Applications are open to join the next Housing Ombudsman Resident Panel - find out more Housing Ombudsman Resident Panel.

Islington Council (202104771)

Back to Top

REPORT

COMPLAINT 202104771

Islington Council

03 March 2022


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 complaint is about the landlord’s handling of the resident’s report of damp and mould in her property.

Background and summary of events

  1. The resident lives in a three bedroom ground floor flat. The resident now pays her rent to a local Tenant Management Organisation (TMO) but signed a secure tenancy with the landlord on 3 June 2002.
  2. The resident says she first raised the issue of water penetration affecting two of the bedrooms in her flat prior to March 2018 but acknowledges that date as the first formal record that she reported the issue. 
  3. A works order was raised on 27 April 2018 for a surveyor to attend and carry out a damp assessment. The surveyor was to inspect damp and rainwater coming through walls in the two back bedrooms causing damage to the wall and window ledges. The surveyor attended on 9 May 2018 and recommended checking a neighbouring balcony as this was suspected to be the source of the water ingress. The surveyor was unable to gain access at the time. The landlord says the surveyor then referred the matter to the TMO.
  4. There is no evidence that the resident contacted the landlord again about the leak until 17 September 2020. Similarly, this service has seen no evidence that the landlord made any further attempts to gain access to the leaseholder’s flat in the intervening period. The TMO has not commented on what happened but in its final complaint response, the landlord said that there were ‘difficulties in contacting the leaseholder on record since May 2018’.
  5. The resident contacted the landlord regarding the leak again on 17 September 2020. A works order was raised and an operative attended later that week but said that access was needed to the neighbouring balcony in order to remedy the leak.
  6. On 30 September 2020, the resident made a stage one complaint about the leak affecting her home. The resident said her concerns were not being addressed by the landlord. The resident said that her concerns were being passed from one team to another in circles. The balcony suspected to be the origin of the leak belongs to a leaseholder and consequently there were three teams involved: the TMO where the resident lives, and two teams directly within the landlords organisation, the home ownership team and the repairs service.
  7. In her complaint, the resident said that the landlord was aware from the surveyors report in 2018 that access to the property above was required to repair the leak. The resident said that she had to share a bedroom with her daughter and grandson because the landlord had not fixed the water leak. The resident said the situation was affecting her well-being. 
  8. On 22 October 2020, the landlord sent a stage one complaint response. The landlord acknowledged the history of the resident’s reports going back to 2018. The landlord said they had tried to gain access to the neighbouring property but had been unsuccessful. The landlord concluded that the resident’s complaint was partially upheld and explained ‘this is because although there has been a lengthy delay in the repair being completed, obtaining access to the neighbouring property has been difficult.’
  9. The resident requested escalation of her complaint on 11 November 2020. The resident pointed out the landlord’s repair obligations and the long delay in carrying out remedial work to prevent water penetration to her flat. The resident said that she and other members of her household had been experiencing physical and mental health problems due to the damp and mould growth. The resident said the landlord had been negligent and was in breach of its health and safety duties as well as the human rights act.
  10. The landlord sent a review of the stage one response to the resident on the 25 November 2020. The landlord accepted that a surveyor had attended on 9 May 2018 and advised that the repair to the intermittent leak required an inspection of the balcony above. The landlord said the surveyor had correctly referred the resident’s issues to the TMO in 2018 and said that any queries regarding what had happened since 2018 would need to be addressed by the TMO. The landlord said that it only realised this was an ongoing issue when the resident contacted again in September 2020. The landlord said it was going through a court process to gain forced entry to the leaseholder’s property and carry out repairs.
  11. The landlord also said that prior to 17 September 2020, the resident had not made a service request regarding this matter since 9 May 2018. The landlord said that it only realised the leak was an ongoing issue when the resident contacted them again in September 2020. The landlord said it only dealt with complaint matters occurring within the previous twelve months.
  12. The landlord said that gaining access to the leaseholder’s property had been difficult but it could not provide specific details due to data protection reasons. The landlord said that it was in the process of procuring forced entry to the leaseholder’s property and that when the court gave approval, the resident would be kept informed of any progress on required repairs.
  13. The landlord said the resident should make a claim for any damaged goods via an insurance claim. The landlord said it would not be providing any compensation since it was not responsible for any service failure. The landlord said there was ‘ambiguity about whose responsibility it is to contact the owner of the neighbouring property and gain access to the balcony to carry out the repair.
  14. On 14 December 2020, the resident escalated her complaint to the Chief Executive stage. The resident said that her questions had not been properly answered and that there had been a ‘dereliction of duty and a service failure’.
  15. On 26 March 2021, the landlord contacted the leaseholder’s representative and requested urgent access to the property. On 27 March 2021, the leaseholder’s representative agreed in principle they would make arrangements for access to the landlord but a date was not set.
  16. On 6 April 2021, the landlord sent a final stage response. This response revised the landlord’s previous position and clarified the following:
    1. It was the landlord’s responsibility to carry out the repairs and not a separate entity.
    2. There had been avoidable delay in making the repairs. The landlord said that “good practice would have been for proper collaboration between the two teams by reviewing the leasehold agreement to establish how to access the property in the absence of the leaseholder and the necessary action taken. This could have reduced the time to resolve repairs to your property.”
    3. The landlord said it would learn from its mistakes and “review communication channels
    4. The landlord acknowledged that the previous statement that it would only consider matters occurring within the last twelve months was incorrect. The landlord said that “difficulties in contacting the leaseholder has been on record since May 2018, for that reason it is an unresolved ongoing complaint which should have (been) acknowledged as such.”
    5. The landlord offered an apology for the length of time taken to progress gaining access to the leaseholders property.
    6. The landlord acknowledged that it had failed to promptly return the residents enquiries regarding insurance.
    7. The landlord offered the resident a total of £1450 compensation, comprising time and trouble £250, distress and inconvenience £300, delay in taking action £850 (34 months at £25 each) and delay in the Chief Executive response £50.
    8. The landlord said that its plan was to continue trying to gain access to the leaseholders flat in order to carry out the necessary repairs and that it had provided the resident with a recent update.
  17. On 2 June 2021, the resident contacted this service requesting help to follow up the repairs as they were still not complete. In July 2021, the resident informed this service there was a bug infestation at her property caused by the damp and mould. The landlord advised this service that an appointment was scheduled on 10 September 2021 to gain access to the neighbouring property.
  18. On 19 February 2022, the landlord informed this service that a roofer had attended the leasehold property on 10 September 2021 and also on 15 December 2021. It was confirmed that asphalt was required for the renewal of the left hand rear balcony of the neighbouring flat and that was causing the water ingress to the residents flat.
  19. On 21 February 2022, the landlord advised that scaffolding had been erected at the site and a roofing contractor was due to attend on 18 February 2022 to inspect the works required. Due to strong winds that day, the landlord said it was unsafe to access the scaffolding and the appointment needed to be rescheduled with the resident. The landlord said that once the roofing contractor has established the extent of the repairs, the quote for the work would need to be approved before the repairs could progress.

