Adur District Council
17 August 2023
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 is about the landlord’s:
a. Record keeping.
b. Response to the resident’s reports of repairs and damp and mould.
c. Handling of the associated formal complaint.
Background and summary of events
- The resident and his wife are secure tenants of the landlord. The tenancy began on 12 May 2014 and the property is a four-bedroom semi-detached house. The resident and his wife live with their son. The resident is unable to work due to long term sickness.
- In 2015 the resident first reported mould and damp in the property and gaps around the window frames of every window in the property, including plants growing into the living room. On 15 April 2018 the resident made a formal complaint raising issues in respect of dampness, windows, and the integrity of the front and rear doors in his home. That complaint is recorded as responded to by 1 May 2018 in the form of a telephone call and an appointment made. The resident’s view is that his complaint did not receive a response.
- On 9 November 2018 the resident escalated his complaint and chased the stage two response on 12 February 2019. An inspection took place on 7 March 2019 and a stage two response was issued on 13 March 2019 (“the 2019 stage two response”). The complaint was not upheld, and the landlord only addressed the draughty windows and an issue regarding the airing cupboard latch. The landlord stated the resident’s earliest report regarding the windows was on 13 February 2017 and asked for a chance to repair the windows before considering replacement. No timescale was given.
- Following contact from this Service, the landlord completed an Investigation Report dated 16 November 2020 (the “Investigation Report”) and a new stage one response dated 26 November 2020 was issued (“the 2020 stage one response”), in which the landlord reviewed its previous complaint responses.
- This response recognised that the earlier responses to the resident’s complaints had failed to address all the issues originally complained of, specifically the damp and mould. It concluded that the 2019 stage two response should have upheld the resident’s complaint. The 2020 stage one response set out a clear plan to identify and raise works, made several recommendations, and agreed to pay compensation for the delay in handling the original complaint; its failure to resolve the issues and for the replacement floor covering. The landlord subsequently agreed to pay £600 for the cost of the carpet and stated it would take a view on the cost of the replacement laminate after a visit.
- The landlord issued an “ongoing” stage two response on 27 September 2021. It stated that the windows and soakaway had been replaced and internal plaster and pointing rectification was outstanding. After the works were completed, it would issue a final stage two response and agree compensation. On 4 November 2021 a final stage two response was issued, although internal plaster and pointing rectification were outstanding. In an internal email dated 22 December 2021 the landlord stated that all work was completed, and it had paid £600 as agreed by investigator at stage one, by way of a credit to the rent account.
- In February 2022 the resident informed the Ombudsman that various work had not been completed including the plastering work in early November 2021; replacement of the skirting board and window trim; and the plaster had not been painted. He added that a radiator, removed for the work, had not been refitted, so there had been no heating in the living room since. The resident said he considered that the £600 awarded was only for the replacement carpet, and no award had been made for the distress suffered, or the conditions he and his family had had to live in.
Assessment and findings
Scope of investigation
- The original April 2018 complaint was regarding the draughty/defective windows, the external front and rear doors and the mould and damp. As the landlord has acknowledged, its response did not address this complaint in full and therefore missed the opportunity of addressing these issues as part of its complaint handling. The Ombudsman has therefore considered these matters in this report.
- The resident has raised the following issues with the Ombudsman: a general issue regarding the size of boiler which he considers is too small to provide adequate heat to the property; the need for larger radiators to be installed; a crack in the roof of an outhouse and the potential for that crack to lead to damage to tools stored there; poorly cut floorboards upstairs, which do not sit properly; the porch being in a poor state of repair; a kitchen cupboard door, which had fallen off; and the breathable membrane between tiles and timber in the loft was disintegrating.
- These issues have not been raised as a formal complaint with the landlord. The Ombudsman’s Scheme states that the Ombudsman would not consider matters which in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure. If the resident would like to pursue these issues, he will need to make a new complaint to the landlord or else seek advice if he wishes to make damages claim.
- The landlord told the Ombudsman that a copy of its recent repairs policy or procedure was not available, and that the tenant’s handbook appeared to have been withdrawn as the ‘document is being updated’.
- The tenancy agreement provided was a letter. It referred to a copy of terms and conditions having been provided to the resident, but a copy of these were not provided to the Ombudsman.
- The Investigation Report identified a gap in the landlord’s records for the period 9 November 2018 to 12 February 2019. The Investigation Report referred to three differently named case management systems; records from these systems were not provided to the Ombudsman. Further, this Service has not seen any record or document listing the dates and details of defect reports, or repairs raised. The dates in this report therefore largely come from the Investigation Report. Staff should be able to easily access the information they require. This is essential for evidence-based practice and informed decision-making. This lack of evidence suggests a failing in the landlord’s record keeping which amounts to maladministration.
- In the Investigation Report, the landlord recommended some learning to be carried out regarding its record keeping. It said there was a need to ensure that officers carrying out stage two complaint investigations were able to fully retrieve the documents and responses provided at stage one. There was no indication that this recommendation has been taken forward and an order has therefore been made, below.
