Torus62 Limited (202102544)

REPORT

COMPLAINT 202102544

Torus62 Limited

13 May 2022

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

This complaint is about the landlord’s handling of:
1. the resident’s reports of mould growth in her property;
2. the related complaint.

Background and summary of events

Background

The resident was an assured tenant of the property and started the tenancy on 4 July 2016. The landlord has described the property as a three-bedroom house and the resident advised this Service that she vacated the property in June 2021.
The tenancy agreement shows that the landlord was obliged to keep in good repair the structure and exterior of the property, including internal walls and plasterwork. It also shows that the resident was responsible for repairing any damage caused by her and keeping any ‘internal parts’ in good decorative order.
The landlord has a responsive repairs and maintenance policy that shows that it will aim to complete repairs within 24 hours (emergency), 20 calendar days (arrangement) or 60 calendar days (programmed) depending on the priority. It adds that a resident is responsible for insuring their own belongings.
The landlord’s website has a repairs section that shows that residents are responsible for ‘condensation problems’. A separate webpage gives advice on ways that residents can reduce condensation but also sets out that it ‘will not compensate for damage caused by condensation’.
The landlord has a complaints policy that sets out a two-stage complaints process with responses required within 10 working days (at stage one) and 20 working days (at stage two) respectively.
The landlord has a compensation policy that shows it can make a discretionary compensation award where a resident ‘has incurred severe inconvenience, frustration, distress or an element of financial loss’. It shows that compensation can be paid for quantifiable financial loss (such as ‘cost of replacing damaged property’) but that it will not be considered for damage caused beyond its control, ‘problems resulting from lifestyle choice’ or where ‘damage is covered under contents insurance unless the damage has been caused as a direct result of the actions or omissions’ of it or its contractor.

