Ashford Borough Council (202319724)

REPORT

COMPLAINT 202319724

Ashford Borough Council

14 January 2025

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. Response to the resident’s reports of damp and mould at the property.
2. Response to the resident’s reports of a leaking toilet at the property.
3. Complaint handling.

Background

At the time of the complaint, the resident was a secure tenant of a 3-bedroom semi-detached house. The landlord is a local authority and freeholder of the property. The tenancy started in July 2022 and ended in December 2023. The landlord has no recorded health vulnerabilities for the resident.
The resident advised us that she moved to the property with her 2 children following the family experiencing domestic violence. As such, she was receiving support from the local mental health team. She explained that both children had diagnosed health conditions prior to moving to the property.
She says she raised concerns to the landlord about internal walls that looked wet during the pre-tenancy inspection and again when she was handed the property’s keys. She described receiving help about her concerns from Citizen’s Advice, Environmental Health, and a housing solicitor prior to raising a formal complaint to the landlord.
The resident raised a complaint on 6 July 2023. She said she felt the landlord was ignoring her reports of damp and mould. Following a toilet leak, she described witnessing mould and mushroom growth in her bathroom and ongoing damp in other areas of the property.
The landlord provided its stage 1 formal complaint response on 19 July 2023. It apologised that it had not met the resident’s communication and workmanship expectations and upheld her complaint. It said it had arranged for its plumbing contractor to return to the property prior to sending its complaint response. It believed most works to fix a toilet leak resolved, but for “minor finishing work.” It assured the resident its contractor would contact her to arrange a convenient appointment to fully complete the repair.
The resident asked to escalate her complaint to stage 2 of the landlord’s internal complaints process (ICP) on 21 July 2023. She said water was coming up through the new bathroom floor and she was unable to use the toilet. She considered the issue due to poor repair workmanship and expressed a desire for another plumbing contractor. She repeated her concerns about the presence of damp and mould in other areas of the property, which she said the landlord had not adequately investigated.
The landlord provided its stage 2 final response on 23 August 2023. In which, it said it:
1. Had spoken with her on 22 August 2023 and learned that she was convinced the property had an underlying damp problem due to water penetration.
2. Acknowledged the resident had reported that mould had damaged her personal items.
3. Would arrange for a specialist consultant to complete a whole property survey.
4. Acknowledged that she had reported having no toilet facilities for 2 days.
5. Agreed to try to appoint an alternative contractor for further bathroom repair work.
6. Offered £150 compensation to recognise the inconvenience the resident had experienced.
On 1 November 2023 the landlord paid the resident an additional discretionary sum of £293.88. It made the payment for the resident to replace a list of personal possessions damaged by mould at the property.
The resident remained dissatisfied with the landlord’s response and brought her complaint to us. She did not consider its offer of compensation reasonable given she had lived with mould for so long. Nor given it had left her and her children for 2 days without a toilet.

Assessment and findings

Scope of investigation

We note the resident’s correspondence said that the landlord’s handling of her reports of damp and mould affected her mental health and the health of her children. She said she felt unable to provide a safe living environment for her children and mould had damaged their personal possessions. She told us that a doctor prescribed her son steroids for his asthma. She considered the property conditions caused the strain on his health as he had not needed this medication prior to moving to the property or since leaving it.
Although we are an alternative dispute resolution service, we are unable to prove legal liability on whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health or personal finances. Nor can we calculate or award damages. Therefore, we are unable to consider any personal injury aspects of the resident’s complaint. A court or insurer must make an assessment of liability in such matters. The resident may wish to seek independent legal advice if she wants to pursue a claim for damages for any adverse effect on the health of any household member. She may also wish to consider an insurance claim if she remains dissatisfied with the landlord’s offer of compensation for the possessions that she reported damaged by mould.
In reaching a decision about the resident’s complaint, we consider whether the landlord has kept to the law, followed proper procedure and good practice and acted in a reasonable way. Our duty is to determine the complaint by reference to what is, in our findings, fair in all the circumstances of the case. Where we identify a failure by a landlord, we can consider the resulting distress and inconvenience.

