Aster Communities (202004756)

REPORT

COMPLAINT 202004756

Aster Communities

18 May 2021

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 response to reports of damp.

Background and summary of events

Background

The resident has an assured non-shorthold tenancy with the landlord that started in early 2020. The property is a three–bedroom semi-detached house.
The tenancy agreement says that the landlord will keep in good repair, among other things, the internal walls and floor of the property. It is not responsible for the coverings of the floor. The tenancy agreement also says that the resident must report to it promptly any disrepair or defect for which it is responsible and allow its staff and contractors access at reasonable times, and subject to reasonable notice, to inspect and carry out repairs or other works.
The landlord’s responsive repairs policy says that responsive repairs are categorised as works which occur as a result of failure of elements through factors including wear and tear which cannot be included in future planned, cyclical or programmed works. There will be occasions when works require more significant investment or are too complicated and will need to be dealt with outside the responsive repairs policy and fall into a planned, cyclical or one-off unplanned works.
The Housing Health and Safety Rating System (the HHSRS) is an assessment of hazards in a rented property that could affect the resident’s health. The assessment is carried out by an environmental health officer from the relevant local authority. The local authority must take action if serious problems are found. This could include:
1. informal negotiation with the landlord to improve the property
2. formal enforcement action against the landlord
Any hazards in the property are rated as ‘category 1’ or ‘category 2’. Category 1 hazards are more serious and the local authority must take action. They can also act on category 2 hazards if they choose to. The actions of the local authority’s environmental health officers are not within the jurisdiction of the Housing Ombudsman, the Local Government and Social Care Ombudsman considers their actions.
On 23 March 2020 the UK government announced a national lockdown. This was eased from June 2020 when schools and non-essential retail outlets re-opened. The government introduced new restrictions from 22 September 2020 and a second full national lockdown was announced on 31 October 2020 that came into effect from 5 November 2020. While restrictions were lifted slightly over Christmas, there was a new national lockdown from 6 January 2021. During lockdown the landlord operated an essential repair service only inside properties.