Summary of Events

The landlord’s repairs records show that damp inspections were requested on 7 March 2018 and 1 May 2018. The landlord noted that it attempted to speak to the resident on 5 April 2018 and 21 May 2018 but there was no answer so it left messages.
The landlord’s repairs records show that orders were raised on 18 January 2019 for brickwork repairs around the base of the property (due to inadequate damp proofing) and for an inspection of the roof for leaks due to ‘severe damp and mould’ in the property.
The landlord’s repairs records show that a damp inspection was organised for 2 December 2019. A repair order was raised on this date for installation of a ‘positive input ventilation’ unit.
The landlord’s repairs records show that a damp inspection was raised on 31 January 2020 to assess a report from the resident of damp running down the walls after installation of the new ‘unit’.
The landlord’s repairs records show a new order was raised on 17 December 2020 to assess damp to the property due to a report that there was black mould and very wet walls.
The resident submitted a complaint on 7 January 2021 on the grounds that:
1. there had been a damp and mould problem at the property since 2016 with black mould spores on the walls and her family constantly poorly
2. she had to throw away lots of important possessions that had been in the loft and all bedrooms, the kitchen, bathroom and hallway had been affected
3. they had used all vents and a dehumidifier but the problem remained
4. they were now intending to move but she wanted the landlord to provide an industrial dehumidifier in the meantime.
The landlord’s records show that it attended the property on 7 January 2021; its repairs records show that jobs were raised on 11 January 2021 to supply and fit a roof vent to the front and rear, service a ventilation unit on the landing and treat condensation to surfaces throughout the property. It subsequently noted that the service to the ventilation unit was completed on 15 January 2021. It added that the resident had told it during the inspection that she would ‘be rehousing to another location and was unsure as to go ahead with the repairs’ but that it had told her it intended to proceed with its repair obligations.
The landlord’s complaint file records show that it spoke to the resident on 13 January 2021 and told her to ‘gather information on what, why and where items have been damaged due to damp’, confirm the associated cost and provide photographs and receipts should she wish to pursue a claim.
The landlord recorded on 29 January 2021 that the resident had confirmed that all works were complete and she was waiting for it to remove scaffolding.
The landlord’s repairs records show that a damp inspection was raised on 10 February 2021 to again assess mould to the property. It subsequently noted that it attended on 17 February 2021, indicating that further repairs would be needed.
The landlord’s repairs records show that orders were raised on 19 February 2021 for it to renew plasterboard to the eaves of the front bedroom and insulate behind, install draught insulation to a loft hatch, repair the front door and apply a biocheck emulsion around the front door.
The landlord’s records show that it wrote to the resident on 25 February 2021, advising that its insurance team had been advised of the claim and it would visit on 3 March 2021 to ‘validate the list of claimed items’ and post-inspect works completed.
The landlord produced a report following its inspection on 3 March 2021 that noted that:
1. there were some minor areas that had been ‘defected with condensation’ but had already been actioned
2. advice it had given previously about storage of items in an upstairs cupboard had not been followed
3. no receipts or items had been shown as the resident had told it that they were packed away ready for a move or had already been thrown away so it had advised her that it would have to report back that there had been nothing to assess
4. advice had been given to the resident about how lack of ventilation and inadequate heating can cause condensation
5. there had been an argument between the resident and her partner about use of heating as the latter did not like heating to be on.
The landlord’s insurance team reviewed the above report on 13 March 2021 and decided that the claim should be rejected given the condensation appeared to be due to inadequate heating and ‘lifestyle’.
The landlord’s records show that it telephoned the resident on 15 March 2021 to go through the surveyor’s report but she became angry with the content and ended the call.
The resident asked for her complaint to be escalated on 17 March 2021 given the content of the surveyor’s report and she said she would be seeking legal action over the rejection of her insurance claim. She clarified on 19 March 2021 that she was dissatisfied that the surveyor had contradicted previous findings, acted arrogantly, unreasonably referred to an argument between her and her partner and had not considered the photographs she offered.
The landlord noted receipt of an email on 19 March 2021 from a health visitor, raising concern about the health impact of damp in the property and requesting a re-examination of the case given there were four children and two adults affected. The landlord recorded that it wrote to the health visitor and resident on this date, advising that works had been completed to aid the condensation issue but that non-use of heating and lifestyle were the primary cause.
The landlord issued a stage one complaint response on 24 March 2021 – it thanked the resident for liaising with it by email and telephone during the investigation and defined the complaint as being about the ongoing damp and mould issue, a claim for damaged items and the attitude and report of a surveyor. It concluded that:
1. a surveyor had attended on several occasions to consider the condensation damp issue and raised works to insulated plasterboard to a sloped ceiling in the front bedroom (to alleviate ‘cold spotting’), fit roof vents to the front and rear (to improve air flow), overhaul a ‘dry master’ ventilation unit on the landing and treat surfaces impacted by condensation
2. the surveyor post-inspected works but advised the resident on heating and ventilating the property as a ‘lifestyle change’ would be the main action to prevent condensation
3. the resident had submitted a claim for 28 items of damaged goods to a value of £1334 which led to a surveyor’s visit on 3 March 2021 that showed there were minor areas affected by condensation and that he was unable to view the damaged items as he was told they had been packed or thrown away
4. the claim had been rejected by its insurance team because any damage would have been due to ‘lifestyle’
5. the surveyor’s report had appropriately included reference to blinds (as this impacted air flow) and an argument while he was in attendance (as this referenced a disagreement between the household members over use of heating)
6. photographs of the damaged items had been considered but did not match the list of items that were part of the claim
7. the surveyor had denied telling the resident that he thought the landlord was responsible for the damage and no feedback about him being arrogant had been received until after the insurance claim was repudiated.
The landlord’s repairs records noted on 24 March 2021 that it had offered to arrange a new survey but the resident had not agreed.
The resident asked to escalate her complaint on 24 March 2021 on the grounds that:
1. the surveyor had admitted negligence on the part of the landlord during his most recent visit
2. the disagreement between her and her partner was due to comments made by the surveyor
3. she opened window blinds every day to assist with ventilation, had obtained feedback that they were fitted correctly and she said that windows were wiped down every day also
4. trickle vents were open, windows opened regularly and the bathroom fan was on
5. photographs had been submitted of a mouldy flip flop and backpack, wet vertical blinds, artwork and paperwork and water dripping down the main bedroom wall with a damp patch to the bedroom ceiling
6. the surveyor had observed a ‘rotten mouldy unit’, mould and damp by the back door, next to the cooker and in a gas cupboard, incorrectly installed silicone to the external brickwork, mould around the front door frame and a wet upstairs cupboard floor (that had largely been cleared)
7. the landlord had needed to re-do dry boarding plasterwork
8. it was ridiculous to expect that she would have kept damaged items for five years and the landlord had not seen her gas bill which would show that she did use heating
9. it had taken the surveyor’s word over hers.
The landlord issued a final complaint to the resident on 21 April 2021, concluding that:
1. a survey had been organised as a result of the original complaint and this noted the importance of using the heating correctly, keeping windows free from moisture, allowing ventilation and not obstructing radiators to avoid condensation
2. the complaint was not upheld but it apologised if the resident’s experience dropped below its usual standards.
The landlord recorded that it spoke to the resident on 26 April 2021 who advised that she did not want another surveyor to attend given three had already visited and she did not trust what they were saying.
The resident approached this Service in late April 2021, advising that minor annual repairs were being done by the landlord but the condensation had been a problem since 2016. She added that she had secured a new property to move to but wished to claim £500 compensation for damage to possessions and provided photographs showing moisture to walls (near ceilings and windows) and black mould spotting.
The resident added to this Service in May 2021 that the landlord had denied responsibility for the damp problem and caused her belongings to be damaged. She explained that she had not been blamed for the problem before, listing works the landlord had done since 2016 (such as loft insulation, mould washes, installation of a drying unit and boarding, painting of the front door canopy, roof vents and brickwork repairs) and advising that she had adhered to previous surveyor advice about ventilation, redecorations and temperature control.
The landlord produced a void property inspection report in June 2021 that showed repairs were raised to:
1. cut back plaster to the kitchen to prevent damp bridging and renew the skirting board
2. complete a fungicidal wash to walls in the ‘box bedroom’.
The resident confirmed to this Service in July 2021 that she had vacated the property on 27 June 2021 due to disrepair and she was aware that the landlord had since renewed the kitchen and re-plastered throughout.
The landlord’s void inspector noted on 11 August 2021 that, after the resident vacated the property, the void inspection established some damp to the kitchen due to ‘bridging’ and that the ‘rest of the property had small amounts of mould in various locations caused by condensation issues all preventable with correct heating and ventilation’.

