Clarion Housing Association Limited (201915794)

REPORT

COMPLAINT 201915794

Clarion Housing Association Limited

26 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:
1. The landlord’s response to the resident’s reports of damp and mould in the property.
2. The landlord’s response to the resident’s request to be permanently decanted to a three-bedroomed property.
3. Complaint handling.

Background and summary of events

Background

The resident has an assured tenancy with the landlord and occupies a two‑bedroomed, ground–floor flat. The tenancy started in 2009.
The landlord’s tenancy agreement with the resident confirms that it is responsible for maintaining the structure of the property, including the external and internal walls, floors, and ceilings. This also stipulates that when works are required to the property which cannot reasonably be carried out whilst the resident is in occupation, she is to vacate the property to alternative and temporary accommodation until the works are complete.
The Housing Health and Safety Rating System (the HHSRS) is concerned with avoiding or, at the very least, minimizing potential hazards. Under this rating system the landlord has a responsibility to keep a property free from category one hazards, including damp and mould growth. The landlord has a responsibility to ensure properties are free of category one hazards for damp and mould this means taking preventative measures that could have a significant effect on likelihood and harm outcomes relating to moisture production and ventilation including damp proof courses and ensuring that the external fabric of the building is kept in good repair and that the roof and under floor spaces are well-ventilated to ensure timber remains air dry.
The landlord’s decant policy states that an unplanned temporary decant may be required of the resident where works need to be carried out which do not require the resident to leave immediately. In such cases it will offer its own void property for the decant where possible, but may consider private rented accommodation, or hotel accommodation up to a maximum of three weeks. The policy sets out that “suitable accommodation” is that which is similar in regard to rent, size, situation and it will offer “like for like” accommodation dependant on the availability of properties which meet the “mobility and access needs” of the current property.
The above decant policy provides for the landlord to, at its discretion, permit the resident to remain in the decant property provided it addresses a “housing need such as, overcrowding under [its] Allocations policy”. This policy also states that if a resident “refuses the offers of suitable alternative accommodation, or refuses to move at all, [the landlord] will take court action to gain possession of the property”.
The landlord’s allocations policy considers accommodation to be an appropriate size when one bedroom is allowed for each of: the resident and her spouse; each pair of children under 16 of the same sex. This policy confirms that for higher priority to be given for a property move for medical reasons, an urgent or essential medical need must be confirmed by a medical professional or occupational therapist, and an assessment by an occupational therapist may be required to assess the type of accommodation required.
The landlord’s repairs and maintenance policy says that emergency repairs which pose a danger to the health of the resident are to be attended within 24 hours and made safe, whilst for non-emergency repairs the resident is to be offered an appointment within 28 calendar days of the repair being reported.
The landlord’s complaints policy provides for a two-stage complaints procedure where it aims to resolve the complaint within ten working days at stage one and at the final stage of the procedure, it aims to resolve the complaint within 20 working days. If it is unable to resolve the complaint within these timeframes, it is to keep the resident informed, explain why there is a delay, and provide a timescale of how long it would take the resolve the complaint.
The landlord’s compensation policy provides for offers of discretionary compensation to be made to recognise adverse impact on the resident caused by its actions or omissions. Its guidance on compensation amounts derives from the Ombudsman’s own remedies guidance.

