Welwyn Hatfield Borough Council (202107327)

REPORT

COMPLAINT 202107327

Welwyn Hatfield Borough Council

26 January 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 concerns about the condition of the property at the start of her tenancy.
   2. The landlord’s response to the resident’s reports of damp and mould throughout the property and its handling of repairs.
   3. The landlord’s response to the resident’s request for an inspection of the property by the Environmental Health team.
   4. The landlord’s complaints handling.

Background

2. The resident occupies the property, which is a 2-bedroom bungalow, under a secure tenancy agreement with the landlord. The resident suffers from respiratory and pulmonary related health conditions.
3. The resident’s tenancy began on 4 March 2019, but she did not move into the property until 24 April 2019. The resident states that this was due to outstanding repairs issues, including works to replace the boiler and address leaks, and the presence of damp and mould.
4. In 2019, the resident made a formal complaint to the landlord about the condition of the property at the start of her tenancy, its handling of repairs, and its failure to resolve the damp and mould. The complaint completed the landlord’s formal complaints process on 14 November 2019. Between November 2019 and February 2021, the resident continued to report issues with damp and mould at the property, stating that the landlord had failed to address the underlying cause and to complete required works to the guttering, loft insulation, decommissioned water tanks and an extractor fan. The resident complained about the overall condition of the property, raising concerns about gas and electrical safety. The resident involved her Local Councillor and MP, who liaised with the landlord on the resident’s behalf. She then submitted another formal complaint which the landlord initially responded to in February 2021.
5. In response to the resident’s concerns the landlord re-inspected the property. It initially confirmed that no further works were required to the loft insulation, water tanks, guttering, or extractor, although it later agreed to reposition the loft insulation to provide better coverage. In its complaint responses the landlord explained that damp meter readings within the property were normal and that the presence of damp and mould was due to condensation. The landlord assured the resident that the property had all necessary gas and electrical certification and encouraged her to heat the property and increase ventilation to help reduce the presence of mould. The landlord concluded that it had acted reasonably in response to the resident’s concerns and the complaint was not upheld.
6. The resident remains dissatisfied with the landlord’s response to her concerns. She wants the landlord to apologise for its poor service, resolve the damp and mould issues, and compensate her for the delay in completing works to her property. She has asked the landlord to move her to a different property, as she believes her current property is unsuitable and hazardous to her health.

Assessment and findings

Jurisdiction

7. Paragraph 42(b) of the Scheme states that the Ombudsman will not normally investigate complaints brought to this Service’s attention more than 12 months after exhausting the landlord’s complaints procedure.
8. The resident’s initial complaint made in March 2019 received a final response on 14 November 2019. Although it is noted that the final response incorrectly referred the resident to the Local Government and Social Care Ombudsman (LGSCO), there is no record that the resident’s concerns were referred to this Service until June 2021. Had the resident contacted the LGSCO about her complaint, she would have been advised to refer the matter to this Service. The resident’s complaint about the condition of the property at the start of her tenancy is therefore outside the Ombudsman’s jurisdiction, in accordance with paragraph 42(b).

