Southwark Council (202300194)

REPORT

COMPLAINT 202300194

Southwark Council

19 December 2023

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

Background

3. The resident is a secure tenant of a 2-bedroom flat. The resident lives with her 2 young children. The resident is asthmatic.
4. On 16 November 2022, the resident reported damp and mould in her property. The landlord completed a damp and mould survey on 9 December 2022. It confirmed that there was damp and mould in the children’s bedroom and in the bathroom. An external issue was identified as the cause of the damp and mould in the children’s bedroom. This was later found to be a leaking downpipe.
5. The resident raised a complaint on 23 November 2022. The resident raised that herself and her son had asthma. The resident stated that the children were sleeping in her room, due to a wet wall. The landlord responded on 16 December 2022. It stated that the mould had been cleaned on 12 December 2022 and did not uphold the complaint as it considered repairs to be completed.
6. On 19 January 2023, the resident escalated the complaint as the issues with damp remained outstanding. On 6 March 2023, the landlord issued its stage 2 response. It confirmed that a request to repair the external pipe had been raised on 23 January 2023. It stated that the repair should be completed by 10 March 2023. It confirmed that the damp and mould team would need to do further works. It stated that the damp and mould team would be in touch regarding this. The landlord offered £90 compensation. This was calculated as £5 per week for distress and £5 per week for the delay to the repair, from a month after the damp and mould was originally inspected.
7. The landlord stated that it repaired the pipe on 21 March 2023. However, a contractor’s report confirmed that the pipe remained in need of repair as of 10 May 2023. The resident has advised the Service that the repairs have not been completed in full. She has advised that the children have slept in her room during this time, due to the effects on their health. The resident would like all the repairs to be completed and has requested compensation.
8. The Ombudsman requested an update from the landlord on the repairs work on 24 November 2023. The landlord responded on 30 November 2023, stating that the works had been allocated to a contractor.

Assessment and findings

Scope

9. The Ombudsman understands that the resident has engaged legal advice. It is understood that at the time of writing this investigation, this case has not been progressed through the courts.
10. The landlord and resident have recently engaged in making offers and counteroffers under Part 36 of the Civil Procedure Laws. It is not within the Ombudsman’s jurisdiction to assess the landlord’s offers made under Part 36 of the Civil Procedure Laws. However, the Ombudsman is able to investigate the complaint, regardless of the part 36 offer.

