Harlow District Council (202306616)

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REPORT

COMPLAINT 202306616

Harlow District Council

22 May 2024

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 handling of the resident’s reports of damp and mould.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident occupied a two-bedroom flat on the second floor under an assured tenancy agreement. This commenced on 26 August 2019. The resident moved to another property because of reasons unrelated to this complaint in or around January 2024. At the time of the complaint, the household contained three dependent children. The resident said her children suffered from asthma and the members of the household had recurring coughs because of the condition of the property. The landlord said it had no vulnerabilities recorded on its systems.
In or around July 2022, the resident reported that her property was experiencing recurring damp and mould, and this has been an ongoing issue since she moved into the property. She said she thought there was rising damp in the property despite heating and ventilating the property. She also said she had purchased a dehumidifier to help with the issue, but the mould kept returning. The pictures of the property provided by the landlord in its file demonstrate severe mould across the property.
The landlord told the resident that before it would survey the property, she needed to report a leak, so its contractors could investigate and rule out a former plumbing repair and any guttering issues that may be present. The landlord’s contractor attended and said there were no visible signs of water ingress, and it would carry out a damp inspection. The damp inspection recommended the landlord repair the resident’s balcony, replace the window seals, and replace the flue cover pipe that was missing in the kitchen.
Following this, the landlord wrote to the resident. It confirmed there was no rising damp and that the moisture levels indicated that the resident’s washing, bathing, and cooking activities were increasing moisture in the property. It recommended the resident heat the property over a longer period, ventilate it, and conduct a regular cleaning schedule. It also said it had raised works for the balcony and to remove and treat the mould.
The resident raised a formal complaint on 20 January 2023. She said that the mould problem was pervasive, substantial, and had been ongoing for 3 years. She explained:
1. the mould had caused damage to pictures, carpets, and furniture.
2. she was already applying a cleaning regime, heating, ventilating, and dehumidifying the property but the problem persisted.
3. the conditions were impacting the health of her children and causing her anxiety.
4. the landlord had told her to report a leak, despite knowing there was not one and the survey report concluded the issue was due to the structure and design of the property.
5. she was offended that she was being blamed for carrying out normal activities and then given a condensation guide.
6. she was told by her housing officer that the problems were her fault because she was overcrowded and that she had been asked if she was planning to move. She said this made her feel offended and disrespected.
The landlord’s contractor issued the stage 1 response on 27 January 2023. It said it did not uphold the resident’s complaint because it had responded to the resident’s reports by attending and inspecting the property. It had found it needed to renew the asphalt on the balcony and said it would inspect the internal downpipe at the same time. It told the resident to raise any issues she had with the housing officer directly because the contractor was only responsible for the reactive repairs contract.
The resident escalated her complaint to stage 2 on 10 March 2023. She said:
1. the landlord’s response only listed upcoming appointments and did not address all of her complaint points.
2. the roof inspection was a “waste of time” because the roof was not causing mould.
3. the damp and mould treatment would only mask the issues. She said this was not a long-term solution because the cause of the damp and mould was related to the property’s insulation.
The landlord’s contractor issued its stage 2 response on 31 March 2023. It said it did not uphold the complaint because it had attended on multiple occasions to ascertain the origin of the damp and mould. It said:
1. it had followed its procedure when dealing with condensation and its actions were not a personal implication that the resident was not carrying out such actions.
2. it noted numerous people were living in the property which can contribute to condensation.
3. the roofing contractor attended and said the damp was not caused by rising damp or a previous plumbing repair.
4. the contractor had passed the issue back to the landlord to arrange for a surveyor to attend because it only deals with reactive repairs.

