Islington Council (202317656)

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REPORT

COMPLAINT 202317656

Islington Council

16 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

  1. The complaint is about the landlord’s handling of the resident’s reports of subsidence and damp and mould in the property.

Background

  1. The resident is a secure tenant of the landlord, living in a flat.
  2. The landlord completed several inspections relating to subsidence in the resident’s block from 6 October 2017. The landlord told the affected residents on 31 January 2023 that further monitoring and investigations were required, and it may complete some emergency works to ensure the structural integrity of the building. The repair records show a contractor attended on 20 January 2023, following the resident’s reports of damp and mould, and found extensive cracking through the resident’s kitchen and lounge.
  3. On 14 April 2023 the resident raised concerns that the landlord had not completed works proposed by the contractor to make the internal walls safe. She said there was a draught in the property, mould had recurred, she had high heating bills due to the cracks, and debris fell from the ceiling due to the vibrations from the flat above. On 18 April 2023, she said she wanted the landlord to complete temporary works to improve her living conditions.
  4. The resident raised a complaint on 28 June 2023 as she said the issues had not improved and due to the hot weather, the ground had hardened and there were further cracks in the property. She also said the property had mice due to the large cracks. She was concerned about the impact on her children’s health.
  5. In its stage 1 response on 17 July 2023, the landlord said it raised a routine work order on 10 January 2023 to assess the damp, mould, and cracks in the property. The surveyor recommended painting works, a mould treatment, and overhauling the extractor fan. It completed the work on 27 January 2023. Its insurance team was handling the subsidence and required a joint site inspection to progress the works. It had completed temporary works in the interim. It had contacted her to arrange a property assessment. It had no evidence to confirm it had responded to the resident’s enquiries in April 2023 and it apologised for the delay. It offered £50 compensation for inconvenience and £50 for poor communication.
  6. The resident escalated her complaint on 20 July 2023 as she did not think the compensation was sufficient for the detriment to her family and damage to her belongings. She said the issue had been ongoing for 6 years. The landlord had failed to adhere to the timeframe of works or communicate with her.
  7. The landlord issued its stage 2 response on 7 August 2023. It confirmed there was an insurance repair claim for the subsidence and the insurance company and building consultants were carrying out further investigative works. On 21 July 2023 the surveyor found large structural cracks in the kitchen and living room walls and external cracks in the stud wall separating the living room and kitchen walls. There was a delay in completing temporary works as it was waiting for the outcome of data monitoring. It expected to complete the temporary works by the end of September 2023. It had completed a mould treatment on 26 January 2023 and mice treatments on 4 July 2023 and 8 July 2023 and the resident had not reported any further issues. It advised the resident to submit a public liability claim if she did not have home contents insurance. It offered £200 compensation for inconvenience, £150 for time and trouble, and £292 for the delay in carrying out temporary repairs.
  8. The resident referred her complaint to the Service as she said the landlord had not fixed the major cracks. She wanted the landlord to provide consistent updates on the progress of the works and for it to have a clear record following property visits of the next steps. She had been unable to redecorate due to the cracks and had increased heating bills. She was concerned about the impact on her family’s health. 

Assessment and findings

Scope of investigation

  1. It is recognised that subsidence issues have been ongoing in the property since 2017. However, this investigation has primarily focussed on the landlord’s handling of the resident’s recent reports of related issues within her property from January 2023 onwards, that were considered during the landlord’s recent complaint responses. This is because residents are expected to raise complaints with their landlords promptly so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and while the evidence is available to reach an informed conclusion on the events that occurred. The history of the subsidence has been included for contextual information.
  2. The Ombudsman notes the resident’s assertion that the landlord’s handling of this case has negatively impacted her family’s health. While the Ombudsman is sorry to hear this, it is beyond the expertise of the Service to determine a causal link between the landlord’s actions (or lack thereof) and the impact on the resident’s health.
  3. Often, when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts can rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration of a condition. This would be a more appropriate and effective means of considering such an allegation and so should the resident wish to pursue this matter, she should do so via this route. This investigation will only consider whether the landlord acted in accordance with its policy / its legal obligations, and fairly in the circumstances.