Summary of events

The resident moved into the property in early 2020 as result of a mutual exchange. The disclaimer form completed as part of the move noted that there were no floor coverings in the lounge, stairs or bedrooms and that the hall had standard floor tiles.
On 28 February 2020 the resident reported to the landlord damp coming up through the floor of the property. A carpet store had refused to put down flooring as a result of high damp readings.
On 5 March 2020 one of the landlord’s surveyors carried out a visual inspection of the property for damp. He noted he had found “damp issue in ground floor affecting the living room, hall and bathroom, asbestos tiles on bitumen DPM [damp proof membrane] … Isolated patches in floor slab found of dampness, not consistent throughout floor … bitumen DPC [damp proof course] in poor condition externally, potentially this maybe the cause”.
On 11 March 2020 the landlord asked an external contractor to inspect the property for damp.
On 19 March 2020 this external contractor (the damp contractors) carried out a survey at the property. They said that the current damp proof system on the ground floor was thermoplastic tiles laid on bitumen. They said, “this system would degrade over time … allowing rising damp to occur”. The damp contractors found that areas tested in the hallway and living room had tested positive for high moisture readings which indicated areas that rising damp had occurred. It wrote to the landlord with that survey on 26 March 2020 and gave an estimate for work to remedy the damp.
When the resident called the landlord on 23 March and 2 April 2020 it said it was carrying out only essential repairs due to covid-19.
On 6 April 2020 the landlord told the resident it would need a second estimate before it would carry out any work to the property in respect of the damp. However, it was unable to progress this as quickly as it wanted to due to covid-19. It said it would update her when it had further information. On 14 April 2020 the landlord told the resident in response to enquiries from her, that it had suspended the work for the time being.
On 1 May 2020 the landlord noted it had not offered to decant the resident as it had found isolated, not widespread, high readings of damp. It agreed to provide a dehumidifier to mitigate any humidity in the air of the property.
On 14 May 2020 the resident made a formal complaint to the landlord. She said she was denied carpets from a carpet store because they found damp in the property; however subsequent inspections had found no damp. She said she was hoping this would be all resolved by now and the carpets fitted. The landlord acknowledged the complaint the following day.
On 15 May 2020 a different surveyor who worked for the landlord carried out a further visual inspection and noted, “no serious damp found, minor readings in gable wall but the rest of the property is dry”.
On 22 May 2020 the landlord wrote to the resident in response to her complaint. It offered compensation of £36 a month for the additional cost in running the dehumidifier.
On 20 May 2020 the landlord obtained a second estimate to carry out damp‑proofing work at the property.
On 28 May 2020 the landlord’s principal surveyor told the resident that she wanted further, more intrusive, damp testing at the property but some thermoplastic tiles would have to be removed first to allow that test to take place. She said it would not be able to remove the tiles before June 2020 due to covid-19. She also said that, if a decant was to take place, it would be after the further tests had taken place.
On 3 June 2020, following contact from the resident, the landlord told her it had escalated her complaint to stage on of its formal complaints procedure. It apologised that it had been unable to resolve matters.
On the same day, the resident’s GP wrote to the landlord saying that she had had a chest infection and “wheezing” from late April 2020 and had had to use an inhaler for her asthma for the first time in eleven years.
On 11 June 2020 the carpet store manager told the landlord that the floor at the property was not suitable for fitting luxury vinyl tiles because the thermoplastic tiles had to be screeded over and the damp level was above what the manufacturers had stated was the minimum safe level. He explained that his staff had used a standard damp meter to measure the damp at the property.
On 18 June 2020 the landlord removed some of the floor tiles in the property. In an email responding to concerns raised by the resident’s councillor, the landlord explained that it did not do any work “over the threshold” of properties until after 15 June 2020 due to covid-19 and that accounted for the delay in progressing matters.
On 19 June 2020 the carpet store manager told the landlord he was unable to find out on the calibration of the damp test device as the surveyor was furloughed. He explained that vinyl tiles could not be installed on top of thermoplastic tiles; he said the resident was having carpet fitted and “there was no issue with the fitting of these”.
On 23 June 2020 a further survey took place at the property by the principal surveyor and another surveyor. She noted that the calcium carbide test readings were zero in all locations within the property. (Calcium carbide tests use a moisture testing device to aid surveyors in damp investigations and diagnosis.) The principal surveyor also noted that she had found that the “majority of the property was completely dry with slightly elevated readings to the left elevation by the toilet and bathroom”. She also recorded that she had spoken to the carpet store who had used a standard damp meter and had confirmed that carpets would be able to be laid on the existing flooring construction in the property.
In late June 2020 the local authority’s environmental health team first contacted the landlord about the damp in the floor of the property, following contact from the resident.
On 29 June 2020 the landlord responded to the resident at stage one of its formal complaints procedure. Its main points were:
1. During the pandemic it had only been visiting customer’s homes to undertake emergency repairs in order to protect both customers and staff, which had caused delays.
2. It should not have asked the damp contractors to attend until it had carried out further investigation works itself. This caused unnecessary confusion and it apologised for the distress this might have caused.
3. It did not find any damp in the floor when it carried out extensive tests on 23 June 2020; therefore, it would not undertake any remedial works to the floor.
4. It would ask the heating team to assess if a small radiator could be installed in the small WC. It would also test the cavity installation for that room.
5. It apologised if the surveyor was dismissive of any information the resident was providing and confirmed it had spoken to him to ensure it did not happen in the future.
6. It said it was unfortunate that issues with various damp readings had caused delays and confusion; there were many factors which might have caused differentials between each surveyor’s results. However, it had been confirmed that the property did not have significant damp issues.
7. It apologised for the frustration caused to the resident by the time it had taken to investigate damp issues at the property. It said that, had covid-19 not been an issue, it was sure we would have been able to progress matters more quickly and enable the resident to have carpets laid.
8. It explained how the resident could escalate the complaint if she was dissatisfied.
On 30 June 2020 the environmental health officer (the EHO) wrote to the landlord saying that she was concerned that if the damp problem was not dealt with correctly it would continue to worsen. She explained that, when assessing a hazard, they had to take into consideration the likelihood of this particular issue continuing to occur in the areas already affected or additional areas of the bitumen seal degrading over the next twelve months resulting in more areas of damp affecting the flooring within the property and ultimately affecting the tenant’s health.
The EHO said she had also discussed this with one of the building control officers who had agreed with her concerns that, even though there were maybe intermittent patches of dampness, if only small areas were weakened and these were repaired, the moisture would find other weakened areas and eventually penetrate through the concrete to the surface above. She added that, with this type of flooring, the building control officers would advise that the whole floor area should be removed and a new damp proof membrane would need to be fitted to meet the current Building Regulations.
On 4 July 2020 the resident told the landlord that the property needed a damp proof course and that she was not willing to put carpets down for them to be “ruined”.
On 6 July 2020 the principal surveyor told the EHO that she had planned to attend the property with the specialist contractor on 14 July 2020 for further investigations. However, as the resident could not confirm that appointment, it had been cancelled and she was waiting for her availability to rebook a visit.
On 15 July 2020 a further survey took place to establish if there was damp in the walls of the property. It said there was damp evidence in the wall of the downstairs WC. At that visit the landlord noted that the resident had said she was awaiting the EHO to return from leave so that she could inspect the property.
On 16 July 2020 the carpet store manager told the resident that carpet could be fitted without the need for a damp proof membrane; however, they always suggest to customers that if there is a known damp issue then this should be rectified prior to them fitting the carpet. He said if this was not rectified, the damp might cause the carpet to discolour or mould/mildew to develop in the damp areas. He added that the damp could also result in the gripper placed around the room to fail which would result in the carpet needing to be attended to by a carpet fitter.
On 17 July 2020 the landlord subsequently raised a repair job to extract and refill all elevation cavity wall insulation due to debris and large voids found. This work was completed on 16 September 2020.
On 27 July 2020 the carpet store manager told the landlord that they would need to screed over the tiles in order for the resident to have the flooring fitted. He added that they would need the floor checked again prior to commencing fitting to check for damp as this had been noted by the original surveyor.
On 28 July 2020 the landlord wrote to the resident at stage two of its formal complaints procedure. The main points were:
1. It had conducted various calcium carbide tests throughout the property and found no moisture within the concrete slab.
2. The store manager of the carpet store had confirmed the following that the only reason they would need to do any floor preparation was because they were supplying luxury vinyl tiles and these cannot be laid on top of thermo plastic tiles. He added “the customer is having some carpets and there is no issue with the fitting of these”.
3. The store manager also said that they would always recommend that the customer deals with any known damp issues prior to fitting a carpet. The landlord said that it had conducted several tests and confirmed that the floor at the property did not indicate any signs of damp. It added the resident could have the carpets laid and it had informed the carpet store of that.
4. The landlord said, given the lack of damp, there was no requirement for it to undertake any work to allow specific flooring to be laid.
5. The landlord set out the investigations it had undertaken during its visit of 15 July 2020 in relation to insulation and its outcomes. It said its contractors would reattend and extract the existing insulation and refill all elevations so that cold spots could not form. It said it aimed to complete that work by 14 August 2020.
6. The landlord set out its investigations and outcome in relation to the toilet. It said no leaks had been found.
7. As the property was not suffering from damp and condensation, it would remove the de-humidifier from the property.
8. It had provided the resident with a copy of the survey report from the damp contractors.
