Nottingham City Homes Registered Provider Limited (202128079)

REPORT

COMPLAINT 202128079

Nottingham City Homes Registered Provider Limited

25 May 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

1. The complaint is about the landlord’s handling of:
   1. Reports of damp and mould within the property.
   2. The associated complaint.

Background and summary of events

Background

2. The resident is a secure tenant. She has lived in the three-bedroom, semi-detached property since December 2012.
3. The landlord is aware the resident has several medical conditions.

Scope of investigation

4. This Service expects a resident to make a complaint to the landlord within a reasonable period, usually within six months of the issue occurring. Therefore, this report considers events six months before the resident raised her initial complaint on 29 January 2021, up to the date of the landlord’s stage two response. It does not consider historical issues or events that occurred after the landlord completed its internal complaint procedure. These have been mentioned to provide context and background information only.
5. The resident said the lack of action taken by the landlord in resolving the damp and mould within the property caused several physical health problems and severely impacted her mental health. The Ombudsman does not doubt the resident’s comments. However, as this Service is an informal alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are better suited for consideration by a court or via a personal injury claim.​ Nonetheless, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.

Landlord’s obligations

6. Under section 11 of the Landlord and Tenant Act 1985, there is an implied term in the tenancy agreement that the landlord will (in summary) keep in repair the structure and exterior of the property.
7. Once the landlord has notice of a repair, it should conduct the repair within a reasonable time. This is set out in case law.
8. Under the Homes (Fitness for Human Habitation) Act 2018, there is an implied term in the tenancy agreement that the property is fit for human habitation when the tenancy is granted and for the duration of the tenancy.
9. In determining whether a property is unfit for human habitation under the Act, the key question is whether a property is “not reasonably suitable for occupation in that condition” because of numerous factors, which include repairs, freedom from damp, and ventilation.

Landlord’s policies and procedures

10. The tenancy agreement sets out the repairs for which the landlord is responsible. It says the landlord will carry out necessary repairs and maintenance works to the structure and exterior of the home.
11. The landlord’s complaints policy states that wherever possible, before any formal complaint is logged, it will continue to work with resident’s to resolve the cause of dissatisfaction and reach an agreed outcome. If this cannot be done, the landlord has a two stage complaints procedure. It aims to provide a stage one response within ten working days and a stage two response within 20 working days. The landlord may seek an extension of ten working days at stage one and 20 working days at stage two if required.
12. The landlord has not provided a copy of its repair policy to this Service. It is unclear whether the landlord has a specific damp and mould policy.
13. If a resident wants the landlord to consider discretionary compensation, they need to make a claim by submitting a form. Within its discretionary compensation policy, the landlord states, “we need to maximise learning from feedback in order to prevent the same mistakes occurring again in future. In many cases, a commitment to change procedures will form part of the resolution, so it is important that learning action, and any patterns or trends are both identified and followed up.”

Summary of events

14. In December 2020, a damp and mould survey took place. There are no notepad entries on the landlord’s system from this period.