The landlord’s response to the resident’s reports of repairs and damp and mould
- As stated above, the tenancy agreement provided did not have any contractual terms regarding repairs. Nevertheless, the landlord has a duty under section 11 of the Landlord and Tenant Act 1985 to keep the structure and exterior of the resident’s property in repair. This includes the windows, walls and plasterwork. Once reported, repairs must be completed within a reasonable time.
Damp and mould
- It was not possible for the landlord to completely validate the resident’s claim that he first reported damp issues in August 2015. The landlord identified a report regarding dampness dated 30 April 2016, which related to defective guttering, and noted that an inspection was carried out before that date regarding defective rainwater goods to the front corner of the house. The landlord located reports regarding dampness in 2017, 2018, 2019 and 2020, and potentially five additional reports in 2019 to 2020. At the time of writing its Investigation Report, the landlord was unable to establish if external repair work had been completed, or a dampness report obtained.
- According to the resident the damp was first reported in 2015. The landlord accepts that its records show a report on 30 April 2016, but that an inspection had taken place by that date. The soakaway installation was carried out sometime between February and May 2021, at least five years after the original complaint and possibly six years. The internal plaster and pointing rectification were not completed until November 2021, some six to nine months afterwards. By February 2022 snagging works following on from the plastering remained, significantly this included the radiator, which had been removed from the living room.
- None of these works were carried out within a reasonable timeframe and no explanation has been provided at any point for the delay. It is particularly concerning that after the 2020 stage one response, it took six months for the cause of damp to be remedied and then a further six months for the damp and mouldy interior to be plastered. This timeframe does not appear reasonable in the context of a damp and mould issue that has existed for at least five years, with a vulnerable resident and a child living in the property and a history of delays.
- The resident confirmed that the walls were plastered in early November 2021, however, by 15 February 2022 he informed the Ombudsman that the plaster had not been painted, and issues caused by the plastering (removal of a radiator from the living room, of skirting boards and window trim) were outstanding. The landlord is responsible for heating under section 11 Landlord and Tenant Act 1985 and the landlord should ensure that work is completed and made good. An internal landlord email dated 22 December 2021 states that the works have been completed; however, this does not accord with the resident’s account. An order has been made, below, for the landlord to inspect the property to identify any outstanding works.
- From initial reporting in 2017, it took the landlord over one year to replace the rear door, and one year and nine months (and a further 2.5 months to inspect) to replace the front door. This work was not completed within a reasonable timescale and the landlord provided no explanation for the delay.
- In an email to the Ombudsman dated 2 November 2020 the landlord said an inspection was completed in April 2020 prior to lockdown and a referral made to a specialist contractor to assess the windows for potential repair or renewal. The job was recorded as routine rather than urgent. The landlord explained that in a review of its repairs backlog during lockdown, it cancelled the job in late September 2020 as it was significantly out of date. Then in early October 2020 made a new referral to the same specialist contractor.
- The Inspection Report identified 21 months with no action, and failure to make a referral to a specialist. There is no explanation as to why no steps were taken between February 2017 and November 2018 to investigate the windows. Although the pandemic occurred, which would have delayed works, it is hard to understand the rationale behind cancelling the windows repair job in late September 2020 to make a new referral less than one month later.
- It is hard to assess the landlord’s handling of reports of damp due to the lack of records regarding when reports were made and works carried out. What is clear is that there have been reports since at least 2016, and possibly 2015, and there is little indication of the steps the landlord has taken. There have clearly been substantial delays in the landlord raising works. The landlord’s actions have been haphazard and lacked a plan.
- The Investigation Report concluded that there had been significant delay in the management of the resident’s complaint and ineffective resolution of the issues. The landlord acknowledged that it missed an earlier opportunity to respond to the resident regarding the defects and works through its internal complaints procedure. The resident and his family were left in damp and mouldy conditions for approximately five years due to the landlord’s delay in ensuring that the works were carried out. Even when the works were carried out, the resident was left with a living room without a radiator and only partially finished work. It is not clear if the radiator has been reinstated at the time of writing this report.
- Accordingly, given the length of time to carry out the repairs including to remedy the damp and mould, along with the significant impact on the residents, the Ombudsman considers that a finding of severe maladministration is appropriate.
- In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In considering this the Ombudsman takes into account our Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
- Financial compensation of £2,500 is appropriate here to reflect the evident distress, frustration and inconvenience caused to the resident and his family by the failings outlined above over several years.
- On the landlord’s webpage on ‘Making a Complaint’ it says that it will provide a written acknowledgment within five working days, with the contact details of the person who will investigate. A full stage one response will be provided within ten working days, and a full stage two response within fifteen working days. If the landlord cannot comply with this timeframe, then it will contact the resident to explain the delay and how long it will take.
- There is no evidence of a written acknowledgment sent by the landlord to the resident to any of his complaints. A written stage one response was never issued in relation to the resident’s original 2018 complaint. The 2019 stage two response was provided over 17 weeks after the complaint was escalated. This is over 14 weeks longer than it should have been.
