Vivid Housing Limited (202121033)

REPORT

COMPLAINT 202121033

Vivid Housing Limited

15 July 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

The complaint is about the landlord’s:
1. Handling of the resident’s reports concerning damp and mould.
2. Response to the resident’s request to complete a management move.
3. Handling of the resident’s reports of Anti-social behaviour (ASB).

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
The resident reported that she had been experiencing noise nuisance from the neighbour above. In accordance with paragraph 39 (o) of the Housing Ombudsman Scheme, we will not investigate matters which the Housing Ombudsman has already decided upon. Therefore, the issues relating to the resident’s complaint about noise nuisance (ASB) prior to the Ombudsman decision in 2019, will not be considered in this investigation, as they have already been investigated by this Service in case 201715099.
The resident raised an initial complaint on 21 July 2021, regarding the length of time between her original appointment which had to be cancelled and her rebooked appointment. The resident also stated she was unhappy with the landlord’s handling of a leak from the property above. The Ombudsman cannot consider this issue in accordance with paragraph 39(a) of the Housing Ombudsman Scheme which states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s [landlord’s] complaints procedure unless there is evidence of a complaint handling failure, and the Ombudsman is satisfied that the member has not acted within a reasonable timescale.
As this is a separate issue to the complaint raised with the landlord, this is not something on which this Service can adjudicate at this stage, as the landlord first needs to be provided with the opportunity to investigate and respond to this aspect of the complaint before the Ombudsman can consider it. The resident will need to contact the landlord and, if appropriate, raise a separate complaint to get these matters resolved. If the resident remains dissatisfied once she has received the landlord’s final response to her complaint, she may then be able to refer the matter to the Ombudsman for investigation as a separate complaint.

Background

The resident is an assured tenant of the landlord. The resident resides in a two-bedroom property.
On 10 August 2021, the resident complained to the landlord. She stated that she had been experiencing noise nuisance from the property above. The noise included the sound of children jumping off sofas and playing loud music whilst she was not in the property. She also stated that she had damp and mould in her property. The resident also stated that she would like to be moved from the property as she could no longer afford it.
During a phone conversation on 10 August 2021, in an attempt to resolve the ASB, the landlord offered to speak to the residents from the property above. However, the resident refused this offer due to her concerns that it would cause an increase in the noise nuisance and lead to ‘snotty notes’. The landlord also informed the resident to contact environmental health, however the resident refused this also, as she felt this would ‘not benefit’ her.
On 11 August 2021, the landlord issued its stage one response. The landlord stated that due to the previous noise complaint (see jurisdiction) being deemed as ‘daily living noise’ she would need to contact environmental health, so that it could take the lead on any new noise nuisance complaints and fit suitable recording equipment. The landlord also stated that if the property above was playing loud music whilst she was not in the property, this would not be a nuisance to herself as she was not present. The landlord explained that it there was a lack of evidence to support any noise nuisance claim, and without the resident’s co-operation it could not investigate her claims. It also stated that currently it possessed no evidence to support a management move for the resident, however it would consider a doctor’s letter, should the resident provide one. The landlord suggested the resident look to exchange properties on ‘Homeswapper’.
On 12 August 2021, the resident requested that her complaint be escalated. The resident stated she had contacted environmental health and was awaiting a response, but had done so in the past and not received one. She stated the landlord made it seem as though she was ‘refusing advice’ when she was not. She advised she believed she was at a disadvantage in relation to swapping properties due to the damp and mould issue in her property, as ‘nobody would swap’.
On 16 August 2021, the resident called the landlord to discuss a recent survey completed by a damp and mould specialist. The resident stated she did not agree with the surveyor’s findings. The landlord advised the resident, that she could pay for a private surveyor; however, the resident stated she could not afford to do this. The resident stated that if the surveyor found the current ventilation system to be at fault, she would seek full compensation for damaged items. This specific surveyor report was not provided to this Service.
The landlord’s specialist damp and mould contractor visited the resident’s property on 18 August 2021. It reported that the ventilation system in the property was not working ‘correctly’, as it was performing below the standards required. Therefore, it recommended the full unit be replaced.
On 23 September 2021, the landlord visited the resident’s property, where it found it to be ‘damp’. The landlord subsequently offered the resident a temporary decant (temporary move), but the resident rejected this offer. This offer was reiterated to the resident on 24 September 2021, however, the resident stated she would only accept a management move and discussed making herself homeless with the landlord as an alternative.
On 5 October 2021, the landlord contacted the resident to discuss the decant, as the resident had subsequently accepted its offer. The landlord informed the resident that it had found an ‘Air B&B’, however, the resident rejected this offer as she did not want to stay in ‘somebody else’s property, to which the owner would have access’. As an alternative the landlord offered the resident the option to decant to a hotel; however, the resident rejected this due to the hotel having no cooking facilities and she could not afford to eat out. The landlord attempted to gather the resident’s view on the appropriate place to decant her to, but the resident was unsure about a solution.
On 11 November 2021, the landlord issued its stage two response. It stated that in 2019 and 2020, the ventilation system in the property was serviced and overhauled. However, due to the recent survey it identified that the ventilation system needed to be fully replaced. It also stated that, the decant did not ‘work-out’ for the resident, therefore, she subsequently returned to the property which in turn, delayed repair works to the ventilation system, which had been rescheduled to 17 December 2021. In relation to the resident’s concerns regarding her insurance claim, the landlord stated that the onus was on the resident to substantiate the claim made. The resident had not yet done so, and therefore, the insurers could not offer the resident a figure. It stated that any further issues surrounding the insurance matter should be referred to its insurer. The landlord offered the resident £450 compensation in recognition of the delay in its complaint response and poor communication.
The resident referred the complaint to the Ombudsman on 12 December 2021. The resident stated she was unhappy about a number of issues including:
1. The compensation offered by the landlord and the offer made by its insurers, as she had submitted a claim worth over £5000.
2. The landlord’s claims that the ventilation system was ‘overhauled’ and ‘serviced’ in 2020 and 2019 respectively.
As an outcome the resident is seeking compensation of £5500 and to be rehoused permanently.

