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Southwark Council (202017488)

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REPORT

COMPLAINT 202017488

Southwark Council

4 November 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 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. This complaint is about the landlord’s response to ongoing mould and damp issues at the property.

Background and summary of events

Background

  1. The resident has raised the following concerns:

a.     Ongoing damp and mould issues are affecting his family’s health and damaging their belongings.

b.     The property is cold because it does not retain heat, therefore remedial works are required to prevent the damp and mould problem from reoccurring.

  1. The resident is an assured tenant, and the tenancy began on 4 January 2016. The tenancy documents describe the property as a three-bedroom house. The surveyor’s report confirms the property is a two-storey end of terrace home dating from around the 1920’s. The resident has said mould and damp issues have been occurring from around the beginning of the tenancy.
  2. The parties do not dispute that the property is cold or that this is the primary cause of the reoccurring damp and mould. However, there is disagreement as to why the property is cold since the landlord has attributed it to the resident’s lifestyle and insufficient use of the property’s heating. The resident has attributed it to underlying issues with the property, which he considers to be the landlord’s responsibility to address. He has previously said the property needs a new roof with adequate insulation, and pvc windows to prevent heat loss.
  3. Landlords are required to look at the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not set out any minimum standards, but it is concerned with avoiding, or minimising potential hazards. Damp and mould are potential hazards that can fall within the scope of HHSRS.

    Local authorities do have powers to act under HHSRS, but enforcement is seen as a last resort. Typically, landlords and local authorities work together, and a programme of improvement works is usually the starting point. Landlords should be aware of their obligations under HHSRS, and they are expected to carry out additional monitoring of a property where potential hazards are identified.

  4. Government guidance confirms local authorities must investigate complaints about issues that could be a ‘statutory nuisance’ (a nuisance covered by the Environmental Protection Act 1990). To count as a statutory nuisance, the issue must either unreasonably and substantially interfere with the use or enjoyment of a property, or injure, or be likely to injure, health.
  5. The landlord has given evidence that includes tenancy documents, comments and reports from various qualified professionals, and relevant correspondence.
  6. The resident has given evidence that includes numerous photographs, along with a medical report.

Summary of events

  1. On 26 November 2018 the property was inspected by a Technical Quality Specialist along with a Surveyor and a Senior Surveyor specialising in legal disrepair cases. The inspection was arranged to investigate several issues including dampness and mould, cold temperatures in the property, and a defective roof and windows. It said:

a.     No mould was observed in the property except for some staining on the wall behind the washing machine. This was due to condensation on the cold surface.

b.     High humidity was recorded in the property at just below the average figure required for mould growth.

c.      Control of condensation was dependent on the balance between heat, ventilation, and humidity. Wall vents were present in several rooms but had been either closed, filled, or decorated over.

d.     Consistent use of the heating system via the thermostats and timer was required to keep all surfaces above the dew point.

e.     Overall, the roof structure appeared to be in excellent condition, from the viewpoint of the loft hatch, and the loft had ‘ample fibreglass insulation’.

f.        Previous inspections had suggested the installation of PVC windows, but this might make condensation levels worse given their tendency to limit ventilation.

  1. The report identified high density plasterboard lining, conforming to modern building standards, as a possible improvement. However, it noted that installation would entail various compromises including the loss of around two to three square metres of floor space, along with reduced potential for decoration. Further, extensive preliminary and post installation works would be required to facilitate the upgrade. The report did not recommend the landlord adopted installation of the plaster board lining as a course of action. It also said building regulations did not apply retrospectively, there was therefore no obligation to ensure the property conformed to current building standards in this regard.
  2. A further inspection of the property was completed on 7 November 2019 by another Technical Quality Specialist. His post inspection report said thermal boarding had been installed in May 2019 to exposed walls in the living room and bedroom. Although no dampness was seen during the inspection, the property felt cold, and the heating was off. Further, all airbricks in the property had been sealed with adhesive tape.
  3. On 30 September 2020 the resident contacted the landlord with several concerns. He said:

a.     he had been advised, following painting and mould treatment works at the property, that the mould would return.

b.     a considerable amount of heat was being lost through the loft and he could see through gaps in the roof to the outside, a re-inspection by a roofing specialist was therefore required.

c.      temperature monitoring equipment that had previously been mentioned had not yet been installed.

d.     the family was suffering from cold related illnesses caused by conditions in the property.

