Southway Housing Trust (Manchester) Limited (202015797)

REPORT

COMPLAINT 202015797

Southway Housing Trust (Manchester) Limited

21 June 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. The complaint is about the landlord’s response to the resident’s claim for compensation for damage to his belongings, which the resident said was caused by the growth of mould in the property.

Background and summary of events

2. The resident is a tenant of the landlord. The property is a two-bedroom, ground-floor flat.
3. The resident first reported an issue with damp and mould in the property on 6 November 2020, and informed it that, as a consequence, damage had been caused to his belongings. The landlord arranged for an inspection to be undertaken on 27 November 2020 and advised the resident that a compensation claim could be made but would be dependent on the outcome of the inspection.
4. An email, dated 13 November 2020, confirmed the receipt of the resident’s compensation claim and said that this would be investigated.
5. The landlord’s repair records state that an inspection took place on 27 November 2020 and on 17 December 2020. Following the 27 November 2020 inspection, the resident emailed the landlord to contest the surveyor’s findings: that no structural work would be required and only a ventilation unit would be installed. The resident said that he had obtained independent advice that informed him the issue was structural and thereby more in-depth work was required. The resident highlighted the importance of resolving this issue due to the impact the mould would have on his health conditions.
6. The resident raised a formal complaint regarding damp and mould in the property on 27 December 2020 in which he highlighted that:
   1. The inspection on 27 November 2020 took “about three minutes” and was not conducted sufficiently, with the surveyor confirming that ventilation devices would be installed, but no structural work would take place.
   2. Following the inspection, he had been awaiting a response to confirm the next steps. He said he had been attempting to contact the landlord for an update but had yet to receive a response.
   3. A surveyor was supposed to attend on 17 December 2020, yet the same surveyor attended on 16 December 2020 instead; and, on this occasion, the surveyor did not enter the property.
   4. He was expecting a report with information confirming what work would be carried out but had not received this.
   5. It was now seven weeks since he raised the issue and he had not received any reliable information regarding the issue.
   6. The damp and mould was causing damage to the interior of the property as well as to his personal belongings. In addition, he said that the damp and mould was exacerbating his medical condition and thereby rendered the property unsuitable for him.
7. The landlord responded on 5 January 2021 and confirmed that it had spoken to the surveyor who had relayed the resident’s desire to have a further inspection with a view to fitting air-specialist equipment to allow for increased ventilation. The landlord confirmed that the surveyor would be in contact with the resident directly to arrange an appointment. The landlord concluded by informing the resident that damaged items should be claimed via his home contents insurance.
8. The resident’s email response, dated 5 January 2021, contended that better ventilation would not resolve the issue because the cause of the issue was likely structural, having instructed his own independent surveyor who had concluded this. He asked the landlord to review photographs of black mould he had taken that day, reiterating the impact this could have on his medical condition, and to consider installing new drainage around the property. The landlord later requested a copy of the report following the independent inspection that the resident had said he had instructed.
9. The complaint was acknowledged via email on 6 January 2021 with the aim to respond by 20 January 2021.
10. A survey of the property was undertaken by condensation and mould specialists on 16 January 2021 which found signs of condensation and areas of black-spot mould. The recommendations were:
    1. To install a new ventilation system to replace the existing one which would reduce the overall relative humidity in the property; and
    2. To treat various areas within the property with a four-stage specialist mould treatment.
11. In the landlord’s stage one complaint response of 19 January 2021, it concluded that it was satisfied that, following the recent survey on 17 December 2020, all the correct action and advice had been given. The landlord therefore did not uphold the complaint.
12. The landlord did, however, confirm it had ordered an assessment by specialists who could potentially offer solutions to the condensation and mould (this had already taken place, as per paragraph 10). The landlord also requested the evidence of the survey the resident had said he had instructed so that it could review its findings. However, at this stage, it was satisfied there were no structural defects at the property.
13. In the resident’s email response of 19 January 2021, he asked the landlord to update him when he could expect the recommendations to be carried out following the survey on 16 January 2021, highlighting again the urgency in needing this resolved due to his health conditions.
14. On 25 January 2021, the landlord recommended that the resident contact the condensation and mould specialists himself as it had not had a response from them.
15. In the resident’s email of 31 January 2021 he asked when he could make a claim for compensation for the damages caused by the mould. The resident also raised concerns about the cost he said he incurred in buying an air purifier which he was advised to purchase due to his asthma.
16. The landlord’s reply on 1 February 2021 confirmed that it would escalate his complaint. In order for it to consider his compensation request, the landlord asked that the resident confirm what amount of compensation he was seeking and that he send pictures of the damage along with any receipts for the items he was claiming for. The landlord asked who had advised the resident to purchase the air purifier. The landlord explained that it did not pay compensation for items damaged by compensation and advise residents to claim on their own home insurance. The landlord went on to explain, however, that if the damage was the result of its service failure, it may consider it.
17. The resident’s reply of the same date referred to a previous email regarding his compensation request which he said he sent in November 2020 and had not received a response to. He contended that the best way forward would be for an independent insurance company to evaluate all the damages caused by the mould as he was unable to estimate the costs. He also claimed that the landlord was aware of the mould issue before he moved into the property. The following day, on 2 February 2021, the resident requested a copy of the report following the inspection on 16 January 2021.
18. In the landlord’s stage two, and final, complaint response of 12 February 2021, the landlord did not uphold the complaint as there were no structural defects at the property and, following a surveyor’s inspection, a device to promote airflow and reduce condensation would be installed. The landlord confirmed that:
    1. there was no evidence to substantiate the resident’s claim that it was aware of the condensation issue before the resident moved into the property and, when it was made aware of the issue in December 2020, it took appropriate and timely action to resolve the issue.
    2. any damage caused to the resident’s belongings would need to be claimed for via the resident’s home content insurance.
    3. it did not provide tenants with copies of surveyor’s reports and nor was obliged to.
    4. It remained confident that the device installed to promote ventilation in the property would prove effective at managing the condensation issue and thereby reducing the mould.
19. The landlord’s repair records stated that on 16 March 2021 the installation of the device to reduce condensation was carried out.