Assessment and findings

Policies and procedures

The landlord’s website states that, it will deal with damp and mould in stages. Firstly, it will ask the resident to monitor the damp and mould within six weeks. If the damp and mould does not improve, it will send out a damp and mould specialist to carry out a full survey of the resident’s property.
The landlord’s decant policy states that, where accommodation is required on long term basis, it will look to rehouse the resident into alternative temporary accommodation for the period of the works. Options include:
1. Staying in a B&B (bed and breakfast) or hotel accommodation at the landlord’s expense (for a short period of time).
2. Staying with friends or relatives.
The landlord’s website states that it does not class the following acts to be Anti-social behaviours:
1. Noise from children playing;
2. Normal living noise such as opening and closing doors, going up and down stairs or people talking;
3. Noise of a vacuum cleaner, washing machine or DIY; and
4. Clashes of lifestyle.
When residents inform the landlord of something that it does not class as ASB, it will attempt to get both parties to see things from the others point of view. It also states that, it may ask other agencies to be involved in investigating the ASB such as environmental health.
As per the landlord’s management move process, it states that, a resident may need to move urgently for the following reasons:
1. Extensive repair works where a temporary decant isn’t appropriate (Temporary decant must be considered in the first instance)
2. There is an evidenced medical need where an immediate move is necessary.
3. Anti-social behaviour and a move to alternative accommodation is believed to be the only solution.
4. Where a resident is under occupying and is unable to meet the rent payments.

Damp and Mould.