Summary of events

The Ombudsman had limited historical information; however, it is not disputed that in response to the residents reports of damp and mould, the landlord carried out mould washes in November 2016, December 2017 November 2018, July and October 2019 and January 2020.
The landlord’s internal correspondence on 14 January 2020 recorded that on 29 October 2019 the resident reported a reoccurrence of “mould throughout property” which was attended on 14 November 2019. It noted on this visit that there was a strong smell of mould, and damp was evident throughout the property. Two attempts were made by the resident on 3 and 9 December 2019 to arrange an inspection before this was carried out on 12 December 2019, when the landlord advised her to clean the windows and use heating to alleviate the issue.
On 7 January 2020 the landlord received a complaint from the resident about its responses to her reports of damp and mould.
An internal note from the landlord from 14 January 2020 listed the action it had taken in 2019 to address damp and mould at the property:
1. Trace and remedy the mould on 11 January 2019.
2. Mould wash and repair cracks in plaster and brickwork on 11 February 2019.
3. Mould wash on 24 July 2019.
4. Further works were ordered on 29 October 2019 to address mould throughout the property.
5. Works were raised on 3 December 2019 to address mould on the bathroom ceiling.
On 16 January 2020 the landlord responded to an enquiry from a councillor (the councillor) saying that it had attended the property several times in 2019 in response to the resident’s reports of damp and mould. It said it would contact her that day to arrange another inspection and carry out remedial work as necessary. It relayed that previous contact with her had revealed that she did not use the air conditioning or heaters installed in the property. The landlord advised that it would provide a formal response to her once it had completed its investigation.
The landlord spoke to the resident on 16 January 2020 and advised her to make an insurance claim in response to her reports that she had experienced damage to her belongings due to damp and mould.
The landlord subsequently noted following a visit to the property on 17 January 2020 that the damp and mould reported were signs of condensation. It raised works to carry out a mould wash and inspect staining to the wall.
In an internal email dated 14 January 2020 the landlord noted that there was “a strong smell of mould in basement flat. Basement has not been treated and damp is evident throughout home”. On 20 January 2020 the landlord noted that there was “beads of water on windows. Pools of Water on the windowsill. Black mould on window frames, window recesses and windowsills … back mould on walls”.
On 21 January 2020 the resident told the landlord that the damp and mould had led to the loss of one of her bedrooms for two months.
On 3 February 2020 the resident expressed her dissatisfaction to the landlord about it missing an appointment that day to carry out a mould wash. She was also unhappy with the advice she had been given during the previous inspection on 17 January 2020.
On 6 February 2020 the landlord attended the property to carry out another inspection and decided that found that further investigation was required.
The landlord inspected the property again on 13 February 2020 and decided further checks were required. It carried out a mould wash to the property the following day, which led to the resident being temporarily decanted due to sustaining an injury to her hand from materials used in the mould wash.
The landlord issued a stage one complaint response to the resident on 24 February 2020 in which it apologised for its delayed response. It confirmed that its visit on 13 February 2020 had identified the need for a more intrusive investigation to be undertaken at the property which could not be carried out whilst she and her family were in residence. The landlord advised that it would carry out a further visit to the property on 25 February 2020 to “formulate a plan of action” and maintain contact with her whilst investigating a solution to the reported damp and mould. The landlord noted that the resident had experienced issues resulting from her recent mould wash which was not part of her original complaint and provided her with the contact details of the staff member dealing with the matter. It confirmed that this constituted its response to her complaint at stage one.
On 9 March 2020 the councillor referred the complaint to this Service. He stated that the landlord had not investigated the source of the damp and mould issues and had instead “continued to blame” the resident for not managing the condensation in the property. He said that the landlord had inspected the property again on 25 February 2020 and a further inspection would be conducted on 13 March 2020 by a contractor. The councillor relayed the resident’s doubt that the landlord would identify the source of the problem and wanted to be considered for a transfer to another property if the inspection revealed that major structural works were required, and compensation for the “poor service” she had experienced.
On 19 March 2020, the landlord’s damp specialist wrote to the landlord with the outcome of its inspection of the property of 6 March 2020. They found the following:
1. Saturated moisture readings on the plasterboard walls in the two front bedrooms.
2. The floors around the perimeter of the front bedrooms had saturated moisture readings. There were also very high moisture readings in the basement floor adjacent to the hot water cylinder cupboard.
