North Tyneside Council (202122001)

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REPORT

COMPLAINT 202122001

North Tyneside Council

27 September 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

The complaint is about the landlord’s handling of the resident’s:
1. Allegations of assault by a member of staff.
2. Reports of cracks in the property.
3. Reports of damp and mould.
4. Request to be rehoused.

Background and summary of events

The resident is a secure tenant of the landlord, a local authority. The property is a two bedroom first floor flat.
The resident stated his neighbour’s property was renovated between February and March 2020 and that contractors drilling resulted in a large crack across his bedroom and bathroom wall. This was reported to the landlord who visited the property to inspect the damage. Subsequently work was carried out to remedy the cracks. Throughout 2020 further cracks appeared throughout the resident’s property. He also notified the landlord of issues concerning damp within the property.
On 22 February 2021 the resident raised a complaint about damp, mould and cracking within the property. This resulted in the landlord opening a legal disrepair claim on 5 March 2021.
The resident alleged that during March 2021 he was assaulted by a member of staff. This was reported to the landlord and it proceeded to conduct an internal investigation. The landlord was unable to disclose the outcome of this investigation to the resident due to confidentiality reasons, however it informed him that if he considered there had been an assault this would be an alleged criminal matter, and he should contact the police if he wished to pursue this further.
A survey of the property was conducted on 26 March 2021 to assess the damp and cracking. The report for this was dated 11 April 2021 and sent to the landlord. With regards to the cracks, the survey found the building to be in satisfactory structural condition. It noted a number of hairline cracks throughout the plasterwork but stated this would be expected with a property of this age. The report also noted significant cracking but was unable to determine the cause. The resident had informed the surveyor this worsened when major works were being carried out to the property below him. The report noted issues of damp being caused by condensation and as a result of rising damp within the property. The surveyor recommended a thorough intrusive survey to eliminate structural concerns. This included the removal of plaster work, plaster repairs and redecoration. The surveyor also recommended a damp specialist survey, the removal of damp and damaged plaster to allow the walls to dry, and for repairs and redecoration to be undertaken.
On 30 April 2021, a letter from the resident’s GP regarding his health was sent to the landlord, which explained the resident had been struggling with recurrent chest problems and was currently undergoing investigation for asthma/ chronic obstructive pulmonary disease. The letter noted the resident believed this was being worsened by the damp and mould but that the landlord had not yet addressed these issues.
On 4 May 2021, the landlord wrote to the resident about his disrepair claim. It explained it had been notified by the resident’s solicitors that they were no longer representing him in his claim against the landlord. It acknowledged the resident raised concerns about cracking and dampness and explained it would still like to carry out an inspection and conduct repairs if necessary. It asked the resident to contact its repairs team.
A survey was arranged on 23 June 2021, however it was unable to determine the cause of the cracks. It made recommendations to do the following:
1. Clear gully to rear elevation.
2. Patch point mortar above patio door at rear and around two waste pipes to rear.
3. Plaster/ render repairs at base of staircase and some cracks to be filled as and when deemed appropriate.
Conversations took place between the resident and the landlord about the ongoing issues and during July 2021 it confirmed to the resident the following actions had been agreed:
1. Instruct a building surveyor to carry out a further inspection to determine any structural defects.
2. Conduct a more intrusive survey of the damp. This involved drilling pilot holes into the internal walls and inserting damp probes.
3. Carry out scheduled repairs to the pointing. This was initially scheduled for 7 July, however was later rescheduled.
On 15 July 2021, the resident emailed the landlord stating he was still waiting for an independent survey, and said that he should not be living in a damp property due to his health. He expressed upset over waiting over 6 months with damp in his property for the issues to be resolved. The resident also explained he would be willing to arrange for scaffolding to be erected in order to have the works completed.
The landlord wrote to the resident the following day apologising that it was unable to have the pointing works completed on 7 July 2021. It explained scaffolding at the time was not available. It further explained that, due to health and safety reasons, it was unable to allow the resident to erect scaffolding himself.
On 23 July 2021 the landlord confirmed it had been engaging with surveyors and was awaiting an appointment for the survey. It also confirmed the scheduled repairs to the pointing would continue as planned.
A survey was completed on 14 September 2021 to assess the issues concerning damp and mould within the property. This found high damp readings within the property and recommended the landlord install a chemical damp proof course and replace contaminated wall plaster. With regards to the structural issues, it observed several cracks within the property and recommended the removal of wall plaster and monitoring to establish if movement was taking place. This report was provided to the landlord on 5 October 2021, and the resident was informed that it was happy to commit to carry out required works if he agreed.