Response to the resident’s reports of damp and mould at the property

Under Section 11 of the Landlord and Tenant Act 1985 (LTA 1985), the landlord must keep in repair the structure and exterior of the property. The landlord acknowledges this obligation in section 3 of the resident’s tenancy terms and conditions.
The landlord also has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by the Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord must consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
The landlord’s damp and mould strategy states it will inspect a property within 20 days of receiving a report of damp and mould. While its strategy is silent on the timescale for completing works following the inspection, it states it will take the appropriate remedial action to put right the cause.
We note from the evidence the landlord’s repair records state that it recorded the first occurrence of damp at the property on 17 November 2022. Its records demonstrate that it responded to this concern and completed an inspection of the external brickwork on 23 November 2022. This was appropriate and within the 20 day timescale as set out in the landlord’s damp and mould strategy.
That said, it is unclear to us why there is evidence about this matter on 23 September 2022. The resident clearly communicates with a member of the landlord’s staff via email. She raised concerns about various repair issues, one being damp. The email evidence demonstrates the landlord acknowledged the resident’s concerns on 24 September 2022. The member of staff advised they were leaving the employment of the landlord, advised the resident to raise all future repairs via a link provided, and said it had shared her email with its repairs department to raise an inspection.
Within the same communication, the resident described reporting damp and mould to the landlord’s void manager at the start of her tenancy. She says he advised her that the property had been unoccupied and it would dry out in approximately 3 weeks. The resident said there were now more damp patches, rather than less, and she had tried “numerous times” to report it but the landlord had not sent anyone to check it. It is therefore unclear why this did not prompt the landlord to investigate her concerns as a priority.
While we recognise the distress the presence of damp and mould would cause, we have been unable to identify evidence which demonstrates the resident reported this matter prior to her email on 23 September 2022. However, we are satisfied that the resident put the landlord on notice of the property’s damp and mould issues on at least the 23 September 2022.
Considering this date, the landlord’s actual first inspection date of 23 November 2022 was 23 days beyond its 20 day response target. This was not appropriate and not in line with its damp and mould strategy.
Also, it is unclear why, having attended on 23 November 2022 and recorded that the property’s brickwork “was in a terrible state,” that we have seen no evidence of remedial work completed at this stage. While we acknowledge the landlord would have needed to raise a job and allocate its resources or contractors, we have seen no evidence of communication with the resident to keep her informed of its intended action plan. Nor that it provided her with any practical advice or, for example, dehumidifiers which may have helped her situation.
On 8 December 2022 the resident informed the landlord of further damp under the property’s stairs and supplied photographs. We have been unable to identify what action, if any, the landlord took at this stage to resolve it. The landlord advised us that it held no data to confirm if its inspector had called the resident. While its records say it had already referred the reports of damp to its planned maintenance team, the absence of accurate information demonstrates a record keeping failure.
There is evidence that the landlord repointed the property’s brickwork in January 2023 and renewed the cavity wall insulation between February to March 2023. While it is reasonable for it to rely on the expert opinion of its qualified staff or contractors, it is unclear how it considered these actions would provide the resident with a permanent remedy.
There is evidence that a further inspection of the brickwork on 9 February 2023 identified that the cavity wall insulation was saturated. It is reasonable to conclude from this evidence that the landlord had failed to identify the root cause of the damp. It is therefore reasonable that the resident described experiencing distress and inconvenience as she continued to live in a damp and mouldy property.
The landlord’s stage 2 final response on 23 August 2023 advised it would arrange a specialist whole property damp survey. While this was a reasonable suggestion in the circumstances, it is unclear why the landlord had not considered this action sooner. Had it done so, it may have provided the resident with reassurance that it was taking her concerns seriously. That it did not, did nothing to improve the landlord and resident relationship.
Beyond completion of its ICP, the landlord’s property surveys between September 2023 to October 2023 confirmed identification of germinating mould, “numerous” damp patches in the hallway and on the lounge and kitchen walls. Furthermore, the reports record no visible damp proof course, visible damp to the external brickwork, saturated internal timbers, and a physically wet sub floor in the property. In November 2023 the landlord agreed to a permanent management move for the resident due to the extensive work to remedy the identified issues.
The Ombudsman’s Spotlight Report on Damp and Mould (published October 2021) provides recommendations for landlords, including that they should:
1. Adopt a zero tolerance approach to damp and mould interventions. Landlords should review their current strategy and consider whether their approach will achieve this.
2. Ensure they can identify complex cases at an early stage and have a strategy for keeping residents informed and effective resolution.
3. Ensure that they clearly and regularly communicate with residents regarding actions taken or otherwise to resolve reports of damp and mould.
4. Identify where an independent, mutually agreed and suitably qualified surveyor should be used. This includes sharing the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps. Landlords should then act on accepted survey recommendations in a timely manner.
Had the landlord adopted the approach set out in these recommendations, it may have avoided the service failings identified in this report. Although we do not dispute that the landlord made attempts to fix the cause of the property’s damp, the resident had put it on notice from at least September 2022. However, it failed to demonstrate taking the required action to identify the root causes until instructing surveys after its stage 2 final response, almost 1 year later. This was an unreasonable amount of time.
Furthermore, upon receiving reports of damp and mould, the landlord should be able to demonstrate how it monitored or responded to the potential hazard. That there is no evidence of how it monitored the resident’s initial concerns, did not demonstrate the landlord considered the resident’s reports under its HHSRS obligations.
During our investigation, the resident explained that the landlord had been aware of her housing need and household health and support needs. It is therefore unclear why the landlord had no known health vulnerabilities recorded. This demonstrates a record keeping failure. While we have not seen the resident’s original housing application and health disclosure, it is essential that the landlord ensures that its household information is accurate. As the resident remains a tenant of the landlord at another address, we order it to check that its records are up to date.
When there are failings by the landlord, as there is in this case, it is our role to consider an appropriate level of redress to put things right. Although the landlord demonstrated taking action to complete repairs and move the resident to alternative permanent accommodation following its complaint process, this was not sufficient mitigation for the identified delays. The time taken to instruct a whole property survey was unreasonable and left the resident without a lasting remedy for approximately 1 year.
Based on our findings, we find maladministration with the landlord’s handling of this matter. It was reasonable in the circumstances for it to arrange a discretionary payment of £293.88 for mould damaged personal possessions. That said, when considering the detriment of the damp and mould to her, we find that the landlord’s offer did not offer proportionate redress. Given the lack of action to act on the resident’s initial concerns, limited communication, and no evidence of monitoring, we find that additional compensation is appropriate.
In situations of maladministration, our guidance on remedies recommends that a compensation payment should be £100 to £600. In this case, we find a total of £600 appropriate to recognise the failings that adversely affected the resident. Therefore, we order the landlord to pay an additional £306.12 to put things right.

