Royal Borough of Kensington and Chelsea (202010924)

A picture containing logo

Description automatically generated

REPORT

COMPLAINT 202010924

Royal Borough of Kensington and Chelsea

5 October 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of damp and mould in the property including the resident’s reports of damage to personal items.
The resident has also complained about:
1. the handling of her request for a transfer on medical grounds.
2. the handling of her homeless application.

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 resident’s complaint about the handling of her homelessness application is outside of the Ombudsman’s jurisdiction.
Paragraph 42(k) of the Housing Ombudsman Scheme states that “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”.

The resident’s request for a transfer on medical grounds

In this case, the landlord initiated the resident’s request for a transfer on medical grounds by making a referral to the Council’s Housing Needs team on 4 December 2019. The assessment of the application required the completion of a Health and Disability Assessment form.
The assessment of applications for housing and any subsequent allocation of property to applicants is carried out by a local housing authority under part 6 of the Housing Act 1996. All Local Housing Authorities are required to have a published allocation scheme which sets out how they assess and prioritise applications for housing. Local housing authorities are required to give ‘reasonable preference’ to certain categories of people:
1. Applicant has become homeless (for example because it is no longer reasonable for the tenant to continue to reside at the property)
2. Applicant is occupying unsanitary/overcrowded housing, or living in unsatisfactory housing conditions
3. Applicant needs to move on medical, welfare grounds or due to disability or needs to move to a particular area to avoid hardship

The allocation scheme should set out how these groups will be given ‘reasonable preference’ as well as any local priorities i.e. under occupiers.

The landlord’s Allocations Scheme confirms that “The Council offers some preference to groups defined by legislation as needing to be given ‘reasonable preference’. This includes …People who need to move on medical or welfare grounds, including needs relating to a disability”.
In line with the obligation to offer ‘reasonable preference’ the Scheme provides for the award of points to applicants for different types of need. The highest level of points are as follows:
1. Exceptional Priority – 2,000 points (Direct offers of suitable accommodation may be made).
2. Emergency health and independence – 2,000 (Direct offers of suitable accommodation may be made).
3. At serious risk of harm – 1,900 points.
4. Supporting health and independence – 900 points.
5. Redevelopment of Homes – 900 points.
The Local Government and Social Care Ombudsman will consider complaints that concern the handling of an allocation under Part 6 of the Housing Act 1996. The Local Government and Social Care Ombudsman will therefore consider complaints concerning applications from a tenant for a transfer if they fall within one of the ‘reasonable preference’ categories. Therefore the resident’s complaint about the handling of her transfer on medical grounds falls within the jurisdiction of the Local Government and Social Care Ombudsman. Consequently, this complaint is outside of the Housing Ombudsman’s jurisdiction in accordance with paragraph 42(k) of the Housing Ombudsman Scheme.
The landlord’s complaint response confirms that it considered whether to award the resident Management Transfer status. Its Management Transfer Process Document states that:
1. “Homes and associated tenancies provided to Council tenants through the Management Transfer Process will be granted under the Council’s Allocation Scheme. The Process does not operate outside of the Scheme”.
2. “Residents who are awarded Management Transfer Status will be prioritised on the Council’s Allocation Scheme as:
  1. Serious Risk of Harm
  2. Emergency Medical or
  3. Exceptional Priority

cases giving them a very high priority for rehousing. Tenants would be added to the Housing Register; the Council would be able to make them direct officers of Council Properties and they would also be able to bid for Housing Association properties”.

“If the request is based on medical grounds, medical evidence in support of an application to transfer will be assessed by the Council’s Housing Health and Disability Assessment (HHDA) Team. The HHDA Team’s assessment and any related recommendations will be considered alongside the application to transfer”.

The resident’s complaint about the handling of her homelessness application

Whilst the Housing Ombudsman will consider complaint about the handling of a transfer application made outside Part 6 of the Housing Act 1996, in this case the landlord’s consideration of a management transfer falls within the Allocations Scheme. Management Transfers are therefore considered within Part 6. Consequently, this aspect of the resident’s complaint is also within the jurisdiction of the Local Government and Social Care Ombudsman and outside the jurisdiction of the Housing Ombudsman Service,
As well as pursuing a transfer application, the resident also sought to secure alternative accommodation through making a homelessness application to the Council; however, the Council did not accept her as homeless and therefore did not offer her temporary accommodation. Aspects of the homeless application were considered within the complaints procedure. Complaints concerning applications for assistance under the homelessness legislation, including decisions about eligibility for and allocation of interim and temporary accommodation, fall under the remit of the Local Government and Social Care Ombudsman. Therefore, the resident’s complaint about the handling of her homelessness application is outside of the Ombudsman’s jurisdiction in accordance with paragraph 42(k).

