Optivo (202005182)

REPORT

COMPLAINT 202005182

Optivo

15 January 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 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

This complaint is about the landlord’s response to the resident’s reports of mould in her property.

Background and summary of events

The resident has an Assured tenancy, which started on 18 December 2015, for a two-bedroom flat (‘the property’). The accommodation spans the ground and basement floors of a converted house with the bedrooms and bathroom on the basement floor.
For the purposes of background and context to this report, it is noted that the resident submitted a disrepair claim via her solicitors in September 2016. As part of this claim, she provided an Environmental Health Report in October 2016 detailing the condition of the property. This report concluded that:
1. On the basis that I observed ongoing dampness affecting habitable parts likely due to moisture ingress originating from defective exterior rendering and leaking rainwater goods, leaking bathroom tap and substantial black mould growth throughout exacerbated by damp, inadequate ventilation and thermal insulation which is also affecting the tenant’s belongings, I conclude the state of this property was prejudicial to health or a nuisance and constitutes a statutory nuisance that is likely to recur as defined by section 79(1)(a) of Environmental Protection Act 1990.
The resident was decanted to another property in June 2017 whilst disrepair works were completed by the landlord. This involved damp-proofing works completed by damp specialist contractor.
The Environmental Health report included a detailed proposed schedule of works to rectify the damp affecting the property. Whilst the landlord has shown that damp-proofing works were carried out, it has not evidenced whether the schedule of works proposed by the Environmental Health report were carried out in full.
The landlord’s records show that on 8 March 2018 the disrepair works had been completed satisfactorily. The landlord’s correspondence shows that it was satisfied that the property was checked and signed off as being damp-free. It has provided a signed satisfaction note confirming ‘all areas checked damp free’.
The resident moved back into the property in April 2018. As part of the disrepair works new extractor fans had been installed with data loggers. On 13 April 2018, the landlord’s contractor confirmed the following:
1. The resident stated that the property feels much better to live in, the windows are dry and the mould has not returned.
2. Both extractors are working effectively and efficiently. The resident is very satisfied with the outcome. The mould growth that was evident before the fans were installed has not returned.
The landlord’s records show that the disrepair claim was settled in July 2019 and the resident was paid damages.
The resident wrote to the landlord on 14 October 2019 requesting that she be moved to a more suitable accommodation due to her children’s ages. She also raised an issue about a ‘Switchee’ thermostat that was supposed to have been fitted in April 2019 to help with any damp issues at the property. She said she had not heard anything further about this. She had also not heard anything more about a manhole cover under the bathroom floor which was also supposed to have been replaced in June 2019. There is no evidence of the landlord’s response to this correspondence at this time.
The resident has said that she emailed the landlord on 11 November 2019 and said that mould had reappeared in the property. She emailed it again on 15 November 2019 reiterating this, and she said that she also emailed the landlord photos of the new mould. The Ombudsman has not seen these two emails and there are no records of them on the landlord’s file.
The resident has said that she contacted the landlord on 13 January 2020 saying that there was black mould in the bathroom. There is no evidence of this contact on the landlord’s records.
The resident wrote to the landlord on 23 January 2020:
1. She gave details of new mould appearing on the walls since November 2019.
2. She was unhappy that the landlord had not responded to her contact in November 2019.
3. She said that she had been taken to hospital on 10 December 2019 and was kept in for a few days due to her asthma-related condition, which she said had been made worse by the cold and damp living conditions at the property.
The resident also emailed a copy of this letter, together with photos of the mould, to the landlord on 28 January 2020.
The landlord responded on 10 February 2020 and stated the following:
1. Housing options – it was unable to assist the resident as it did not have an internal transfer list, and it referred her to housing options information.
2. Switchee – it acknowledged that the Switchee had been offered to the resident, but it had not been able to fit it. Instead, it will install data loggers at the property to help gauge the internal conditions and temperatures.
3. Mould growth – it stated that the previous works were related to damp, rather than mould, and it had a guarantee with the damp specialist. The contractor has been instructed to re-attend and carry out investigations and report back with their findings. The information collected from the data loggers will also help to identify any issues with the internal conditions.
4. Heating – it noted that the resident was using electric heaters to heat the property and it advised that this was not cost effective, and she should be using the boiler instead.
On 24 February 2020, the resident raised a formal complaint with the landlord via its online helpdesk. The complaint was primarily about rent issues and had been sent to the team that dealt with these complaints. But it also included complaint issues about the mould at the property. The email was then forwarded to the complaints team on 3 March 2020 to address that part of the complaint.
The landlord logged the complaint on 3 March 2020 as being about unresolved damp issues, and in its acknowledgement, it said that it had arranged for the damp specialist to return and inspect the property.
On 4 March 2020, the landlord also instructed the extractor fan contractor to attend and collect the data from the extractor fans.
The damp specialist (who carried out the original damp-proofing works as part of the disrepair claim in July 2017) re-attended to inspect the new mould. The subsequent inspection report dated 16 March 2020 confirmed the following:
1. Readings taken at intervals using a moisture meter, to all accessible walls revealed no apparent evidence of rising damp. There was a presence of mould growth affecting the wall surfaces indicating towards condensation.
2. We recommend you instruct a heating engineer to determine if the heating is adequate from the radiators through the property and to advise how long they should be kept on. The bathroom radiator was switched off at the time of our survey which we turned on and check it was working correctly.
3. We recommend that you upgrade the kitchen and bathroom extractor fans to a low wattage continuous trickle run with boost to assist in reducing humidity levels.