Assessment and findings

Mould growth

The resident has advised that she experienced mould growth to the property from the beginning of her tenancy in 2016 but the earliest indication of a report seen by this Service dates back to early 2018.
There is no evidence of any action taken by the landlord in response to the resident’s 2018 report apart from two attempts to contact her with a view to organising a damp inspection. However, the landlord did raise repairs in early 2019 to address faulty brickwork and consider the condition of the roof – this indicates that the landlord identified there was a need for repairs to address the resident’s mould growth reports. It is unclear whether there was an outcome to the 2018 inspection attempts and when the 2019 brickwork repairs were completed. However, there was no further damp report from the resident until late 2019 so it would have been reasonable for the landlord to assume that its actions earlier in the year had resolved the problem.
The resident’s further damp report in late 2019 led to the landlord installing a ventilation unit at the property. This indicates the landlord had diagnosed that the damp would be alleviated by improved air flow at the property albeit no inspection report has been retained. It was appropriate that the landlord completed this repair within 60 calendar days as its repairs policy requires for a programmed repair.
However, the resident raised continued concerns in late January 2020 that the problem needed to be re-assessed due to extensive damp even after the ventilation unit was fitted; there is no evidence as to how the landlord addressed this further report prior to the resident raising the matter again in December 2020. This was inappropriate as the landlord should have retained records as to how it responded to the resident’s renewed reports in early 2020. There is no evidence of actions on the part of the landlord to address the resident’s concerns during this period which indicates that it delayed unreasonably in resolving the problem – this was inappropriate, particularly given the damp and mould had previously been described as ‘severe’.
Nevertheless, following the black mould repot in December 2020, the landlord took the following actions over the subsequent two months:
1. inspected the property twice (in January and February 2021)
2. raised and completed repairs in January 2021 to further improve the ventilation and air flow in the property
3. raised and completed repairs in February-March 2021 to assist heating levels to the property through additional insulation and front door adjustments
4. raised and completed repairs during January-March 2021 to treat affected surfaces through renewing plasterboard and using anti-mould paint
5. post-inspected the works in March 2021.

These were all reasonable actions on the part of the landlord to raise and complete repairs to address the cause and impact of mould growth to the property.

Following the landlord’s post-inspection in March 2021, the resident raised concerns that it had amended its diagnosis and was attributing blame to her for the condensation in the property. The landlord’s March 2021 feedback was consistent with its previous, and more recent, findings in that:
1. most repairs completed by the landlord in December 2019 and January-March 2021 were to improve ventilation and reduce heat loss, indicating that its diagnosis was that mould had been caused by condensation due to inadequate ventilation and heating in the property
2. its void inspector subsequently concluded that mould – other than in the kitchen – was due to condensation that was preventable with appropriate heating and ventilation.
However, it was inappropriate that the landlord referred to problems with ‘lifestyle’ in its internal discussions, feedback to the resident and liaison with her health visitor. This language implied that the landlord was of the view that the resident was at fault for the condensation problem and likely contributed to her losing trust in the landlord’s willingness to work with her to improve the situation.
Further, the conclusion of ‘lifestyle’ being the problem was not supported by any heating or air flow data and there are minimal records of the investigations undertaken by the landlord to monitor the cause, and level, of condensation between 2018 and 2021. It was also inconsistent with the repairs the landlord raised to brickworks in 2019 and its diagnosis that there was a breached damp proof course to the kitchen in June 2021. These factors indicate that the mould growth was not solely due to the resident’s use of the property and that the landlord did not have sufficient evidence that she had failed to heat and ventilate the property appropriately before it reached this conclusion.
In summary, although the landlord raised and completed repairs to address mould growth during 2019 and early 2021, it delayed unreasonably in responding to the resident’s report during 2020, failed to keep sufficient records of its diagnosis attempts and treated the resident in an unsympathetic manner when attributing mould growth to ‘lifestyle’.