Background and summary of events

Background

The resident is a tenant of the landlord, and her property is a ground-floor bedsit. Although the tenancy agreement indicates that at the start of her tenancy she had no disabilities, it is understood that the resident now uses a wheelchair, has carers who visit her and requires medical equipment.
The landlord is a local authority. Prior to March 2018 a Tenant Management Organisation (TMO) managed all the landlord’s property. After March 2018, all day-to-day housing and related support services were returned to the local authority.
The landlord at the time of the resident’s complaint had a three stage Complaints Procedure. At each stage, the landlord had a target of 15 working days to send the full response. On 1 April 2021, the landlord introduced a two-stage procedure.
The Complaints Procedure stated that “There are some issues that the Council cannot investigate under its Housing Management Complaints Policy which include: … complaints that involve insurance claims against the Council, although there may be aspects that do fall within this policy such as an allegation that the Council delayed in sending information about how to make an insurance claim”.
The landlord’s Compensation and Redress Policy states that:
1. “Housing Management will consider a claim for compensation when:
  1. residents have been severely inconvenienced by the Council’s actions.
  2. service delivery failure causes residents loss or major inconvenience.
  3. failure to follow Housing Management’s policies has a detrimental effect on residents.
  4. appointments are missed.
  5. failure to identify the correct issue or carry out repairs in a satisfactory manner or complete repairs within agreed timescales causes inconvenience or loss.
  6. the Council is responsible for the loss of services which it provides to residents’ homes, such as heating and/or hot water.
  7. damp, water leaks, neglect or similar, result in the loss of an amenity such as a room”.
2. “Offers of compensation will not be made if the Council has taken reasonable steps to remedy any failure of service delivery that arose due to unavoidable circumstances, or if the service user prevents or delays the service delivery or has contributed in some other way to its failure”.
3. “Residents are advised to take out home contents insurance at the start of their tenancy to insure their personal possessions and decorations against damage or loss…All liability claims against the Council should be made to the Council’s Insurance Team using the Housing Liability Claim Form and will be dealt with outside this policy”.