Assessment and findings

The scope of the complaint

The resident said that the damp and mould in the property had been ongoing since she moved to the property in 2019. However, the Ombudsman has decided to investigate the complaint from the most recent report in July 2022.
The resident said that the health conditions in the household, including the asthma of her children, were exacerbated by the damp and mould in the property. However, the Ombudsman is unable to determine the cause of the asthma and coughing. This type of personal injury claim is better suited to the courts, where the judge would benefit from an independent medical expert confirming the diagnosis, cause, and prognosis of the injury. It is usually only the courts that can say if legal liability arises. The Ombudsman can give an opinion as to whether the landlord responded reasonably to the resident’s reports of illness. The resident should legal advice on pursuing a personal injury claim.

The landlord’s handling of the resident’s reports of damp and mould

The resident reported that there was significant damp and mould in her property that had been ongoing since she moved in. There is evidence that the landlord acknowledged the resident reporting this in July 2022. The resident shared pictures of the mould with the Ombudsman which showed extensive mould on the walls across the property.
Section 9A of the Landlord and Tenant Act 1985 places a duty on landlords to ensure their properties are fit for human habitation at the start and throughout the tenancy. The resident also has the right of quiet enjoyment.
The landlord’s repair policy states it will deal with repairs as follows:
1. Emergency repairs within 24 hours.
2. Urgent repairs within 5 working days.
3. Standard repairs within 20 working days.
The policy also states that penetrating damp and condensation-related damp is a standard repair. Usually, it will arrange a housing inspection to identify the cause and if required carry out minor works.
The Ombudsman’s approach to damp and mould is detailed in our Spotlight Report ‘Damp and mould, it’s not a lifestyle.’ In particular, the Ombudsman expects landlords to ensure its initial response to damp and mould avoids automatically apportioning blame or using language that leaves residents feeling blamed. The landlord shared its damp and mould self-assessment form with the Ombudsman.
The landlord did not provide repair records that detailed the resident’s reports. The landlord expects landlords to provide full documentation about when residents report concerns. This was a service failure because it was evidence of poor record keeping and/or sharing full records with the Ombudsman which frustrates the ability of the landlord and the Ombudsman to investigate and resolve complaints.
The landlord carried out a survey of the property on 15 December 2022. This was around 4 months after the resident reported the mould issue. The surveyor said there was no rising or penetrating damp. Following the inspection, it said the balcony seals had failed, and the raised floor surface to the balcony was allowing water ingress into the property. It also said there was broken sealant around the windows allowing water ingress. It recommended repairing the balcony, resealing the windows, conducting a pressure test to rule out the possibility of further leaks, and replacing the flue cover on one of the kitchen pipes.
The landlord wrote to the resident on 23 December 2022 to update them on the outcome of the survey. It said that its survey had not found penetrating or rising damp, but condensation, which was causing black mould growth. It said its hygrometer test found high moisture levels and this was likely to be because of the lifestyle of the resident. It also provided a condensation guide and information about how to heat, ventilate, and clean the property. It said it would raise works for the balcony and treat the mould in the property. The Ombudsman notes, however, there is no evidence that the landlord considered the water ingress from the balcony as contributing to the damp and mould in the property. That would have been a prudent thing to have considered.
The landlord raised a mould treatment on 23 December 2022. It completed this on 24 February 2024, which was two months later. By this time, this was a six-month delay period (in inspecting and completing the mould treatment) against a target of 20 working days in its repair policy. This was not appropriate.
It raised damp proofing works to the balcony on 24 December 2022 and completed the work on 25 May 2023. This was 9 months after the initial report and 5 months after the inspection. This was not appropriate as it would not in line with its repairs policy.