3. Surface moisture on the solid masonry external wall.
4. Humidity levels in the basement were over 65% and the air temperature in the basement was 4 degrees centigrade lower than at ground floor.
5. Water was running down the inside faces of the basement windows and collecting on sills. The windows were open on the day of the inspection. The sills and reveals to the basement windows were saturated.
The damp specialist said that the evidence suggested that the high moisture readings in the walls and floors might not be due to penetrating damp through the external basement walls; rather there was a possibility that poor ventilation of the cavity behind the plasterboard was allowing moisture laden air to condense and saturate the plasterboard walls and timber floors. They concluded that intrusive investigations into the floor construction and behind walls was required to confirm the cause of the damp.
After contact from the resident, this Service contacted the landlord on 11 May 2020 to request that it provide her with an update or response to her complaint.
After speaking to the resident on 14 May 2020, the landlord wrote to her that day to confirm that her complaint was closed at stage one of its complaints process on 24 February 2020 when it agreed to maintain contact with her while it “continued to work out the damp and mould issues”. It noted that she did not wish to raise another complaint and would continue to liaise with its staff. The landlord provided details for the resident to make a claim against its insurance for damage to her belongings.
The resident subsequently contacted this Service to express her dissatisfaction with the landlord’s progress in dealing with her reports and we wrote to it on 19 June 2020 to request that her complaint be escalated to the final stage of its complaints process.
The landlord spoke to the resident on 23 June 2020 where she informed it that her property was overcrowded and she wished to be moved to a larger, ground‑floor property. It spoke to her again on 24 June 2020 to advise that intrusive exploratory works were required to the property which required her to be decanted while these works took place. The landlord informed the resident that the timescale for this was unclear. The resident declined at this point to raise a complaint about the new issues which had occurred since the stage one complaint response but expressed concern over having to move furniture and belongings back and forth from a temporary property. She asked if instead a permanent transfer could be arranged.
On 25 June 2020 the resident was informed by the landlord that a decant would be a like-for-like basis, meaning that she would be decanted into a two‑bedroomed property. She later said that that was not acceptable to her as she would continue to be overcrowded at the temporary property.
On 30 June 2020, the resident called the landlord to update the details of her household as it had no record of two of her children. She said she had three children aged 11, 7 and 3. She repeated that she refused to decant into a similar sized property and move her belongings back and forth; she added that she was reluctant to move to a high–rise building due to medical problems. The landlord advised that there was a possibility that the resident could remain in a decant property and that any refusal on her part to be decanted would lead to a delay in completing works on her current property.
On 22 July 2020, the landlord recorded that it offered the resident a permanent decant to a three-bedroomed property which she had refused.
The landlord called the resident on 24 July 2020 to offer her a two-bedroomed property as a temporary decant property. She was reluctant to accept this as it was not a ground–floor property. The landlord stated that there was no indication of a medical need for a ground–floor property. The landlord said it could assist with the removal of their belongings.
On 27 July 2020 the resident’s GP wrote to the landlord saying that properties above ground level were unsuitable for her due to her medical conditions and acknowledged that she had not sought help previously due to a lack of time.
The resident viewed the property on 30 July 2020 but subsequently declined it.
The landlord wrote to the resident on 10 August 2020 to reiterate that she would need to be decanted from her current property to enable intrusive works to begin. It said that the resident declined a permanent decant to a three-bedroomed property and a temporary decant to a two-bedroomed property. The landlord said that it would usually start its tenancy breach process to decant her from her current property to enable it to carry out works but acknowledged that she had been “made to feel uncomfortable” by the neighbour at the viewing of the property. It agreed, therefore, to offer her one more two-bedroomed property as a temporary decant. The landlord urged her to accept this offer as its next action would be to commence its breach of tenancy process.
The resident’s councillor emailed the landlord on 13 August 2020 to escalate her complaint to the final stage of its procedure on the basis that it had not considered medical evidence which showed that she required a ground–floor property. Furthermore, he contended that the landlord was using legal action to “force her” to accept a property which would leave the family overcrowded for an uncertain period of time.