Throughout October 2021, there were several conversations between the landlord and the resident. The resident informed the landlord that his doctor did not think it was a good idea for him to be living in the property whilst work was being carried out. The landlord also attended the property to discuss the scope of works and put forward a proposal for these, however the resident refused this approach and asked for all required works to be carried out at the same time.
Further discussions about the required work took place in November 2021.The landlord explained the required works would be carried out in a day and it did not believe the resident would be significantly impacted. It explained it would consult with its health and safety team to determine if returning to the home on the same day posed a health risk. It explained the proposed works could be scheduled for 6 December 2021.
On 26 November 2021, the landlord wrote to the resident explaining it had spoken with its health and safety team to determine what could and should be done to minimise dust and the impact on physical health. It proposed the following:
1. Use tools with Class M extraction.
2. Professional clean of affected rooms.
3. Provide accommodation should the resident wish to take it.
The resident was unhappy with the proposal and asked if the landlord would accept liability for his health or future health in connection to the works to be done. However this could not be agreed.
The landlord contacted the resident’s advocate on 14 December 2021, further chasing how and when the resident would like to proceed with the proposed scope of works.
The landlord issued its stage one complaint response on 17 December 2021. It apologised for the delay in responding to the resident’s complaint, and explained its services had been affected due to the Covid-19 pandemic. The landlord proceeded to respond to 9 issues raised by the resident. (We have only referred here to those matters relevant to the scope of this investigation).
1. With regard to works completed during February/March 2020 which caused cracking to the resident’s walls, the landlord acknowledged the longstanding issues concerning cracks within the property. It explained it had carried out a number of surveys, some of which were disputed by the resident. In accordance with the most recent report it was willing to carry out the works recommended. The landlord acknowledged the resident’s ongoing health concerns and explained it had given the resident assurances on using dust extraction equipment. The landlord was aiming to commence the works during September 2021, but had been awaiting the resident’s approval.
2. With regard to the resident’s allegations that he was assaulted by the landlord’s staff in March 2020. The landlord explained that it was aware of these previous allegations and explained the matter had already been investigated internally under its staffing procedures and brought to a conclusion. It explained that actions which the local authority deemed appropriate in respect of its employees remained confidential. It further explained allegations of assault are a criminal matter and should be reported to the police.
Throughout January 2022 the landlord contacted the resident’s advocate on several occasions to follow up on the repairs and explained it would be willing to carry out works if the resident agreed to this.
As the resident expressed upset with the landlord’s response, on 17 January 2022 the landlord issued its stage two complaint response. It understood the complaint to be about:
1. Cracks within the property.
2. Refusal of decant whilst repairs took place.
3. Reports of assault by a staff member.
4. Reports of damp and mould issues within the property.
It recognised the resident was seeking the following as a resolution:
1. The landlord to complete a full investigation into the cracks and complete any necessary works.
1. The landlord to temporarily house the resident whilst the works were completed, due to the impact this could have on his health.
With regards to the cracks, the landlord explained it had carried out several inspections to determine the cause of these. Based on the recent report recommendations, it had developed a scope of work and was committed to having these works completed. It was also willing to take steps to minimise the dust within the property and the impact on the resident.
With regards to the damp and mould, the landlord stated that, following the independent survey, it committed to undertaking works to inject a chemical damp proof course to prevent rising damp. However it was still waiting the resident’s approval for the works to commence.
With regards to the alleged assault, the landlord reiterated that it had conducted an internal investigation however it was unable to discuss this with the resident further. It noted that at the time of the alleged incident the resident was told to contact the police if he wanted to pursue a further investigation.
As the resident remained unhappy with the landlord’s findings, the landlord issued a stage three complaint response on 2 March 2022. This reiterated its stance on the resident’s complaint and that it was satisfied with its stage one and two complaint responses. The landlord found there had been no service failure on its part.
During February 2023 the following works were completed:
1. Bedroom 1: Walls stripped, fill and any cracks sanded, walls lined with paper and decorate with white emulsion.
1. Bedroom 2: Lining paper up to dado rail stripped, cracks filled and sanded, walls lined with lining paper and decorated with white emulsion.
2. Patch walls to chimney breast and decorate.
3. Kitchen: Removal off any loose paint, sanded and repaint ceiling.
4. WC: Relining of paper around window.
5. Hallway: Walls stripped, holes and cracks filled, and decorate white.
A further survey report was completed during April 2023, which found there to be subsidence within the property, the landlord has agreed to have the required works undertaken within its planned repairs programme.