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

  1. In accordance with the tenancy agreement, the landlord is responsible for keeping the structure and exterior of the property in good repair. Its repairs policy sets out that this includes the external walls. It will complete routine repairs within 20 working days and planned repairs within 60 working days, which it defines as “high-value repair jobs which are often complicated”.
  2. The landlord’s frequently asked question document on subsidence states “Subsidence is the downward movement of buildings and walls, often caused by various factors. Most commonly, it occurs when clay soil beneath foundations dries and shrinks, leading to movement in the building or structure.” It advises residents to report any structural cracks. It states it may monitor potential structural movement in subsidence cases without recommending immediate remedial work. The monitoring period would typically take 12-18 months and it will provide updates at agreed monthly intervals.
  3. Subsidence does not necessarily have a quick resolution. There can be the need for lengthy monitoring periods to establish whether subsidence is occurring and to assess whether any repairs have been effective. However, this does not mitigate the landlord’s responsibility to address any immediate repair issues impacting the resident, including damp and mould, pests, and low temperatures. The landlord should also ensure that it provides the resident with regular updates regarding the subsidence to inform her of the actions it is taking and manage her expectations regarding the expected timeframe.
  4. The landlord raised a work order on 10 January 2023 as the resident reported damp and mould and a large crack in the property. The repairs policy states damp and mould are often the cause of condensation, and it will provide advice on how to manage it. It is responsible for repairs for water penetration. The landlord took appropriate steps to address the issues as it completed a mould wash and shield on 27 January 2023 and renewed the extractor fan on 9 February 2023. It also advised the resident to move her wardrobes to allow for more air circulation. It is important to note that if the resident followed the landlord’s advice, but it does not resolve the problem, it should consider whether any other measures are required to resolve the issue.
  5. The resident raised further concerns on 14 April 2023 and 18 April 2023. She said the mould had recurred, debris was falling from the walls, and there was a draught. The landlord failed to respond so it did not fulfil its repair obligations and caused the resident additional distress and inconvenience.
  6. In her complaint, the resident said the issues were unresolved and as the cracks had gotten bigger there were mice in the property. The landlord subsequently carried out pest treatments on 4 July 2023 and 18 July 2023. The Service has not seen evidence of the resident reporting a recurrence of the issue. As such, the landlord handled the matter promptly and effectively when reported by the resident. Nonetheless, if it had addressed the repairs with the internal walls when raised by the resident 2 months prior, it may have prevented the pest issues.
  7. In its final response, the landlord acknowledged that there was a delay in completing temporary repairs as a short-term measure to mitigate the impact of subsidence in the resident’s property. When the landlord acknowledges failings, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. It offered the resident £200 compensation for inconvenience, £150 for time and trouble, and £292 for the delay in carrying out temporary repairs, which it calculated at £41.66 for 7 months from February to September. In line with the Service’s remedies guidance, awards of £100-£600 are appropriate in cases where the landlord’s failure had an adverse effect on the resident. As such, it offered a reasonable amount for the failings identified at the time of the complaint response.
  8. The landlord told the Service that the underlying subsidence issues remained unresolved. It said, “delays occurred due to the excavation of trial pits, necessitated by a scaffold that was erected to address a leak affecting residents”. It had completed further tests, identified roots, and completed drainage works. It was completing further monitoring. As referenced above, it can take a prolonged period of time to reach a full and lasting resolution for subsidence. It is positive to note the landlord is taking appropriate steps to resolve the matter. The landlord should commit to providing the resident with regular updates on the progress of the works.
  9. The landlord committed to completing the temporary works by the end of September 2023 to resolve the complaint. The Service’s complaint handling code states that any remedy proposed must be followed through to completion. It told the Service it completed an inspection on 21 July 2023 and agreed to complete cosmetic works to reduce the visual impact of the cracking. However, there is no evidence to confirm the works were subsequently completed.
  10. The landlord contacted the resident on 9 August 2023 to schedule an appointment for 16 August 2023, but she did not respond. It is understandable that the lack of contact may have caused delays in arranging the appointment. However, given that it was part of the complaint resolution, it would have been helpful for the landlord to try alternative contact methods to ensure the appointment was promptly scheduled. There is no evidence that it attempted to reschedule the appointment, which was unreasonable.