Assessment and findings

Scope of investigation

20. It is noted that the resident has mentioned damage to his belongings and the potential impact on his medical conditions by living in a property with mould in situ. The Ombudsman cannot draw conclusions on the causation of, or liability for, damage to property and impacts on health and wellbeing. This would be more usually dealt with either as an insurance claim or as a personal injury claim through the courts.
21. The Ombudsman also cannot draw conclusions on matters such as negligence as this is again a matter that would more usually be dealt with through the courts.

The landlord’s response to the resident’s request for compensation following damage to his belongings caused by the growth of mould in the property

22. The landlord’s repairs policy states that the landlord is responsible for the repair and maintenance of the structure and exterior of the property
23. Though not explicitly stated in the repairs policy – as the responsibilities are not an exhaustive list – the landlord will keep in repair and proper working order any installations provided or adopted by the landlord within the property (for instance, the ventilation unit).
24. The repairs policy also states that the resident is responsible for mould treatments due to condensation and for repairs within the property such as all internal decoration including pre-decoration repairs. The resident must also keep the interior of the premises in good repair and in a clean and good decorative condition. Tenants must decorate all internal parts of the premises as frequently as necessary to keep them in reasonable decorative order.
25. The repairs policy states that tenants are responsible for taking out home contents insurance for furniture, contents, and possessions.
26. It is acknowledged that, in correspondence sent to this Service on 7 March 2021, the resident was satisfied that the new ventilation system installed in the property would prevent further issues with mould and condensation in the property. However, the resident remained dissatisfied that the landlord did not accept his claim for damage to his belongings and for the potential impact on his medical conditions of living in a property with mould in situ.
27. The initial inspections of the property on 27 November 2020 and 17 December 2020 did not conclude that the issue was caused by a structural defect. Moreover, the survey conducted at the property on 16 January 2021 by condensation and mould specialists concluded that there was an issue with condensation and mould in the property but did not establish that structural defects were the cause. It is reasonable for a landlord to rely on the findings of its qualified staff and contractors and therefore the landlord has acted reasonably in this instance as no evidence was provided to dissuade the landlord from following the recommendations and findings of the three aforementioned inspections.
28. Regarding the resident’s assertion that the landlord knew about the mould issue prior to the resident moving in, there is no evidence to support the claim. Because this cannot be substantiated with the evidence, this will not be considered any further.
29. It is noted that the resident had informed the landlord that he had sought independent advice regarding the cause of the mould that was in contradiction to the landlord’s inspections. When a landlord is presented with such information, it would be expected that a landlord request further evidence in order to investigate further. The landlord did request evidence to support this contention on numerous occasions but evidence to support this claim was not provided; nor has this Service been witness to such evidence.
30. In regard to the resident’s request that it provide the reports/surveys conducted at the property, it is evident that the landlord is not obligated to do so and thus its refusal to provide these would not constitute a failure in service. Even so, it could have been beneficial for the landlord/resident relationship if it had carried out this request. It could have potentially improved the situation by conveying a more transparent approach. A recommendation will be made regarding this.
31. The landlord took appropriate action based on the recommendations of its qualified staff and contractors which was reasonable in the circumstances. Having identified no service failure, it was reasonable and in accordance with its repairs policy for the landlord to advise the resident that any claim for damage to his personal belongings should be made via his home contents insurance.
32. That said, Section 5.3 of the landlord’s compensation policy and claims procedure also states that insurance claims that are received as part of a wider complaint about services will be dealt with as follows:
    1. If a formal customer complaint is received which includes an actual or potential claim against the landlord, the customer will be informed in writing that this has been passed to its insurers.
    2. The customer will be advised that all enquiries relating to their claim will be referred directly to the landlord’s insurers.
    3. The remainder of the issues raised in the complaint, including any decisions over discretionary compensation, should be dealt with according to landlord’s standard timescales and service standards.
33. Given that the resident had indicated his wish to make a claim against the landlord for damage to his belongings and the potential impact on his medical conditions by living in a property with mould, the landlord should have also considered passing the resident’s claim to its insurers, as a potential claim, in accordance with Section 5.3 of its compensation policy and claims procedure.
34. This investigation has not considered the validity of the resident’s claim, nor would it be appropriate for us to do so. However, the Ombudsman does expect landlords to follow their policies and procedures and, in this case given that there is no evidence that the landlord did refer the resident’s claim to its insurers. If had done so the landlord should have explained this to the resident and if it had not, the landlord should have explained to the resident why it did not do so.

Determination (decision)

35. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s claim for compensation following damage to his belongings caused by the growth of mould in the property.

Reasons

36. The landlord’s inspections and surveys concluded that the growth of mould in the resident’s property was to do with ventilation and was not structural in nature. It was therefore reasonable for the landlord to direct the resident to his own home contents insurance for any damages to belongings within the property that were his responsibility to repair.
37. However, Section 5.3(a) of the landlord’s compensation policy and claims procedure also states that if a formal customer complaint is received, which includes an actual or potential claim against the landlord, the customer will be informed in writing that this has been passed to its insurers. There is no evidence that the landlord did so nor of the landlord providing the resident with any explanation as to why it did not do so.

Orders and recommendations

Orders

38. That within four weeks of the date of this determination the landlord shall:
    1. Pay the resident £50 compensation for its failure to provide the resident with an explanation as to why it did not pass his claim to its insurers in accordance with Section 5.3(a) of its compensation policy and claims procedure.
    2. The landlord either refer the resident’s complaint to its insurers or to provide the resident with an explanation as to why it did not do so.

Recommendations

39. It is recommended that, within reason, the landlord consider facilitating any requests made by tenants for reports/surveys, to demonstrate a more transparent approach, which could have the potential to allay any speculation regarding why the landlord would refuse such a request and potentially build a better and more open relationship with tenants.