The Guinness Partnership Limited (202218205)

REPORT

COMPLAINT 202218205

Guinness Housing Association Limited

10 May 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:
   1. The landlord’s response to the resident’s report of a defective ventilation system.
   2. The landlord’s handling of the associated complaint.

Background

2. The resident is a shared ownership leaseholder and her lease commenced on 7 July 2021. The property is a newbuild flat. During the defects period, the resident reported to the landlord that her ventilation system was not working, leading to a build-up of condensation and resultant mould growth. The landlord raised work orders on 23 August and 3 November 2021 before the system was repaired on 18 November 2022.
3. The resident reported to the landlord on 30 January 2022 that the ventilation system was faulty again. After the resident sent several emails chasing the repair, the landlord informed her on 25 February 2022 that the ventilation system issue affected a number of properties and it was in the process of organising the replacement of filters for all ventilation units in the building. However, it could not provide a date for this. 
4. The end of defects period inspection took place on 10 March 2022. The inspection report recorded that the ventilation system was not working and allowing mould formation due to an increase in condensation in the property. The resident raised a stage one complaint with the landlord on 26 May 2022, in which she relayed that she had been chasing repairs to the ventilation system since the defects period but the issue was not yet resolved. She said she had attempted to raise a complaint via its website in January 2022 but did not receive a response.
5. The landlord’s stage one complaint response on 14 June 2022 acknowledged that the issue had been outstanding since 2021 and that it should have completed the repair to the ventilation system sooner. It confirmed that the repair would take place shortly after 11 June 2022. The landlord said it would carry out damp and mould treatment to the property once the ventilation repair was complete. It directed the resident to her home insurers for reimbursement of damage to her belongings and offered her £160 compensation for the delayed repair and complaint response, her distress and inconvenience, and its poor communication.
6. The repair did not subsequently go ahead, and the landlord provided its final response to the resident on 2 September 2022. In this, it confirmed that the ventilation system had become clogged due to it not cleaning or ventilating the property prior to the resident moving in. The landlord upheld the complaint and increased its offer of compensation to £315 to include a contribution to the resident’s insurance excess should she make a home contents insurance claim.
7. After three more attendances by the landlord, the resident confirmed on 20 December 2022 that the ventilation system was now working as before, but still making her property excessively cold. She told the landlord she wanted compensation for the delay and damage to her belongings and the installation of a control panel to the system. The resident also wanted the landlord to take responsibility for the maintenance of the system.