4. A salt band was evident to the kitchen wall between the kitchen units and fridge freezer. Above the area previously plaster we recommend you remove this area of plaster and replaster as previously specified.
5. A small leak was reported to the underside of the boiler, client’s plumber to inspect and rectify.
6. We noted externally porous spalling brickwork, client’s builder to repair all necessary masonry defects, as necessary.
7. The rear gully to the rear wall should be inspected for any blockages. Foliage was noted around the gulley and masonry above, client’s builder to inspect for any defects.
8. The rainwater downpipes should be extended to discharge into the gullies, client’s builder to attend to.
9. We recommend that data loggers were left in the property which was done at the time of our meeting.
10. We can find no thought (sic) with the works previously carried out but recommend that the above is implemented to assist in reducing humidity and the potential for moisture penetration.
On 18 March 2020, the landlord instructed a heating contractor to attend to check the heating at the property.
The landlord issued its complaint response on 19 March 2020, which set out what it had done so far and what it proposed to do about the new mould:
1. In order to effectively resolve the issues you reported, representatives from… our damp specialist, met at your property to assess the current conditions. A copy of…report is attached for your reference.
2. The report confirmed there is no damp currently in the property. The mould growth occurring is attributed to condensation. The report has recommended some improvement works including mould treatment and decoration to be carried out. We have now requested for a quotation from…to carry out the works.
3. The report also suggested data loggers are left in the property to record and help us effectively manage and stop the mould growth. I’ve had confirmation our clerk of works…returned on Friday 13th March to set the devices.
4. The report confirms the bathroom radiator was not turned on during the visit. While I must note the importance of maintaining constant heating in a home, particularly in the winter months (I attach a copy of…condensation leaflet for your information), I am aware you do not believe the condensation was caused by insufficient heating.
5. In order for us to ensure we deal with all factors that could contribute to the condensation in the property, we will be carrying out the following:
  1. Gas Contract Services will attend to undertake a heat loss survey to your home to ensure all radiators are functioning and adequately sized for the property.
  2. […] are to visit to check the extractor fans and take a download of data. If need be, they will renew the fans with another model of higher specification. I am aware […] has contacted you but you have asked for the visit to be delayed as your family is currently in self-isolation to the Coronavirus (COVID-19) pandemic.
  3. I understand […] attended the property on Monday 16th March 2020 to attend to the boiler leak…and has now been rectified.
6. The letter also mentioned housing options advice and an unrelated issue about communal lights.
It is noted that the complaint response did not detail what the landlord proposed to do about the external works that were recommended by the damp specialist.
The resident responded on 25 March 2020 and requested that her complaint be escalated for the following reasons:
1. She disputed the conclusion that condensation was the problem and said that the house was freezing because it had no insulation, high ceilings, inappropriate radiators and in general had been badly maintained. All of the above were definitely more likely to be the cause of the mould growth than 3 partially wet flannels found on the bathroom radiator.
2. The fact that the same issues keep arising shows no lessons are being learnt.
3. My walls are not wet ever they are cold, freezing cold. The mould conveniently is growing only along the walls that are exposed to the outside and not connected to another property. The same part of walls that was previously worked on. The other side of the house is fine and mould free and now I’m supposed to accept that the mould growing back is now my fault.
4. She stated that as a resolution, she wanted to be moved to another property.
The landlord issued its final complaint response on 8 April 2020.
1. Review request – this was declined as the panel could not provide the outcome the resident wanted, which was a move to another property. It said that it had offered reasonable solutions based upon an independent report from a damp specialist.
2. Mould and recommended repairs – it said it could only do emergency repairs at the moment due to COVID19 restrictions, and once these are lifted it would contact the resident to arrange for the recommended repairs to be done.
3. Heating bill – it said it would arrange for its Financial Inclusion Team to contact the resident to help with her fuel bill so that the property can be properly heated.
4. Housing Options – it gave the resident details of where she could get further advice and assistance.
5. Staff conduct – this had been reviewed by a manager and they were satisfied that the staff member acted correctly. However, given the circumstances, the staff member will no longer have involvement in the case and it will now be overseen by a Project Surveyor.
6. Conclusion – it confirmed that the complaint would not be escalated to the next stage of its process and this was its final response.
The Ombudsman understands that the resident remained unhappy with the outcome of the complaint and sought assistance from a support worker. A new complaint was logged with the landlord by the support worker in September 2020 essentially about the same issues surrounding the re-occurrence of mould. The resident disputed the findings of the damp specialist and maintained that condensation was not the key factor, but rather, the landlord had failed to carry out adequate repairs to the structure of the property and she asserted that there was penetrating damp through cracks in the walls. She said that she wanted a long-term solution to the damp and mould. The support worker also provided medical evidence and confirmation that the living conditions were having an adverse effect on the resident’s health and she should be moved for this reason.
The landlord’s subsequent correspondence shows that it maintained its view that the property was habitable and was not affected by damp. There was condensation present within the property and it was carrying out works to address this. It stated that the analysis from the data loggers on the extractor fans showed that a lack of sufficient heating and big variances in temperature levels was a major factor in the condensation at the property, and it had arranged for a heat survey to be carried out, and it would abide by any further recommendations.
The Ombudsman understands that a schedule of works was prepared which included both, external works to the rainwater goods, brickwork and any masonry defects, and also internal works to the plaster and re-decorating after removal of the mould. The heating survey also showed that the radiators needed to be replaced, and this work was carried out in December 2020.

