Orbit Housing Association Limited (202208654)

REPORT

COMPLAINT 202208654

Orbit Housing Association Limited

18 October 2024

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 of damp and mould in his property.
2. decision not to offer compensation for the impact of the damp and mould on his health.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident lives in a single occupancy bedsit under an assured shorthold tenancy which began on 26 March 2019. His current rent is £95.18 per week.
The resident has informed this Service that he has asthma. The landlord’s records do not record any vulnerabilities for the resident.
The resident’s complaint centres around longstanding damp and mould issues within the property. This included reports of damp in the walls of the hallway, cupboards, bathroom and kitchen following a leak.
On 15 June 2023, the resident raised a formal complaint in which he said:
1. There was mould present in his kitchen, bathroom and storage room. He had painted over this, but it had returned.
2. The landlord had failed to log his complaint when it was first raised on 21 February 2023. He was therefore chasing the matter.
The landlord acknowledged the resident’s complaint. The date of the acknowledgement is unclear from the evidence. However, the landlord did not go on to issue a stage 1 response. It closed the case citing “non-contact” from the resident. The resident asked for his complaint to be escalated to stage 2 on 11 July 2023. He said that he had not responded to the landlord’s acknowledgement letter because it had not asked him to and because he had already provided the landlord with his grounds for complaint.
The landlord issued its stage 2 complaint response on 19 September 2023. It said it upheld the resident’s complaint. The landlord acknowledged that issues related to damp and mould were outstanding. However, it said that it had completed a damp and mould survey on 11 September 2023 and was awaiting the recommendations from the contractor. The landlord apologised for the delays and offered £420 compensation to the resident.
The resident remained dissatisfied and escalated his complaint to the Ombudsman on 2 October 2023. He said:
1. The damp and mould issues were ongoing and had caused damage to his possessions.
2. The damp and mould was impacting on his asthma and he previously had to stay in a hotel for 5 nights.
3. He had spent extra money on cleaning products and utility bills to manage the damp in the property.
The landlord logged a second complaint in early 2024, but has not provided to the Ombudsman a copy of the complaint received. The landlord issued a response on 28 February 2024 in which it said:
1. It acknowledged that the works to repair the damp and mould took nearly one year to resolve (342 days) from when it was first reported on 21 February 2023 to completion on 29 January 2024. It offered £1 per day in compensation to reflect this.
2. The works had been delayed by a combination of contractor delays and no access appointments from the resident.
3. It recognised that the resident had needed to chase the repairs and that its communication had been poor at times between all parties.
4. It apologised for the delays and offered a total of £642 compensation as redress for this. This comprised awards of £30 for missed appointments, £70 for service failures and £200 for distress and inconvenience.

Jurisdiction

When a resident brings a complaint 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 we have determined that some elements of the complaint, as set out above, are not within the Ombudsman’s jurisdiction.
As part of the complaint, the resident sought compensation from the landlord for the impact of the damp and mould on his health, this is known as a personal injury claim. In particular, the resident stated that the damp and mould present in the property had worsened his asthma and necessitated a hospital visit.
Paragraph 42.f. of the Housing Ombudsman Scheme states that “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, tribunal or other procedure.”
The Ombudsman is unable to draw conclusions on the causation of, or liability for, personal injury, therefore we will not consider this element of the resident’s complaint. We can give an opinion as to whether the landlord responded in a reasonable manner to the resident’s reports of damp and mould, however, claims of personal injury must be decided by insurers or a court of law who can assess specialist medical evidence and make a judgement on the merits of the case. Therefore, in accordance with paragraph 42.f. of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s decision not to offer compensation for the impact of the damp and mould on his health is outside the jurisdiction of the Ombudsman. We understand that this situation has been very stressful for the resident and therefore he may wish to seek independent advice on making a personal injury claim if he considers that his health has been affected by any action, or lack thereof, by the landlord

