Southend-on-Sea City Council (202316447)

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REPORT

COMPLAINT 202316447

Southend-on-Sea City Council

20 August 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

The complaint is about the landlord’s handling of damp and mould.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident has been an introductory tenant of the landlord since 2 May 2022. The property is a 1 bedroom flat.
The resident reported damp and mould throughout the property on 9 June 2023. The landlord attended on 30 June 2023 to investigate the cause.
The resident made a stage 1 complaint on 11 July 2023. He said that he had brought the damp and mould to the landlord’s attention after moving into the property but nothing had been done to resolve it. The resident was concerned about the effect on his health and wanted the landlord to find the cause of the damp and advise how and when it would resolve it.
The landlord responded to the stage 1 complaint on 18 July 2023. It said that the first report of damp and mould it had received was on 9 June 2023 and that it was checking all possibilities to find the cause. The landlord made an appointment for 4 August 2023 to investigate further and said it would decide its next steps depending on the outcome.
The resident contacted the Ombudsman on 4 September 2023 as he stated he had not received the landlord’s response. He said the issue remained unresolved and he was unable to use his home as intended due to the large amount of mould, particularly in the bedroom where he was unable to sleep. He said the mould had damaged his belongings and he was worried about his health. We contacted the landlord to ask it to issue the stage 1 response if it had not already done so. The landlord took this as a request to escalate the complaint to stage 2 and logged it as such on 13 September 2023.
The landlord responded to the stage 2 complaint on 17 October 2023. It said it could not find any record of the resident reporting damp prior to 9 June 2023. It acknowledged that diagnosis of the problem had become protracted and that it had taken too long to discover that it was caused by a leak. It apologised for the distress and anxiety this had caused the resident and offered him £550 compensation. The landlord then attempted to attend on 7 December 2023 to fix the leak but the resident refused access to the property.
The complaint was formally referred to the Ombudsman on 19 April 2024. Since then, the landlord has attended the property on 14 May 2024 to make safe a leak and has attempted to make arrangements to undertake further surveys but the works remain outstanding.
As a resolution to the complaint the resident would like the landlord to:
1. Arrange an independent damp and mould survey to identify the cause.
2. Resolve the issue, to the approval of an independent surveyor.
3. Remove all damp and mould from the interior of the property.
4. Redecorate the affected areas.
5. Pay compensation.

Assessment and findings

Scope of investigation

Paragraph 42f of the Scheme states that the Ombudsman will not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
The resident raised concerns about the effect damp and mould may have on his health. The Ombudsman acknowledges that damp and mould can increase the risk of health problems. However, it is beyond the expertise of this Service to determine a causal link between the landlord’s actions or inactions and the resident’s health. Should the resident wish to pursue this matter we recommend that he seek legal advice on making a personal injury claim. We have, however, considered the general distress and inconvenience that the resident may have experienced.