Assessment and findings

Policies, procedures, and agreements

Tenancy Agreement:

This sets out the respective obligations on the landlord and the resident. With regards to repairs it states that the landlord agrees:
1. To keep the structure and outside of your home in a reasonable state of repair and in proper working order. This includes:
  1. Drains, gutters, outside pipes and the roof.
  2. Outside walls, outside doors, window sills, window catches, sash cords and window frames, including any painting and decorating needed outside.
  3. Inside walls, floors, ceilings, doorframes, but not painting and decorating inside…
2. We will also maintain any installations we have provided for supplying water, gas or electricity, and for heating, hot water and sanitation. This includes:
  1. Basins, sinks, baths, toilets, flushing systems and waste pipes…
  1. Electric wiring, including sockets and switches.
  2. Central-heating systems, gas and water pipes, water heaters, showers and storage heaters, fireplaces and fires we have fitted.
The tenancy agreement states that the landlord will ‘carry out any repair work that is our responsibility within a reasonable time of receiving your report’.

Repairs policy:

This sets out what the landlord is responsible for and it mirrors what is detailed in the tenancy agreement above. The policy states that for emergency repairs, the landlord will make safe within six hours. There is no specific timeframe given for completing non-emergency repairs.
The landlord has also provided its information booklet on dealing with damp, mould, and condensation, which gives residents advice on matters such as heating and ventilation within the property to minimise condensation. This booklet also states that the ‘only lasting cure for severe mould is to get rid of damp’.