On 13 August 2020 the landlord noted that the resident had not applied for a medical assessment with the local authority to establish the correct priority banding for her existing housing application.
On 28 August 2020 the resident viewed a two-bedroomed decant property, which she declined the following day due to her concerns over the available space for her belongings and the garden.
The landlord’s internal correspondence of 1 September 2020 indicated that it had offered the resident the option of putting some of her belongings into storage while she and her family were decanted.
On 16 September 2020 the landlord issued a final response to the resident under its formal complaint procedure. It referred to the findings of its inspections and listed historical repair work carried out in response to the resident’s reports of damp and mould including. The main points of the complaint response were:
1. Its earliest record of her reports of damp and mould was in 2010 but it could not identify its response to this.
2. It received further reports in 2014 and had responded by overhauling the bathroom and kitchen fans.
3. It could not identify what action it took in response to further reports of damp and mould in November 2015.
4. It could not identify what action it took in response to further reports of damp and mould in January 2019.
The landlord acknowledged that the damp and mould persisted. It said that a full schedule of works needed to be agreed (following the inspection of March 2020) pending investigatory works which required her to decant from the property.
The landlord acknowledged that it had “taken too long … to recognise that mould was not caused solely by condensation” and apologised for that. It maintained that it was taking measures to resolve this but this required the resident to be decanted. The landlord said that the delay in decanting was causing the delay in resolving the mould issue. It stated that the decant was an unplanned temporary decant and the scope of the works did not necessarily render it a permanent decant which would apply if the works were likely to last longer than six months. The landlord reasoned that, without carrying out the intrusive survey, it could not establish the length of time required for the remedial work.
The landlord said that it had used its discretion to offer the resident a permanent decant to a three-bedroomed property in August 2020 which she had rejected, in addition to offering two two-bedroomed properties as temporary decants. It asserted that it had made clear to her that it would consider legal action if she did not accept a decant property. The landlord stated that it could have taken legal action on the refusal of the first property but it had exceeded its obligation by offering three. It stated that its priority was to decant the resident so that remedial works could be completed to address the issue which she had “complained about for a long time” and that a “balance is needed between availability and not unnecessarily delaying the works”.
The landlord acknowledged that the resident’s desired resolution was for it to permanently move her to a three-bedroomed, ground-floor property and that she was currently overcrowded in her current property. It noted that she was listed in the appropriate banding for rehousing with the local authority. The landlord also noted that the resident had expressed a medical need for a ground–floor property but she had been advised that it did not assess medical needs and had signposted her to the local authority for assessment. It suggested that she complete this as a priority
The landlord noted that the resident had raised two additional issues since the stage one response: that she had sustained an injury to her hand due to residue from the mould wash carried out on 15 February 2020 and that she had reported damage to her furniture. It confirmed that it had carried out an immediate decant of her household after her report on 15 February 2020 to prevent further injury, and, after investigation, concluded that “[its] operations were not implemented accordingly” which it had addressed by requesting training for the staff involved.
Regarding the resident’s report of damaged furniture, the landlord referred her to its letter of 14 May 2020 in which it provided her with information on how to make an insurance claim. The landlord agreed that compensation should be offered to the resident for her experience but stated that this should only be considered once the decant had occurred and works had been completed to resolve the issue.
As part of the Ombudsman’s actions to resolve this complaint, the landlord offered the resident compensation of £1,050. This was made up of:
1. £50 for repairs which had gone over target time.
2. £100 for the time taken to resolve the complaint. It recognised that both the stage one and two complaint responses were delayed and offered its apologies also for that.
3. £500 for any inconvenience suffered or a degree of disruption to the household. It recognised that the resident via her councillor had to repeatedly chase the complaint; it also recognised the disruption caused to the household due to repeated reports of damp/mould. It noted that whilst it tried to fix the repeated reports of mould and damp, it did not get to the bottom of the issue.
4. £150 for its failure to follow processes. The landlord recognised it had been unable to locate information on what action it took to treat the damp and mould in 2010, November 2015 and January 2019.
5. £250 for repeat visits to resolve outstanding the damp and mould problem.