- The action (works to windows) proposed in the 2019 stage two response was not followed up. The resident was put to time and trouble to complain to the Ombudsman, which prompted the landlord to review its 2018 stage one and 2019 stage two responses. The 2020 stage one response was issued 38 working days after first contact from the Ombudsman.
- The Investigation Report prepared in advance of the 2020 stage one response offered an honest and accurate appraisal of what had gone wrong, including a fair suggestion for how to resolve the issues. It suggested extensive compensation once the works were completed. It is therefore confusing as to why the landlord did not then go on to follow through with its proposals, particularly as it then took a significant period longer to resolve the works. The landlord subsequently only offered part of the compensation suggested and by then further delays in works and failures had occurred.
- The 2020 stage one response and the 2019 stage two response were both investigated by the same officer. This is acknowledged, and it appears there was consideration about whether this was a conflict of interest.
- A stage two response was provided on 4 November 2021. This is almost one year after the 2020 stage one response. There is no record of when the resident escalated his complaint to stage two and so it is not possible to assess whether this complaint was provided within the 15 working day time frame. However, the Ombudsman notes that there was a 28 working day gap between the “ongoing” stage two response dated 27 September 2021 and the final stage two response of 3 November 2021.
- Both of the 2021 stage two responses state that compensation would be agreed once the outstanding works have been completed, however, there is no explanation about how that process would work. Neither letter reaches a conclusion as to whether the complaint is upheld or not or provides any explanation for why the 2020 stage one response inspection timescales were not met. The letter dated 27 September 2021 states that the landlord would contact the resident again on 14 October 2021 to check on progress. There is no record of any further contact with the resident until the letter of 4 November 2021. In that letter, the complaint was closed on the basis that a decision on the way forward has been agreed. The decision referred to was that building services were to contact the resident to book in the internal plaster and pointing rectification and kitchen worktops. It is concerning considering the history of delays that a clearer timescale was not agreed.
- In the Investigation Report the landlord acknowledged that it missed earlier opportunities, in 2018 and in 2019, to respond to the resident regarding the defects and works through its internal complaint procedure. The resident was put to time and trouble due to the insufficient 2018 stage one response and 2019 stage two response, and the subsequent failure to action issues identified.
- The landlord handled the complaint poorly, apart from the review carried out prior to the 2020 stage one response, but as the landlord failed to follow through on this review, the complaints handling warrants a finding of maladministration.
- The correspondence following the 2020 stage one response made it clear that the £600 was to compensate for the carpet and underlay damaged by damp and mould. The investigator stated by email that he was liaising with the landlord’s insurers regarding compensation for the laminate (which the resident said was £392). There is no evidence that this issue was resolved, and an order has been made, below.
- The compensation awarded on 22 December 2021 was on the basis that the works were completed. There has been no consideration of the outstanding snagging work following the replastering.
- This Service notes that the landlord credited the compensation for the replacement carpet to the resident’s rent account instead of paying it to him directly. This Service now takes the view that compensation should be paid to the resident direct and not offset against rent arrears. However, in cases of actual financial loss (such as in this case, the reimbursement for a new carpet), it is unfair to offset such a loss against any rent arrears as the resident has had a loss, which would not have been necessary but for a failing by the landlord. In light of this, an order has been made, below, for the landlord to review its compensation procedures.
- Financial compensation is appropriate here for the time and trouble taken by the resident in pursuing his complaint and for impact on him of the landlord’s complaint handling failures.
- In accordance with paragraph 52 of the Scheme there was severe maladministration in relation to the landlord’s handling of reports about damp and mould.
- In accordance with paragraph 52 of the Scheme there was maladministration in relation to the landlord’s:
a. Record keeping.
b. Handling of the resident’s complaint.
- Within four weeks of the date of this determination, the landlord should:
a. Pay the resident a total of £3,392 for the failures identified in this report. Payment should be made directly to the resident and not offset against any arrears on the rent account. The payment comprises:
(1) £392 for the damaged laminate flooring.
(2) £2,500 in respect of distress and inconvenience the resident experienced caused by its delays in handling of the repairs and works at his property.
(3) An additional £500 compensation in respect of the time and trouble incurred by the resident by its handling of the complaint.
b. Issue a written apology to the resident from the Chief Executive for the issues identified in this report.
c. Inspect the property to investigate any outstanding works to the living room following the internal plaster and pointing rectification work. If additional works are identified at the property during the inspection, the landlord to confirm the anticipated timescale for completion of these works.
d. The landlord should create a plan to action the learning identified in its 2020 stage one response, which identified:
- A need to ensure that officers carrying out stage two complaints are able to fully retrieve the documents and responses provided to the stage one complaint.
- That clarity is needed on who should manage repairs and maintenance complaints items to conclusion when they are identified.
- That a case management mechanism/forum needs to be established to manage cases to conclusion.
e. The landlord should provide training and guidance on its complaint process, focussing on managing resident expectations in terms of standard of works and expected timescales.
f. The landlord should review its compensation procedures to ensure that compensation for actual financial loss is made direct to the resident and not offset against any rent arrears.
- The landlord should provide evidence to this Service that it has completed these orders listed above within four weeks of this determination.