Southern Housing (202211864)

REPORT

COMPLAINT 202211864

Southern Housing

15 November 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 handling of:
1. The resident’s concerns about subsidence at the property and associated repairs.
2. Consideration of the resident’s vulnerabilities in dealing with this matter.

Background

The resident holds an assured tenancy for a bungalow which is owned by the landlord. The resident lives alone and is extremely vulnerable. He has muscular dystrophy and relies on walking aids and a wheelchair for mobility.
The property has had a problem with subsidence, since 2020, the landlord had involved its insurers since the first report. The movement of the property has caused large cracks in the walls and gaps in joinery throughout. The landlord inspected the property, when problems arose again in 2021, during which it identified a significant number of required internal and external works.
In May 2023, the landlord decanted the resident to a hotel for 6 days while its insurance loss adjusters carried out the works. Within a few weeks of returning, the resident reported several repairs that could be associated with further movement of the property. This included the wet room shower flowing towards the hallway door and flooding the hallway, as well as increased damp and mould.
When the resident did not get a response to his concerns, he raised a formal complaint with the landlord on 20 October 2022. His complaint listed several repair issues, most of which concerned the works previously completed and included leaks from the kitchen and bathroom. The resident requested the landlord address the repairs.
The landlord responded to the stage 1 complaint on 27 October 2022. It agreed to recall the loss adjusters to look at the issues of concern. It confirmed it had raised repairs orders for the leaks to the kitchen and bathroom. It also acknowledged it should have responded to his concerns sooner and offered £50 compensation for complaint handling failings.
The resident escalated his complaint on 8 November 2023. He disputed the landlord’s timeline of events in the stage 1 response. He said the works carried out had not resolved the underlying cause of the subsidence. The work completed only filled the cracks and painted over them. An increased number had reappeared. The smell of damp in the property was affecting both his physical and mental health.
The landlord responded to the stage 2 complaint on 23 January 2023. It said the insurance team had inspected and confirmed further movement within the property. The suspected cause was a tree owned by the council. To build its case for the council to take corrective action, the subsidence needed to be monitored until September 2023. In the meantime, it had drawn up a schedule of temporary works due to begin from February. It increased its previous offer of compensation to the resident to £300.
The resident referred his complaint to this Service, stating that he had been living with the subsidence related issues since 2021, which was ongoing because the landlord had not resolved the issue.

Assessment and findings

Scope of investigation

In a recent phone call with this Service, the resident advised that the ongoing subsidence and resulting disrepair at the property had had a negative impact on both his physical and mental health.
In accordance with paragraph 42.f. of the Housing Ombudsman’s Scheme, the Ombudsman cannot draw conclusions on the causation of, or liability for, damage to health and wellbeing. Personal injury claims must be determined by the courts, as the courts can consider medical evidence and make legally binding findings. However, the Ombudsman will consider any general distress and inconvenience the situation caused the resident.