Assessment and findings

Allegations of assault by a member of staff.

The resident complained about being assaulted by a member of staff on 9 March 2021. The landlord explained the allegations had previously been addressed and investigated and brought to a conclusion. In its stage one complaint response it reiterated the allegations had been investigated and brought to a conclusion. It was unable to share the outcome or any actions deemed necessary with the resident in relation to employees and explained this would remain confidential and not available to the public.
Based on the evidence available, the Ombudsman cannot say with reasonable confidence what happened during this incident. It is understandable that the resident wanted assurance that his concerns had been investigated and we are satisfied that the landlord took appropriate steps to investigate under its staff management procedures, and that it advised the resident of this. It also appropriately explained why it could not comment further on the detail of this.

Cracks in the property.

The Landlord and Tenant Act 1985, Section 11 implies repair obligations for landlords. It states ‘In a lease to which this section applies (as to which, see sections 13 and 14) there is implied a covenant by the lessor to keep in repair the structure and exterior of the dwelling-house.’ Therefore, when the resident reported concerns regarding structural movement and cracks within the property, the landlord was responsible for addressing these concerns, by investigating them and then assessing what, if any, remedial work was needed.
The resident complained about cracks within his property to the landlord. This was not an emergency repair and we have not seen any evidence to show that at the reported time it posed an immediate risk to the resident. The landlord’s repairs policy states that, for routine repairs, it aims to complete the repair within 45 working days of the report.
When the resident reported concerns regarding cracks to the internal walls, the landlord arranged for a survey to take place on 23 June 2021. This survey was unable to confirm the cause of the cracks, however it did not consider subsidence structural movement to be the cause. Recommendations were made to:
1. Clear gully to rear elevation.
2. Patch point mortar above patio door at rear and around two waste pipes to rear.
3. Plaster/ render repairs at base of staircase and some cracks to be filled as and when deemed appropriate.
The repairs history shows parts of the recommended works were completed on 23 July 2021. The last recommendation (c) was outstanding, due to ongoing investigations and disputes.
It is understood that the resident disputed the findings of the report and requested an independent survey. It was proactive for the landlord to arrange for a further inspection by independent surveyors. However due to the impact of covid, there were severe delays and the earliest date on which the surveyor could attend was on 14 September 2021. This visit recommended removal of plaster work to monitor the structural movements. In the event structural movement was confirmed, then further works would be required to remedy this. The evidence shows the landlord raised these works in October 2021.
In the Ombudsman’s view, the landlord was proactive in attempting to address the issue when it was first reported to it. Whilst we note there was a delay in having a second independent surveyor attend, it is acknowledged this was due to the ongoing effects of covid and the second survey was carried out just under three months from the first, which is not unreasonable in the circumstances.
The landlord’s actions were to follow the scope of works recommended by the independent surveyor, however the resident disputed this. In the Ombudsman’s opinion it was reasonable for the landlord to rely on the outcome of the independent surveyor’s report, given that these recommendations served as a professional evaluation of the necessary scope of works.
Nonetheless the evidence shows the landlord considered the resident’s concerns and further looked into the matter concerning the scope of works and the resident’s health.
Based on the information available to the landlord at the time, its actions were proportionate and reasonable given the circumstances. Whilst we acknowledge the length of time taken to resolve the matter, it is evident this was a result of circumstances outside of the landlord’s control and its further efforts to address concerns from the resident. It was also reasonable for the landlord to rely on the professional opinion of independent surveyors.
The landlord states it raised works during October 2021, however the repairs history does not show this, or if any repairs were completed to the property with regards to cracks in 2022. The repairs history does however show work was completed on 15 February 2023. This included the walls being stripped, the filling of cracks and holes, and redecoration. The service understands the reasons for some of the delays were related to the resident’s health concerns, and we can see the landlord also attempted to contact the resident’s advocate several times about the repairs to find out when it could proceed with the required works.
The resident has since been in touch with us to state that the issue is ongoing and despite the repairs, the property is again in disrepair. The landlord’s most recent survey report conducted between March and April 2023 found there are a number of properties on the road that have been subject to significant structural movement. This is caused by a combination of subsidence, structural alterations and inherent defects. Recommendations were made to investigate the foundation further to determine if the property was being affected by drainage pipework leaking and softening the ground.
The landlord has since taken this report into consideration and stated it would be undertaking the underpinning works required in October or November 2023 and the structural works such as repointing and lintels work would take place in the next calendar year. Whilst we recognise the length of time it will require for these works to be carried out, we also understand that the works required could be substantial which the landlord had not anticipated, and the landlord’s explanation around existing commitments is reasonable. As we have not seen that the works require immediate action, it is reasonable for the landlord to carry these out under planned maintenance.
We acknowledged the resident’s frustration with the length of time it has taken for an accurate diagnosis of the cracks within the property and recognise he was stating from the beginning that this was due to subsidence. We also understand how the repeated works would have caused an inconvenience to the resident, particularly that this was not diagnosed sooner. However it was reasonable for the landlord to rely on the conclusions of professionals when determining the cause of the cracking.
We also recognise, the landlord had attempted several times to have tell tales installed in the property to monitor the cracks for 12 months for any potential structural movement across the four seasons to take into account temperature and moisture changes. But the resident did not agree to these works due to concerns for his health. We have reviewed the repairs history and cannot see that any monitoring took part prior to the works completed in February 2023. These works completed did not include the monitoring of movements either.
In the Ombudsman’s opinion, whilst monitor of the cracks was not completed, it is clear the landlord made reasonable efforts to have the plaster removed in order to monitor potential subsidence prior to confirmation in the latest report. Had it been able to do so the issues concerning subsidence may have been revealed sooner.