Complaint handling

The resident made an initial complaint on 7 January 2021 which set out the background to her mould concerns, advised the landlord of the potential health implications to her and her family and made it aware of her concerns about damage to her possessions. The landlord was obliged to respond to the complaint within 10 working days according to its complaints policy but failed to offer a full response until 24 March 2021. This was more than two months outside of the required timescale so was inappropriate albeit the landlord did maintain communications with the resident during this delay period, taking actions to diagnose and complete works to the property and investigate the resident’s claim of damage to possessions.
When the resident made her complaint in January 2021, she sought compensation for items that she said he been damaged by mould. The landlord responded by asking for evidence of these items, inspecting the property in an effort to view damages and liaising with its insurance team. These were all reasonable actions on the part of the landlord to investigate the resident’s claim and demonstrate that it was willing to assess the resident’s allegations despite its policy that it does not compensate for damage caused by condensation.
The landlord’s decision (provided within the stage one complaint response) to reject the resident’s claim was appropriate given the lack of evidence it was able to obtain to demonstrate the damages that the resident had alleged and that its compensation policy sets out that it will only make financial awards for ‘quantifiable’ losses. Nevertheless, it is of concern that the landlord did not signpost the resident to an alternative recourse to pursue her claim such as through her contents insurance or a formal liability claim against it.
The resident submitted her complaint escalation on 24 March 2021 – this was primarily on the grounds that she disagreed with the landlord’s account of the surveyor’s visit earlier that month and that she had sent more photographs than the landlord had accounted for in its decision on her claim for damaged possessions. She also queried its diagnosis that she was to blame for condensation and suggested it should consider her utility bill as evidence.
The landlord issued its final complaint response on 21 April 2021. Although this was provided within the 20-working day timescale set out in the landlord’s complaints policy, the response was limited and only served to repeat the findings from the surveyor who attended in March 2021. The landlord failed to demonstrate that it considered the resident’s comments about the surveyor’s actions during the visit and the extent to which his report had matched his comments to her and did not address her concerns about the extent to which it considered photographic evidence to support her claim for damaged possessions and her offer to evidence that she had heated the property sufficiently. Although the landlord later offered to conduct a further survey (which the resident rejected), it was unreasonable that its final complaint response overlooked the specific concerns that the resident had highlighted in her complaint escalation.
In summary, the landlord delayed in responding to the resident’s stage one complaint and did not signpost the resident as to how she could pursue her claim for lost and damaged possessions. It also failed to investigate the resident’s specific concerns in its investigation at the final stage of its complaints process.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of:
1. the resident’s reports of mould growth in her property
2. the related complaint.

Reasons

The landlord failed to keep records of any steps it took to respond to the resident’s mould growth concerns from January-December 2020 and its language around its diagnosis of the cause of condensation was heavy-handed and unreasonably attributed blame to the resident.
The landlord delayed in responding to the resident’s initial complaint and failed to demonstrate that it fully investigated her concerns at the final stage of its complaints process.

Orders

The landlord to write to the resident to:
1. apologise for the service failures identified in this report;
2. offer her guidance on whether, and how, she may be able to make a formal insurance claim for damaged possessions.
The landlord to pay the resident compensation of £500, made up of:
1. £300 in recognition of the distress and inconvenience caused to her by the service failure identified in its handling of her reports of mould growth in her property;
2. £200 in recognition of the inconvenience and time and trouble caused to her by the complaint handling service failure.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

The landlord to review its handling of this case, refer to the Ombudsman’s ‘Spotlight Report: on Damp and mould’ (October 2021) and create an action plan within six weeks of the date of this report to ensure that:
1. it retains full inspection and diagnosis reports when assessing damp and mould growth reports from residents;
2. it avoids automatically apportioning blame to residents, or using language that leaves residents feeling blamed, when assessing the cause of condensation dampness.