Summary of Events

On 11 November 2016, the landlord’s specialist air conditioning and building services contractor conducted a damp survey. The contractor quoted for upgrading extractor fans in the kitchen and bathroom including data logging and treating small areas of mould growth with a part room treatment to ensure eradication.
After the resident reported mould by her front door, the landlord carried out a mould treatment on 5 January 2017. After, the resident made further reports of mould and items that were damaged such as a mattress, sofa, shoes and clothes and on 17 May 2017, the landlord removed an existing extractor fan and installed a vent cover. The landlord inspected the resident’s property on 6 July 2017 and on 13 July 2017 and sent a response under its complaints procedure. It noted that it had carried out mould treatments and installed extractor fans which had improved the air flow and quality which in turn improved the condensation within the property. The landlord stated that inspections had witnessed small areas of mould growth which was the resident’s responsibility to deal with; however, it would tile the bathroom to the ceiling. On 5 December 2017, the landlord raised a repair for various bathroom works.
On 4 December 2019, the landlord’s Housing Management team made a referral to the Housing Needs team to consider a transfer on medical grounds, noting that the resident had reported she was using a wheelchair and had carers. Internal correspondence sent on 23 January 2020 shows that the Housing Needs team was to send a fresh Health and Disability Assessment form to the resident for her to return with medical evidence so that it could assess the suitability of her current accommodation.
There is no evidence that the resident reported mould and damp again until 2020. On 11 May 2020, the resident submitted a formal complaint stating that the landlord had not resolved the mould and damp in her property. She advised that on 11 May 2020 she noticed mould on her personal belongings and on walls in patches, and that since March 2020 her breathing had been more problematic.
In response to an email sent on 26 May 2020 the Housing Needs team wrote to the resident confirming that it had been allocated the resident’s case and attached a Health and Disability Assessment form for the resident to return along with medical information.
On 1 June 2020, the landlord responded to the resident at Stage 1 of the complaint procedure. It noted:
1. It had installed a fan in the bathroom in January 2017 to combat damp, and there had been no further reports until recently. Its surveyor would inspect the resident’s property on 5 June 2020 in order to identify a solution to the damp and mould.
2. Its compensation policy did not cover damage to personal items therefore the resident would need to contact its insurance team to make a claim.
3. The Housing Needs team would contact the resident with an update on her transfer application on medical grounds.
On 5 June 2020, the landlord inspected the resident’s property. It noted the three extractor fans in the property – in the kitchen area, bathroom and sleeping area – were working at the time of the visit, but it was not sure that the fans were the most efficient. It noted that the property felt humid with high condensation and limited extraction. The landlord further noted that there were minor mould spots although footwear had clear mould growth and the bed mattress smelt mouldy. The landlord noted that no damp was evident in the property from readings taken with a protimeter.
The landlord recommended that the existing fans should be upgraded to a type that could record levels of moisture over time and produce a monitoring report. In the interim, it should offer the resident a monthly call to see if the mould had returned and raise orders to clear the mould with the correct chemicals if necessary.
On 7 July 2020, the landlord requested that its specialist air conditioning and building contractor carry out a survey. After not gaining access on 20 August 2020, on 11 September 2020 the contractor inspected the resident’s property and provided a quote. It recommended “upgrading both the bathroom and kitchen fans to automatic, trickle and humidity boost fans [with data logging], this will help to retrieve and remove any humid air at source, created by cooking washing and bathing, halting humid air migration”. The contractor also quoted for a mould treatment with a solution that would “kill the infestation within the fabric therefore halting any future growth” and which included leaving an anti-mould paint additive with the resident. The contractor offered a “3 year no mould return guarantee if purchased in conjunction with our data logging ventilation solutions”.
In the interim, on 19 August 2020 the resident replied to the Stage 1 response of 1 June 2020 stating that her belongings had been damaged. She stated that she was disabled but could not sleep on her bed as it and the bed frame were mouldy. The resident also stated that she was not sure whether the landlord had referred her for consideration for a transfer and that she had not heard from the Housing Needs team.
On 3 September 2020, the landlord sent a follow up response to the letter of 1 June 2020 apologising for the delay in sending the Health and Disability Assessment form. It advised that the application had been closed as the resident did not respond to the email of 26 May 2020 but that it could be reopened if the resident contacted the Housing Needs team.
On 20 and 21 September 2020 the resident emailed the landlord stating that she had not had access to her bathroom for over a year due to her wheelchair not fitting inside, nor could she move around or reach items in the kitchen, therefore had meals brought to her. She noted that it was difficult to enter and leave through the front and second doors.
The resident also noted that the mould had reoccurred and worsened which had caused breathing difficulties, and after an episode on 19 September 2020 where a paramedic attended, she had stayed stay away from the property. The landlord confirmed that this information would be passed to the Housing Health and Disability Assessment team which was considering her transfer application for the Housing Needs Team.
On 21 September 2020, the landlord raised an order for the installation of new ventilation and for specialist mould removal. In an exchange of correspondence sent on 1 October 2020, the landlord noted that its contractor would be upgrading the ventilation in the building that week and the Housing Needs team would be carrying out the health and disability assessment. The resident stated that she doubted the upgrade of the fans would make any difference.
On 2 October 2020, the resident made an application to the Council as a homeless person.