Damp and mould.

The landlord’s repairs handbook does not make reference to damp and mould issues. However, in accordance with the Landlord and Tenant Act 1985, Section 11 implies the landlord is responsible for keeping in repair and proper working order the structure and exterior of the dwelling and building containing the dwelling. Therefore, when the landlord was notified of the damp and mould issues to the resident’s property it was required to carry out an inspection and, if necessary, repairs within a reasonable period of time.
The inspection report conducted on 26 March 2021 found there to be two causes of damp within the property. It found damp in certain areas was caused by condensation due to lack of ventilation. In other areas there were signs of rising damp to the wall. The report suggested the rising damp may have been caused by a failure of the original damp proof course or changes in structure which allowed dampness to penetrate internally. The surveyor recommended a further damp survey specialist to determine the cause and explained the damp and damaged plaster should be removed, the walls needed to dry out and isolated plaster work and redecorations works to be undertaken. Regarding the condensation, it recommended these areas be monitored with a view to installing additional ventilation or a heating system should the issues worsen.
During July 2021 the landlord agreed to undertake an intrusive damp survey to determine the cause. In the plan of action, the landlord stated that any necessary repairs would be undertaken, and it further explained to the resident that undertaking an intrusive damp survey would involve drilling small pilot holes into the internal walls and inserting damp probes to assess moisture in the brickwork. This would help to identify if the issues were cause caused by damp or condensation. In the Ombudsman’s opinion it was appropriate for the landlord to arrange a further inspection to satisfy itself that it was taking all reasonable steps to determine the cause. Whilst we recognise the need for several inspections can be an inconvenience, determining the cause(s) of damp can be challenging at times and require in-depth investigation.
There was a delay in the survey being undertaken and the landlord further chased this internally in August 2021. The landlord explained this was due to limited availability following the Covid lockdown and it had contacted several independent suppliers. Nonetheless the survey was conducted on 14 September 2021, it noted high damp readings and disturbance to wallpaper within the property. It concluded the affected areas did not have a damp proof course at the time of construction and said it was possible there was originally a second chimney located in the affected area which had contributed to the dampness. To remedy this, the surveyor recommended that the landlord install a chemical damp course and replace the damp and contaminated wall plaster.
Whilst we recognise the delay in having a further inspection undertaken, during this time many organisations were affected by the pandemic which had a knock-on effect on availability and timescales. The landlord appropriately contacted suppliers and chased progress during this 5 month period.
Following the survey, the landlord proposed the works needed to the resident as recommended by the report. However, there were further delays in finalising the scope of works due to the resident’s concerns about his health. Throughout October to December, the landlord was in communication with the resident, suppliers, and the GP to review the best way to undertake the works without impacting the resident’s health. Whilst we recognise this caused further delays, given the information regarding the resident’s concerns and not wanting the works to start whilst living in the property, it was appropriate for the landlord to look into this further.
The repair records provided to this Service by the landlord were limited in terms of detail and there appears to be significant missing information which does not show what further works were carried out to address the damp. However, we have not seen evidence to suggest that the issue with damp remains and the landlord has confirmed that the works have since been completed.