15. On 29 January 2021, the resident submitted a complaint form to the landlord. She said:
    1. When she moved into the property in December 2012, the landlord told her it was aware the property was damp, but rendering would be completed within six months. When she rang two years later, there was no record of this on its system.
    2. Her house was full of damp and mould and was very cold. Her utility bills were high as she had the heating on frequently, but the house did not get warm. She ventilated the property and used fans, but this did not make a difference.
    3. The damp proof course was fixed a couple of years ago, but mould continued to grow up the walls. The drains were continually blocked.
    4. She was concerned about her health and the impact on her family.
16. The landlord acknowledged the complaint the same day. It explained that its records showed it attended many times previously for drainage issues and a damp and mould survey last took place on 21 December 2020. It confirmed the problems with damp and mould would be investigated as part of the complaint. It advised the resident to contact the repairs line to raise a request for the rendering to be looked at.
17. A damp and mould survey took place on 10 February 2021. The surveyor identified penetrating damp, with fabric failure noted as a significant contributing factor. The surveyor said there had been, “many attempts over the years to resolve internal damp. All three elevations looking poor and shabby after numerous cost-effective patch ups. Proposing to repoint all elevations.” A referral to the major works department was raised. The resident said she was asked to wait until dry weather before the works started.
18. The landlord received a quote for scaffolding on 12 July 2021, which was subsequently approved.
19. An advocacy service wrote to the landlord on 14 September 2021. They asked it to confirm the works due to be done to the resident’s home, confirmation of the current complaint stage, and a copy of the latest complaint response. They chased four times for a reply. A complaint was made on 15 October 2021 about the lack of communication regarding the current schedule of works.
20. On 28 October 2021, the resident contacted the landlord stating she was unhappy with the works that began on 25 October 2021. She said:
    1. She was told works would start around April 2021 when the weather was dry, however the start date was delayed until October 2021.
    2. The contractors said they were only authorised to complete repointing, yet the surveyor from February 2021 told her blown bricks, soffit and seals needed replacing, in addition to repointing.
    3. Another survey was needed to assess whether the property could have further insulation. She felt this should have been considered as part of the survey in February 2021.
    4. She waited 55 minutes on the phone to speak with the complaints team and was promised a call back. This did not happen.
    5. The property conditions impacted her breathing, and she was prescribed an inhaler.
    6. She was forced to leave work due to her poor mental and physical health. She had borderline personality disorder and had contacted the crisis team more often than before.
21. The landlord considered the matter internally and noted that due to the number of blown bricks (over 100), the works should have been referred to the insulation team. Further works took place in November 2021, to face up the bricks and fit a new lintel above the rear bedroom window.
22. The landlord issued its stage one complaint response on 5 November 2021. It said:
    1. It upheld the complaint and apologised for the length of time it had taken to carry out repairs to the resident’s home and for the lack of communication.
    2. The lack of communication was caused by internal staff changes. It confirmed a new manager was now in position and communication had improved.
    3. Work was underway and would be completed by 19 November 2021.
23. The advocate escalated the complaint on 6 December 2021. They said:
    1. The repointing had been completed.
    2. They were told the assets team were contacted in relation to the insulation and a further survey would be required. However, the next programme for such works was not until April 2022.
    3. The resident was unhappy that internal issues were not checked during earlier inspections, and she had to have another winter in a property with damp and mould.
    4. The resident provided a medical letter in support of her claim that the current conditions of her home were of detriment to her health.
    5. The resident wanted the landlord to:
       1. Reimburse her the cost of the medical report.
       2. Make an offer of compensation for distress, inconvenience, and detriment to health caused by the delays conducting the repairs.
       3. Arrange for any necessary repairs to be completed as soon as possible.
24. The resident told the landlord on 8 December 2021, that repointing had not stopped the problem as rainwater had soaked through the bricks. The same day, the landlord attempted to contact the resident several times to arrange a surveyor visit.
25. The advocate chased the landlord for its stage two response on 18 January 2022. They shared photos to further illustrate the problems within the property.
26. On 24 January 2022, the landlord’s records state it was putting the complaint on hold until it had the findings of the damp survey due to take place on 10 February 2022. Then, the surveyor would consult with the major works team to book in the remedial works and from that point, the resident would be advised of timescales for completion.
27. On 24 January 2022, the resident emailed the advocate. She explained a damp inspector determined the property was impacted by condensation caused by the resident not heating her home to 16°C in the winter or opening the windows to let the house breathe. The resident said two previous surveyors determined the problem to be caused by the exterior brickwork and she had followed all guidelines previously given. She felt she was now being blamed for the damp and mould problems within the property.
28. The landlord contacted the advocate on 31 January 2022, and extended its stage two response timescale to 17 February 2022. The advocate chased for a response on 18 February 2022. The stage two response was issued on 24 February 2022. Within this, the landlord said:
    1. A damp inspection took place on 24 January 2022. The surveyor noted:
       1. Dry walls and skirting throughout the property.
       2. The kitchen radiator was turned off and the kitchen was noticeably colder than the other rooms.
       3. Furniture was against walls throughout the property.
       4. Condensation readings on all walls throughout the property.
       5. Most radiators were blocked within the property.
       6. The resident informed them that she does not open the windows during the winter, and she does not have the heating on a lot.
    2. The resident was given advice on how to manage issues at the property in addition to a mould kit.
    3. A further damp inspection was completed on 10 February 2022, and it was noted that external works were required due to concerns that water was penetrating some of the areas.
    4. The issues with damp and mould appeared to be caused by a combination of things, including the state of repair of the property. It also said there were actions the resident could take within the home. It summarised these and signposted to resources on its website, in addition to forthcoming interactive sessions.

