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Southend-on-Sea City Council (202309595)

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REPORT

COMPLAINT 202309595

Southend-on-Sea City Council

27 February 2024


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:
    1. Handling of repairs to resolve water ingress at the property.
    2. Handling of reports of mould.
    3. Communication with the resident.
    4. Complaint Handling.
  2. The Ombudsman has also considered the landlord’s record keeping.

Background

  1. On 5 December 2022, the resident reported water pooling in the garden outside her kitchen window, caused by water flowing from the neighbour’s property. On 19 January 2023, the resident reported that the stagnant water build up had leaked into the property and caused damp and black mould to form in the kitchen and hallway. On 15 February 2023, she complained. The resident reported that someone had previously visited, but failed to return as promised. The resident reported having chased the landlord frequently.
  2. In the week commencing 19 February 2023, a surveyor was due to attend, but had to reschedule for 2 March 2023. The surveyor found that water was penetrating from the garden next door and recommended a damp specialist attend.
  3. On 9 March 2023, the landlord issued its stage 1 response. It apologised that the initial surveyor’s visit had been cancelled and explained a damp specialist would attend in due course.
  4. The damp specialist attended on 11 May 2023 and carried out its own investigations, which were inconclusive. Further recommendations were made. The landlord received the report on 5 June 2023.
  5. On 9 June 2023, the landlord issued its stage 2 response, after the resident had escalated on an unknown date. It apologised that there had been “insufficient action taken to remedy the situation” and offered £300 compensation. £200 of this was in respect of the time, trouble and inconvenience, while £100 was for communication failings. It raised jobs to investigate a possible mains water leak as the fault on the same day.
  6. The resident approached the Ombudsman on 16 June 2023, explaining that she was unhappy the issue remained unresolved and at the “insulting” level of compensation offered. She chased the landlord on 4 July 2023, which began chasing contractors and making internal investigations the same day.
  7. On 5 and 6 July 2023, the landlord attended to carry out further investigations. It established the cause of the water ingress to be water coming from the neighbour’s property, in line with the resident’s initial reports of 5 December 2022, and the surveyor’s report of 3 March 2023. It attended the following day and repaired a number of issues contributing to the water ingress.
  8. The landlord attended again at the end of August 2023 to ensure the works had been effective. On 4 September 2023, it attended to complete remedial works, including treating mould and redecorating.

Assessment and findings

Scope

  1. The evidence shows that the resident had been making reports about this issue from as early as 23 December 2019 and throughout 2020, though there are no records of further reports from then until late 2022. Paragraph 42(C) of the Housing Ombudsman Scheme states that the Ombudsman may not investigate complaints which were not brought to the landlord’s attention within a reasonable period, which would normally be within 6 months of the issue occurring. Therefore, events which took place prior to the resident’s report from December 2022 are included in this report for context only.