The landlord inspected the property on 13 February 2023. It concluded there was no leak present in the roofing. It concluded that the cause of the damp and mould was ‘just condensation’ and booked damp and mould treatment. It is not clear when this was completed.
The landlord inspected the roof on or around 29 March 2023. The contractor concluded the damp was not related to a roof leak. In addition, it said it was not related to the historic plumbing issue. The contractor said it was rising damp in an internal email to the landlord. It also said the residents were cleaning the property and keeping the heating on, however, there were 6 individuals living in the property which was not ideal. The contractor asked the landlord to arrange for a surveyor to attend.
The landlord raised a job to replace the window sealant on 12 May 2023. It said it completed this job on 23 November 2023. This was 16 months after the resident’s initial report of the issue in July 2022.
On 16 June 2023, the landlord arranged a further damp survey. The surveyor said the property was suffering from condensation and black mould. However, they were unclear on what was causing the problem. They said although there was treatment in February 2023, “the rate of return was disproportionate to the amount of moisture that could be generated by the occupants in that period.” They recommended the installation of extractor fans, a survey of internal wall insulation provision and a block-wide intrusive investigation to establish if there was cavity wall insulation and if this was suffering from moisture.
The landlord completed this on 9 August 2023, which was six months after the mould treatment in February 2023 and 54 calendar days from the date of the June 2023 inspection. This was outside the timescales in the landlord’s policy. This was unreasonable given the extent of the damp and mould displayed within the photographs provided to this service. The landlord ought to have reasonably been aware this would significantly impact the household’s enjoyment of the home and there may have been safety implications.
Importantly, when the contractor attended on 9 August 2023, it reneged on the promise to install extractor fans in each room. The contractor felt this was an unreasonable solution. The contractor subsequently recommended a ventilation system across the property. A ventilation survey was booked for 24 August 2023 and works were scheduled for 4 October 2023. The landlord has not provided evidence that it completed this work. This is highly unsatisfactory.
The evidence shows the landlord required the resident to raise a leak before it would agree to survey the property. The resident disputed there was a leak and did not report this. The delay in reporting the leak caused a knock-on effect by delaying the survey. It is important to note, that a resident only needs to give a landlord ‘notice’ of a repair issue. As such, at the point it was aware there could have been a leak, the obligation on it was to take such reasonable steps as a landlord would do in those circumstances. On that basis, it was not appropriate to ask the resident to report something it already had knowledge of.
The landlord’s approach was inappropriate, and this unreasonably delayed the initial survey from taking place. This was maladministration because it caused unavoidable inconvenience and distress to the resident. In addition, the landlord’s response did not reflect the urgency of the issue because it did not act in a timely manner.
The evidence shows the landlord consistently failed to meet its repair timeframes set out in its policy for the works it raised. The Ombudsman considers that although the landlord took action to inspect the property, the substantive cause of the mould remains unresolved. This is maladministration. This is because the resident whose household included dependent children with respiratory conditions were living in a property with a significant and persistent mould problem for at least 550 calendar days. This impacted the resident’s enjoyment of her property over an extended period and caused her distress and inconvenience.
In addition, the Ombudsman has not been provided with evidence that all of the work had been completed. The Ombudsman considers this maladministration because it failed to demonstrate it carried out all the work and it failed to follow its repair policy timeframes. This caused further unreasonable delay and time and trouble for the resident. The landlord also failed to demonstrate it acted on the following recommendations of its specialist surveyors:
1. to conduct an intrusive block-wide survey to assess if the external cavity wall had insulation present and if so if it was suffering from moisture.
2. to assess the internal wall insulation.
The landlord’s internal communications evidence that it was aware there was a wider scale problem with mould in the resident’s block of flats. It acknowledged that there was a high likelihood of answering further enquiries about its approach to repair works at the block because of the symptomatic issues that would likely be reported in the meantime.
The landlord said there was a planned programme for external works at the block which would depend on budgeting and wider priorities. It said it would ask its contractor to report on cavity wall insulation for the whole block and the internal wall insulation would be reviewed after the major works had been undertaken. There has been no evidence provided to the Ombudsman that it inspected the internal wall insulation.
The Ombudsman considers the landlord had not given a specific timeframe to either the resident or this service for when it intended to carry out its investigations or associated major works. This meant that this service was unable to comment on whether a lasting and effective repair was being committed to by the landlord. As a result, the resident was uncertain about when she could expect the landlord to make a lasting repair to the mould issues she was experiencing. This was maladministration because it caused uncertainty, distress, and inconvenience over when the landlord intended to make a lasting repair.
The resident told the Ombudsman she felt blamed by the landlord for conditions at the property because it said she was overcrowded, and her lifestyle was exacerbating the issues. There is evidence of the landlord’s surveyors noting that the resident was cleaning, ventilating, and heating the property regularly. The landlord’s stage 2 response said its approach was in line with its policy and it gave the resident a leaflet about condensation, however, this was not a “personal implication” that the resident was not carrying out preventative action.
It is the opinion of the Ombudsman that the landlord’s communications to the resident, as well as its internal communications, showed the landlord placed disproportionate weight on the property being “overcrowded” and on the day-to-day activities of the resident. This was whilst the landlord had internally acknowledged there was a “big problem” with the block and its surveyor had commented “It was clear there was an inference that the resident’s lifestyle was the cause of the condensation and resulting in the mould build-up.”
The Ombudsman considers the landlord had adequate evidence to show it needed to do more to improve the conditions of the resident. However, it continued to communicate with her about the impacts of overcrowding and lifestyle in relation to condensation. This was inappropriate as the resident felt blamed by the landlord and demonstrated the landlord’s working practices were unsympathetic and did not consider all the evidence available to it.
The resident said she was issued a cleaning bill by the landlord when she moved out of the property in January 2024. The Ombudsman will order the landlord to assess whether the cleaning required was linked to the mould. If it was the landlord must ensure it rescinds and/or refunds any sums paid by the resident for this. This is because it would be inappropriate to charge the resident for something the landlord was responsible for resolving.
The Ombudsman notes the landlord’s answers in the damp and mould self-assessment were appropriate. However, how it handled this case in practice was not in line with what it said it should do in its self-assessment. That means there is a difference in how it is handling damp and mould cases in practice.
Due to the culmination of failures found and their impact on the resident, there was severe maladministration with this element of the complaint because:
1. the landlord unreasonably delayed in carrying out its initial survey of the property.
2. the landlord unreasonably delayed in carrying out the required works to the property.
3. the landlord failed to demonstrate it followed all the recommendations of its surveyor.
4. the landlord failed to provide the resident with a lasting and effective fix to her property.
5. the landlord failed to share its records relating to the resident’s reports.
6. the landlord’s communications placed disproportionate weight on the resident’s lifestyle and being overcrowded as the cause of the mould. This left the resident feeling blamed and unheard.