Concerns about damp, mould, and the landlord’s handling of repairs

9. The landlord’s position at the conclusion of the formal complaint made in 2019 was that there was no evidence of a defect or repairs issue that was causing or exacerbating the presence of damp and mould within the property. As that complaint was not escalated to this Service, this investigation is focussed on the landlord’s response to the resident’s reports of damp and mould after that time.
10. The Ombudsman’s view is that landlords should adopt a zero-tolerance approach to damp and mould. Landlords should be pro-active in carrying out appropriate investigations and ensure that the outcome is clearly and promptly reported to the resident. Where damp and mould are identified but the cause is found to be non-structural, and not due to a defect, the landlord should still work with the resident to resolve the issue. Landlords should not automatically apportion blame to tenants who report damp and mould, and that residents should be treated with respect and empathy.
11. In March 2020, the resident’s GP wrote to the landlord to report that there was damp and mould within the resident’s property, which was aggravating her existing health conditions. There is no evidence that the landlord contacted the resident on receipt of this letter and, according to the evidence, the next time the landlord inspected the property was in September 2020, following contact from the resident’s local councillor.
12. It is noted that the landlord provided a damp and mould leaflet to the resident in March 2020.  However, providing guidance to residents does not diminish a landlord’s responsibility to be proactive in responding to individual reports of damp and mould.  Therefore, it should have arranged an inspection of the property, particularly given the concerns raised in the GP’s letter. Overall, the landlord should have been more proactive in its response to the resident’s reports of damp and mould between December 2019 and September 2020.
13. The landlord thereafter completed several inspections of the property between September 2020 and November 2021. Damp meter readings were taken at a visit on 11 September 2020, but no areas of concern were identified. The landlord attributed areas of visible mould to condensation and arranged for the application of a mould wash and stain block to affected areas in the property’s bathroom. This was completed on 4 November 2020. Following a second inspection in February 2021, the landlord ordered a second application of the mould wash.
14. In response to the resident’s concerns about the presence of damp and mould post-September 2020, the landlord carried out investigations to establish the extent of damp and mould and the cause, which was appropriate.  As it found no evidence that the damp and mould was due to the property’s fabrication, or to a defect, it was reasonable that it treated the presence of mould with a mould wash and stain block.
15. The resident believed that outstanding repairs were contributing to the presence of damp and mould within the property. The landlord’s repairs records show that it attended to complete guttering repairs in November and December 2020 and January 2021. There is also evidence that the landlord completed works to an extractor fan in February and March 2021.  Jobs were raised to lift and reposition loft insulation in February 2021 and December 2021, but it appears that this work was not completed.
16. In July 2021, the resident’s solicitors wrote to the landlord under the pre-action protocol for disrepair claims. The landlord inspected the property on 26 July 2021. It reported to its legal team that it had found no evidence of leaks, mould regrowth in the bathroom following the mould wash, or damp and mould in other areas. However, the inspection recommended the investigation of and repair of an extractor vent and flexi hose, a leaking pipe in the loft space and a leak below the timber floor.  
17. In its stage 2 complaint response of 24 February 2022, the landlord referred to the report of an independent surveyor from November 2021. The report recommended repositioning the loft insulation and noted minor mould growth, attributed to failure to use the heating system. Some minor repairs were agreed, which were not related to the mould, but it was noted that the resident had refused access for these to be completed. Under the terms of the resident’s lease, she is required to provide access to the landlord to complete repairs. The landlord completed another mould wash in February 2022, which was reasonable as this had been effective previously and the November 2021 report noted that the mould growth was minor. However, the landlord has not provided evidence of the inspection of November 2021 which is a significant omission given its reliance on the findings of this inspection.
18. Furthermore, several repairs were raised by the resident and/or identified by surveyors at different times including repositioning of the loft insulation, fitting pipe insulation to a pipe in the loft, and an underfloor leak (which the resident advised was outstanding from her previous complaint). The landlord’s repairs records provided to this investigation do not provide sufficient detail for the Ombudsman to determine whether jobs were attended to within a reasonable time and in line with the requirements of its repairs policy. It is not clear when the issues were first reported, and the landlord’s notes do not adequately describe the works carried out or efforts made to gain access or provide a completion date. This is a service failure as clear record keeping and management is a core function of a repairs service, not only so that a landlord can provide information to the Ombudsman when requested, but also because this assists the landlord in fulfilling its repair obligations. Accurate and complete records ensure that the landlord has a good understanding of the age and condition of the structure and its fittings within the property, enable outstanding repairs to be monitored and managed, and enable the landlord to provide accurate information to residents.
19. The landlord advised that heating the property and increasing ventilation may help to reduce the damp and mould issues. It noted that the resident was reluctant to use the property’s heating system due to safety concerns and the landlord’s notes record that she had taped over the extractor fan, preventing it from operating correctly. The resident explained that this was due to a backdraft. The Ombudsman notes that the resident’s co-operation is required to resolve damp and mould issues, and to support any action taken by the landlord. It would not be fair to attribute blame to the landlord for the ongoing presence of damp and mould where a resident had deliberately reduced ventilation. However, the landlord had a responsibility to resolve the resident’s concerns about ventilation including checking that the kitchen extractor was sealed correctly and fitting a grill for blowback from bathroom extractor.  The landlord has referred to access difficulties, but it is not clear from its records what efforts it made to gain access.
20. Generally, the landlord’s communication with the resident about the concerns she had raised could have been better. There is no evidence that the landlord wrote to the resident to advise her of outcome of inspections, although internal notes on the landlord’s system do record the advice given to the resident at each visit. The landlord could have done more to manage the resident’s expectations about the action it could reasonably take to resolve the issues, in particularly as several repair issues were repeatedly raised. Furthermore, it is not evident that the landlord gave due consideration to her health conditions and vulnerabilities, demonstrating a lack of empathy. 
21. In summary, the landlord should have been more proactive in its approach to investigating and resolving the damp and mould between December 2019 and September 2020. Although after that time the landlord did investigate, took some steps to remove the mould and prevent regrowth, and provided advice to the resident, there is no evidence that it actively monitored the situation after each mould wash treatment was applied, meaning that the resident had to continually reraise her concerns. This, together with the fact that the landlord did not communicate appropriately with the resident, failed to keep adequate records and did not take adequate steps to resolve all repairs raised and identified, amounts to maladministration.