Assessment

11. The landlord’s policy states that reports of mould will be inspected within 20 working days. The landlord conducted an inspection on 9 December 2022 which was 17 working days after the mould was reported. The landlord responded within the timescales as per its repairs policy.
12. The report confirmed that the children’s bedroom wall was wet and there was damp and mould. It confirmed that the issue was external although it did not specify the exact issue. It stated the mould needed to be washed urgently, due to it being where the children slept. The landlord completed the mould wash on 12 December 2022. However, there is no evidence that the landlord investigated the cause of the damp and mould. This was essential to prevent recurring issues.
13. Recommendations were also made regarding mould in the bathroom. It recommended that pipe work be insulated and boxed in. Although the mould was washed in the bathroom, there is no evidence to confirm whether the pipe work was insulated and boxed in.
14. The resident contacted the landlord on 20 December 2022 and the 19 January 2023 as she had been told that she would receive an update on outstanding works. The landlord did not take any action until the 26 January 2023 when it conducted a further mould wash to the children’s bedroom. It then conducted a damp and mould assessment on 30 January 2023. This resulted in a works order being raised on 31 January 2023 to overhaul the downpipe and look at the pointing. The failure to act promptly to rectify the cause of the mould is likely to have resulted in a reoccurrence of mould in the children’s bedroom.
15. On 1 February 2023, the landlord confirmed internally that the works should be completed within 14 days. It also confirmed it would keep the resident updated. The landlord chased up the works with the contractor between 13 – 15 February 2023. It updated the resident on 16 February 2023 to advise the repair would be completed the following week, although no specific date was given. It is unclear why the repair was delayed. The landlord should have been considering the repair as a priority, given that it was causing damp and mould.
16. The resident received an update from the landlord on 27 February 2023. It advised that it was waiting on an update from its major works team as to when the pipework would be repaired. There is no evidence provided to the Service as to what caused the further delay. However, the Service has seen that the landlord contacted its contractor on the same day, asking that the works be made a priority.
17. The landlord advised the resident in its stage 2 response that the works were still outstanding, but that they should be completed the week commencing 6 March 2023. The landlord did not complete the works until 21 March 2023. The contractor advised that strong weather and rain had prevented the work from going ahead on time. The landlord has evidenced that it contacted the contractor and made them aware that these works should be treated with the highest priority. The delay due to weather was reasonable under the circumstances. However, this does not mitigate previous delays.
18. The resident told the landlord that she felt that the damp and mould issue was affecting hers and her children’s health. She referenced hospital visits and doctors visit to support this. The resident’s mother also reiterated this on 13 March 2023 and requested that the family be moved to temporary accommodation. The Service is unable to make comment on causation of illness. However, it would be expected that when the resident advised the landlord of a risk to her health that the landlord should have conducted a risk assessment. There is no evidence that this took place at any time.
19. The Ombudsman’s Spotlight report on damp and mould states that it is best practice for landlords to consider if a decant is appropriate where there are vulnerabilities in the property. On 13 March 2023, the landlord stated that it would consider if alternative accommodation was needed, but that this would depend on whether the works could be completed while the resident remained in the property.
20. On 17 March 2023, the landlord refused the request to provide alternative accommodation as it stated that the works could be completed while the resident remained in the property. The resident’s mother raised concerns that even once the works were complete the wall would take time to dry out. She was concerned about the health of the family during this time. The landlord does not appear to have considered the request for alternative accommodation based on the ongoing damp and mould in its decision. This is despite the resident raising health concerns on several different occasions.
21. The damp and mould inspection on 16 March 2023 raised several recommendations. One of these was to replace the damaged brickwork. The landlord advised the resident on 23 March 2023 that this had been done in October 2022. This was prior to the recommendation being made. It is the opinion of the Service that this is an insufficient response to the recommendation.
22. The inspection recognised that there were no extractor fans in the kitchen and bathroom. It recommended that these be installed. These were installed on 11 June 2023. Whilst it is positive that the landlord installed the fans, there is no explanation as to why this took 3 months to achieve. The fans should have been considered a priority as their absence had been noted as contributing to the ongoing damp and mould in the property.
23. The inspection attributed the damp and mould in the children’s bedroom to the external leaking pipe. It found the moisture content of the wall to be at the highest end of the scale. It confirmed that there was also damp and mould in the second bedroom. However, it stated that as the external wall in the second bedroom had no issues, this was due to condensation. It stated that there was furniture against the walls, clothes drying, and that doors were left open allowing the moisture to migrate. There was no recognition that the mould in the second bedroom may have been caused by condensation migration from the wet wall in the children’s bedroom. The Ombudsman’s Spotlight report on damp and mould states that landlords should avoid placing blame on the resident. Although the landlord has accepted responsibility for the mould in one bedroom, it has cited lifestyle factors as being a contributing factor in the other bedroom.
24. A dehumidifier was provided by the landlord on 22 March 2023. The resident’s mother requested that the landlord reimburse the resident for the costs of running the dehumidifier. The landlord refused this, stating it was not part of its policy. It is the opinion of the Service, that as the damp was caused by an external leak, the full cost of mitigating and rectifying all issues related to the repair should have been covered by the landlord.
25. The resident’s mother had also raised that there was mould on the floorboards. The landlord stated it was not responsible for cleaning mould under floorboards. As the mould was caused by an extensive leak that the landlord was responsible for, it would be reasonable that the landlord would take actions to put right the mould on and under the floorboards.
26. A condensation assessment was completed on 28 April 2023. It found that the condensation of the wall in the children’s room was at a medium level. As the dehumidifier had been in place for over a month at this stage, the landlord should have satisfied itself that there were no other contributing factors to the wetness of the wall. An inspection was completed on 10 May 2023 which found that the downpipe was still in need of repair. It was positive that the landlord conducted a further survey to understand the cause of the ongoing moisture. However, it was concerning that the repair was still needed, despite the issue having been identified several months before.
27. A survey on 19 June 2023 found that the moisture in the children’s bedroom had returned to the highest level of the scale. Whilst it was positive that the landlord conducted a further survey, the Service has not seen any evidence that the landlord took any meaningful further action. On 16 October 2023, the landlord advised the Service that the issue was ongoing as major works had stopped. It stated that the legal disrepair team was picking up the work. There was no explanation as to why considerable time had passed without further repairs being carried out.
28. The issue with the damp and mould has continued for over a year. During this time, the landlord was made aware on several occasions that the resident felt this was having a significant impact on hers and her children’s health. Following the Ombudsman’s request for evidence to the landlord, the landlord has informed us that the resident has no vulnerabilities. It is concerning that the landlord has not acknowledged or considered the residents repeated efforts to raise concerns about hers and her children’s health.
29. The landlord was also made aware that both children were having to sleep in their mother’s room due to the issue. The landlord has not completed any risk assessments or made attempts to ensure that the property was safe to reside in. The delays to the repairs are substantial and there has been no satisfactory explanation for them. As such, there was severe maladministration in the landlord’s handling of reports of damp and mould.
30. Damp and mould are potential health hazards to either be avoided or minimised in line with the government’s Housing Health and Safety Rating System (HHSRS). Landlords should be aware of their obligations under HHSRS and are expected to carry out additional monitoring of a property where potential hazards are identified.
31. The landlord has advised the Service that it has appointed a third party to complete an independent self-assessment against the recommendations in the Ombudsman’s Spotlight report on damp and mould. It is positive that the landlord has taken this action, however the Service notes that it has been 2 years since the Spotlight report was issued. It is concerning that the landlord has not acted on the recommendations earlier.
32. The Ombudsman is concerned that the issues with the damp and mould, wet wall, and compromised room appear to remain. Therefore, orders have been made accordingly.

