Clarion Housing Association Limited (202124743)

REPORT

COMPLAINT 202124743

Clarion Housing Association Limited

17 April 2023

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

1. The resident’s complaint is about the landlord’s handling of reports of damp and mould. The landlord’s complaint handling and communication with the resident has also been considered.

Background and summary of events

2. The property is a ground floor flat in a three storey block built circa 1950. The resident moved into the property in September 2015. She has a fixed term Assured Shorthold Tenancy Agreement.
3. The resident made a complaint to the landlord on 5 February 2021 about a number of issues including repairs needed, grounds maintenance and damage to possessions. The resident stated that despite several complaints over the years the problems were still arising. Her concern was that the problems were being covered up by repairs, rather than the root cause of the problem being found. She stated that she had a registered disabled child and potentially another child under disability assessment and was no longer able to accept “bodge job repairs”.
4. In her complaint the resident set out a list of problems with the property, which included “mould throughout the property”. She noted that mould washes had been done, but this meant that she incurred costs in redecoration. She said that mould was still apparent in the bathroom around the bath despite daily cleaning, and stated that this was due to a lack of circulation in the bathroom. She further stated that windows were not sealed correctly and the gutters were blocked which was causing mould and wet exterior walls. She listed a number of other problems in the property. She complained that the damp and mouldy conditions meant that her children had suffered a number of illnesses. She observed that she was only using two bedrooms due to the mould. She set out an extensive list of damage caused by the outstanding repairs and sought compensation for this from the landlord. She submitted that these costs were clearly a result of the damp and leaks/floods.
5. A doctor’s note from 22 February 2021 stated that the resident’s “housing arrangements are untenable presently … the girls … are affected the youngest being constantly plagued with coryzal symptoms and coughs, which may be attributable to the situation.”
6. A technical inspection of the property was carried out by the landlord on 16 March 2021. As a result of this the landlord authorised a refurbishment of the bathroom and separate toilet. The inspection noted there had been a leak creating damp in the bathroom and also noted that there was water ingress on the front elevation which required further investigations.
7. An internal order was raised by the landlord on 17 March 2021 to make changes to the bathroom. It noted that investigation of waste/water services was required for condensation mould and a wet floor.
8. The landlord noted internally on 26 March 2021 that the bathroom was older than its records showed and in need of replacement.
9. On 23 April 2021 the landlord agreed with the resident to investigate the drains as a possible cause of the damp in the bathroom. It said that, as the bathroom was being renewed, this would be picked up at that time.
10. It was confirmed that the drains were intact on 26 April 2021. The landlord observed internally that this meant it was “back to the drawing board!”.
11. On 27 April 2021 the landlord noted internally that it had spoken to the resident who had felt that there was mould behind the tiles in the bathroom. The landlord’s contractor also advised internally that he was convinced that the source of the damp was from under the bath. He said that he would arrange a visit for next week and take a damp meter.
12. The resident sent an update to the landlord on 18 May 2021 “as it seems that [the landlord] was unaware of the status of the complaint”. She set out a number of outstanding actions for the works on the property. She noted that a contractor had attended on 14 May 2021 but had been unable to locate the exact cause of the mould. She stated that she had had an independent review on the brickwork and three separate companies had said that the wall needs repointing and that this would be contributing to the damp and potentially the flooding areas. She asked the landlord to look into a managed move. She stated that compensation would need to be paid for damaged items and hotel payments still needed to be paid. (The Ombudsman has requested further information from the landlord on a hotel stay during this period, however this has not been provided.)