Landlord’s response to the reports of mould

The Ombudsman’s role includes an assessment of whether the landlord has followed its policies and procedures, and behaved reasonably, taking account of all the circumstances of the case.
It is noted that the resident has raised comments about how the condition of the property has impacted her health and well-being. This is duly noted, however, the Ombudsman is not able to make a determination on matters such as legal lability or the impact on the resident’s health. These are matters better suited to legal action, and the resident would need to seek her own legal advice about this.
The landlord’s repair responsibilities in respect of the resident’s reports of mould in the property require it to ensure that there are no external defects or issues with the structure of the property that may be causing or contributing to the damp and mould inside the property.
The Ombudsman understands that extensive repairs were carried out in in 2017/2018 and it was accepted by the landlord and the resident in March 2018 that the property was damp-free. The resident has said that the damp and mould reappeared in November 2019, at which point she notified the landlord of this. The Ombudsman has not been provided with copies of this correspondence and there is no evidence available at present to show that the landlord received any correspondence from the resident in November 2019. As such, the landlord was not required to take any action at that point as it was not aware of a problem.
The landlord was made aware of the resident’s concerns about the damp and mould reappearing when it received her letter on 28 January 2020. The landlord responded to this on 10 February 2020 and said that it would arrange for the original contractor to re-attend and inspect the property under its repair guarantee. This was appropriate and the landlord acknowledged the resident’s concerns in a timely manner.
However, while the landlord duly acknowledged the resident’s concerns and had proposed a re-inspection, the records show that the resident raised a complaint on 24 February 2020, which was logged by the landlord on 3 March 2020. The landlord then instructed the contractor to re-attend and carry out the inspection. It was at this stage that the landlord also instructed a separate contractor to obtain data from the extractor fans.
The records show that the damp contractor attended on 12 March 2020. Given that the landlord had acknowledged her concerns on 10 February, it is not clear why there was a delay of about a month for the inspection. The damp contractor issued its report on 16 March 2020 and concluded that there was no apparent evidence of rising damp. It did however conclude that there was mould growth on the walls, and in its opinion, this was indicative of condensation. The report made several recommendations both internally and externally including doing a heat survey and checking the boiler and upgrading the extractor fans as well as repairing the external brickwork and rainwater goods. The report concluded that there were no issues with the previous repairs that had been carried out, but it recommended further works and checks be carried out to reduce humidity levels and moisture penetration.
The landlord issued its complaint response on 19 March 2020. It acted appropriately by swiftly accepting the report’s recommendations for the internal works and instructing checks to be carried out on the boiler, the extractor fans, and a heat survey. However, the landlord did not act appropriately in its response to the recommendations for the external works. The landlord failed to include this within its complaint response and there is no evidence that it carried out the external recommendations in a timely manner.
The landlord has said that the COVID 19 restrictions had impacted upon some of the repairs being carried out. This is duly acknowledged, however, it can be seen that the external works were not carried out until late October 2020. The landlord has not provided any evidence to show how the external works were impacted by the COVID 19 restrictions and why it took more than seven months to carry out the external works. It is also noted that the resident had to raise a second complaint in September 2020 and the external works were then arranged. While the COVID 19 situation would have impacted upon the landlord’s capabilities, the restrictions were eased in late May 2020 and while there may well have been a backlog to work through, the landlord has not provided any evidence of how this affected the external works in this case. In any event, as the works had not been carried out the resident had to pursue the landlord and make a further complaint about the length of time it was taking to complete the works.
Similarly, a heat survey was recommended in March 2020, but it was not carried out until 28 October 2020. It is noted that the resident initially put a hold on this due to her family being in self-isolation, but there is no evidence to show why this was not picked up again until after the second complaint. The Ombudsman understands that the heat survey showed that the radiators needed to be upgraded, and this work was carried out in December 2020.
The Ombudsman considers that there was an unreasonable delay on the part of the landlord in carrying out some of the recommendations set out in the damp contractor’s report in March 2020. While COVID 19 restrictions may well have played a part in the delay, once the restrictions were eased in late May 2020, the landlord has not evidenced that it acted in a timely manner. This was a service failure and resulted in a delay in addressing the issues that were potentially causing the mould within the property.
The resident has disputed some of the findings of the contractors and has alleged collusion between the contractors and the landlord and has said that the landlord has been unwilling to address the underlying cause of the damp and mould at the property. While there has been service failure with regards to the landlord’s delay in carrying out some of the works, the Ombudsman considers that the appointed contractors are the experts and it is not unreasonable for the landlord to rely upon the experts’ findings. The resident has not provided any independent expert evidence to challenge the landlord’s findings and conclusions. The available evidence demonstrates that the landlord acted appropriately in instructing a damp expert and it accepted the expert’s recommendations on how to address the mould within the property. The landlord has carried out the required internal and external works and has provided advice and guidance on how to heat the property to minimise condensation.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its response to the resident’s reports of mould in her property.

Reasons

Looking at it overall, the Ombudsman is satisfied that the landlord has fulfilled its repair responsibilities to the resident in respect of the reports about the damp and mould. It has arranged for the property to be re-inspected by appropriate experts and has implemented all the repair recommendations. However, it failed to carry out the necessary external checks and repairs to the brickwork and guttering in a timely manner and there was also a delay of several months in carrying out the internal repairs and upgrading the radiators.

Orders

Within the next six weeks the landlord is ordered to pay the resident compensation of £250 in recognition of any distress and inconvenience caused by its service failures in regard to its response to the resident’s reports about the mould at her property.
Evidence of compliance with the above order to be provided to this Service within six weeks.