Subsidence

The landlord has statutory repairing obligations for its rented properties, which is set out in section 11 of the Landlord and Tenant Act 1985. It requires that landlords must keep in repair and proper working order the exterior and structure of the property. It also states that they are responsible for the provision of services, sanitation, heating and hot water.
Problems arose again in 2021. The landlord sent a surveyor on 9 November 2021 to inspect the property. The landlord drafted a schedule of works required, which included supplying an extractor fan, removing kitchen units to repair cracks and re-plastering the wall. Replacing the wet room flooring, door bar, renewing and extending the skirting up stand to prevent the floor failing again. The landlord’s actions in response were appropriate.
A further external inspection completed by the landlord on 17 November 2021 recommended additional works. These works included the repair and replacement of some of the brickwork, as well as fitting helibars for additional support. It was noted that the gable end and concrete support were also damaged, but this was not attributed to subsidence. Identifying the remedial works was appropriate and in accordance with its repairing responsibilities.
Repairs should be carried out within a reasonable timeframe. Whilst there is no statutory definition of a “reasonable” timeframe for repairs, landlords usually set out target timescales for responding to the various categories of repairs in their repair policies.
The landlord’s responsive repairs policy says that for non-urgent repairs it will confirm an appointment with residents as soon as possible. For routine day-to-day repairs, the general standard amongst social landlords is around 20 working days. Given the landlord does not specify an actual response time for non-urgent repairs, we have taken the industry standard response times as a baseline against which to consider the landlord’s actions in this case.
It was not clear from the landlord’s repair records when the specification of works from the inspections of 9 and 17 November 2021 were ordered or had taken place. The first mention on the repairs history of anything from the specified works was a record for the order of “internal/external works” and the structural repairs to the brickwork. This was ordered on 18 May 2022 and tied in with the resident’s recollection that he was decanted to a hotel for 6 days in May 2022, while the relevant works were completed.
From the above, the landlord had not raised orders for the works until 6 months after the date it identified them. This did not support its “as soon as possible” approach and significantly exceeded the industry standard of 20 working days for non-urgent repairs. This was not reasonable and was a service failing by the landlord.
The “schedule of works” for the remedial work completed in May 2022 did not list the work specified in November 2021 for the wet room floor. There was also no other reference to it on the landlord’s repair history records prior to the resident’s complaint at the end of October 2022. This suggested that the resident lived with a saturated and failing wet room floor for a further year, which was not acceptable.
Following the resident’s complaint 20 October 2022, the landlord raised an inspection of the bathroom floor on 27 October 2022. It raised a repair order in relation to the wet room leaking into the hallway and mould. It raised the same order again on 16 November 2022. There is, however, no evidence in the repair records that it completed any work on the wet room floor. This was further supported by the landlord’s stage 2 response of 23 January 2023. The response listed follow-up works which included “checking the fall on the screed to the wet room floor and re-screeding with the correct fall”. This is ensuring the angle of the floor is such that waste water flows in the right direct.
The resident has said the landlord did not replace the floor but had fitted a glass shower screen instead. An order for a new shower, on the landlord’s repairs history for 21 December 2022, supports this. It was fitted in March 2023.
While the shower screen might prevent water from escaping into the hallway, it did not address the issue that the surveyor found in November 2021. Their finding was that the wet-room floor was failing, water was underneath the floor covering and it needed replacing, along with extended skirting up stands, to prevent further failure. It was not evident the landlord had completed this work. Not only was this a further service failing by the landlord, it may also have been contributing to the increasing damp and mould in the wet room.
The resident has told this Service that having a shower screen in the wet room has presented significant problems. There is now restricted space in the shower area, making it difficult for his personal assistant to wash and shower him. He said he has requested its removal since it was installed, but the landlord has not responded.