As per the landlord’s website, if an issue regarding damp and mould is reported for more than six weeks with no improvement, it will hire a surveyor to attend the property. In this case the landlord did hire a surveyor to attend the property to assess the damp and mould.
It is generally accepted that damp and mould, can take multiple attempts to fully treat and resolve. In this case, the landlord had specialist damp and mould contractors attend the property and complete a report, highlighting what work needed to be completed to resolve the damp and mould. Subsequent to the specialist report, the landlord did complete work in the property such as renewing the ventilation system in the property, to which it relied upon its experts’ opinions, would resolve the damp and mould. Therefore, the landlord has attempted to resolve the damp and mould.
This Service does appreciate the resident’s frustration regarding the damp and mould. However, the landlord’s actions have been reasonable in attempting to resolve the damp and mould.
The resident stated she did not believe that the landlord ‘serviced’ and ‘overhauled’ the previous ventilation system. However, from the repair logs provided it appears that the landlord did complete this work. This Service has not seen any document to prove the contrary. Therefore, the landlord acted appropriately in informing the resident that the work was completed.
The resident was also unhappy with the landlord’s handling of the decant. The landlord’s policy states that where a decant is required for a short period of time, it may consider decanting the resident to a B&B or hotel accommodation. The landlord offered the resident these two solutions as options for her temporary decant. Therefore, the landlord acted within its policy obligations and reasonably dealt with the handling of the decant.
The resident placed an insurance claim for her personal possessions which had been damaged due to damp and mould; however, the landlord’s insurers did not fully pay the resident’s claim. The Ombudsman is unable to comment on the outcome of the insurance claim as this Service can only consider the actions of the landlord, and the Ombudsman has no jurisdiction over the landlord’s insurers.As per good practice, it would have been appropriate for the landlord to havesignposted the resident to its insurance team, as the resident made it clear that she believed it was, at least in part, liable for damaged items, and the landlord hadaccepted that its actions, or inaction, may have played a part. Nevertheless, it is the resident’s responsibility to ensure she has insurance on personal items. The landlord would not be expected to pay the cost or replace the damaged items and its advice to refer the matter to insurers was therefore correct in the circumstances.
Overall, the landlord offered £450 compensation for distress and inconvenience caused by delays in the repairs, poor communication, and delays in its complaint responses. This offer is in line with the Ombudsman’s remedies guidance (published on our website) which sets out the Ombudsman’s approach to compensation for distress and inconvenience. The remedies guidance suggests awards of £250 to £700 for cases where there has been considerable service failure or maladministration by the landlord, but there may be no permanent impact on the complainant. In this case, the delayed repairs and poor communication would have caused considerable distress and inconvenience to the resident but ultimately the landlord responded reasonably to the residents reports of damp and mould, apologised for its errors, and offered appropriate compensation.

Management Move.

The resident informed the landlord that she wanted to be moved permanently due to the effect of the damp and mould and affordability concerns. The landlord stated that management moves would not typically be considered, where damp and mould was the concern, however, due to the impact on the resident’s mental and physical wellbeing, it would consider the resident’s request. This was above the landlord’s policy, but reasonable in that it used its discretion.
The resident also raised concerns regarding the affordability of her rent. Whilst this Service appreciates the resident’s concerns, the landlord’s policy states that a management move will be considered where the resident is under occupying and is unable to meet rent payments. In this case, the resident resides in a two-bedroom property to which every bedroom is occupied. The landlord also acted reasonably in informing the resident, that despite a management move, it could not guarantee that her rent payments would decrease, and, in the meantime, it could consider what support it could provide. Therefore, there was no obligation for the landlord to consider the resident for a management move.
The Ombudsman can understand the resident’s reasons for wanting to move, however, this decision must be made by the landlord. This is because it has the appropriate information regarding the availability of suitable vacant properties at any one time and details of any other prospective tenants waiting to move who may have higher priority than the resident for rehousing, such as people facing homelessness or fleeing domestic violence. It is recommended that the landlord should continue to support the resident with her request to transfer from her current property and discuss her options with her if it has not done so already.

Noise Nuisance.

As discussed above (see jurisdiction), consideration has been given to reports of ASB post-2019.
The resident reported that she had been experiencing noise nuisance from the property above. Namely, the resident stated she heard ‘the same noise as usual’ which included: children jumping off sofas, stomping, thudding and loud music when she was not in the property. The resident felt that this was more than ‘usual living noise’.
As per the landlord’s policy, noise coming from children playing would not be deemed a noise nuisance, therefore, the landlord was not strictly obligated to investigate these claims. However, the landlord did inform the resident to contact environmental health to gather further evidence. This was in-line with its policy and therefore, the landlord acted reasonably in its handling of the reports of ASB.
The landlord also stated that, in regard to the loud music being played whilst the resident was not in the property, this would not be considered ASB as this could not affect the resident if she was absent at the time. This Service finds that this is a reasonable response to the resident’s concerns, as in line with good practice, ASB cannot be concluded if the resident is not directly affected. Therefore, the landlord responded reasonably to this aspect of the alleged ASB.

Determination

In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation which, in the Ombudsman’s opinion, resolves the complaint regarding its handling of the resident’s reports of damp and mould, satisfactorily.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the landlord’s response to the resident’s request to complete a management move.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the landlord’s handling of the resident’s reports of ASB.

Recommendation

The landlord is recommended, within four weeks, to pay the £450 compensation if it has not done so already as this is the basis for the finding of reasonable redress.