Events after the completion of the complaint process

29. The advocate contacted the landlord and stated the resident disagreed with the stage two response. They also said the resident was told no insulation works would be carried out to the property as it was within an energy efficiency band C. They provided evidence to the landlord that the property was rated band D and asked it to clarify its position.
30. The advocate contacted this Service on 15 March 2022. They said:
    1. The resident was unhappy with the way the landlord dealt with reports of disrepair and the lack of compliance with the deadlines contained within its complaint procedure.
    2. The stage two response did not address the resident’s request for compensation.
    3. The resident disagreed with some of the statements made by the surveyor and felt it was unsafe and unreasonable for the landlord to expect her to use the mould kit.
31. The landlord booked an energy performance assessment to take place on 17 March 2022. A week later, it outlined the next steps to the resident and said:
    1. An independent consultant had been instructed to complete a technical assessment to determine whether external wall insulation would help rectify the issues within the property.
    2. Depending on the findings of the technical assessment, it may consider sealing areas of brickwork to ensure an ingress of water is prevented.
    3. The energy performance assessment identified a lack of loft insulation. A work order had been raised to get it topped up.
    4. It was trialling an enhanced humidity monitoring system to understand the levels within homes. It proposed installing one in the resident’s property.
32. The resident chased the landlord regularly for updates between April 2022 and May 2022. The landlord arranged for a Envirovent unit to be fitted in the loft to aid air flow within the property. The loft insulation was topped up on 1 July 2022. On 29 July 2022, the resident sent photos to the landlord showing she had plants growing through the wall in her living room.
33. On 17 August 2022, the landlord issued an additional stage two response. It said it was pleased conditions had improved following the installation of the positive pressure extraction unit, environmental sensors and upgrading the loft insulation. It apologised for the issues raised throughout the complaint and asked the resident to contact the manager directly if further issues occurred.
34. Following this, the landlord upgraded the fan in the kitchen and arranged another damp inspection. The advocate informed the Ombudsman this took place at the beginning of December 2022 and a three-stage damp treatment was recommended.

Assessment and findings

35. Where there are failings by a landlord, the Ombudsman’s role is to consider whether the complaint response put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman takes into account whether the landlord’s response was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.