The landlord explained how the resident could ask for a review of its decision.
On 30 July 2020 the resident told the landlord she was dissatisfied with its decision and did not consider the landlord’s investigations had been sufficiently thorough.
On 21 August 2020 the landlord wrote to the resident saying that it would not review her complaint as there was no new evidence to suggest that it should have dealt with it differently. It added it did not consider that a review would alter the outcome for her. The landlord also said that it was arranging appointments with the resident to complete the cavity wall work, to look at the extractor fan in the bathroom and the removal of the dehumidifier.
On 28 August 2020 the landlord told the resident that the dehumidifier and refund of associated running costs was provided whilst it investigated her concerns. As it had now established that the property was not suffering from damp and the complaint had completed its internal complaints process, the dehumidifier needed to be returned and no further costs would be refunded to her. The landlord added that its planners were trying to make contact with the resident to arrange appointments to complete the outstanding work.
On 15 September 2020 the resident told the landlord that she had been told by the EHO to retain the dehumidifier.
On 22 September 2020 the EHO served a notice of intention to enter and inspect the property.
On 6 October 2020 the EHO inspected the property. She found high readings of damp in the hallway and bathroom and “very slight areas of raised areas to the floor surface” in the hallway.
On 16 October 2020 the EHO wrote to the landlord with the outcome of her inspection. She found among other things, category two hazards of excess cold and damp and mould. She said the damp proof membrane (which was made up of a bitumen layer on top of the concrete floor slab below the asbestos thermoplastic floor tiles laid in the hallway and bathroom) was degrading; that was allowing rising damp to occur in varying degrees throughout the concrete floor slab in those areas.
The EHO issued an informal notice giving details of the work that the landlord should undertake to remedy matters and said this work should be completed by 10 December 2020. She also said that, if the landlord did not complete the required works in full and to an acceptable standard, they would consider serving an Improvement Notice, requiring the work to be completed within a revised timescale.
On 26 November 2020 there was a meeting between the landlord and the EHO.
On 7 December 2020 the landlord emailed the resident about retrieving the dehumidifier.
On 14 December 2020 the landlord wrote to the resident. In relation to the damp, it said that due to the “drastic differences” with the results obtained by [it and the EHO], it had agreed to monitor the situation for a further twelve months to make sure both it and the EHO were happy with the diagnosis of the property condition and only undertake works which were necessary. It said this would include further visits from it in the coming months to assess and it proposed attending during May and November 2021 to complete a full inspection with moisture readings of the floor slab. It asked the resident to let it know if she noticed any changes within the property, such as mould growth and condensation and it would attend sooner. The landlord reiterated that it would not undertake any flooring works within the property until it had reattended and found areas to be damp using the calcium carbide testing kit. It added that it had installed a new radiator in the downstairs WC and it hoped to see some improvements with the property’s thermal efficiency as a result.
On 18 December 2020 the EHO told the landlord that the most appropriate course of action to deal with the low scoring category two hazard of damp and mould going forward was to serve a Hazard Awareness Notice. This was to make the landlord aware that the hazard was present, but there was no date for requirement to complete this work unless the conditions significantly deteriorated within the next twelve months. The EHO said they had advised the resident that the landlord would monitor the hazard over the next twelve months for any signs of deterioration. She served a hazard awareness notice on the landlord the same day. This noted the landlord was under no legal obligation to remove or reduce the hazard at that time.
This hazard awareness notice stated:
1. The relative moisture readings in the hall and bathroom were slightly elevated which could be a result of the damp proof membrane degrading.
2. It was not possible to assess if the damp proof membrane would degrade further.
3. The rest of the ground floor flooring, walls, woodwork and the resident’s belongings were showing no signs of being affected by damp inside the property.
4. There were no mould spores present at all inside the property which, if present, could affect the health of the occupants.
5. There was also no evidence of condensation on any of the most likely internal surfaces such as the windows.
The notice said that the landlord should monitor the moisture levels inside the property over the next twelve months. If mould spores began to appear on any of the internal structural elements such as the walls, woodwork, ceilings, flooring or the occupant’s belongings, this should be revisited, and the integrity of the damp proof membrane in the floor areas checked.
On 23 February 2021, following contact from the resident who said that there was mould in the kitchen, the landlord agreed to install dataloggers to measure moisture within the property. It added that, once lockdown had eased, it would install a relative humidity tester (a hygrohood) to test the moisture content in the floor. This Service has not seen the outcome from those tests.
When the resident approached the Ombudsman, she said that this issue had been stressful for her and her son. She said, throughout, she had had not flooring. She wanted the landlord to install a damp proof course and to pay compensation for the distress and inconvenience caused.