13. The landlord sent the resident a stage one complaint response on 12 July 2021. The Ombudsman notes that this dealt with a number of complaint grounds that were not directly related to the issue of damp and mould. With respect to damp and mould, the landlord noted that a technical inspection of the property had been undertaken on 16 March 2021. This followed a mould wash that was conducted on 8 July 2020. The technical inspection recommended that the bathroom and separate toilet be refurbished and that any outstanding issues with leaks be resolved during the refurbishment. A leak in the bathroom contributing to the damp had been resolved and was drying. It noted that the refurbishment works had been completed and provided contact details for the resident to report any further issues with the bathroom and toilet.
14. The landlord’s response stated that the technical inspectors had authorised that a window in the front room be re-glazed – which had been done. Rainwater drainage at the front of the building had been altered “to prevent damp issues” in the living room. The landlord observed that the problem had not reoccurred. It advised that the inspector had noted that there was no damage to the property due to defective external brick pointing. It said that normal practice to make an insurance claim for damage to possessions was to go through the home contents provider, however it set out how to pursue a claim against the landlord. It stated that it had been unable to identify any service delays in its records.
15. The landlord offered the resident £200 compensation in recognition of the time taken to get matters resolved and the delay in responding to the complaint. This consisted of: £50 for the delay in a communal door/intercom repair; £50 for the inconvenience and time taken to complete repairs; £50 for the delay in responding to the complaint; £50 for the time taken to chase responses and update repair issues.
16. On 11 October 2021 the landlord provided the resident with a final response to her complaint. It noted that, after the stage one complaint response, she remained concerned about outstanding issues with returning damp and mould and that several repairs to the windows/guttering remained outstanding. The resident wanted the outstanding issues to be resolved, compensation (including reimbursement for hotel costs) and for the landlord to consider a transfer to an alternative property. The landlord stated that the work on the soakaway was now completed. It confirmed that an asbestos survey had been undertaken and had only found asbestos in the ceilings – all appropriate action was taken when the bathroom was replaced. It stated that the mould had been treated in 2020 when skirting boards were replaced.
17. The landlord acknowledged that the resident had reported new mould developing and proposed a damp and mould full survey by a specialist to recommend any further work needed. It advised the resident that it would ask the asset team to review when a replacement kitchen could be offered to her. It apologised that its communication had not been at an acceptable level and said that it would be reviewing how it communicates going forward. It noted the resident’s request for a transfer and said that it would arrange a visit by the neighbourhood team to assess whether she met the criteria for a management transfer.
18. The landlord’s response increased the offer of compensation from that which it had offered in the stage one complaint response to £400 made up of: £50 for the delay in repairing a communal door and intercom; £100 for the inconvenience due to the time taken to undertake the repairs; £100 for the delay in responding to the complaint; £150 in acknowledgement of the time to chase responses and seek updates on repair issues. It also said that it would reimburse the resident fully for the £55.13 hotel costs she had provided the receipt for.
19. A damp survey of the property was undertaken on 21 December 2021. The report concluded that there was a condensation problem. It concluded that “no remedial works against rising or penetrating damp are deemed necessary”. It recommended that “residents should be advised on condensation control measures they could implement”. It observed that there was no mould present at the time of inspection, however the resident had advised that a mould wash had recently been carried out.
20. A doctor’s note from 31 January 2022 about the resident’s young daughters stated that damp “may well be contributing to the girl’s period of ill health”.
21. Between 14 and 24 February 2022 the resident was decanted to a hotel for a week following the discovery of asbestos in the ceiling of the property.
22. There was a site visit on 14 February 2022 with representatives from the landlord, an Environmental Health Officer and the resident. A report on the visit was circulated by the Environmental Health Officer on 15 February 2022. The inspection included moisture content readings in different rooms and observations that there was no condensation or mould growth. It concluded that a defective sealant needed to be removed in the bathroom and replaced with a sealant appropriate for a damp/moist environment. It noted that further investigations were required. It found that “minor mould growth” needed to be removed in the kitchen. It found that “established mould growth” needed to be removed in the hallway. Repairs were needed to the flashing. It was found that a pipe was discharging ineffectively and there was “dampness evident to the external wall of the flat”.