  11. The resident told the landlord on 18 August 2023 that she did not think completing internal works was a suitable resolution when the external issues with subsidence were ongoing. She was also concerned about the health impact of the works on her son, as it would trigger his allergens and impact his respiratory issues.
  12. It is understood that temporary works would cause additional inconvenience to the resident, particularly as the subsidence was ongoing. Such works are appropriate in this case to address the immediate issues faced by the resident while the landlord monitored the subsidence. Nonetheless, the landlord should have discussed the resident’s concerns and made accommodations if necessary to ensure she would provide access to complete the works. The landlord internally discussed the possibility of temporarily moving the resident while the works were ongoing, but it does not appear to have further considered the option or posed it as a resolution to the resident. As a result, there is no evidence to confirm that the landlord meaningfully engaged with the resident’s concerns.
  13. The resident chased the internal works on 15 January 2024 as she said the property condition was getting worse and in response the landlord said she had rejected a mould treatment on 18 October 2023. The resident told the Service she had not allowed access as she was unable to move the furniture and she was concerned about the impact on her son’s health condition. Nonetheless, this does not omit the landlord’s responsibility to complete the works it committed to in its stage 2 response. It was unreasonable for the landlord to dismiss her concerns based on the fact that she had denied a previous mould treatment.
  14. The resident has provided evidence that she raised a further complaint on 19 March 2024 as the issues were still ongoing. She said the landlord had discussed make safe works in August / September 2023 and completed diagnostic testing in November 2023, but she had not received any updates on the works. As such, it is clear the issues remain unresolved.
  15. It is evident there have been further delays in completing the temporary works since the completion of the complaint process. It is recognised that the landlord initially attempted to promptly arrange the works and there was a short delay as the resident did not respond. However, the landlord has not made any further attempts to complete the work, it failed to address her concerns with the scope of the works, and it dismissed her when she chased the works. As a result, the works have remained outstanding for a further 8 months. The landlord should therefore pay the resident an additional £334 compensation. This is calculated using the landlord’s compensation framework set out in its complaint response, in which it offered £41.66 for each month the work was outstanding.
  16. The resident has requested compensation for her damaged belongings. The landlord’s repairs policy states that it strongly advises residents to take out home contents insurance for their belongings. It was therefore appropriate that the landlord referred the resident to her home contents insurance in the first instance. It also advised her to submit a Public Liability Application if she did not have home contents insurance. This was reasonable as insurance companies are suitably equipped to manage such claims.
  17. The resident also reported increased heating bills due to the draughts in the property. In line with the Service’s remedies guidance, landlords should pay compensation for quantifiable financial loss, including when costs have been reasonably incurred by a resident, which would not have been necessary if maladministration had not occurred. The landlord should assess whether the resident’s energy costs are high in comparison to the average cost of a similar-sized property and offer compensation if warranted.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of subsidence and damp and mould in the property.

Orders and recommendations

Orders

  1. In addition to the compensation already offered, the landlord is ordered to pay the resident £334 compensation. It should provide the Service with evidence of the payment.
  2. The landlord should complete the temporary works, as set out in its stage 2 response. It should provide confirmation to the Service of when it attends the appointment and what works it completes. It should ensure it addresses any of the resident’s concerns regarding the intended works.
  3. The landlord should assess the resident’s energy bills and confirm whether it will offer additional compensation for the increased costs incurred. If it determines compensation is not warranted, it should provide clear, appropriate reasons for its decision.
  4. The landlord should commit to providing regular updates to the resident regarding the progress of the subsidence works.
  5. The landlord should provide evidence to the Service that it has complied with the orders within 4 weeks of the date of this report.

Recommendations

  1. The landlord should review its handling of subsidence cases to ensure that it completes any necessary temporary repairs, and it provides regular updates to residents on the progress of subsidence investigations.