On 3 November 2020, the landlord sent a new Stage 1 complaint response. It stated:
1. Since the response of 1 June 2022, it had requested its specialist contractor to upgrade the property’s ventilation and treat mould, but the resident had not provided access due to ill-health. Therefore, it did not uphold this aspect of the resident’s complaint. It asked the resident to confirm her availability within the next 56 days, otherwise it would close down the repair order.
2. It had advised the resident that its insurance team would access her claim and asked the resident to confirm if she had submitted her claim form.
3. It was looking at whether the resident’s current accommodation was suitable for her in light of her disability and medical condition. It would contact her to confirm the outcome and to explain her options.
On 3 November 2020, the resident escalated her complaint stating that:
1. She was not staying in her home but sleeping rough as the mouldy environment in her property was affecting her health. She had been advised that there was a structural issue, and that the property was a “sealed box”. Therefore, she did not consider that new fans would make a difference.
2. She stated she was unhappy that the landlord had considered that she had obstructed works.
3. She had not received a response to her homelessness application.
4. She advised she would be submitting a claim for lost items which at that time totalled £10,000.
On 25 November 2020, the landlord sent the Stage 2 response. It noted:
1. It had an obligation to make reasonable enquiries following the resident’s homelessness application and the information provided to date confirmed that the resident was able to continue to occupy her property. Therefore, the Homelessness team would not provide emergency accommodation.
2. The resident had cancelled appointments to carry out ventilation upgrade works scheduled for 21 October 2020 then 30 November 2020. It agreed with the Stage 1 finding that there was no service failure and did not uphold the resident’s complaint related to damp / ventilation.
3. The Housing Management team had considered that a management transfer would not be of benefit for the resident as she was seeking a larger property on medical grounds. It had therefore made a referral to the Housing Needs team so that a medical assessment could take place.
On 26 November 2020, the resident escalated her complaint stating that:
1. She felt the landlord had discriminated on disability grounds by not acknowledging her mobility issues.
2. From the date that she submitted her homeless applications on 2 October 2020 she had not received an acknowledgement and phone calls had not been answered. She was now sleeping rough, and the Council had failed to provide her with safe and suitable accommodation.
3. The contractor had in fact attended her property on 22 October 2020 to make an assessment and stated it would make an appointment for the actual installation of the fans. She had cancelled the appointment for 30 November 2020 as the family member who was due to provide access had to self-isolate.
4. She requested she be transferred to another bedsit whilst her transfer application was considered. Therefore, if her application for a larger property was rejected, she would still be in bedsit accommodation.
On 27 November 2020, the Council’s insurance department wrote to the resident. It denied liability for the resident’s claim stating that the landlord had made reasonable efforts to rectify issues at the resident’s property following the visit of 5 June 2020 by seeking to install upgraded fans with the ability to produce a report and monitor the level of humidity in the property; however, it had not been able to access the property at scheduled appointments on 22 October 2020 and 30 November 2020.
On 22 December 2020, the landlord responded at Stage 3 of its complaints procedure:
1. It had acknowledged and undertaken to assess the resident’s mobility issues therefore did not consider that it had acted in a discriminatory way.
2. Advice from a paramedic that the resident had relayed did not have any official medical practitioner’s information and did not explicitly state the resident should find alternative accommodation. It was currently assessing whether the current properties met the resident’s needs.
3. It accepted that there had been little or no contact with the resident after she contacted it in early 2020 resulting in the resident feeling uncertain about her housing situation. It should have phoned the resident after she informed it that she was not staying at her property.
4. It did the “right thing” by rebooking cancelled appointments to carry out works to the extractor fans. It understood the next appointment was for 8 February 2021.
5. A management transfer would not have achieved the outcome the resident was seeking as she wanted a bigger property whilst management transfers offered like-for-like properties. This was explained in the Stage 2 response.
6. In conclusion:
  1. The Homelessness team would offer £100 in respect of poor communication.
  2. The Housing Health and Disability team would contact the resident with the outcome of the suitability assessment no later than 15 January 2020.
  3. The Housing Complaints team would review its processes to ensure that commitments were tracked, and relevant staff members were aware of actions that needed to be completed.
On 5 February 2021, the Health and Disability team awarded the resident high priority, 900 Supporting Health and Independence points, for a one-bedroom flat in recognition of the difficulty she was facing accessing her home and essential facilities within. The letter noted that issues of damp and mould were not matters for the team to address or resolve, therefore the resident should follow up this matter with the landlord.
On 13 August 2021, the landlord inspected the resident’s property in response to notification of a disrepair claim from the resident’s solicitor. On 3 September 2021 it produced a report in which it denied the resident’s legal claim. It noted there was no damp or mould growth in the bathroom, minor mould in the bedsitting room and kitchen which could be easily cleaned. It recommended the servicing of three extractor fans, cleaning of the mould and checking that the central heating system was working at maximum efficiency. The landlord also noted that there may be a leak behind the kitchen sink causing damp which would need investigating.
The resident has advised this Service that the landlord has installed new extractor fans which may not be working and has built a block around the toilet which she believes serves no purpose. She explained that she is not staying at the property due to mould affecting her breathing since October 2020, and that her possessions have been damaged.