Complaint handling

The Complaint Handling Code (‘the Code’) states:
1. landlords should issue stage 1 responses within 10 working days of the complaint.
2. landlords should issue stage 2 responses within 20 working days of the escalation request.
3. landlords must address all points raised in complaints and provide clear reasons for any decisions, referencing the relevant policy, law, and good practice where appropriate.
4. landlords must have a person or team assigned to take responsibility for complaint handling to ensure complaints receive the necessary attention.
The landlord’s complaints policy states:
1. it will respond to stage 1 complaints within 10 working days.
2. it will respond to stage 2 complaints within 15 working days.
The landlord responded to the resident’s complaint as follows:
1. within 6 working days at stage 1. This was within the prescribed timeframes in the landlord’s policy.
2. within 16 working days at stage 2. The Ombudsman noted this was outside of the landlord’s policy timeframes. However, this would not have had a significant impact on the resident.
The evidence shows the resident’s complaint was recorded on a database shared between the landlord and its contractor. The complaint was re-assigned between the landlord and the contractor on several occasions. The landlord ultimately outsourced the complaint process to its contractor.
The contractor said it only dealt with responsive repair aspects of complaints Given the entirety of the resident’s complaint could not be answered by the contractor, the landlord should have retained oversight of the complaint. This is because the complaint responses did not address:
1. the damage to the resident’s property.
2. the resident’s reports of illness due to the property condition. The response said it took the health and safety of its residents seriously. However, it did not explain how it did this or what it intended to do differently to help address the resident’s concerns.
3. the length of time the issues had been outstanding.
4. the resident’s dealings with the landlord had left her feeling blamed for the property condition. The response told her to raise this directly with the landlord.
The Ombudsman considers this maladministration because the landlord failed to answer all the elements of the complaint. The Ombudsman would have expected the landlord to have worked in a joint effort with its contractor to ensure it covered all the elements of the resident’s complaint. This caused time and trouble to the resident in raising the same issues and distress and inconvenience because she felt the landlord was both blaming and ignoring her.
In addition, the landlord’s policy does not explain that it appoints its contractor to deal with some of its complaints. It would have been fair and reasonable for the landlord to have made clear to the resident that it would not be dealing with the complaint. The Ombudsman will order the landlord to review its policy to ensure its position is clear on this matter.
Overall, there was maladministration with this element of the complaint. This is because the complaints process was ineffective because it did not resolve or improve the conditions in the property. It also failed to acknowledge it had gotten anything wrong, so it did not offer the resident a remedy or demonstrate the lessons it had learnt.
The Ombudsman would have expected the internal complaints process to have:
1. considered and answered all the elements of the resident’s complaint.
2. made it clear that the landlord was outsourcing its complaint responses to its contractor.
3. followed up on the findings of the surveys and monitored the outstanding works through to conclusion.
4. provided the resident with a clear understanding of what it intended to do to resolve the cause of the mould.
5. to have acknowledged and apologised for its failures and tried to put things right.

Determination

In accordance with paragraph 52 of the Scheme there was severe maladministration with the way the landlord handled the resident’s reports of damp and mould.
In accordance with paragraph 52 of the Scheme there was maladministration with the landlord’s complaint handling.

Orders

Within 28 days of the determination, the Ombudsman orders the landlord to:
1. arrange for the CEO to meet the resident in person, should the resident consent, to apologise for the failures found in this report. It must also provide its apology in writing.
2. pay compensation to the resident of £3,700, broken down as follows:
  1. £3,600 in recognition of the distress and inconvenience caused, as well as the loss of enjoyment of the resident’s home in the handling of the repairs relating to the mould in the property.
  2. £100 for the failures identified with the landlord’s complaint handling.
3. arrange for an intrusive survey of the external cavity wall of the block of flats as recommended by its surveyor. Within 7 days of the survey, it must write to the residents in the block of flats with the findings of its surveyor and, if applicable, with a schedule of works. The landlord must include timeframes for when it intends to carry out the applicable works and be clear if any of this work will fall under its major works programme.
4. review its complaints policy to ensure that it is clear in which instances it will outsource its complaints procedure to its contractor. This must include information about how it intends to monitor this process to ensure that it remains compliant with the Code and does not require residents to be signposted to multiple complaint procedures to have their complaint points answered.
5. assess the damage to the resident’s belongings as a result of the damp and confirm its position on this matter.
6. assess whether the cleaning bill issued to the resident was related to the mould in the property. If so, it must rescind the bill or refund the resident any sums paid in relation to this.
7. the landlord must circulate the Spotlight Report ‘Damp and mould, it’s not a lifestyle.’ to relevant colleagues in its complaint handling and repairs departments.
The landlord must provide evidence of compliance with these orders to this service.
In accordance with 55(f) of the Housing Ombudsman Scheme, the landlord should expand the independent review ordered in case 202316222 to include a review of:
1. why the landlord failed to respond in a timely manner to the resident’s reports.
2. what the landlord intends to do to prevent this from happening in the future.
3. how the landlord can quickly identify short-term fixes that it can apply to cases where it has not determined an underlying cause for repair issues.
4. how the landlord can ensure its communications are sensitive to residents to prevent a blame culture for damp and mould cases.
5. what it will do to ensure the new residents are not affected by damp and mould.
6. the review should be submitted in accordance with the timescale set out in 202316222.

It must share its findings with the resident and the Ombudsman.