Assessment and findings

The resident’s reports of damp and mould in the property

The landlord acknowledged in its final stage complaint response on 16 September 2020 that it had “taken too long” to realise that the damp and mould reported by the resident were due to more than condensation. The Ombudsman has discretion as to the period of time considered when making a determination. In its final complaint response, the landlord gave a brief account of events in this case since 2010. This investigation has focussed on events from late 2016 because it is not disputed that the resident has had regular – at least annual – contact with the landlord since that time. While the resident did not make a complaint until January 2020, there is sufficient evidence on which to make a determination on events from 2016.
The landlord’s response to reports of mould in late 2016 by carrying out a mould wash was reasonable because there is no evidence that it had done so previously and, by that time, it had taken other action that had not worked (the upgrade of the fans). It was therefore reasonable for it to try a mould wash to see if that resolved the issue.
When the resident reported mould again in late 2017, it would have been appropriate for the landlord to have instigated a more in-depth investigation, rather than just carry out another mould wash. This is because, by now, the resident had been reporting damp over a long period of time, previous attempts to resolve it had not been successful and further checks would be compliant with the landlord’s obligation to keep the property free from category one hazards (paragraph 4).
The landlord carried out further mould washes in November 2018, July and October 2019 and January 2020. If a treatment is not successful, it is not reasonable for a landlord to repeat that same treatment several times without further action or investigation because it is likely that such a repeated treatment would not be successful or addressing the cause of the problem . In early 2020 the landlord decided that such further checks were required and appointed a specialist damp contractor. While this step was appropriate, the landlord’s overall actions were not reasonable because it missed previous opportunities to investigate the cause of the damp and mould in 2018 and 2019.
There is no evidence of any correspondence between the landlord and resident between 19 March 2020, when it received the report recommending intrusive investigation of the property, and 14 May 2020, when it contacted her after intervention from this Service. It would have been appropriate for the landlord to have kept the resident informed of its progress, especially since it concluded its stage one complaint on the basis that it would continue to liaise with her while it considered solutions to the damp and mould. That was a further failure by the landlord in not keeping the resident informed.
Given the landlord’s acknowledged failings in this case, as part of the complaints process it would have been reasonable for it to have considered compensation for the resident at that stage. Its decision in its final complaint response only to do so after the works to resolve the damp had been completed was not reasonable because it was deferring its responsibility to put matters right. This was also not appropriate as the landlord’s compensation policy does not mention delaying payments of compensation.
In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord to put things right and resolved the complainant’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
In this case, in light of the length of time that the matter has been ongoing and the clear impact on the resident, the compensation offered by the landlord was not proportionate. The Ombudsman considers that £75 a month would be appropriate redress for the evident impact living in a property with damp and mould has had on the resident and her family. The landlord has acknowledged that there was a strong smell of mould throughout the property and that there was black mould on the walls, windows and windowsill. The resident said in early 2020 that the mould had led to the loss of one of the bedrooms (in an over already overcrowded property) for a period of two months. This compensation would also reflect the effort taken by the resident in trying to resolve this matter and the landlord’s failure to contact the resident between March and May 2020. The period of time for which compensation has been ordered is from December 2017 – when it failed to carry out an appropriate investigation into the possible causes of damp and mould – to July 2020, a total of 31 months.
This amount is within the range of amounts that the Ombudsman can order when he has found evidence of considerable service failure or maladministration. This includes cases where there has been a failure over a considerable amount of time to adequately address repairs.