Assessment and findings

Scope of investigation

The evidence provided in this case indicates that there have been reports of damp and mould in the resident’s property since 2014. However, there is no evidence of a formal complaint being made until 15 June 2023. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner, so that the landlord has a reasonable opportunity to consider and resolve the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events which occurred. This is in accordance with paragraph 42.c. of the Housing Ombudsman Scheme in force at the time of this complaint. This says that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, were not brought to the landlord’s attention as a formal complaint within a reasonable period, which would normally be 6 months of the matters arising.
On this basis, this investigation will only consider matters raised by the resident from 15 December 2022 onwards, as this was 6 months prior to the resident’s formal complaint. Matters raised prior to this time were not brought to the attention of the landlord as a formal complaint within a reasonable period and will not be considered as part of this determination.

Damp and mould in the property

The resident reported longstanding damp and mould in his formal complaint on 15 June 2023. He indicated that he had advised the landlord of this at an earlier stage. The landlord’s repair records indicate the landlord was aware of issues in the property related to damp and mould since 2014.
The Ombudsman sets out our zero-tolerance approach to damp and mould in our spotlight report ‘Damp and Mould: It’s not a lifestyle’ which is available on our website.
Under Section 9A and 10 of the Landlord and Tenant Act 1985, landlords have a statutory duty to ensure that their homes are fit for human habitation and are free from ‘prescribed hazards’ which includes damp.
Additionally, Part 1 of the Housing Act 2004 defines category 1 and 2 ‘hazards’ under the Housing Health and Safety Rating System (HHSRS). Damp and mould can be a prescribed hazard under this legislation if it is in a state that may cause harm to health. Landlords must take appropriate action to remove these hazards or make them safe for residents.
The landlord’s repairs policy outlines timescales to attend different priorities of repairs, as follows:
1. Emergency repairs – within 24 hours.
2. Routine repairs – within 28 calendar days.
3. Cyclical and planned works which are determined based on the type of work undertaken.
The policy also outlines that the landlord will undertake a damp and mould assessment prior to any works, where damp or mould forms part of the repair request.
Following the resident’s formal complaint, the evidence shows that the landlord completed its initial survey on 11 September 2023. This was almost 3 months after the resident’s formal complaint and 7 months after his initial

report of 21 February 2023, which was an unreasonable delay, outside the timeframe for routine repairs. The landlord’s repair records show that it took the following action:

On 28 September 2023, it raised works to address damp in the resident’s bathroom, hallway, bedroom and skirting boards. This included installing a new extractor fan and making good the decoration within the property. The landlord raised these works 3 months after the resident’s complaint and 7 months after it was notified of the issue in February 2023. This was an unreasonable delay by the landlord to action the necessary works.
It completed a damp and mould survey which identified that a leak was present in the property, however, it said it could not source where it was coming from. The contractors believed it was either under the bath, under the floor or coming from a neighbour’s property. The landlord’s records do not indicate when this survey took place or provide any details of the types of inspections undertaken. This was evidence of poor record-keeping. Given the nature of the issue, the landlord ought to have been able to demonstrate that this was treated as an emergency repair and addressed within 24 hours in accordance with timescales in its repair policy.
The resident told this Service that the landlord completed works in October 2023 to resolve damp in his storage room. This included removing the plaster. At the time of investigation, the resident said that the landlord has not made good this room and it remains without plaster on the wall. The landlord’s repair records indicate that the damp plaster was hacked off and that “renovation plaster” was required; however the records do not show this being completed.
It installed the new extractor fan in the resident’s bathroom on 20 November 2023.
Its contractor visited on 12 December 2023 to take action to stop a slow leak. The records do not indicate what work the contractors completed on this date. This was evidence of poor record-keeping. This appointment was followed by another on 29 December 2023 and therefore it would appear that the contractors were not successful in resolving the leak during this visit.
Its contractor attended on 29 December 2023 to investigate and repair the leak, ahead of planned damp proofing works in the new year. The landlord’s records show that this appointment was attended to but do not detail what work was undertaken or whether this was successful in addressing the leak. This was further evidence of poor record-keeping.
It scheduled damp proof works in January 2024. This included removing plaster from the walls, renewing damaged skirting boards and installing an extractor fan. The records indicate that the resident did not give access for these appointments. Ultimately, the job order was shown as completed on 22 January 2024 following a further no access visit.