Request to be rehoused.

We understand the resident’s concerns about his health issues and his worries about how the works being carried out would impact him. In this instance we can see the resident had requested to be rehoused, however the landlord refused this.
It is important that in circumstances where works are required and a resident with vulnerabilities is involved, the landlord should consider all options and what would be suitable. Where a landlord does not feel it is suitable to temporarily decant a resident, this should be explained to them, which was done in this case.
The evidence shows the landlord discussed the nature of works with the resident’s GP and decided the best action to mitigate risk was by using tools with class M extraction to minimise dust creation. It also agreed professional cleaning contractors and covering of any exposed brickwork. The evidence shows the landlord also offered the resident alternative accommodation for daytime working hours close to his home.
In the Ombudsman’s view the landlord appropriately considered its options and put several measures in place to mitigate the risk to the resident. Whilst we recognise the resident felt strongly about being rehoused, we have not seen evidence to support that the landlord should have arranged this. The suggestions made were reasonable given the circumstances.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s allegations of assault by a member of staff.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of cracks in the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of damp and mould.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request to be rehoused.

Reasons

The landlord appropriately investigated the resident’s claims of being assaulted by a member of staff under its staff management procedures. There was no failure in the landlord not sharing the outcome of this with the resident, as this concerned confidential information related to staff management, and it appropriately signposted him to the police if he wished to pursue the matter further.
The landlord conducted several survey inspections and committed to conducting works as recommended by the inspections. We can see there were delays in undertaking works, however this was due to the resident’s concerns. The landlord appropriately chased several times to arrange the repairs in line with the survey reports.
We acknowledge new information supports the resident’s stance that the property is being affected by subsidence, the landlord has addressed this since the end of its internal complaints procedure and has committed to having the necessary works completed.
We acknowledge there were delays in attending to the damp and mould. However this was due to several factors outside of the landlord’s control. The landlord at the time appropriately arranged for the works to be completed and chased where there were delays.
The landlord appropriately assessed the resident’s health concerns and request to be rehoused during this time. Whilst we understand the reasons for the resident’s request, we have not seen any evidence to suggest there was service failure by the landlord not agreeing to rehouse him during this period.

Orders and recommendations

Recommendations.

To ensure its repairs history records reflect the works carried out within its properties, the landlord should review its approach to record keeping, using the recommendations set out in the Ombudsman’s recent spotlight report on Knowledge and Information Management (published May 2023).
The landlord to consider having a damp and mould policy in place, with reference to the Ombudsman’s spotlight report of Damp and Mould (published October 2021).
The landlord should contact the resident to set out a plan for works, timescale and any interim actions that it can take to reduce any current damp and mould issues until planned works are completed.