Assessment and findings

  1. In its final complaint response, the landlord accepted full responsibility for the service failures identified by the resident in her complaint. These failures are not disputed and can be summarised as follows:
    1. Failure to carry out repairs under the landlord’s repair obligations
    2. Delay in carrying out repairs within a reasonable timeframe
    3. Poor complaint handling

Failure to carry out repairs

  1. In section 1.1 of the ‘conditions of tenancy’ document dated 2013, the landlord confirms it is responsible for ‘keeping the structure and exterior of the property in repair, including: External walls, external doors, external window frames and sills’. There is a clear repair obligation under section 11 1a of the Landlord and Tenant Act 1985 for the landlord to repair the balcony to ensure the residents flat is not affected by water ingress.
  2. At the time of writing this report, the landlord has still failed to meet this repair obligation and is therefore in breach of its statutory duties constituting significant service failure.
  3. In addition to the above responsibilities, the landlord is expected to meet the home standard set by the Regulator of Social Housing. The Home Standard includes ensuring that homes meet the Decent Homes Standard. There is also the Housing Health and Safety Rating System (HHSRS) which is concerned with avoiding or minimizing potential hazards. The landlord has a responsibility to keep a property free from category one hazards, that include damp and mould and ensure that the property is habitable.
  4. Although a roofer visited in September 2020, there is no evidence that a formal assessment has been carried out to ascertain the extent of the damp and mould problem since the initial visit in 2018. The landlord has therefore been unable to accurately determine whether there are currently or have been at any time since 2018 any category one hazards in the property such as severe damp and mould growth.
  5. This would have been appropriate to ensure the safety of the resident and to provide advice regarding whether the affected bedrooms could be used or not. The landlord could also have made a more informed decision on whether it was necessary to move the resident.
  6. This is also important since the landlords procedure for refunds, compensation and remedies’ states the landlord will calculate compensation in circumstances where ‘a property is so badly affected by disrepair that one or more rooms become un-useable’. There is no evidence to suggest that the landlord has considered whether it is appropriate to apply this method of calculating compensation in this case. Similarly, there is no evidence that the landlord has undertaken a proper assessment of the level of hazard that would facilitate this calculation.