His concerns were passed to the landlord’s complaints department and a formal complaint was logged on 2 October 2020.

  1. On 14 October 2020 the landlord issued its stage one complaint response. It said, based on images the resident had provided, there was no evidence of mould in the loft, and no water leaks had ever been reported to evidence the presence of a fault in the roof. Since the property had previously been inspected by both Technical Quality and Legal Disrepair specialists, no further inspections were required.
  2. On 19 October 2020 the resident completed the landlord’s ‘property and injury liability report’ form. It said severe mould and damp had damaged the resident’s furniture, goods, and clothing, and the landlord had made no repairs to rectify the situation. Further, conditions in the property were causing illness in the family during the cold months. The resident gave a costed list of damaged items totalling £6145 that he said the landlord was responsible for replacing.
  3. On 26 October 2020 the resident contacted the landlord by email with his local MP copied in. He set out his reasons for disagreeing with the landlord’s complaint response, based on the ‘shocking’ condition of the loft, and asked his MP to escalate the complaint. This prompted the landlord to review the case at stage two of its complaints process.
  4. On 29 October 2020, following several previous chaser emails from the resident, the landlord confirmed the temperature monitoring equipment had been purchased on 21 October 2020 and was awaiting delivery.
  5. On 30 November 2020 the landlord issued its stage two complaint response. It said:
  • The roof was insulated, and no evidence had been presented confirming water ingress or mould in the loft.
  • A recent inspection of the loft space, in July 2020, had confirmed no remedial works were required.
  • From previous inspections, it was felt the damp and mould issues were partly due to the resident’s lifestyle along with insufficient heating of the property. The landlord was arranging to install ‘data loggers’ (monitoring equipment) to determine whether this was the case.
  • Since March 2019 the landlord had installed dry lining in several rooms, renewed fans in the kitchen and bathroom, carried out mould washing and repaired plaster work. Given the above no further works were recommended at this time.

As a result, the landlord was unable to change its previous decision on the complaint.

  1. On 25 February 2021 the resident received a response to his damage claim from a Claims Adjuster. It said a successful claim would need to demonstrate the landlord had either acted negligently or breached its statutory duty under the Landlord and Tenant Act 1985. It said the damage was caused by condensation and there was no obligation on the landlord to provide measures to eradicate condensation in the property. This response was based on a copy of the surveyor’s report from November 2018.
  2. On 10 March 2021 the property was inspected by a different surveyor, His report confirmed mould was identified in several rooms and that the resident suspected it was caused by a leak in the roof. The report records the surveyor’s opinion that ‘This area and pattern of spotting is typical for condensation related mould’. The report shows the surveyor recommended remedial works including:

a.     a humidistat-controlled bathroom fan to replace a model the resident switched off to prevent it from running constantly

b.     treatment and redecoration works in bedroom three

c.      mould washing in the kitchen along with the other bedrooms

d.     easing or adjustment of the windows, which were described as in ‘serviceable’ condition

  1. His report said there was ‘more than enough insulation in the loft space’ and, whilst a roofing contractor was recommended to inspect some tears in the felt lining, there was ‘no sign of moisture penetrating the roof’. The report concluded the main problem was that the property was particularly cold and did not appear to be getting enough heat. As a result, it recommended installing data loggers with a view to establishing the overall temperature in the property to confirm the cause of condensation.

Assessment and findings

  1. In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this service’s opinion, fair in all the circumstances of the case.
  2. The Ombudsman’s Dispute Resolution Principles are:

    a. Be fair

b. Put things right

c. Learn from outcomes

This service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

  1. It is recognised that the situation will have been distressing for the resident and his family, and that the issue has been ongoing for a considerable period of time. His liability claim shows he considers the situation has caused substantial damage to his possessions. Further, it is accepted that the resident has provided medical evidence to support his version of events.
  2. That said, the government guidance shows it is the responsibility of the relevant local authority to establish whether conditions in a property warrant action on health or safety grounds. In this case, the landlord is the resident’s local authority, but no evidence has been seen to show that the property has been declared in need of urgent remedial works, or unfit for habitation, by a professional qualified to make such a decision. As a result, it has not been established that the landlord has an obligation to undertake extensive improvement works, such as a new roof or windows, to resolve the problem in accordance with the resident’s preferred outcome.
  3. The evidence shows that the property has been inspected every year since 2018 by a number of qualified professionals. Further, that their professional knowledge represented a range of experience and at least two different subject specialisms. It is noted that, following these inspections, the engineers reached similar conclusions as to the cause of the damp and mould, no significant causative repair issues were identified, and no contrary professional evidence has been seen to suggest an alternative source of the problem.
  4. The landlord is entitled to rely on the opinion of relevant qualified professionals. Nevertheless, it is required to conduct additional monitoring of potential hazards in line with its obligations under the HHSRS. It would therefore be unreasonable for the landlord to attribute the problem to the tenant’s lifestyle and then take no further action. Since the timeline confirms that a further professional inspection took place, around three months after the landlord issued its final response, the evidence shows it is complying with its obligation to conduct ongoing monitoring of the situation. This represents appropriate behaviour on the part of the landlord.
  5. The information seen suggests the landlord has carried out both repair and improvement work to mitigate the problem of damp and mould. Whilst the landlord’s repair history records have not been provided, it is noted that no evidence has been seen to show the resident disputes the works set out in the landlord’s stage two complaint response. The landlord has also considered a number of potential improvement options, such as the installation of pvc windows or high-density plasterboard lining. However, based on the opinion of qualified professionals, it has found that undertaking these works may either exacerbate the mould situation, by reducing ventilation, or considerably decrease the amount of overall space in the property. As a result, it was reasonable for the landlord to opt against these measures as possible solutions.
  6. The recent surveyor’s report, from the March 2021 inspection, shows the landlord has been continuing to engage with the both the resident and the problem through the identification of recommended works. For example, an alternative type of bathroom fan was recommended in line with the resident’s preference for a fan that was not running constantly. Considering all the above, the evidence seen shows the landlord’s approach to the issue of mould and damp at the property has been broadly reasonable, and that works it has undertaken have been appropriate given the circumstances.
  7. A key recommendation from the March 2021 inspection report was the installation of heat monitoring equipment to confirm the cause of the mould. However, the timeline confirms that the installation of this equipment had previously been agreed with the resident. From the information seen, it is unclear when, or how, the landlord first authorised the use of this equipment, but the report confirms it had still not been installed at least five months after the resident chased it on 30 September 2020, and no explanation for this delay has been provided. Overall, a wait time of at least five months cannot be considered a reasonable timeframe to implement an agreed measure, which could have aided the identification of the root cause of the problem.
  8. The timeline confirms the landlord bears some responsibility for the delay given the monitoring equipment was not ordered until around three weeks after the resident chased it. Further, the landlord is responsible for proactively managing its suppliers to ensure it has access to the materials it requires. Given the above, this assessment found service failure on the part of the landlord. That said, it is acknowledged that a national lockdown was in force between 5 November 2020 and 2 December 2020. A further lockdown was imposed on 6 January 2021 and began easing in March 2021. Whilst the restrictions may have impacted aspects of the landlord’s operations, it is noted evidence has not been seen to show the landlord offered them as an explanation to either the resident or the Ombudsman.
  9. In considering the impact of this delay on the resident, it is noted he has not raised the issue as a concern with this service. However, the evidence shows the landlord accepted that the installation of monitoring equipment represented an opportunity to increase the accuracy of its diagnosis. As a result, it should have taken prompt action to ensure it was able to gather the relevant information. In summary, the landlord failed to install equipment which it promised the resident within a reasonable timeframe. This represents a service failure on the part of the landlord.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to ongoing damp and mould issues at the property. This was due to the unreasonable delay in installing the agreed heat monitoring equipment.

Reasons

  1. The evidence shows service failure on the part of the landlord in respect of its failure to install heat monitoring equipment in a timely fashion. This equipment would have increased the accuracy of the information on which its decision making was based and could ultimately have led to the cause of the damp and mould being conclusively identified.
  2. There is no evidence to show the landlord is obliged to undertake extensive works, in line with the resident’s preferred outcome, to resolve the damp and mould problem.
  3. The evidence shows the landlord is conducting professional ongoing monitoring and is actively engaged with the issue. Further, it has previously considered different options to mitigate the problem and undertaken a variety of works in response. This was appropriate behaviour by the landlord given the circumstances.

Orders and recommendations

Orders

  1. The landlord to pay the resident £150 in compensation for the distress and inconvenience caused by the delay in installing the agreed monitoring equipment.
  2. The landlord to write to both the resident and this service with an update on the installation of the monitoring equipment.
  3. The landlord should provide evidence of compliance with the above orders to this service within four weeks of the date of this report.