The landlord’s handling of damp and mould

The landlord’s website states that it will respond to routine repairs within 28 calendar days. When the resident reported damp and mould on 9 June 2023, repair logs show that the landlord made an appointment to do a damp and mould wash. The repair log does not show when this appointment was booked for or what the outcome was. The landlord told this Service that the resident refused the mould wash as he wanted the landlord to identify and resolve the cause of the problem first. The resident told us that it was the operative that refused to do the mould wash for the same reasons.
Without evidence, this Service is unable to determine what happened. This emphasises the importance of retaining accurate and contemporaneous records. Had the landlord maintained this, it would have a full audit trail of events to demonstrate how it responded to the issue at the time and any decisions made.
This aside, the repair log does show that the landlord attended on 30 June 2023 to investigate a possible leak in the water mains supply but was unable to find one. Although there is a lack of clarity around the initial appointment following the damp and mould report, it subsequently did attend within 28 calendar days as is required by its repairs policy. This was appropriate.
The resident made a stage 1 complaint on 11 July 2023. He said when he first reported the issue, the landlord had said it would send someone to the property but no one came. The resident was concerned about the effect on his health and wanted the landlord to find the cause of the damp and mould and make a plan to resolve it. The evidence available to the Ombudsman only shows damp and mould reports from 9 June 2023. In the absence of any evidence to the contrary we are unable to determine whether the resident made any reports prior to this.
On 13 July 2023 the landlord raised an appointment for a damp and mould survey. Although the outcome of this is not in the repair logs, internal emails indicate that a surveyor had inspected the property. There is no record of this inspection in the repair logs and the landlord did not provide the resident, or this Service, with a report of the surveyor’s findings.
The Ombudsman’s October 2021 Spotlight report on damp and mould, ‘It’s not lifestyle’ (the Spotlight report), made recommendations about how landlords should manage damp and mould. One recommendation is that landlords should share the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps. The landlord failed to do so in this case, which was inappropriate.
The same internal emails state that during the inspection the resident had not been willing to implement measures such as opening vents and windows and using extractor fans. The Spotlight report recommended that landlords should review the information, materials and support provided to residents to ensure that these strike the right tone and are effective in helping residents to avoid damp and mould in their properties. While it is evident that the landlord discussed self-help measures for managing condensation, when the resident was resistant to this there is no evidence that the landlord made efforts to provide information, materials or support to encourage him to implement these measures. That said, it is unclear how much impact, if any, this would have had on the situation.
The Spotlight report also recommends that landlords should act on accepted survey recommendations in a timely manner. Internal emails on 14 July 2023 indicate that the surveyor raised an order to check the service water supply in the bin cupboard, however there is no record of this job being raised in the repair logs. The failure to arrange the recommended works in a timely manner led to further delays and was inappropriate.
The landlord responded to the stage 1 complaint on 18 July 2023. The response said the landlord was satisfied it was doing all it could to resolve the issue and gave a timeline of the events beginning on 9 June 2023. The timeline stated that the landlord attended on 12 June 2023 to carry out a damp survey. As mentioned in paragraph 15 there was no record of this in the repair logs aside from a job being raised. The timeline then stated that the landlord had attended on 30 June 2023, as mentioned in paragraph 17, and that it had made an appointment for further investigative works on 4 August 2023.
This meant it was over a month between the landlord inspecting for a leak and when it planned to investigate further. The landlord should have given the case higher priority and attended sooner to try and come to a more prompt outcome. The Spotlight report recommends that:
1. Landlords should adopt a zero-tolerance approach to damp and mould interventions.
2. Landlords should ensure that their responses to reports of damp and mould are timely and reflect the urgency of the issue.
3. Landlords should ensure that they clearly and regularly communicate with their residents regarding actions taken or otherwise to resolve reports of damp and mould.
The landlord did not adopt a zero-tolerance approach in this case and did not ensure a timely response. The landlord should have been swift to follow up on the 30 June 2023 visit with further investigative works to find the cause of the problem rather than waiting until the resident had made a complaint to book a new appointment. There is also no evidence that the landlord communicated with the resident at all about the issue aside from the complaint response. This was inappropriate.
The landlord sent the resident a text message on 19 July 2023 informing him it had made an appointment for 20 July 2023. The resident called to ask what the appointment was for. The evidence does not show what it was for, only that the landlord informed the resident of the reason and the resident said that he may refuse entry as the landlord had not included the reason for the appointment in the text message.
The resident is required as a condition of the tenancy agreement to allow the landlord to access the property to carry out its repair obligations. However, landlords should liaise with residents to agree a mutually convenient appointment rather than just informing the resident when they will be attending. They should also ensure the resident knows exactly why the landlord is attending and what work will be carried out. In any case, the lack of robust records means it is unclear whether the landlord attended and if so, whether the resident allowed access or not. This is another instance of poor record-keeping by the landlord.