Handling of repairs to resolve water ingress at the property

  1. The Ombudsman’s Dispute Resolution Principles are to ‘be fair’, ‘put things right’, and to ‘learn from outcomes’.
  2. There is no evidence that the landlord took any action following the resident’s first two reports of water ingress, aside from the resident’s account that an operative visited and promised to return. The evidence reflects the resident’s account to this service that “nothing was taken seriously until I made a formal complaint” in February 2023. Following the complaint, the landlord rightly raised a job for a surveyor to attend, which was delayed by a week due to a cancellation, the reason for which is unclear. The landlord’s repairs policy states that routine repairs should be attended within 28 days of the initial report. Its damp and mould policy states that where damp and mould is reported, it will “ensure accurate Causation & Detailing of Required Works are in place within 14 days of identification or reporting”. The landlord exceeded both of these timescales significantly. The policy goes on to say that “whilst not classed as an emergency repair, reports of damp and mould are a priority for us and we will make every effort to arrange the earliest possible appointment”. The surveyor eventually attended on 2 March 2023, correctly identifying the issue as “water penetration from the garden next door” and instructed a damp specialist to attend. This confirmed the resident’s reports of the source.
  3. There then followed an unexplained delay in raising a job for the contractor (28 March 2023) and a further delay until it attended (11 May 2023). This coincided with a chasing phone call by the resident; it is unclear if this was a coincidence or if the specialist would not have attended, had the resident not chased. The evidence suggests at this point that poor communication between the landlord and the damp specialist may have led to a series of further delays. The visit of 11 May 2023 appears to have been raised to investigate and address the defects identified by the original surveyor, however the damp specialist’s report showed it conducted a fresh investigation with no clear direction of what the issue could be. It did not appear to consider water from the neighbour’s garden as a potential cause, likely because the water marks observed by the contractor were no longer present, as more than 2 months had passed since the initial visit. The landlord did not receive the damp specialist’s investigation report, which was inconclusive and recommended further investigation by water mains specialists, until 5 June 2023, causing further delays. There is no evidence the landlord chased the contractor at this time.
  4. The landlord’s stage 2 response of 9 June 2023 promised to send a contractor to carry out further investigation, however, there is no evidence the job was actually raised. On 4 July 2023, after the resident had chased twice more, internal emails show that the landlord became concerned with its own handling of the case, instructing 2 different emergency contractors to attend over the following days and carrying out internal investigations into what went wrong. It appears that the confusion may have been caused because the surveyor who had originally inspected the issues on 2 March 2023, may have been responsible for raising the works to further investigate the cause of the issue in June. It is understandable that he may have been confused by this request, because he had already successfully confirmed the source of the issue (as had the resident), some months earlier. This possibly led to delays, highlighting again poor internal communication and use of records, to inform its decisions. An overall lack of oversight on the project is apparent from the internal communications seen by this investigation. The works to rectify the issue were completed on 7 July 2023 and were effective. Remedial works to the property were completed between 4 and 12 September 2023, following inspections to ensure that the works had been effective.
  5. During the period from January 2023 to July 2023, the resident reported that “the front garden was a stagnant pool of green water, which attracted lots of flies, ants and at times mosquitoes. The smell (inside the property) was terrible, the damp was extensive, and I was very concerned about the mould.” The resident is disabled and has a number of health conditions. She explained that the anxiety over the stagnant water, damp and mould, meant that she “was scared to come downstairs for fear of becoming unwell” and that “visitors had to stop coming, because the smell was just so terrible”. The evidence supports that the resident was chasing frequently and was distressed about the condition the property was in. The resident reported feeling like she was “under attack in her own home” but was reluctant to keep calling the landlord because she “felt like a nuisance.” This lasted for 7 months, followed by a further 2-month delay before remedial works could begin in the kitchen.
  6. The £200 offered by the landlord in its stage 2 response therefore, which the resident described as “insulting”, was not reflective of the resident’s experience or the loss of enjoyment of her home. It undermined the relationship between the landlord and resident, leaving her worried about what would happen if any issues were to occur again. As a result of this investigation, the resident wanted the landlord to “learn from what has happened, so that it doesn’t happen again.” The evidence showed that the landlord acknowledged that there had been “insufficient action taken”, however it ultimately failed to appropriately ‘put things right’ or to ‘learn from outcomes’. Therefore, there was maladministration in the landlord’s handling of repairs to resolve water ingress at the property.
  7. The landlord’s compensation policy states that where there has been a loss of a living area, 20% of weekly rent is due as compensation after 48 hours. For the loss of a kitchen, 25% is due. In this case, the resident still could access both rooms, however her enjoyment of both significantly reduced due to damp, mould, and odours. The resident did not have guests for a significant period of time, due to the smell of the property and embarrassment it caused, impacting her social wellbeing as a disabled resident. It is right therefore that an appropriate percentage of the rent be paid to the resident for partial loss of both rooms. The Ombudsman has deemed that 20%, for the 24 weeks in which the issue persisted, is appropriate, followed by 5% for the further 8 weeks in which the remedial works remained outstanding. A further award is made for time and trouble and distress and inconvenience, in line with the Ombudsman’s remedies guidance.
  8. In conclusion, there were several minor failings which contributed toward the excessive delays in this case. These failings varied in nature, including issues with internal communication between staff and contractors, the landlord’s ability to scrutinise its own records, and a general lack of oversight regarding the ongoing works. It is unclear exactly what the cause of each of these failings was, calling into question the effectiveness of the landlord’s own practices when handling more complex repairs. It is the Ombudsman’s view that if the landlord does not ensure that it ‘learns from outcomes,’ this may give rise to further complaints of a similar nature. Therefore, orders are made below.