During these repairs, the landlord sent a text message to the resident on 21 December 2023 saying that all the works had been completed. The resident contested this as the leak was ongoing and the water damage or damp and mould had not been addressed. As the landlord indicated that it would not carry out further works, it caused the resident additional distress, inconvenience, time and trouble in pursuing the complaint and outstanding repairs. This was inappropriate and an avoidable failure because the landlord ought to have been certain the repairs were completed before it communicated this with the resident.
The landlord’s stage 2 complaint response acknowledged that there had been poor communication between the landlord, resident and contractor throughout the course of this complaint. This caused additional time and trouble for the resident in pursuing both the repairs and complaint to completion. Alongside this, the lack of evidence provided to this Service by the landlord has hindered the Ombudsman’s ability to assess this case. This included missing complaint documentation and poor repair records which are not sufficient to determine what level of survey or works were undertaken at each appointment, or when these actions were completed. As a result, the Ombudsman is unable to verify the landlord took reasonable and sufficient action to resolve the resident’s reports about his property.
The landlord’s complaint responses and repair records indicate a series of no access visits throughout October and November 2023 and January 2024. The landlord attributed this to some of the delay in resolving the damp and mould. The resident contested this and said that the appointments were often made less than 24 hours in advance and only communicated by text message. The landlord’s repair records do indicate missed appointments, however insufficient evidence has been supplied to determine how and when these appointments were communicated to the resident. The landlord’s Repairs Policy states that it will “also text you a reminder the day before the appointment, and when the contractor’s on their way”. This indicates that initial text should be at least 2 days prior to the appointment. The landlord’s records do not confirm that it met this requirement.
Ultimately, the landlord’s repair records show that the works were listed as completed on 22 January 2024. The landlord sent an email to the resident on 12 February 2024 indicating that the works had been completed and that the case would be held open for 3 months, before being closed. It sent a further complaint response on the basis that works were completed and the resident’s damp and mould case went to Aftercare on 29 January 2024. However, the landlord’s repair records do not confirm that works had been completed, simply that it had closed the works orders.
In correspondence with this Service at the time of investigation, the resident indicated that the extractor fan had been installed in November 2023 and the plaster had been removed in the damp storage room in October 2023. However, he said that the works to rectify the damp skirting boards and walls throughout the property, replaster and undertake decorative works had not been completed. The resident said the leak was ongoing at the time of investigation and was present each time the pressure in his boiler rose.
Overall, the landlord was put on notice of a damp and mould issue by the resident on 21 February 2023, according to its complaint response of 28 February 2024. The resident’s formal complaint on 15 June 2023 again brought these issues to the landlord’s attention. The damp and mould issues, including a leak, have not been resolved at the time of this investigation according to the resident’s statements. The landlord’s repair records also do not provide confirmation that it has completed works to stop the leak and to eradicate the damp and mould in all areas, or that it has taken steps to confirm the effectiveness of any works completed. The Ombudsman therefore considers the landlord has failed to make a lasting and effective repair to the leak in accordance with its statutory repairing obligations.
In addition, the landlord unreasonably delayed in completing the works to make good the property. It said that they were completed in January 2024, however, the landlord’s repair records do not show that these works have been completed. Furthermore, the resident says these works remain unresolved at the time of this investigation, which is a period of around 15 months after his formal complaint and 19 months after his initial report of 21 February 2023. During this time the resident has been living in a home which may not be fit for human habitation due to unresolved damp and mould issues.
Further, there is no indication that other works have been completed, or that any form of mitigation, such as extractor fans, have been provided to the resident in the meantime. Elements of this complaint, such as a leak, should in the first instance have been treated as an emergency repair and addressed within 24 hours. Otherwise, repairs should have been completed within the timeframe for routine repairs, 28 days. Therefore, the landlord’s own policy timescales were greatly exceeded in this case.
Overall, there has been severe maladministration in the landlord’s handling of the resident’s reports of damp and mould in his property for the following reasons:
1. The landlord delayed in resolving a leak and the ensuing damp and mould for over a year since it was put on notice on 21 February 2023. During this period the resident has been living in a property which may not be fit for human habitation.
2. The landlord failed to demonstrate that it had made a lasting and effective repair to the damp and mould as the resident reported this had returned despite its interventions.
3. The landlord’s record-keeping was poor because its repair records were incomplete and did not provide a level of detail sufficient to assess which surveys or works have been undertaken and when these were completed.
4. The landlord incorrectly communicated with the resident that the works had been completed when they were not. This was also reflected incorrectly in the landlord’s repair records.
5. The landlord installed an extractor fan almost 5 months after being put on notice of the damp but has provided no other mitigation for the resident while it resolved the damp and mould in the property.
6. The landlord made a compensation offer of £1 per day in its further complaint response of 28 February 2024 for the delay in completing works. However, the evidence does not confirm that all works were completed on the day cited in the offer. The rate of £1 a day is also not proportionate given the level of disturbance to the resident and the impact this has had on his enjoyment and use of the property. The property is a bedsit therefore the damp and mould in the kitchen affects the resident’s living and sleeping area.