On 16 November 2022, the loss adjusters from the landlord’s insurers attended to inspect the resident’s concerns about the damage at the property reopening. This was appropriate as the landlord insures its buildings against risks, such as subsidence.
They had first visited this property in April 2020. It was their view that there was fresh damage on the property. The bedroom floor had dropped, which was not the damage it had seen before. The likely cause was a nearby oak tree owned by the local council. The fact that there was further movement in the property was unfortunate, but the identified cause was outside of the landlord’s control.
The loss adjusters recommended further monitoring of the subsidence for a year. The period of monitoring was extended and was still ongoing in 2024. While this has been unsettling and inconvenient for the resident, it was necessary. This is because the landlord will need to provide evidence of additional movement when negotiating with the council for the removal of the tree.
The landlord was obliged to take the advice of its insurers and their qualified consultants to fully understand the extent of a problem with the building and determine what the permanent solution should be. This should not, however, prevent the landlord from considering and carrying out necessary temporary repair solutions. It is required to meet its legal repairing obligations for the property until a permanent solution has been agreed,
Without the ability to address the root cause of the problem (the tree) further movement meant most of the internal repairs completed in May 2022 had to be raised again. This was unfortunate, and extremely inconvenient for the resident. However, it was something that was again outside of the landlord’s control.
This Service notes that the resident put the landlord on notice of the issues in July 2022, but it did not raise any of the remedial repairs until he made his formal complaint late in October 2022. It raised most of the repairs sometime later, on 21 December 2022, which was not reasonable. Again, the landlord was unable to demonstrate its “as soon as possible approach” to repairs and significantly exceeded the industry standard response time for day-to-day repairs.
Although resolving the subsidence is an ongoing process, outside of the landlord’s control, it would have been reasonable for the landlord to check the property at regular intervals. This would be to determine if or when any temporary repairs were required. It was not clear that the landlord had done so. The onus was on the resident to inform the landlord of any deterioration, which was not reasonable.
It would also have been appropriate for the landlord to keep the resident fully informed about the issues at his property. It should have been providing regular updates, details of its report findings, next steps and timescales. Doing so would have ensured that the resident did not feel forgotten about and that he just had to endure living in those conditions. It was not clear that the landlord had done so. Evidence showed that the resident usually instigated any contact, which often went unanswered. This was a further service failing by the landlord.
In its final stage response, the landlord upheld the resident’s complaint. It set out a plan of action and timeline for work to commence. It apologised for the delay in responding to his complaint and increased its previous offer of compensation to the resident from £50 to £250. This was in recognition of inconvenience and distress and a further £50 for its delay in responding (£300 in total).
The landlord’s complaint process had failed to recognise or acknowledge a number of service failings in dealing with the substantive complaint. As a result, it did not apologise to the resident for these failings or take any learning from the complaint to ensure this could not happen again. The Ombudsman’s remedies guidance requires that any remedies offered by landlords should be commensurate to the distress and inconvenience caused to the resident. The offer of £250 compensation for inconvenience and distress is not considered either reasonable or proportionate to the level detriment experienced by the resident.
Overall, the landlord’s handling of the resident’s concerns about the subsidence and other repairs required in his property was poor. It is accepted that resolving the subsidence would take some time and was outside of the landlord’s control. However, with a highly vulnerable resident in situ, the landlord’s focus should have been on supporting the resident. Its communication on the issue was below reasonable standards. It did little to minimise the detriment to him and failed to assess any risk or provide a proactive and timely response to the disrepair that occurred.