Response to the resident’s reports of a leaking toilet at the property

The landlord’s repairs policy sets out timeframes within which it will complete repairs, depending on their priority. It gives the following categories of repair:
1. Emergency within 2 to 24 hours.
2. Routine (priority) within 7 days.
3. Routine (general) within 28 working days.
4. Routine (planned) within 90 days.
On 1 June 2023 the resident reported an uncontrollable leak under the bath and toilet. It was therefore appropriate that the landlord treated this as an emergency and made safe the leak within 24 hours.
The landlord arranged follow on work to complete the repair and replace the resident’s bathroom floor on 14 July 2023. While this was 2 days beyond its 28 working day routine repair timeframe, it is unclear if this was due to the resident missing an appointment, believing the appointment arranged for another day.
However, the landlord’s stage 1 complaint response on 19 July 2023 indicates its involvement to progress matters. It ensured its contractor returned on 18 July 2023 and identified learning with its contractor’s communication. This indicates that the delay to complete the routine repair may have continued, but for the landlord’s reaction to the resident’s complaint. While this demonstrates the landlord taking steps to put things right, it was unreasonable that she had had to complain. This caused her time, trouble, distress, and inconvenience trying to progress matters.
Following the initial repair, the resident called the landlord’s out of hours service (OOH) on 20 July 2023. She experienced another leak in the bathroom, which she reported to be from the same part. She expressed concern regarding the initial workmanship, the unaddressed presence of damp and mushrooms, and how the contractor had laid new floor on wet underflooring. She also expressed concern regards the hygiene and sanitation. It was therefore appropriate that the landlord treated this as an emergency and made safe the leak within 24 hours.
While the landlord’s repair record’s provide evidence that it returned to the property, arranged CCTV inspections of the pipework, and completed additional work, it does not dispute that it left the household without a toilet for 2 days. The resident described the need to take her children to the local supermarket as the landlord had provided no temporary toilet facilities. While the landlord’s repairs policy is silent on the precise procedures in such situations, it was unreasonable for it to have left her like this.
Landlords must consider the condition of properties using the HHSRS risk assessment approach. HHSRS does not specify any minimum standards, but it is concerned with avoiding or minimising potential health hazards. Personal hygiene, sanitation and drainage form part of the HHSRS. This includes threats of infection and threats to mental health associated to these matters. In this case, the landlord failed to demonstrate meeting its obligations during the 2 days the household were without a toilet. This caused the resident’s household distress and inconvenience.
The landlord’s stage 2 final response on 23 August 2023 acknowledged the inconvenience and “unacceptable temporary arrangements.” It offered £150 compensation and said it would try to appoint an alternative contractor for any follow on work. This demonstrated the landlord recognised the resident’s dissatisfaction with its plumbing contractor and took steps to put things right.
We acknowledge the resident was understandably upset by the overall experience of damp within the property. The evidence shows that the toilet leak was not the sole cause of this. While we are not expert in construction, it was reasonable for the landlord to rely on the expert opinion of its contractors and it demonstrated responding to her reports within its emergency timescales. Although there is evidence the landlord needed to return to complete works and failings occurred, these issues did not make the property uninhabitable.
When there has been an admission of failure, as is the case here, our role is to assess whether the landlord offered proportionate redress. When considering the toilet leak as a separate issue, the landlord’s offer of £150 compensation was, in our findings, in line with our remedies guidance for maladministration. It provided proportionate redress which recognised that its failures had adversely affected the resident. Therefore, we find that the landlord has offered reasonable redress in this matter.