Handling of reports of mould

  1. The resident made frequent reports of mould at the property from January 2023 onwards. Although a surveyor attended on 2 March 2023 to inspect the external issues at the property, there is no evidence that the mould inside the property was inspected. The landlord’s damp and mould policy states that it “will treat and remove the visible mould growth within 7 Days of identification or reporting.” The resident reports that the landlord did complete mould scraping in the hallway of the property on 1 occasion, though it is unclear when this was. Cross referencing the resident’s account with the records available, it appears this may have been in response to the resident’s report of 11 May 2023.
  2. The resident explained that she was told at the time that the landlord would not complete mould removal in the kitchen until the cause of the damp was first rectified. Because there are no records of the landlord assessing or inspecting the mould reported, the Ombudsman cannot assert if this was appropriate, or if an interim treatment should have been done in the meantime. The Ombudsman’s Spotlight Report into Damp and Mould does suggest that this may be an appropriate course of action. However, the landlord’s damp and mould policy goes on to state that “a post survey inspection is to be carried no later than 28 days of works or treatment.” There is no evidence it conducted such an inspection after the mould wash in May 2023. The landlord did carry out an inspection of the mould on 25 or 28 August 2023, however this was over 3 weeks later than the 28 days stipulated in the policy.
  3. The Ombudsman’s Spotlight report states that “landlords should ensure they respond quickly to reports of damp or mould and should not let other significant repairs prevent the investigation of these issues.” While it may be permissible and understandable that much of the remedial work could not be completed until the cause of the damp was addressed, the landlord should still have responded to the resident’s reports of damp and mould. The delay between the resident’s report of mould in January 2023, and the inspection/treatment which took place, possibly in May 2023, represents a significant failing. There was maladministration in the landlord’s handling of reports of mould at the property.
  4. The evidence shows that the landlord has conducted learning in the form of an action plan, since the conclusion of this complaint. However, the compensation required to ‘put things right’ remains outstanding. Some of this has been factored into the percentage of rent calculation assessed above, due to the loss of enjoyment of the property caused by the long-term presence of mould. The landlord’s policy also extensively acknowledges ways in which mould can be prejudicial to health. Although there is no evidence that any adverse health effects resulted from the mould in this case, the resident did report high levels of stress and anxiety due to the potential for the mould to exacerbate her preexisting health conditions. A further award has been made therefore to reflect the distress and health anxiety caused to the resident.

Communication

  1. The resident frequently complained about poor communication by the landlord, which the landlord upheld in its stage 2 response, offering £100 compensation. The evidence shows instances of updates or call backs which were promised to the resident, which did not materialise. For example, when the resident chased the landlord on 16 June 2023, she was told that she would “receive an update within 10 days”. She was obliged to chase again on 4 July 2023, because she had heard nothing back. There were also times where further investigations were needed, however there is no evidence that the resident was informed, requiring her to chase the landlord for updates. The Ombudsman’s Spotlight report into damp and mould states that the landlord should maintain “open and transparent communication” with residents during the handling of the issues. The landlord’s own damp and mould policy states that when a resident reports mould, it will “communicate with tenants clearly and regularly regarding any actions we plan to take and any actions our tenants are advised to take.” It failed to do this effectively, leading to a lack of faith in the landlord which has persisted beyond the conclusion of the works in this case.
  2. The landlord offered £100 compensation in respect of communication failings, at the time of the stage 2 response. While this level of compensation was appropriate and in line with the Ombudsman’s remedies guidance, it failed to ‘learn from outcomes,’ as further communication failings occurred shortly after the stage 2 response. The resident was promised a call back and was obliged to chase twice more before works were completed or an update provided. There was therefore a service failure in the landlord’s communication. Orders are made below.
  3. There was a missed opportunity by the landlord to engage in better communication with the resident, not just because it would have been appropriate to do so to alleviate the resident’s frustration, but in order to review the progress of the case itself. Had closer attention been paid to the repair logs for the purposes of updating the resident, it is possible that this scrutiny and oversight could have prevented time being wasted on needless investigations, where the issue had already been identified on 2 March 2023.