Response to request for Environmental Health inspection

22. On 3 February 2021 Citizens Advice emailed the landlord’s Environmental Health team on behalf of the resident to request an inspection of the resident’s property. The landlord’s internal emails show that this request was forwarded to its maintenance team on 4 February 2021. There is no evidence that the landlord provided a response to the request for an inspection by Environmental Health, either to Citizens Advice or to the resident directly. This aspect of the complaint was also not addressed in the landlord’s final complaint response of 24 February 2022, despite being explicitly referred to in complaints submitted by the resident on 16 and 31 March 2021, and on 6 and 23 April 2021.
23. The Ombudsman considers that there was service failure in the landlord’s response to the resident’s request for an inspection of the property by its Environmental Health team. The landlord failed to progress the resident’s request, or to provide an explanation as to why an inspection would not take place.

Complaints Handling

24. The landlord’s Complaints Policy states that complaints will be recorded and acknowledged within 3 working days. At stage 1, the landlord aims to respond in 10 working days, and at stage 2, within 20 working days. Where a landlord is unable to respond within its published timescales, it should write to the resident to provide an update.
25. Whilst it is acknowledged that the landlord had previously responded to a complaint about damp and mould in 2019, it was still required to respond to further complaints about ongoing issues after the final complaint response. Although the landlord has provided correspondence between the resident and her local councillor and Citizens Advice to this investigation, it has not provided a copy of the resident’s complaints of 23 December 2020, and 3 and 5 February 2021, referred to in its stage 1 response. Without this information, the Ombudsman is unable to assess whether the landlord’s response adequately dealt with all points raised.
26. The landlord’s stage 1 complaint response was provided in excess of the 10-day target, and it did not explain why it failed to respond to the resident’s formal complaint of 23 December 2020. The Ombudsman notes that providing a response to the resident’s local councillor or another party does not mean that the landlord does not need to provide a complaint response to the resident.
27. On receipt of the stage 1 complaint response, the resident submitted further complaints to the landlord on 16 and 31 March 2021, and 6 and 23 April 2021. There is no evidence that these communications were followed up by the landlord, either as an escalation of the previous complaint, or logged as new complaints. It was only following contact from this Service that the landlord escalated the complaint, and a stage 2 response was eventually provided in February 2022. The landlord should have been more proactive in assisting the resident to progress her complaint, as it was clear from her communications that she remained dissatisfied.
28. In an email to this Service, dated 29 October 2021, the landlord explained that the resident had not sent an escalation request to the email address provided in its complaint closure letter. The Ombudsman does not accept this as a reason for failing to respond. The landlord should have systems in place to ensure complaint escalation requests or expressions of dissatisfaction reach the relevant team.
29. The landlord also informed this Service that when the pre-action protocol for disrepair claims has been initiated, it will not normally respond under its complaints process. This is contrary to the Ombudsman’s guidance on the interaction of the complaints process with legal claims for disrepair. The Ombudsman’s spotlight report on damp and mould is clear that landlords should continue to use the complaints process until legal proceedings have been issued, to maximise the opportunities to resolve disputes outside of court.
30. Due to the delay in responding to the resident’s complaints at each stage and the landlord’s failure to progress the complaint and escalation request, the Ombudsman considers that there was maladministration in its handling of the resident’s complaints.

Determination

31. In accordance with paragraph 42(b) of the Scheme, the resident’s complaint about the condition of the property at the start of her tenancy is outside the Ombudsman’s jurisdiction.
32. In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in respect of its response to the resident’s reports of damp and mould and its handling of associated works.
33. In accordance with paragraph 52 of the Scheme, there was service failure by the landlord in respect of its response to the resident’s request for an inspection of the property by the Environmental Health team.
34. In accordance with paragraph 52 of the Scheme, there was maladministration by the landlord in respect of its complaints handling.

Orders

35. Within four weeks of the date of this report, the landlord must inform this Service that it has complied with the following Orders to:
    1. Pay the resident £250 in recognition of the failings identified in the landlord’s response to the resident’s concerns about damp and mould.
    2. Pay the resident £100 in recognition of the landlord’s poor communication and complaints handling.
    3. Provide a written apology to the resident for the failings identified in this report.
    4. Contact the resident to determine whether damp and mould continues to be a problem and, if so, agree an action plan to manage the issue going forward.

Recommendations

36. It is recommended that the landlord review its record keeping policies and procedures and its complaints handling processes, to ensure that adequate records are kept and that all communications are followed up within the appropriate timeframes.