Internal notes made on 9 August 2023 indicate that the landlord had attended the property twice and that the surveyor believed the damp was caused by a leak or condensation. It is unclear when the landlord attended as again, the repair logs are incomplete. The notes recommended that a surveyor attend again as soon as possible, that the bedroom wallpaper be removed, and that a mould wash be carried out in the bedroom and bathroom. It also said a wall should possibly be insulated. It was noted that all pipework and the bin room had been checked and that it was unable to test the water main for leaks as it was under the floor but that there was no leak in the pipework. Again, the landlord did not provide any report to the resident or to this Service detailing these findings, nor is there any evidence that it sought to arrange these works. This led to further delays.
The resident contacted the Ombudsman on 4 September 2023 alleging to have not received the stage 1 response. He informed us of the impact the damp and mould were having on him. He was unable to sleep in his bedroom, his belongings had been damaged and he was worried about the effect on his health. We contacted the landlord on 13 September 2023, passed on the resident’s concerns and asked it to provide a response if it had not already done so. Rather than resending the stage 1 response, the landlord logged a stage 2 complaint instead. The decision to do this is discussed further in the complaint handling section of this report.
The landlord responded to the stage 2 complaint on 17 October 2023. It apologised for the delay and said it could not find any record of the resident reporting damp prior to 9 June 2023. It acknowledged that it had taken too long to find the leak, apologised for the distress and anxiety this had caused the resident and offered him £550 compensation broken down as follows:
1. £50 for the delay issuing the stage 2 response.
2. £250 for service quality not meeting standards.
3. £250 for inconvenience, time and trouble in resolving the matter.
This was an appropriate offer to make and was in line with the Ombudsman’s remedies guidance, which recommends compensation of this amount for maladministration which has an adverse impact on the resident. The landlord did not acknowledge the resident’s report of damaged belongings, however. It would have been appropriate for the landlord to provide details of its liability insurance so the resident could make a claim if he wished to.
The landlord told this Service that it raised a job for a damp and mould survey on 22 November 2023. This was not evidenced in repair logs so we are unable to conclude with any certainty that the landlord attended or attempted to attend. A subsequent appointment was made for 12 December 2023 for works involving the water mains supply, presumably to resolve the leak. Repair logs show that the landlord attempted to attend on that date but the resident refused access, stating that he firstly wanted the landlord to confirm in writing what works it was going to do. There is no evidence that the landlord followed up on this request.
Landlords cannot be expected to carry out works when residents unreasonably refuse access. However, the resident was clear that he wanted the works confirmed in writing first and there was no suggestion that he would not allow access at all. Refusing access aggravated the problem and prevented the landlord from being able to remedy the problem at that time, but it was not an unreasonable ask. The landlord should have fulfilled the request so the works could go ahead. Failing to do this led to further delay and it has now been 14.5 months since the resident’s initial report of damp and mould.
Although not detailed so far in this report, there is evidence that other appointments were raised at various points but again, no evidence of when the appointments were booked for, whether the resident was informed or whether they were attended or not. This highlights again the difficulties that can arise when landlords’ records are incomplete. It appears that either more appointments were made and not attended, or that multiple appointments were attended without the damp and mould being resolved. The resident likely felt messed around by the landlord and wanted it to clearly communicate its next steps, which it does not appear to have done throughout the duration of the issues. It was particularly inappropriate that the landlord did not do this considering that there had already been unreasonable and unexplained delays that were subject to a complaint and compensation.
Even if the resident had allowed access, it would have been 132 calendar days between the initial report and the landlord attempting to fix the leak. It is unclear from the repair logs exactly when the leak was diagnosed but the landlord was aware of it when it issued the stage 2 response on 17 October 2023. This meant it took at least 56 calendar days to arrange to fix it, double the 28 calendar day timeframe that it is supposed to respond to routine repairs in.
When calculating these timeframes, we have taken 12 December 2023 as the date the landlord attended to fix the leak. Although the landlord told us it raised a job for 22 November 2023, without evidence to substantiate this we cannot conclude that the landlord attempted to resolve the leak on that date.
The landlord offered the resident £550 in the stage 2 response, which was an appropriate offer. However, this did not go far enough to put things right as the response did not set out what actions the landlord was going to take to resolve the damp and mould and when the resident could expect them to be done. The resident was still unaware of the required works and the timeframe for them and it was 2 months before the landlord attempted to fix the leak. For this reason, we have made a finding of maladministration.
The landlord should pay the resident an additional £100 compensation which reflects the additional delay, the fact the works remain outstanding and the time and trouble the resident has taken to progress his complaint with the Ombudsman. This brings the total compensation to £650 which remains in line with the Ombudsman’s remedies guidance. The landlord should also identify the works that are required, confirm in writing to the resident and complete them.
The landlord failed to keep robust records in this case which has made it difficult for the Ombudsman to piece together what happened and this report may have omitted actions that the landlord did take because there is no evidence of them. Again, this demonstrates the importance of documenting every appointment that is made, rearranged, refused and attended as well as the outcomes of all visits, surveys and inspections.
The Spotlight report recommends that landlords should consider their current approach to record keeping and satisfy themselves it is sufficiently accurate and robust. It also encourages landlords to go further and consider whether their record keeping systems and processes support a risk-based approach to damp and mould. The Ombudsman’s May 2023 Spotlight report on knowledge and information management, ‘On the record’ recommends that landlords make adherence to the minimum standard for knowledge and information management part of the service level agreement with third parties, for example its contractors. The landlord should be mindful of these recommendations.