Complaint Handling

  1. In the initial complaint notes, the landlord recorded that the resident complained that “someone did visit some months ago, promised they would return and despite chasing regularly, has heard nothing since.” The Ombudsman’s Complaint Handling Code (the Code), states that the landlord must respond to all elements of a complaint. However, the landlord did not respond to this in complaint responses. The landlord’s stage 2 response also addresses communication failings with an offer of compensation, however fails to set out what those failings were, when they occurred or how it would improve this service going forward. The internal complaint procedure serves as an opportunity for the landlord to set out what went wrong and to ‘learn from outcomes’. Responding to all elements of the complaint is a necessary prerequisite to this type of learning and service improvement.
  2. The landlord also offered compensation during the internal complaints procedure, which was not reflective of the resident’s experience or of the failings which occurred. The Code states that when calculating an appropriate remedy the landlord should take into account “the cumulative impact (of the failings) on the resident”, as well as a resident’s “particular circumstances or vulnerabilities”. There is no evidence that the landlord took into account the adverse effect the situation had on the resident or took steps to interview the resident about her experience, therefore depriving itself of the ability to effectively ‘put things right’. As a result, the resident was required to go to considerable time and trouble to seek an appropriate remedy and to encourage effective landlord learning via this service. There was a service failure in the landlord’s complaint handling; orders are made below.

Record Keeping

  1. The Ombudsman was initially concerned to see no evidence of an inspection or mould treatment being carried out in the property, following the resident’s reports. However, in subsequent correspondence with this service, the resident explained that the landlord did attend on at least one occasion, likely sometime after her reports of 11 May 2023, to inspect and remove mould in the hallway. However, there is no record of this visit reflected in the records. This lends credence to the resident’s unconfirmed accounts she made to the Ombudsman of further reports and chasers she made, as well as further visits by the landlord in 2022, which are not reflected in the records either. In this case, there is no detrimental effect to the resident in these possible lapses of record keeping; the landlord appears to have done more than it’s records reflect. However, the landlord has a duty to maintain and upkeep accurate records. It is important, particularly in cases of serious repair issues such as damp and mould, that the landlord is able to rely on its records to inform its decision making and to provide an accurate account of events when called upon.
  2. The landlord also appeared to fail to log multiple phone calls made by the resident. The landlord itself commented that the escalation request made by the resident was “in a phone call which was not recorded.” The Ombudsman’s spotlight report on Knowledge and Information Management (KIM) states that “once information has been created, it is vital that it is then stored and maintained appropriately, in accordance with data protection requirements. Landlords will find it almost impossible to have sound knowledge and information management without some form of system or process in place.” The report goes on to refer to a case study in which there were delays in responding to water ingress into a property, because the landlord was failing to record the contents of phone calls. Because in this case there was no discernible adverse effect caused to the resident, there was no maladministration in the landlord’s record keeping. However, recommendations are made below.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of repairs to resolve water ingress at the property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of mould.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s communication.
  4. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in the landlord’s complaint handling.
  5. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s record keeping.

Orders

  1. Within 4 weeks of the date of this determination, the landlord must pay the resident £1,229.11 compensation, made up of:
    1. The £200 already offered for the delays if not paid already.
    2. £200 for the communication failings. The £100 already offered may be deducted from this amount, if paid already.
    3. £200 for distress and anxiety caused by its handling of the resident’s reports of mould.
    4. £584.17 the for impact the delays had on the resident’s enjoyment of her property for a period of 26 weeks. (Calculated as 20% of rent for that period).
    5. £44.94 for the 8 weeks in which the remedial works remained outstanding. (Calculated as 5% of rent for that period).
  2. Within 8 weeks of the date of this report, the landlord is ordered to conduct a review of this case to identify learning and improve working practices, and share this with the Ombudsman. The review must include, as a minimum:
    1. An explanation as to how the landlord will improve its communication internally and with its contractors and whether improved processes and procedures would reduce the likelihood of similar failings happening again.
    2. It should consider its staff training and system needs regarding how it arranges and retains oversight of repairs, maintains repair records, and consider what steps are required to mitigate delays in the future.
    3. That there is effective internal communication, and that teams are aware of relevant roles in keeping the resident updated.
    4. The landlord should refer to the following resources to inform good practice:
      1. Ombudsman’s Spotlight Report on Knowledge and Information Management (KIM).
      2. The Ombudsman’s Spotlight Report into Damp & Mould.
      3. The Ombudsman’s Complaint Handling Code.

Recommendations

  1. That as part of the review from this case, the landlord may wish to consider its record keeping practices and make any changes to its policies or practices as it may deem appropriate. It may wish to share this with the Ombudsman.