23. On 16 February 2022 the landlord advised the resident that she could return home and that the hotel was no longer required.
24. The resident submitted another complaint to the landlord on 23 March 2022.
25. The landlord provided a stage one complaint response to the resident on 8 April 2022. It described the resident’s complaint as being about “poor communication surrounding the handling of repairs”. The letter referred to the complaint being submitted on both 22 March and 23 February 2022. It stated that some of the issues the resident had raised had already been dealt with in the stage and stage two complaint responses previously given and it would only be able to consider the asbestos and handling of communications issues. The landlord stated that the cracks in the ceiling were due to age and were cosmetic not structural. It said that the decision to decant the resident and her family was precautionary and the asbestos test was carried out due to the contractor’s requirements. It clarified its position that the reference in its repairs policy to it being responsible for walls, ceilings and plasters referred to structural repairs and not aesthetic repairs. It upheld the resident’s complaint about gaps in communication and awarded the resident £150 compensation for this.
26. On 12 April 2022 the resident wrote to the landlord noting that she had not heard further to the visit about the works being booked in. She noted that someone had also said during an inspection of the bedroom with the mould that it could be insulated. She stated that she had spoken with the Environmental Health Officer a week earlier who agreed that, whilst the landlord was taking steps to curb the mould, the source of the mould had not been found. She said that she was keen to find out what was behind one of the stud walls in one of the bedrooms as she had been advised that this was a mouldy wall. She said that the Environmental Health Officer had also said that issues were being covered rather than resolved.
27. The resident contacted the landlord on 23 April 2022 about silverfish and dry/wet rot. She stated that there were more and more silverfish which probably related to the ongoing damp in the property, and that the new bathroom clearly had not resolved the damp issue.
28. The landlord replied on 25 April 2022 that pests in the property were the tenant’s responsibility and referred her to the repairs team regarding the bathroom. It sent a further email to her on 9 May 2022 stating that it was responsible for wet and dry rot but not silverfish and the resident needed to resolve that.
29. On 4 May 2022 the resident advised this service that the action points from the 14 February 2022 visit had not been progressed and the landlord had not responded to emails. She reiterated the detrimental impact on her and her family.
30. On 13 May 2022 the resident emailed the landlord advising it that the environmental health team had attended and noticed that the bath was not sealed properly after the landlord had replaced the bathroom, which had caused the silverfish problem.
31. On 16 May 2022 the Environmental Health Officer emailed the resident confirming that his view was that resealing the bath would prevent overspill from the bath passing into the void, however it would make sense to determine if the area under the bath was excessively damp as rot may occur or may possibly have already occurred.
32. On 31 May 2022 the landlord advised the resident that contractors would attend on 14 June to carry out works in the bathroom to resolve the silverfish issue.
33. On 25 January 2023 the resident advised this service that there were still outstanding issues. She stated that there continued to be mould and the windows leaked severely when it rained and that no repairs had been done to the flashing or to cracks. She stated that there was an ongoing silverfish issue. She further stated that environmental health had taken the view that issues had been covered rather than sources found. The resident reiterated that she still disputed the damp survey and the advice in it. She stated that an operative had attended the property and stated that the problem was rising damp and the only way to cure it was to remove all the flooring, which ties in with the surveyor and EHO report stating that the external brickwork needed repair. She noted that the issue had been noted on the day they signed the tenancy agreement and had been ongoing for eight years. She stated that the disruption of the works, including on her children, should be taken into account. She expressed her dissatisfaction with the level of communication from the landlord.