Complaint handling

Prior to our investigation, we asked the landlord to provide us a copy of its relevant complaints policy used at the time of the resident’s complaint. The landlord shared a link to its website. In which, it demonstrated its commitment to the statutory Housing Ombudsman’s Complaint Handling Code (the Code), 1 April 2024. While this commitment is appropriate, it is unclear whether the landlord adopted full use of the Code prior to 1 April 2024. In the absence of the requested information, we have based our findings on the expectations of the Code, 1 April 2022, as this was relevant at the time of the resident’s complaint.
The Code 1 April 2022 required landlords to acknowledge a complaint within 5 days. Also, for landlord’s to respond to stage 1 and stage 2 complaints within 10 and 20 working days, respectively.
The resident raised a complaint on 6 July 2023. It is therefore reasonable for her to have expected an acknowledgement by 13 July 2023 and a stage 1 complaint response by 20 July 2023. It was appropriate therefore that the landlord met both of these timescales.
The landlord’s stage 1 response demonstrated it had investigated the resident’s concerns, spoken to her directly, and arranged for its contractor to return to her property. Also, it informed the resident that it had identified communication via its contractor as a learning point which it would include in its performance review process. This demonstrated the landlord’s efforts to put things right for the resident and learn from outcomes.
That said, while its response recognised that part of the resident’s complaint was about damp issues, it failed to comment on the actions it would take to provide her a lasting remedy. Its response simply responded to the toilet leak.
Paragraph 5.6 of the Code (1 April 2022) says landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate. The landlord’s failure to achieve this was not appropriate and demonstrated a complaint handling training need at this time.
The resident asked to escalate her complaint to stage 2 of the landlord’s ICP on 21 July 2023 which it acknowledged the same day. This was appropriate and in line with the Code’s response timescale expectations.
The landlord provided its stage 2 final response on 23 August 2023. This was not appropriate and 3 working days beyond the 20 working day expected stage 2 response timescale. That said, we note that the landlord apologised for its late response.
While the detriment of this short delay would have been minimal, the landlord did not offer any redress or demonstrate steps it would take to prevent similar failings happening again. It failed to demonstrate recognising the effects its failures had on the resident and would therefore have been unable to learn from it.
It this case, the landlord failed to provide a full response at stage 1 and failed to demonstrate how it would learn from its late stage 2 final response. Therefore, we find service failure with the landlord’s complaint handling.
We order it to pay £50 compensation. This is to recognise the distress and inconvenience to the resident as she tried to get matters resolved through the landlord’s ICP. This is in line with the remedies guidance available to us when we do not consider an apology alone proportionate redress.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with the landlord’s response to the resident’s reports of damp and mould at the property.
In accordance with paragraph 53.b. of the Housing Ombudsman Scheme, the landlord made an offer of redress which, in the Ombudsman’s opinion, satisfactorily resolves the matter of the landlord’s response to the resident’s reports of a leaking toilet at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure with the landlord’s complaint handling.

Orders and recommendations

Orders

We order the landlord to take the following action within 4 weeks of the date of this report. The landlord must provide the Ombudsman with evidence that it has complied with these orders:
1. Pay the resident a total of £650 compensation. The compensation is made up of:
  1. £600 for the distress and inconvenience caused by the landlord’s response to the resident’s reports of damp and mould at the property. The landlord can deduct its discretionary offer of £293.88 made to replace the resident’s damaged personal possessions, if already paid.
  2. £50 for the distress and inconvenience caused by the landlord’s complaint handling.
2. We order the landlord to contact the resident and ensure that its health and vulnerability records accurately reflect her current household circumstances.

Recommendations

We recommend that the landlord reoffer the resident the £150 compensation offered at stage 2 of its ICP, if not already paid.