Complaint handling

The Ombudsman’s Complaint Handling Code (‘the Code’) sets out a number of key principles that landlords are required to adhere to in the management of complaints. This includes the following:
1. Landlords must operate a two-stage process without any additional or informal stages as this causes confusion and delay.
2. Landlords must respond to complaints within the timescales in the Code. This is 10 working days at stage 1 and 20 working days at stage 2. This is to avoid extending the complaint process or delaying access to the Ombudsman.
3. Landlords must not extend the timescales for responding to complaint by more than 10 working days. In cases of extensions this must be clearly explained to the resident and the Ombudsman’s details must be provided.
The landlord operates a two-stage complaint process in which is commits to respond to stage 1 complaints within 10 working days and stage 2 complaints within 20 working days.
The resident’s stage 1 complaint was closed by the landlord due to non-contact. Given that the resident outlined his complaint in full when it was raised, there is no good reason why non-contact would have impacted the landlord responding in this case. The Ombudsman expects landlords to progress complaints in a timely way when it has sufficient information to do so. The landlord’s closure of the stage 1 complaint was inappropriate and heavy handed in this case thus was a failure.
Regarding the timeliness of the stage 1 response, the evidence shows that the resident raised his complaint on 15 June 2023. The landlord closed the complaint stage on 11 July 2023, this was 18 working days after receiving the complaint and was therefore over the landlord’s policy timescales for a response.
Similarly, the resident escalated his complaint to stage 2 on 11 July 2023 and did not receive a substantive response until 19 September 2023, over 50 working days from receipt. The resident noted in correspondence with this Service that he had received 4 extension letters deferring the complaint response.
Whilst both the Code and the landlord’s complaint policy allow for extensions in issuing complaint responses in complex cases, this should only be done when required and should not exceed a further 20 working days. The Code also requires landlords to ensure that the reason for the delay is clearly outlined to the resident. The evidence shows that the landlord’s extension letters did not include a new deadline for responding and did not explain the reasons for the delay. These were failings which caused the resident additional distress and inconvenience in pursuing the complaint to completion.
The landlord’s complaint response of 19 September 2023 committed to taking action to address the damp and mould on receipt of information following the contractor’s survey which had already taken place. The evidence shows that elements of this work remain outstanding at the time of this investigation. This indicates a failure by the landlord to use the complaints process to monitor and action the substantive repairs in a timely way and therefore improve the landlord and tenant relationship.
It is reasonable for landlords to further review a complaint if the actions identified as necessary to resolve a complaint have not been completed at the time of the original response. In this case, the landlord sent a further complaint response on 28 February 2024, which contained a revised compensation offer. However, as stated above, the landlord did not keep records confirming that it had stopped the leak, completed other works and inspected the property. In any event, the resident has stated that the issues he complained about remain unresolved therefore any works completed have not been effective. As such the compensation offer did not adequately reflect the circumstances of the case.
In line with our Dispute Resolution Principles, the Ombudsman expects landlords to use the complaints process to provide redress as part of putting matters right and to learn lessons to prevent a reoccurrence of a similar issue in the future. Given that the issues remain outstanding over this extended period, there is little evidence of the landlord using the complaints process in this way and this is a significant missed opportunity and failing.
Overall, there has been maladministration in the landlord’s complaint handling for the following reasons:
1. There were delays in the landlord issuing both complaint responses.
2. The landlord’s extension letters did not include a deadline for response or provide a sufficient reason for the delay.
3. The landlord incorrectly closed the resident’s stage 1 complaint.
4. The landlord did not use the complaints process to affect the redress it had promised or to learn from previous failures within this complaint.
The landlord must now review its processes for closing complaints, offer an apology and compensation to the resident, and undertake a case review to determine the reasons for the delay in issuing complaint responses.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme there has been:
1. Severe maladministration in the landlord’s handling of the resident’s reports of damp and mould in his property.
2. Maladministration in the landlord’s complaint handling.