Assessment and findings

Damp and mould  

34. The landlord has an obligation to maintain the property in reasonable condition and good repair – this includes resolving issues of damp and mould that is the result of problems with the fabric of the property. Damp and mould can also be the result of condensation from the resident’s use of a property. This can sometimes be resolved through changes in the resident’s activities although not always – for example, where there are limited options for effective clothes drying given the layout and design of the property. Where there are reports of damp and mould the Ombudsman would always expect the landlord to undertake appropriate investigations to determine the cause of damp and mould. If it is determined that it is being caused by problems with the fabric of the property, the Ombudsman expects the landlord to take thorough and effective steps to resolve the issues. Where it is a problem caused by the resident’s use of the property that the resident cannot reasonably change the Ombudsman would expect the landlord to work with the resident to provide solutions.
35. In this case, the resident complains that there has been an ongoing problem with damp and mould since she moved into the property in 2015. The complaint that has been brought to this service began when the resident made a complaint on 5 February 2021. The resident acknowledges that the landlord has taken some steps, including mould washes, however her position is that the landlord is simply covering up problems rather than addressing the root causes. The resident has submitted to this service in January 2023 that there continues to be mould and the landlord has not undertaken all the repairs which it said it would.
36. The Ombudsman acknowledges that the landlord has taken a number of steps regarding the damp and mould. It has undertaken mould washes a number of times (the resident has complained that she has then had to incur the cost of redecoration multiple times). On 16 March 2021 it undertook a technical inspection and as a result of this it installed a new bathroom. It investigated the drains on 26 April 2021 and confirmed that there was not a problem with them. It undertook repairs including to rainwater drainage to prevent damp issues, reglazed a window and repaired the soakaway. When problems with damp and mould remained, the landlord undertook a damp survey on 21 December 2021. This concluded that the issue was due to a “condensation problem” and that no remedial works were required. Following further complaints from the resident, it arranged an inspection with it, Environmental Health and the resident all attending. This found that there were some repairs required and noted that there was “dampness evident” in the external wall. It appears that some of the recommendations in the report have been followed up on but not completed. For example, the resident states that repairs to the flashing have not been done. It is not clear if insulation in the bedroom, which was discussed, has been installed.
37. The Ombudsman acknowledges that the landlord has taken a number of steps. In many situations these steps may be adequate to identify and resolve damp and mould. However, it is clear from the resident’s submission that damp and mould continue to be a problem which is causing significant distress to her and her family. Noting the findings of the subsequent inspection with the Environmental Health Officer present, the Ombudsman considers that the damp survey undertaken in December 2021 cannot be reasonably relied on. Whilst condensation may be a factor which could be alleviated by the resident changing their use of the property, on the basis of the evidence presented it is reasonably plausible that there are faults with the building that need to be repaired. It also seems likely that even if the resident’s use of the property may resolve at least some of the issues, support by the landlord is likely to be needed – for example in supporting better ventilation and drying options for clothes drying and kitchen use. The resident is clearly very committed to resolving the issue and the Ombudsman considers it is highly unlikely that the problem persists because she is not taking reasonable steps which are within her power to resolve the issue. Further, it appears that the landlord has not in fact implemented all the possible repairs identified and not all possible causes have been fully explored (for example, damp under the bath).
38. The Ombudsman therefore finds that the landlord has not taken all the steps it could reasonably be expected to take to investigate and resolve the damp and mould issues and there has been severe maladministration by the landlord in its handling of the resident’s reports of damp and mould. The Ombudsman requires that the landlord engage an independent external damp and mould specialist to undertake a thorough and rigorous assessment of the property, including the exterior walls and ventilation, and implement any recommendations made. This should be done within four weeks of the date of this Determination. If it is determined that condensation is due, in part or fully, due to the resident’s use of the property the landlord must take reasonable steps to support the resident to address this, including exploring options such as dehumidifiers and improved ventilation.
39. The resident has indicated that one resolution she seeks is to move. She states that she is unable to use one of the bedrooms due to damp and mould. She has provided medical evidence referring to her housing situation possibly exacerbating her children’s medical conditions. Whilst the Ombudsman is unable to make a definitive link between the condition of the property and the health issues that have been reported, the medical information provided has been noted and it is clear that the situation is causing the resident and her family significant distress.
40. There appears to have been some discussion between the parties about a transfer and a neighbourhood teams visit was arranged to assess whether the resident met the criteria for a transfer. The Ombudsman has not been provided with information on the current status of the resident’s transfer request. Once the inspection has been carried out, the Ombudsman requires that the landlord meet with the resident to discuss the outcome and impact on her housing situation. This should include consideration of whether a temporary decant is needed whilst works are carried out or whether a permanent move would be more appropriate in the circumstances. The landlord must confirm the outcome of this discussion in writing to the resident and the Ombudsman within eight weeks of the date of this determination. It should then ensure that a suitable offer of a temporary decant or permanent move is made within three months of this meeting and update the Ombudsman on this. If a permanent move occurs, the Ombudsman further orders that the landlord should satisfy itself that appropriate action has been taken to address the damp and mould when the property becomes vacant prior to reletting and provide confirmation of this to the Ombudsman.
41. The Ombudsman has considered the resident’s claim for compensation below.

Complaints handling and communication  

42. The landlord has acknowledged that there have been failings in its complaints handling and communication with the resident.
43. The resident first made a formal complaint to the landlord on 5 February 2021, however the landlord did not provide a stage one complaint response until 12 July 2021. The landlord failed to keep the resident reasonably up to date with the progress of the plans for the repairs and inspections throughout the period of the complaint up to now. The evidence indicates that on a number of occasions the resident had to chase the landlord for updates, and the landlord often gave responses which did not reflect a full understanding of the situation. It is not clear that the landlord has taken ownership of the complaint and the resident has been required to continue to chase the landlord to progress the matter.
44.  The Ombudsman finds that there has been maladministration by the landlord with respect to its complaint handling and communication with the resident.