Complaint handling

The Code and the landlord’s complaints policy state that landlords should respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days.
The resident contacted this Service on 4 September 2023 as he had allegedly not received the stage 1 response. We have seen evidence that the landlord compiled a stage 1 response dated 14 July 2023 but it is not clear how this was sent to the resident. We are unable to conclude for certain whether the resident received it.
The Ombudsman asked the landlord to issue the stage 1 response if it had not done so already. The landlord appears to have misunderstood this request and instead logged a stage 2 complaint. The landlord issued the stage 2 response on 17 October 2023. If the resident did not receive the stage 1 response as he reported, this meant he had to wait another month for any response to his complaint. In total, it was 70 working days from him logging the stage 1 complaint to receiving the stage 2 response, which was an inappropriate delay.
That said, it appears to be confusion around what the Ombudsman was asking the landlord to do that resulted in this rather than a training issue. The content of the stage 1 response was a summary of the actions the landlord had taken so far in the case and a statement that it would attend again on 4 August 2023 for investigative works. Failing to reissue the stage 1 response when asked by the Ombudsman did not significantly disadvantage the resident, although it was a service failure.
For this failure the landlord should pay the resident £50 compensation. This is in line with the Ombudsman’s remedies guidance which recommends compensation of this amount for service failures with a minimal adverse effect on the resident.

Determination

In accordance with paragraph 52 of the Scheme:
1. There was maladministration in relation to the landlord’s handling of damp and mould.
2. There was maladministration in relation to the landlord’s complaint handling.

Orders

Within 4 weeks of the date of this report the landlord is ordered to:
1. Pay the resident £700 compensation, broken down as follows:
  1. £650 for the identified failures in handling the damp and mould. This is inclusive of the £550 already offered in the stage 2 response. If this has already been paid the landlord should provide evidence of this and pay the remaining £100.
  2. £50 for the identified failures in complaint handling.
2. Inspect the property to identify what works are required and provide the resident with a schedule of works to be completed. This should include rectifying the cause of the damp, removing it, redecorating affected areas and a follow up inspection 4 weeks after completion of remedial works.
3. Provide the resident with its liability insurance details so he can make a claim for damaged belongings if he wishes to do so.
Within 8 weeks of the date of this report the landlord is ordered to:
1. In accordance with paragraph 54g of the Scheme, carry out a senior management review of its handling of the resident’s damp and mould case to identify exactly why its failings happened, and to outline exactly how it proposes to prevent these from occurring again. The landlord must present the review to its senior leadership team and provide them and the Ombudsman with a copy. The review should include:
  1. A self-assessment of its compliance against its damp and mould policy and procedures and the Ombudsman’s Spotlight report on damp and mould.
  2. A self-assessment of its compliance against its record keeping policies and procedures and the Ombudsman’s Spotlight report on knowledge and information management.
This is to ensure it responds promptly to reports of damp and mould and carries out investigations and works effectively and in a timely manner. It is also to ensure the landlord addresses all concerns raised by residents, considers their vulnerabilities and keeps sufficiently accurate, detailed, and accessible records in every damp and mould case.
The landlord must provide the Ombudsman with evidence it has complied with these orders within the timeframe given for each order.