Assessment and findings

The resident’s complaint about the landlord’s handling of damp and mould in the property including her reports of damage to personal items

Following reports of mould in the resident’s property received in 2017 the landlord carried out mould washes to remove the mould. It also requested that its contractor survey the property which was appropriate as this course of action enabled it to obtain an informed view on what further action to take. It installed extractor fans and checked the effectiveness of these works by inspecting in July 2017. It thereby took reasonable steps to resolve the mould and damp reported at that time.
In this case, there is no evidence that the resident reported further problems with dampness and mould until the resident’s complaint of May 2020. The landlord’s duty to carry out a repair does not come into effect until the landlord is on notice of the issue. Therefore, as an evidence-based Service, this Service cannot find service failure by the landlord in its handling of reports of dampness and mould between 2017 and May 2020. On receipt of the further report in 2020, the landlord took steps to assess and resolve the reported dampness and mould by inspecting on 5 June 2020 and asking for its contractor to also survey the property.
Ultimately, it was reasonable that the landlord relied on the findings of a member of staff with responsibility for assessing technical repair issues and its approved contractor. It agreed that the existing fans should be upgraded to a type that could record levels of moisture over time and produce a monitoring report. In agreeing the fans should be upgraded, the landlord sought to gain an understanding of when and why the mould might form. It was also reasonable that the landlord ordered its contractor to clear the mould as whilst this may not be a permanent solution, it would provide temporary respite.
It is noted that the resident does not consider that the use of extractor fans will resolve dampness and mould in her property. It is not unreasonable for the landlord to carry out more than one visit in order to remedy a repair issue where the issue is not straightforward and recurring, as was the situation in this case. It is also the case that the resolution of dampness and mould may be a process of elimination and it is therefore reasonable that a landlord attempts different measures when recurrent mould is reported.
The landlord took steps to carry out the works identified by its contractor in September 2020 arranging appointments on 30 November 2020 and 8 February 2021. The information provided to this Service does not confirm that the works were carried out. Nonetheless, in carrying out a further inspection on 13 August 2021 and making recommendations the landlord took appropriate steps to investigate the resident’s ongoing concerns about mould and to identify a solution.
It is appreciated that the extent of the dampness and mould in the resident’s property at the inspection of 13 August 2021 may have been reduced by the resident not staying in the property. However, the landlord could only base its recommendations on the situation it witnessed.
This Service acknowledges the resident’s concern about mould is such that she has not been staying in her property. It is also noted that the parties have differing views as to the extent and seriousness of the mould in the property, with the landlord stating that the mould is manageable. It is not the role of the Ombudsman to carry out assessment of disputed technical matters but to assess the reasonableness and appropriateness of the landlord’s response to repair issues, taking into account its legal obligations, its policies and procedures, good practice. Ultimately, when the landlord received reports of dampness and mould from the resident it took reasonable steps to investigate and remedy the reports. In the absence of any conclusive evidence that the property was uninhabitable, its actions were also proportionate.
The resident also reported damage to personal possessions for which she claimed compensation. In this case, the Ombudsman has not sought to determine whether a landlord is liable for the resident’s losses; insurers and/or the courts have authority to determine whether the landlord has been negligent and is liable for losses such as damaged property / belongings. However, the Ombudsman has assessed the handling of the claim by a landlord.
In this case, the landlord’s Compensation Policy states that “all liability claims against the Council should be made to the Council’s Insurance team”. As the resident was claiming that the landlord was liable for the damage to her possessions due to dampness and mould in her property, it was in line with the policy that the landlord advised her to make a liability claim to be determined by its Insurance team. Generally, where the landlord disputes responsibility for damage following investigation, it is reasonable for a landlord to treat the resident’s report of damage to personal possessions as an insurance claim so that responsibility or liability can be determined.
As the insurance claim was not referred to an external insurance company but kept in-house, the landlord had a responsibility to explain its decision on the claim which was to deny liability for losses claimed by the resident. The landlord took reasonable steps to explain its decision by outlining the action it had taken following the resident’s reports of mould in 2020 and considering whether there had been any service failure. The landlord missed an opportunity to list, for completion, how it responded to reports of mould and damaged possessions received prior to 2020; however, this omission did not cause significant detriment as the most recent report prior to then was over two years earlier, in 2017.
The landlord anticipated that the resident would be unhappy and frustrated that it did not provide recompense for lost items. As the court can make a binding decision on liability claims it was appropriate that the landlord advised the resident to seek independent legal advice having rejected her claim.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its handling of damp and mould in the property including the resident’s reports of damage to personal items.

Reasons

On receipt of the reports of damp and mould, the landlord has taken reasonable steps to assess and resolve the reported dampness and mould. In particular, it has carried out inspections itself and asked for its contractor to also survey the property. Furthermore, it has carried out works identified or sought to carry out that have been identified. In the absence of any conclusive evidence that the property was uninhabitable, its actions were also proportionate.
Regarding the resident’s report of damage to her possessions, it was in line with the Compensation Policy and reasonable in the circumstances that the landlord advised her to make a liability claim to be determined by its Insurance team. The landlord took reasonable steps to explain its decision by outlining the action it had taken following the resident’s reports of mould in 2020 and considering whether there had been any service failure.

Orders and recommendations

The Ombudsman makes the following recommendations:
1. The landlord makes arrangements with the resident to complete any outstanding works such as the upgrading / servicing of the extractor fans, and cleaning of the mould.
2. The landlord makes arrangements with the resident to inspect for leaks, behind the sink unit in particular, and to check that the central heating system is working to its optimum.
3. The landlord explains to the resident the process by which it will monitor and assess the moisture in the resident’s property as logged in reports generated by the chosen extractor fans. The landlord also advises of any other proactive measure it can take to monitor and tackle mould in the resident’s property.
4. The landlord carries out another inspection of the resident’s property at a time when she is staying in the property.