Compensation  

45. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident.
46. In this case the Ombudsman considers that it is clear that the landlord should pay the resident compensation for the distress and inconvenience caused by its failure to properly address the issue of damp and mould and its complaints handling and communications failings. The landlord has made, in total, an offer of compensation of £400 for the distress and inconvenience caused by the delays in undertaking the repairs with respect to the damp and mould and communications/complaints handling failings. In considering whether this is reasonable, the Ombudsman has referred to this service’s Remedies Guidance. This sets out that awards between £250 and £750 may be appropriate where there has been “considerable” failings by the landlord. Awards of over £750 are where there has been a severe long-term impact on the resident.
47. The Ombudsman considers that the impact of the landlord’s failings on the resident in this case can reasonably be considered to be severe. The damp and mould problem has been ongoing over a significant period and is clearly causing significant distress to the resident and her children. The landlord’s complaints handling and communication failings have compounded this distress and caused the resident understandable frustration. The Ombudsman considers it reasonable to require the landlord to pay the resident £1,200 compensation for distress and inconvenience within four weeks of the date of this decision. This is made up of £1,000 compensation for the failings regarding the damp and mould and £200 for the complaints handling failings. The Ombudsman also requires that the landlord allocate a single point of contact for the resident who will respond to her communications within a reasonable timeframe.
48. The Ombudsman notes that the resident has also referred to the costs she has incurred redecorating the property following the mould washes and the cost of damage to her property. The Ombudsman has not been provided with evidence of these costs. Given the length of time this matter has been ongoing, this may be difficult for the resident to provide. There has been reference in the communications to the resident making an insurance claim for damage to her property, however it is not clear how this has been resolved. The Ombudsman requires that the landlord contact the resident to confirm the position with the resident’s insurance claim. If the resident has not been compensated for the cost of redecorating and/or property damage through an insurance claim, the Ombudsman requires that the landlord reimburse the resident on receipt of proof of costs and/or damage. If the resident is not able to provide such proof, the Ombudsman requires that the landlord pay the resident £750 compensation as an imprecise but reasonable assessment of the likely financial detriment to the resident. 
49. The Ombudsman also requires that the landlord provide a written apology to the resident.

Determination (decision)

50. In accordance with paragraph 52 of the Housing Ombudsman Scheme there has been severe maladministration by the landlord in its handling of reports of damp and mould.
51. In accordance with paragraph 52 of the Housing Ombudsman Scheme there have been maladministration by the landlord with respect to its complaint handling and communication with the resident.

Reasons

52. The Ombudsman acknowledges that the landlord has taken a number of steps. In many situations these steps may be adequate to identify and resolve damp and mould. However, it is clear that damp and mould continue to be a problem which is causing significant distress. The landlord has not taken all the steps it could reasonably be expected to take to investigate and resolve the damp and mould issues.
53. The landlord took an unreasonable length of time to provide a stage two complaint response to the resident. The resident has had to chase the landlord for updates, and the landlord often gave responses which did not reflect a full understanding of the situation.

Orders and recommendations

54. The Ombudsman requires the landlord to engage an independent external damp and mould specialist to undertake a thorough and rigorous assessment of the property, including the exterior walls and ventilation, and implement any recommendations made. This inspection should be done within four weeks of the date of this Determination and a copy of the outcome of this inspection and resulting plan to address any issues identified should be shared with the resident and this Service. If it is determined that condensation is due, in part or fully, due to the resident’s use of the property the landlord must take reasonable steps to support the resident to address this, including exploring options such as dehumidifiers and improved ventilation.
55. Once the inspection has been carried out, the Ombudsman requires that the landlord meet with the resident to discuss the outcome and impact on her housing situation. This should include consideration of whether a temporary decant is needed whilst works are carried out or whether a permanent move would be more appropriate in the circumstances. The landlord must confirm the outcome of this discussion in writing to the resident and the Ombudsman within eight weeks of the date of this determination. It should then ensure that a suitable offer of a temporary decant or permanent move is made within three months of this meeting and update the Ombudsman on this. If a permanent move occurs, the Ombudsman further orders that the landlord should satisfy itself that appropriate action has been taken to address the damp and mould when the property becomes vacant prior to reletting and provide confirmation of this to the Ombudsman.
56. The Ombudsman requires the landlord to pay the resident £1,200 compensation for distress and inconvenience within four weeks of the date of this decision. This is made up of £1,000 compensation for the failings regarding the damp and mould and £200 for the complaints handling failings.
57. The Ombudsman requires that the landlord allocate a single point of contact for the resident who will respond to the resident’s communications within a reasonable timeframe.
58. The Ombudsman requires that the landlord contact the resident to confirm the position with the resident’s insurance claim. If the resident has not been compensated for the cost of redecorating and/or property damage through an insurance claim, the Ombudsman requires that the landlord reimburse the resident on receipt of proof of costs and/or damage. If the resident is not able to provide such proof, the Ombudsman requires that the landlord pay the resident £750 compensation as an imprecise but reasonable assessment of the likely financial detriment to the resident.
59. The Ombudsman requires that the landlord provide a written apology to the resident.