Delay in carrying out repairs

  1. It was accepted by both landlord and resident that there was a delay of 34 months in carrying out the repair from March 2018 to April 2021.
  1. Although the landlord described its previous compensation payment as ‘full and final settlement’ of the complaint, this was on the basis that the outstanding issues would be dealt with promptly. The repairs remain outstanding and therefore according to the dispute resolution principles of fairness and putting things right, further redress should be provided to the resident.
  2. The evidence suggests that the landlord took no constructive actions to resolve the resident’s issues from May 2018 to September 2020 because it wrongly assumed the TMO had resolved the issue after the surveyor informed it of the residents problems in 2018. The landlord has in any case already provided redress for this period which was reasonable and which the resident accepted as reasonable at the time. 
  3. Since the stage two final complaint response, there has been a further delay of 11 months from beginning of April 2021 to end of February 2022. The resident has not received any redress for this second period of delay and therefore it is appropriate to put this right with an additional award of financial compensation. The landlord awarded compensation for delay at a rate of £25 a month which is broadly in line with Ombudsman guidance. Since there has been a delay of a further 11 months since that time, a further payment of £275 for delay should be made and an order regarding this has been made below.
  4. It is acknowledged that gaining access to the leaseholder’s property may not have been straightforward. During this period, there have been delays in court processes due to the Coronavirus pandemic. It is also noted that the leaseholder does not reside at the property and his affairs are handled by a representative. However, the actions taken by the landlord following the escalation of the complaint to stage two show that the landlord was able to locate and communicate effectively with the leaseholder’s representative when it treated the matter with sufficient urgency and accepted responsibility for actively pursuing access to the leaseholders flat.
  5. Given the history of the complaint and the impact of the leak on the resident, the landlord should have acted with far more urgency to resolve this matter. The landlord has not provided a clear explanation for the 11 month delay since the internal complaints procedure was completed, making the total period of delay in resolving the issues raised some 45 months.

 

Complaint handling

  1. The landlord initially stated that it would not consider matters older than 12 months when responding to the resident’s complaint. This position was later revised and the landlord accepted full responsibility for both carrying out the repair and considering relevant complaint matters that went back further than twelve months.
  2. It is understandable that the initial position would have caused the resident  significant frustration when she made her complaint especially given that the landlord later acknowledged it was incorrect. The initial position was not resolution focussed and did not place enough emphasis on trying to put right what the resident was complaining about – the lack of responsibility being taken for carrying out the repairs.
  3. This position was only amended at the final stage of the complaints process and an opportunity was missed to correct this at the review stage to the stage one complaint. Similarly, although the complaints process did identify ‘ambiguity’ at an early stage regarding responsibility for resolving the leak, the stage one and stage one review did not seize the opportunity to clarify the ambiguity immediately or learn lessons from the situation.
  4. There was also acknowledged service failure in response times since the landlords complaints policy states that the Chief Executive stage will be answered within 28 calendar days. A payment of £50 compensation was reasonable redress for this failure and has been paid to the resident.

Compensation

  1. As outlined above, given the extensive acknowledged and unacknowledged service failures of the landlord it is appropriate to provide additional redress to the resident.
  2. After due consideration, in the absence of reliable evidence regarding whether one or both of the resident’s rear bedrooms were uninhabitable for any period of time since 2018, the compensation calculation suggested in the landlord’s procedure has not been used.
  3. In the same compensation procedure guidance, section 3.2 suggests bands for pro-rata payments for slight and moderate inconvenience. A payment of £100 per month would equate to the low end of the band for ‘moderate inconvenience’ which is appropriate based on the evidence available and the extended period of the complaint.
  4. An order below has therefore been for additional compensation to the resident of £1100 for moderate inconvenience for a period of 11 months since the completion of the internal complaints process and £275 for 11 months of further delays. This is a total of £1375 compensation in addition to the compensation offer already made by the landlord. 

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman scheme, there was maladministration in the landlord’s handling of the residents report of damp and mould in her property.

Reasons

  1. The landlord has acknowledged significant service failure and provided redress for those failures on 6 April 2021. However, since that date, the landlord has failed to carry out the necessary repairs to the balcony of the neighbouring flat and remains in breach of its repairing obligations.

Orders and recommendations

  1. It is ordered that the landlord confirm to the resident and this Service a date within 4 weeks when the outstanding repairs will be completed and inform this Service when work has been completed.
  2. It is ordered that once the repairs are completed, the landlord organise redecoration and any other required remedial works of the affected areas of the residents flat at no cost to the resident and ensure that any pest control services are provided to the resident if still needed.
  3. It is ordered that the landlord pay an additional £1375 compensation in recognition of its failure to carry out repairs since 6 April 2021.
  4. It is ordered that the Landlord carry out a review of this case with the TMO to identify learning, improve its working practices and ensure its procedures are fit for purpose and clearly define the responsibilities of both parties.