Orders and recommendations

Orders

Within 28 days of the date of this determination, the landlord is ordered to:
1. Arrange for a senior officer at Director level or above to apologise to the resident in person for the failures identified in this determination.
2. Pay the resident £1,508.91 compensation comprised of:
  1. £1,008.91 to reflect the resident’s loss of enjoyment of his property during the period 21 February 2023 when the resident first reported damp and mould to 28 February 2024 when the landlord sent the final response to the complaint. This is calculated as 20% of the resident’s rent.
  2. £250 for the distress and inconvenience caused by its handling of the resident’s reports of damp and mould in his property.
  3. £250 for the complaint handling failures identified in this determination.

This compensation is in addition to any compensation previously offered or paid by the landlord. The compensation must be paid directly to the resident and not applied to his rent account unless he requests this.

Undertake a damp and mould survey of the resident’s property. The survey report must:
1. Identify the location, type and severity of any damp and mould still present within the property.
2. Outline what works are required to rectify the damp and mould.
3. Outline what mitigation is appropriate whilst the damp and mould is resolved. This might include dehumidifiers, installation of manual extraction, decanting the resident or other measures.
4. Include a schedule of works showing how the damp and mould will be remedied within a period not exceeding a further 4 weeks.

The findings of this survey and the schedule of works must be shared with the resident and this Service.

Within 6 weeks of the date of this determination, the landlord is ordered to undertake a case review. The review must identify:
1. Why the resident’s stage 1 complaint was closed, despite the landlord being in possession of his grounds for complaint.
2. Why both stages of the complaint responses, particularly the stage 2 response, were delayed. This should include a review of the reasons that multiple extensions were applied.
3. Why the damp and mould works were delayed by more than a year.
4. Why the landlord did not provide any form of damp and mould mitigation to the resident, such as dehumidifiers.
5. What action it can take to improve its repair records to be able to effectively track and manage cases to completion. In particular, this should address how repair records will capture the details of what works were undertaken, whether this was successful in remedying the issue and when the works were completed.
6. Why the resident was contacted to say that repairs were complete when they remained outstanding.
7. What learning the landlord takes from this case and how it will apply this across relevant teams in a period not exceeding a further four weeks.

Recommendation

The landlord should alter its templates for extending the deadlines responding to complaints, to ensure that they include the reasons for the extension and a new proposed completion date.