Assessment and findings

The landlord is responsible for keeping in good repair the floor of the property (paragraph 3). In this case the landlord acted appropriately by responding to the reports of damp by visually inspecting the floor (paragraph 10) and then sought the view of an external contractor (paragraph 12). Both of these assessments identified some damp.
The landlord carried out a further visual inspection which did not identify damp in the floor (paragraph 17). A further, more detailed survey by the landlord also did not identify damp in the floor (paragraph 26). The later survey identified some damp in the wall which the landlord subsequently resolved (paragraph 33).
The action taken by the landlord up to this point was reasonable. By the end of June 2020, it had conflicting information about whether or not there was damp in the floor of the property – the carpet store survey had identified damp in the floor, as had the first of the landlord’s visual inspections and the damp contractor; a second visual inspection and the more intrusive test did not.
By this time the resident had been living in the property, without flooring coverings, for almost six months. She involved the local authority’s environmental health team. Following their first contact the landlord tried to make a further inspection of the property (paragraph 32); however, that appointment was not convenient to the resident and the landlord said it would await contact from her to arrange a further visit. There is no evidence that the resident made contact to do so nor that the landlord itself tried to re-arrange this visit; however, it is clear that the resident was waiting for the EHO to carry out an inspection at that time (paragraph 33).
Given the involvement of the EHO, it was not unreasonable for the landlord to await the outcome of her inspection and to be guided by her recommendations because this was an independent assessment of whether or not there was damp in the floor in the property.
The EHO’s inspection found some rising damp in the property and gave details of the work that should be carried out to resolve this (paragraph 44) and said an improvement notice would be issued if the work was not completed by 18 December 2020. At that point, the resident’s expectations would have been that the matter would be resolved before the end of the year.
The landlord did not carry out this work as suggested by the local authority. Instead of issuing an improvement notice when the work was not completed, the landlord met with the EHO who subsequently issued a hazard warning notice which meant there was no longer any requirement that the landlord should complete the work as set out in the EHO’s letter of 16 October 2020. As previously explained, the Ombudsman has no authority to comment on the actions of the EHO (paragraph 6).
By that time, the resident had been living without floor coverings for over ten months. It is understandable that she was frustrated at the length of time it was taking to resolve and that she would not want to have carpets fitted before the matter was resolved given the problems that might lead to, as outlined by the carpet store manager (paragraph 34). There is no evidence of unreasonable delay, here because due to covid-19 restrictions, for part of the time this matter was ongoing, the landlord was carrying out emergency repairs only.
Once the EHO had issued an informal notice instructing it to take action, it was reasonable for the resident to expect that this work was carried out. However, the evidence suggests that the landlord put forward its view that it was not conclusive that there was damp due to the disparate damp readings obtained by it and the EHO. The EHO then agreed to further monitoring for twelve months. The landlord has a duty to consider value for money and therefore not carry out potentially expensive works if it has evidence they might not be required.
It was reasonable for the landlord to ask for the resident to return the dehumidifier once its tests had identified no damp in June 2020; however, following the EHO’s findings in October 2020 it would be reasonable for the landlord to allow her to retain it until a conclusive outcome has been reached especially in view of the health issues described by her GP (paragraph 22). This Service understands that the resident has kept the dehumidifier.
This has evidently caused frustration and inconvenience this has caused, and continues to cause, the resident. However, the landlord has acted reasonably in carrying out surveys and inspections to ascertain whether or not there was damp. It would have been open to the EHO to have issued an improvement notice if it was her view that there was damp that needed to be resolved. In the absence of that, there has been no service failure by the landlord.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to reports of damp.

Reasons

The landlord acted appropriately by carrying out inspections and having surveys completed. While damp was identified on several occasions, there were surveys which did not identify damp. Given this conflicting information, it was reasonable for the landlord to follow the guidance of the EHO.

Recommendations

It is recommended that the landlord ensures that the resident has a dehumidifier and compensates her the sum of £36 a month for its running costs from October 2020 (when the EHO identified damp) to when this matter is resolved conclusively in respect of damp in the flooring in the property.