Resident vulnerability

The resident had declared at the start of his tenancy that he was vulnerable. He has muscular dystrophy, a progressive muscle wasting condition that significantly affects his ability to move about.
Being put on notice that the resident had health and mobility problems should have been a trigger for the landlord to consider whether he had a disability and protected characteristics under the Equality Act 2010. It should, therefore, have considered what duties it might have towards him.
Under section 20 of the act, landlords have a responsibility to make reasonable adjustments for residents who are at a substantial disadvantage compared to residents who do not have a disability. While it is not the Ombudsman’s role to determine whether a resident has a disability, it is our role to look at whether the landlord had considered whether he had, or any other protected characteristic where its responsibilities under the Act would apply.
The resident emailed the landlord 4 times between 20 July 2022 and 26 July 2022, raising his concerns about the condition of the property after the remedial works. He told the landlord that he was very concerned he would have to spend another winter in a cold, damp house. He said he was a disabled man, with increasing energy bills, who was fearful of the winter.
The landlord was aware the resident had a disability, as it was recorded on its management and repairs system, which was appropriate. What was not apparent was that the landlord was informed about the resident’s needs and what, if any, reasonable adjustments it had considered for him.
The Housing Health and Safety Rating System (HHSRS) introduced by the Housing Act 2004, places a responsibility on landlords to assess hazards and risks within their rented properties. Hazards arise from faults or deficiencies that could cause occupants harm and include excess cold, damp and mould.
The resident complained to the landlord that the property still had cold air coming through the cracks and around the front and back doors. There were increasing gaps under the skirting boards, tiles falling off the walls from the damp, and water from the shower flowing into the hallway. He could no longer close 2 of the internal doors and the back door would not lock. Cold air was blowing in from outside. He could see through to outside under the front door and damp and mould in the kitchen and bathroom were getting worse.
Under the HHSRS, people with health vulnerabilities are considered as being at a higher risk from the impact of excess cold. Government guidance for landlords on the health risks of damp and mould also advises that people with health or age-related vulnerabilities are also at an increased risk of the health impacts of damp and mould. Guidance for the HHSRS sets out the appropriate temperatures and the health risks that could be caused if temperatures fall below. It also suggests that landlords could complete a heat assessment to determine the cause of any heat loss and to determine whether radiators are the correct size for rooms.
Guidance for the HHSRS sets out that a healthy indoor temperature is approximately 21°C and that temperatures below 16°C, may pose serious health risks to vulnerable people. Considering the resident’s vulnerabilities and his concerns about the cold as winter approached, it would have been reasonable for the landlord to carry out a heat assessment to determine if the movement and re-opening of the building was impacting the property’s thermal efficiency. By not doing this, the landlord could not demonstrate that it had met its responsibility to keep the property free from category 1 hazards (excess cold) or acted in accordance with its duties under the Equality Act.
Given the resident’s concerns about fuel affordability, it would also have been appropriate for the landlord to provide or signpost the resident to tenancy sustainment or money management advice. The landlord publicises financial support services on its website offering a wealth of online information and signposting for financial advice and support to residents who might be struggling, which is reasonable.
Overall, there were significant repair issues, which because of the resident’s vulnerabilities was causing him considerable problems with the day-to-day use of his home. The landlord had it flagged that the resident was vulnerable, so it would be reasonable to expect that it would address the repair issues with some level of urgency.
The repair records show 3 separate orders to secure and adjust the back door during August 2022. Apart from this, there was no evidence that the landlord addressed any other repairs until the resident raised a formal complaint in October 2022, which was not reasonable.
On receipt of the resident’s emails on July 22, aware he had health and wellbeing issues, it would have been appropriate for the landlord to have risk-assessed the impact that the condition of the property was having on him. By not doing so, the landlord has not demonstrated that it had appropriately considered its responsibilities under the Equality Act.
In addition to the foregoing, knowing that the issue with subsidence was not going to be resolved quickly, it would have been reasonable for the landlord to have risk-assessed whether it was appropriate for the vulnerable resident to remain in the property long term. There was no evidence that it had considered this, thus not demonstrating that it had considered its duties under the Equality Act.
In conclusion, the landlord was unable to demonstrate that it had taken any of the resident’s vulnerabilities into account in its handling of the subsidence or the associated disrepair. Neither had it appropriately considered its duties under the Equality Act.

Determination

In accordance with paragraph 52 of the Housing Ombudsman’s Scheme there was maladministration in the landlord’s handling of the resident’s concerns about subsidence at the property and associated repairs.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme there was maladministration the landlord’s consideration of the resident’s vulnerabilities in dealing with this matter.

Orders

The Ombudsman orders that within 4 weeks of the date of this report the landlord should provide evidence to this Service of compliance with the below. The landlord should:
1. Send a written apology to the resident by a senior member of staff for the failings identified in this investigation.
2. Undertake a further inspection of the wet room to:
  1. Ascertain the challenges of the shower screen, discuss this with the resident, and agree a solution.
  2. Check the floor and identify any further repairs required.
3. Develop an action plan for quarterly technical inspections of the property (internal and external). The plan should assess any new movement and identify temporary repairs required, until a permanent solution has been implemented.
4. Carry out the first quarterly inspection and provide a copy of the inspection report to the resident.
5. Pay the resident a total of £1200 compensation broken, down as follows:
  1. £300 previously offered in its stage 2 response for complaint handling, inconvenience and distress.
  2. £400 for the significant delay in completing the repairs.
  3. £500 for the landlord not considering the residents vulnerabilities.
The Ombudsman orders that within 6 weeks of the date of this report the landlord should provide evidence to this Service of compliance with the orders below. It should:
1. Complete a risk assessment of the property. The risk assessment will need to include:
  1. Readings of the temperature of the property.
  2. Readings for damp.
  3. Details of any risks identified, and action required including timescales to complete the actions.
  4. Details of what consideration has been made of the resident’s vulnerabilities and affordability.

Recommendations

The Ombudsman suggests that the landlord considers the recommendations in the Ombudsman’s Spotlight Report on “Attitudes, respect and rights” to develop a vulnerable person or reasonable adjustments policy.