The landlord’s complaint handling.

33. The landlord’s policy stated that a stage 1 response should be sent within 15 working days of the complaint. A stage 2 response should be sent within 25 working days of escalation. This contravenes the Housing Ombudsman’s Complaint Handling Code (the Code) timescales of 10 working days for a stage 1 and 20 working days for a stage 2. The Service understands the landlord has since updated its policy to comply with the Code.
34. The stage 1 response was issued within 17 working days of the complaint being raised. This was beyond the landlord’s policy timescales at that time. The delay was, however, not excessive.
35. The stage 1 response was very brief. It stated that a mould wash had been completed and that this resolved all issues. It did not acknowledge the resident’s concerns around the impact on her health, or that the resident and her children had been sharing one room. The resident had also raised concerns regarding the attitude of the repairs team when she reported the mould. This was not acknowledged in the complaint. The response was insufficient at addressing the full complaint raised by the resident.
36. The landlord responded to the stage 2 complaint within 33 working days. It advised the resident that the response would be delayed as it required an update from the major works team before it could respond. The delay was reasonable under the circumstances.
37. The stage 2 response provided a full history of the complaint. To resolve the matter, it confirmed that the landlord would complete the repairs to the downpipe by the end of that week. It also confirmed that pointing in the property would be looked at. The landlord stated that the damp and mould team had confirmed further works would be needed following an inspection it completed on 24 January 2023. It stated that the damp and mould team would contact the resident regarding this and advised it would follow up these works. Whilst it was positive that the landlord advised the resident of the next steps, the landlord had an opportunity to be more specific in how it would put things right. This would have provided the resident with assurance that all recommended works would be completed.
38. The landlord offered an apology and compensation of £90. The landlord calculated this as £45 for delays and £45 for distress. The £45 for delays was made up of £5 per week since the repairs were identified, minus a reasonable turnaround time for the works to be completed. This was awarded until the 10 March 2023 when the landlord should have completed works by. The landlord’s compensation policy states that £5 per week for delay and distress is when there has been low impact. The landlord has failed to consider the significant impact this situation has had on the resident’s health and wellbeing. It has also not considered that there was loss of enjoyment of the children’s bedroom throughout the time the complaint remained outstanding. It is the opinion of the Housing Ombudsman that the situation was of major impact, and the compensation awarded to the resident was significantly under calculated.
39. The landlord later offered a further £50 to acknowledge that the repairs took longer than estimated, and as a goodwill gesture towards the running of the dehumidifier. Although the landlord has recognised a delay in all works being done, it has failed to consider the full extent of the ongoing issues. It has compensated only up to the point the pipework was considered fixed. It has not considered that the severe dampness of the wall continued to result in the children’s bedroom being compromised, until the wall was fully dry.
40. The stage 1 response did not address the resident’s concerns. Although the landlord’s stage 2 response contained substantial detail it failed to fully acknowledge all issues. It also did not provide a clear action plan in putting things right. The compensation calculation failed to recognise the true impact the situation had on the residents. As such there was maladministration in the landlord’s complaint handling.

Determination

41. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
    1. Severe maladministration in respect of the landlord’s handling of reports of damp and mould
    2. Maladministration in respect of the landlord’s complaint handling.

Orders

42. The landlord is ordered to complete an urgent risk assessment on the property and provide the resident and Ombudsman a copy within 4 weeks of the date of this report. It should consider whether a decant is necessary. It should explain its decision making if it considers a decant is not required.
43. The landlord is to conduct a thorough inspection of the property to determine a full schedule of all works needed. The inspection should inform a report that must include all works needed to rectify the cause of the damp and mould, and all works that are needed to put right damage caused by the damp and mould. The inspection report must set out timescales for the landlord to complete the repairs by.
44. The chief executive is to review the case and issue an apology to the resident.
45. The landlord is ordered to pay a total of £2,830 compensation made up of:
    1. £980 for distress. This is £20 per week since the initial mould survey, minus a 4-week turnaround time, as per landlord’s policy.
    2. £1,650, this is based on 25% of the rent from when the damp and mould was first reported until the date of this report. This is for the loss of use and enjoyment of the children’s bedroom.
    3. £200 for poor complaint handling.
    4. The landlord may deduct the £90 it previously offered if it has already paid it.
46. The landlord is to provide compliance to the Ombudsman with the above orders within 4 weeks of the date of this report.