The landlord’s handling of damp and mould within the property

36. In January 2021, the resident said she had experienced problems with damp and mould since the inception of her tenancy in December 2012. No contemporaneous records have been provided to this Service to confirm when the resident first reported damp and the action taken by the landlord at the time.
37. The landlord acknowledged a damp and mould survey took place on 21 December 2020, in addition to drainage works. However, evidence of this has not been shared with this Service. It is concerning the landlord has not evidenced the outcome from its previous investigation into the substantive issue or what actions (if any) were taken as a result. This is a significant omission.
38. The damp survey from 10 February 2021, identified penetrating damp due to fabric failure. No condensation was found in the bathroom or kitchen. The surveyor’s report mentions that there had been years of attempts to resolve internal damp and a referral to major works was required. This should have put the landlord on notice that the ongoing problem required active management and close oversight.
39. There is little evidence to show what happened from 11 February 2021 until 28 October 2021. There is no evidence that external wall insulation was considered at this time, despite the number of years damp had been apparent within the property. The resident said she was, “asked to wait until April for dry weather” before the exterior repair would begin. While this is understandable considering the nature of the works required, there is no evidence to show the landlord managed the resident’s expectations or kept her updated with an action plan or defined timescales. The repairs did not start until October 2021, suggesting the landlord was not proactive in moving the repairs forward. The Ombudsman has seen no reasonable explanation for this delay.
40. The lack of repair and communication records is concerning. Clear record keeping and management is a core function of a repairs service, not only so that a landlord can provide information to the Ombudsman when requested, but also because this assists the landlord in fulfilling its repair obligations. Accurate and complete records ensure that the landlord has a good understanding of the age, history, and condition of the structure, so outstanding repairs can be monitored and managed, and updates provided to residents. Staff should be aware of a landlord’s record management policy and procedures and adhere to these, as should contractors. A separate order has been made to address this.
41. It is of particular concern that the landlord neglected to assess the property to consider its habitability, considering the length of time the resident and her family had been living with damp and mould and the number of rooms affected. The problems with the fabric of the building likely contributed to the heat loss and made the property expensive to heat. The resident repeatedly made the landlord aware of her distress and discomfort, and the suffering caused to her family. She obtained medical evidence stating that since she moved into the property, she developed problems with her lungs. She also has a mental health condition that may be exacerbated by stress. There is no evidence to demonstrate the landlord considered the vulnerability of the occupants, completed a risk assessment, offered interim support, or prioritised the repairs. Considering the circumstances, it would have been appropriate for the landlord to assess whether the resident and her family required a decant until the issues were resolved, or whether any interim measures could be taken to reduce the impact. The landlord’s failing to consider this is a significant failure.
42. The resident raised further concerns after the external repairs had initially been completed, as the issue remained unresolved and said no one contacted her about installing external wall insulation. The landlord acknowledged her concerns on 1 December 2021 and arranged for a surveyor to revisit and provide an update of any required works. It was appropriate for the landlord to arrange a further inspection to identify the cause of the continuing damp as often there are several factors that can contribute to this. Records show the landlord contacted the resident on several occasions to book an appointment, and a surveyor reported “no access” when an inspection was attempted on 14 December 2021. Based on the evidence available, the Ombudsman is satisfied the landlord acted reasonably here to try to arrange a further inspection at the earliest opportunity.
43. When deciding how best to proceed when damp and mould has been identified, it is reasonable for a landlord to rely on the opinion of its appropriately qualified staff and contractors. The Ombudsman notes the report from February 2021 identified penetrating damp, contributed by the fabric of the building. The report from January 2022 identified condensation only and cited ‘property use’ as a significant contributing factor. Another damp inspection took place on 10 February 2022, and identified further works were required due to concerns about a potential ingress of water. The Ombudsman finds it appropriate that a further inspection took place on 10 February 2022, as two previous surveyors reached different conclusions.
44. Within the stage two response, the landlord said the issues with damp and mould appear to be caused by a combination of things, including the state of repair of the property. However, the letter appears unbalanced and focuses on the surveyor’s findings from January 2022. This inferred blame on the resident and put an associated onus on her to resolve the damp. This is inconsistent with this Service’s view that landlords should adopt a zero-tolerance approach to damp and mould and should be on the front foot in identifying potential issues and carrying out effective analysis. The Ombudsman would expect a landlord to scrutinise previous surveyor reports, study the repair history, review previous expert recommendations and recent communications from the resident, and reference these within its response. Furthermore, it was inappropriate for the landlord not to outline an action plan with defined timescales to resolve the substantive complaint issue.
45. Overall, the landlord did not treat the resident fairly in the way it handled reports of damp and mould within the property. It acted with a lack of urgency and failed to keep the resident updated throughout. There were delays progressing repairs to the fabric of the building. It provided no evidence to demonstrate it considered the resident’s vulnerabilities or whether the property was habitable. This constitutes maladministration.

