resident did not agree that the problem was condensation. However, there has been no opposing evidence provided to support her view, and it is reasonable to conclude that the landlord has expert personnel who have made the finding of condensation, as opposed to damp. It is not the Ombudsman’s role to decide on the cause of the mould in the resident’s property, but it has no reason to find that the surveyor in this instance has not reached a reasoned and professional conclusion.
The resident has explained why she felt unable to open the windows, and her reasons are appreciated. However, this goes against the advice given by the landlord in its repair’s handbook, that windows should be opened regularly to avoid a build-up of moist air. The landlord has said that there had not been an issue with this particular property in the past, and it appears from the checklist signed before the start of the tenancy, that there was no mould issue in May 2019. It is not unreasonable then that the landlord would accept the findings of its surveyor, that the mould was caused by action taken by the resident, and that she may have taken steps to improve the situation. It is understood that the resident may feel that she had no option but to keep the windows closed, but this may have limited the landlord’s options to resolve the problem.
The Ombudsman has produced a report in respect of damp and mould https://www.housing-ombudsman.org.uk/wp-content/uploads/2021/10/Spotlight-report-Damp-and-mould-final.pdf which includes the advice that the landlord should be proactive in avoiding damp and mould in its properties. It appears from the pre tenancy report that the landlord sought to ensure there were no unresolved issues at the start of the tenancy.
The report also expects that landlords provide support for its residents once an issue is reported. The landlord has demonstrated that there was support for the resident with advice to open windows, its offer to treat the affected walls, and provide the PAU.
The report by the Ombudsman also raises the use of the term ‘lifestyle’ when actions by the resident may be the consequence of limited choices, and questions if this term should be used, as it can give the impression of blaming the resident for the problem. The resident’s ‘lifestyle’ was given as a likely cause for the condensation in the landlord’s letter of 17 March 2021, when the resident had explained her reasons were to keep her child safe.
Overall, the complaint responses in this case were supportive, acknowledged the resident’s reasons for keeping the windows closed but nonetheless offered alternatives to resolve the problem. This investigation has found that the landlord took appropriate and reasonable steps to address the repair reported by the resident and offered alternatives when the resident did not feel comfortable with operatives being in the property while her daughter was shielding, which was fair in all the circumstances.
However, the stages of the landlord’s complaint procedure have not been clear. The landlord’s last letter, dated 23 March 2021, did not include appeal rights to this Service, the previous letter dated 17 March 2021, gave third stage appeal rights, while the previous response dated 14 March 2021, gave appeal rights to this Service. The landlord did not direct the resident to the LGSCO in respect of the banding complaint as it should have done. There is no record of the resident’s complaints after the initial online form, whether they were written or by phone which suggests a gap in record keeping relating to the complaint.
There was not a significant delay overall, however, as the first complaint was made on 6 February 2021 and the resident was referred to this Service on 14 March 2021.

Issues occurring after the final response

The Housing Ombudsman’s report on damp and mould also looks to landlords to follow up after any interventions to check if they are effective. In this case, the landlord reported that the PAU was installed after the final complaint response letter was issued, so the installation cannot be included in this investigation. It is noted that the landlord says there has not yet been a post installation inspection, and the resident states that the problem continues. However, this would need to be dealt with as a new separate complaint issue, as the landlord has not had the opportunity to investigate in its own internal complaint procedure.
Similarly, the resident’s report that operatives installing the PAU did not wear full PPE (personal protective equipment) after the landlord advised they would do, would need to be included in any new complaint and the landlord allowed to investigate. Although it is noted that the landlord provided a reasonable response on its intentions of discussing this with the operatives.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was no maladministration in respect of the landlord’s handling of reports of damp in the property.
In accordance with paragraph 39(m) of the Scheme, the resident’s complaint about the priority awarded to her request to be re-housed is outside the jurisdiction of this Service to consider.

Reasons

The landlord’s response to the report of damp was reasonable and prompt.

Recommendations

It is recommended that the landlord:
1. Consider the appropriateness of the citing of ‘lifestyle’ as a cause of damp, in the light of the recent report by the Ombudsman.
2. Undertake further inspections to the property due to the problems reported by the resident in July, after the PAU was fitted (believed to be in May 2021)
3. Remind salient staff of the importance of following a clear complaints process, in accordance with its procedures and including appeal rights to this Service, and the LGSCO where necessary, and of full and complete recording of residents’ communication.