Assessment and findings

8. The landlord’s lease agreement with the resident confirms that, as a leaseholder, she is responsible for the repair and maintenance of the ‘premises’. The definition of the premises in the lease contains the “appurtenances, fixtures, fittings”. The ventilation system installed in the property would therefore be deemed part of the premises, as defined by the lease, and would be the resident’s responsibility to repair and maintain.
9. It is noted that photographs and a video of the extent of the damp and mould were provided to the Ombudsman as evidence. The Ombudsman is limited in the extent to which it can rely on photographic evidence as it is not possible for this Service to determine the location/circumstances of the photographs, or the validity of the images themselves. As a result, we do not generally place significant reliance on photographs in reaching our decisions. However, it is noted that it was not disputed that the malfunctioning ventilation system was a contributory factor to the onset of damp and mould in the property.
10. During the defects period after the construction of a new-build property, the rectification of defects is the responsibility of the developer, and the landlord’s role would be to facilitate the repair of any defects which arise. In this instance, the ventilation system was reported as defective in August 2021 and again on 30 January 2022, where it was also reported that the property was developing dampness again. This repair was not completed by the end of the defects period, and the end of defects inspection notes recorded that there was an outstanding repair to the ventilation system. Given that the repair was outstanding since the defects period it was reasonable for the landlord to take responsibility for completing it. It was evident that the ventilation system issues were widespread in the building, as relayed by the landlord in its email to the resident on 25 February 2022, which said it would be arranging replacement of all filters.
11. Given that the defective ventilation system was leading to dampness and mould growth in the property, the landlord would be expected to act quickly to resolve the repair to minimise the hazard to the resident and her possessions. This did not occur. The first note of a contractor’s attendance to the property was the week before 23 August 2022, when the repair was not completed as the contractor was reported to say that the system was not correctly installed and lacked a control panel. The landlord then attended again around 18 October 2022, when it found that the part it ordered was incompatible.
12. The landlord attended again on 11 November 2022 to replace the filter but found a further fault with the system. The resident confirmed on 20 December 2022 that the system was now working; however, the system made the property too cold and she wanted a control panel to allow her to adjust the ventilation. She reported this same issue on 30 January 2023, that the system could not be adjusted and caused her property to be too cold.
13. It was unreasonable that the landlord took an excessive length of time to address the repair. The landlord’s “report a repair” webpage confirms that it aims to complete non-emergency, routine repairs within 28 days. It was approximately ten months before the landlord restored the ventilation system to the condition it was in prior to the resident reporting it faulty again on 30 January 2022. This was an excessive length of time, and was a particular failure by the landlord given that it was aware that the defective ventilation system was contributing to the spread of damp and mould in the property. Damp and mould are not only damaging to the resident’s possessions, they are potential hazards to health.
14. The landlord’s final response, on 2 September 2022, acknowledged that the reason for the ventilation system failing was that the property had not been cleaned or ventilated prior to the resident moving in. This led to the filter clogging and the system not operating. Given that the landlord acknowledged that this was a pre-existing issue which led to the damp and mould and subsequent damage to the resident’s possessions, it was unreasonable that it directed her to claim on her home contents insurance for the damage to her possessions.
15. The landlord’s compensation policy states that it will pay compensation for quantifiable loss and damage. This policy also states that it recommends resident take out home contents insurance for accidental damage. Given that the damage arose from its failure to ventilate and clean the property before the resident moved in, and not accidental damage, it was unreasonable that the landlord did not consider paying compensation to her, or to facilitate an insurance claim on its liability insurance.
16. The resident informed the landlord, on 2 September 2022, that its contractor had attended but not carried out any work. The operative informed her that the ventilation system was incorrectly installed and was lacking a controller. A landlord would be expected to pay due consideration to its appropriately qualified staff and contractors. In light of the issues the resident reports of the ventilation system being uncontrollable and making her property too cold, the landlord should have carried out an inspection to ensure that the system was working suitably. There was no evidence of any assessment of whether the ventilation system, when working, was operating correctly and whether a controller should have been provided to enable the resident to regulate the system.
17. In accordance with the lease, above, the ventilation system is the resident’s responsibility to maintain and it would not be appropriate for the landlord to assume the maintenance responsibility for the system. However, since the system exhibited a fault during the defects period, the landlord should have ensured that the system was working correctly.
18. For the landlord’s failures in its response to the resident report of the faulty ventilation system, it should pay £800 compensation to her, inclusive of the compensation it previously offered her. This is to recognise the distress and inconvenience she experienced due to its failure to complete the repair over a prolonged period. This also takes in account its failure to consider compensating her for the damage to her possessions or to provide information how to make a liability claim.
19. This award is in accordance with the Ombudsman’s remedies guidance which provides for awards of compensation between £600 and £1000 where a failure by the landlord had a significant impact on the resident over an extended period of time.

The landlord’s handling of the associated complaint

20. The landlord’s complaints policy provides for a two-stage internal complaints procedure where it is to respond to a stage one complaint within ten working days and it should respond to a complaint at the final stage within 20 working days. These timeframes mirror those set out in the Ombudsman’s Complaint Handling Code (the Code), which all member landlords are required to adhere to.
21. The resident raised her stage one complaint on 26 May 2022, and the landlord provided its stage one complaint response to her on 14 June 2022, 11 working days later. This was slightly in excess of the timeframe specified in its policy but not enough to warrant a finding of service failure on its own. However, the landlord provided its final complaint response to the resident 41 working days after it recorded the escalation of the complaint on 7 July 2022. This was a significant delay and significantly in excess of the timeframe in its policy.
22. The Code states that there is no requirement for a landlord to wait until outstanding works are addressed before issuing a complaint response; it is sufficient for it to provide its response within the specified timeframe to outline its proposed resolutions, if appropriate. Therefore, the landlord delayed unreasonably in providing its final stage response to the resident. This would have led to uncertainty for her, in addition to delaying the resolution of the complaint.
23. To recognise this failure to adhere to its complaints policy, the landlord should pay £100 compensation to her. This is to recognise the distress and inconvenience caused to her while she awaited its response on a longstanding repair.

Determination

24. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its response to the resident’s reports of a defective ventilation system.
25. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the associated complaint.

Orders

26. Within four weeks, the landlord should:
    1. Pay the resident £800 compensation for its failures in the handling of the ventilation system repair.
    2. Pay the resident £100 compensation for its failures in the handling of the complaint.
    3. Inspect the ventilation system and confirm whether this was installed correctly and fit for purpose.
    4. Contact the resident to either:
       1. Seek evidence of her quantifiable loss caused by the damp and mould for consideration of the payment of compensation or,
       2. To facilitate a claim under its liability insurance.