The landlord’s handling of the associated complaint

46. Evidence shows the resident submitted a complaint form to the landlord on 29 January 2021. This complaint was acknowledged by the landlord. Under its policies, it should have issued a stage one response within a maximum of 20 working days. In this case, it neglected to respond until an advocacy service chased for an answer several months later. The stage one response was issued on 5 November 2021 – 40 weeks after the complaint was initially made. By failing to investigate the complaint within the landlord’s published timescales, it missed an opportunity to achieve a swift resolution and to reflect on its failings for future service improvement. This delay caused further detriment to the resident.
47. The complaint was escalated to stage two on 6 December 2021 and the response was issued on 24 February 2022. The complaint was kept open for an excessive period, and it took the landlord over 11 weeks to issue its stage two response. Its policy states this should have been issued within a maximum of 40 working days. The Ombudsman’s Complaint Handling Code (“the Code”), published in July 2020, specifies that a stage one complaint should be finalised in 10 working days, with no more than a further extension of 10 working days. A stage two complaint should be finalised within 20 working days, with a further extension of 10 working days if required. The Code serves to illustrate that this complaint was kept open for an unreasonable duration. It is evident the landlord failed to follow its complaint policy which resulted in a protracted process and a lack of clear, meaningful updates.
48. Evidence shows the landlord placed the complaint on hold until it had the results from a damp survey. The Ombudsman is concerned by this as the resident and her advocate requested the landlord’s final response on several occasions and were never given a sufficient explanation as to why this remained outstanding. The Code explains that a complaint response should be provided when the answer is known, not when outstanding works are completed. The landlord’s actions here were not fair or reasonable, and added further confusion and distress to the resident. The resident remained unaware of the landlord’s position on the issues raised and lacked assurance that the issues were being taken seriously under the landlord’s complaint procedure. The landlord should have provided a complaint response in a timely manner, addressed all the concerns, and detailed any action it intended to take in respect to repairs and consideration of any compensation.
49. The delays at stage one and stage two effectively blocked access to the complaints process. This further compounded the detriment to the resident and made her feel her experience of living in a property with damp and mould for a prolonged time was minimised by the landlord. It also prevented the resident from accessing this Service and contributed to further delays resolving the substantive issue.
50. Within the stage one response, the landlord upheld the complaint and apologised for the length of time it had taken to carry out repairs to the home and the lack of communication throughout. This was appropriate and shows the landlord took some steps to acknowledge what went wrong, however, it did not consider compensation or evidence learning from its mistakes.
51. In the Ombudsman’s opinion, the stage two response is partly dismissive in tone and attempted to minimise the failings of the landlord. It did not take ownership of the delays and poor communication, and it did not explain why the complaint was not progressed in January 2021. Furthermore, it did not investigate some of the points raised by the resident, such as her request for compensation, increased heating costs and the impact on her health and family. This was contrary to the Code which states, “landlords shall address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate.” If the landlord was unsure about any of the issues it should have contacted the resident to clarify the content of their complaint. Had the landlord considered its own complaint handling, it could have identified this failure at stage two and responded accordingly. Taken altogether, the landlord missed opportunities to address and resolve the wider aspects of the resident’s complaint, show empathy, and improve the landlord/tenant relationship.
52. Under the dispute resolution principals, it is good practice for a landlord to evidence learning from a complaint. In this case, the landlord has not evidenced any steps it will take to improve future service to its residents in respect of investigations into damp and mould, repairs, communication, and complaint handling. The Ombudsman would expect a landlord to identify clear learning points and outline specific actions to ensure similar service failures will not occur in the future.
53. The Ombudsman is concerned the landlord issued a second stage two response in August 2022, acting outside of its complaint policy and the Code. The stage two response in February 2022, should have been its final answer and if the resident was unhappy with events following this, the landlord should have recorded a new complaint. It is essential for a landlord to record all complaints to ensure its data is accurate. Additionally, residents need clarity on when they have exhausted a landlord’s complaint process. It was inappropriate for the landlord to issue a second stage two response in August 2022 which commented on actions taken after the stage two response. The Ombudsman finds the landlord has not been clear, fair, or transparent in its actions here.
54. Overall, the Ombudsman concludes there were failures in the landlord’s handling of the resident’s complaint. The complaints procedure was not used as an effective tool in resolving the substantive issue for the resident but instead compounded the detriment caused. This constitutes maladministration. As such, appropriate orders are made below.

Determination (decision)

55. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of reports of damp and mould within the property.
56. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the associated complaint.

Reasons

57. The landlord did not act with a sense of urgency when considering reports of damp and mould within the property. It did not consider whether the property was habitable for the vulnerable resident or whether interim repairs were needed. It did not effectively manage the repairs or keep detailed records, and it failed to keep the resident updated.
58. The landlord did not follow its complaint process and acted outside of the Code. There were delays issuing a complaint response at stage one and stage two. A second stage two letter was issued six months after the complaint process had been completed.

Orders and recommendations

Orders

59. Within four weeks from the date of this report, the landlord will:
    1. Apologise in writing to the resident for the failings identified in this report.
    2. Pay the resident £950 compensation comprised of:
       1. £600 in recognition of the distress and inconvenience caused to her by the failures in its handling of reports of damp and mould.
       2. £250 for the time, trouble and inconvenience caused by poor complaint handling.
       3. £100.00 for poor record keeping.
    3. Self-assess its complaint handling policy against the Code.
    4. Contact the resident to see if there are any unresolved issues regarding damp and mould within the property. If there are, the landlord must provide an action plan with defined timescales.
60. The landlord must provide evidence of compliance with the above orders.

Recommendations

61. The Ombudsman recommends the landlord:
    1. Updates its records to reflect all of the resident’s vulnerabilities, subject to any data protection requirements.
    2. Reviews its handling of this case and examine the Ombudsman’s ‘Spotlight Report: on damp and mould’ (October 2021) to ensure:
       1. it retains full inspection and diagnosis reports when assessing damp and mould growth reports from residents.
       2. it avoids automatically apportioning blame to residents, or using language that leaves residents feeling blamed when condensation is identified.