The resident’s request to be permanently decanted to a three‑bedroomed property

The tenancy agreement confirms that the landlord acted appropriately in requesting the resident to be decanted for the duration of the intrusive investigations into the damp and mould issues she reported (paragraph 3). Its decant policy also confirms that, if offers of suitable alternative accommodation are refused then it will commence legal action to gain possession of the property (paragraph 6). This policy also defines suitable accommodation as that which is similar in size and with similar mobility and access needs as the current property, allowing it to offer like for like properties.
Therefore, it was reasonable for the landlord to offer decant properties to the resident which were two-bedroomed properties on 24 July and 28 August 2020. The suitability of a property is partially dependant on the length of time the household is expected to stay there. As the length of the decant was expected to be under six-months it was reasonable for it to offer the resident two-bedroomed properties. This was further reinforced by the fact that this was the size of property she was currently inhabiting and therefore it was offering her like for like properties.
The landlord further acted reasonably in using its discretion to offer the resident a permanent move to a three-bedroomed property, which she declined around 22 July 2020; this demonstrated that it made efforts to take her circumstances into account and make an offer which was in excess of that required by its decant policy.
The landlord acted in accordance with its policy in offering the resident decant properties which were of a similar size to her current property. It also acted in accordance with its policy in advising her of possible tenancy breach action due to her refusal to accept these properties; there is no evidence of failures by the landlord in this regard.
It is noted that the resident provided evidence of a medical need for a ground floor property on 27 July 2020; however, there is no evidence that this has been assessed by an occupational therapist in line with the landlord’s allocations policy (paragraph 7). It would be expected of a landlord to prioritise allocation of certain properties to those with an established medical need to make the best use of its housing stock. It is reasonable for the landlord to have an independent assessment of the resident’s needs by an occupational therapist who is an expert in such matters. It was therefore reasonable for the landlord, in its final stage complaint response on 16 September 2020, to urge her to have her needs assessed so that it could prioritise her accordingly for future property offers.
It is understandable that the resident would prefer for her re-housing to coincide with her decant from her property to allow repairs to be carried out, and it can be seen that the landlord used its discretion to act reasonably in offering her a permanent three-bedroomed property to reduce the upheaval of moving properties again, as discussed above. However, because the resident refused this, it was appropriate (and in accordance with its policy) for the landlord to continue to offer her like-for-like temporary decant properties and encourage her to have her housing needs medically assessed.
Overall, there is no evidence of any service failure by the landlord in its handling of the resident’s decant.

Complaint handling

The landlord’s complaint procedures say that it should respond to complaints within ten working days at stage one and within twenty working days at stage two. In this case it took the landlord 34 working days at stage one and 62 days at stage two. The landlord’s complaint handling was not appropriate because it was not in line with the timescales set out in its complaint procedures.
This caused evident inconvenience and frustration to the resident and meant she had to involve both the councillor and this Service in trying to obtain responses at stage two. The Ombudsman considers that sum of £200 would be appropriate redress which reflects he time and trouble taken to try to resolve matters.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its response to the resident’s reports of damp and mould.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its complaint handling.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s request to be permanently decanted to a three-bedroomed property.

Reasons

While the landlord took some action in response to the reports of damp and mould, when those measures were not successful it would have been reasonable for the landlord to have investigated this further. Accordingly, it missed opportunities to do so in 2018 and 2019. The landlord’s handling of the reports of damp and mould was not reasonable because it repeated unsuccessful treatments without further action or investigation. Had it investigated sooner, it is likely that matters would have been resolved more quickly.
The landlord acted appropriately in offering two-bedroomed properties to the resident in accordance with its allocations policy. It also acted reasonably in using its discretion to offer her a three-bedroomed property. It was reasonable that the landlord asked the resident to have her medical needs assessed by an occupational therapist for consideration in future offers.
The landlord did not act appropriately as its complaint responses at both stages one and two were delayed.

Orders and recommendations

Order

The landlord shall within four weeks of the date of this report:
1. Pay the resident total compensation of £2,525 comprising:
  1. £2,325 to reflect the distress and inconvenience caused by the delay in investigating the causes of damp and mould in the property.
  2. £200 to reflect the frustration and inconvenience caused by the complaint handling failures outlined in this report.

Recommendation

The landlord should write to the resident to explain what action she should take in order to have her housing needs assessed by an independent occupational therapist.