Lambeth Council (201914310)

REPORT

COMPLAINT 201914310

Lambeth Council

22 September 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

This complaint is about the landlord’s handling of:
1. the resident’s reports of damp at her property and the related follow-on works;
2. the related complaint.

Background and summary of events

Background

The resident is a secure tenant. Her tenancy began on 15 June 2015 and the landlord is a local authority. The landlord has described the property as a three-bedroom end of terrace house.
The landlord has advised that its records show the resident is disabled and needs level access to the property.
The tenancy agreement requires the landlord to maintain the structure of the property and carry out decorations needed following completion of repairs that it is responsible for.
The landlord has a repairs policy that sets out that it is responsible for any repair work that may ‘be a threat to health and safety’. It has five repairs classifications requiring it to complete repairs between 24 hours and 30 working days of a report unless it is an improvement or part of an agreed program when it has 90 days to complete works.
The landlord also has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any mould problems in its properties amount to a hazard and require remedying.
The landlord has a complaints policy that sets out three complaint stages:
1. early resolution – where it says it will try to resolve a complaint straightaway by contacting the resident and agreeing an action plan
2. local resolution – where it says it will provide a response within 20 working days
3. review – where it says it will issue a final response within 25 working days.
The landlord has a compensation policy that allows for it to pay financial compensation where there has been a serious failure that has had an ‘adverse affect’ on the resident and that the resident’s vulnerability will need to be considered. The policy adds that the landlord’s assessment should include any loss of non-monetary benefit (including where a resident has been unable to use a room due to outstanding repairs) but should not include anything related to settlement of an insurance claim or for personal injury.
The resident has advised that she reported mould growth in the property from January 2018 but no evidence has been seen by this Service of any damp-related reports made until September 2019. This report is therefore focused on events from September 2019 onwards.

Summary of Events

The landlord’s repairs records show that the resident made a telephone call on 9 September 2019 to report damp in the property. It noted that a request was made for a survey.
The landlord conducted a damp inspection of the resident’s property on 12 September 2019 and produced a report dated 18 September 2019. This showed that it inspected the living room and rear left bedroom on the ground floor and the bathroom on the first floor. The report concluded that:
1. there was rising damp to walls on the ground floor due to lack of an effective damp proof course and penetrating damp from external render finishes and defective rainwater goods to the rear left hand side corner of the bedroom
2. the external render was in poor condition and blown in some places
3. there was condensation dampness evidenced by black spot mould to the corner of the bedroom and the bathroom ceiling.

It recommended the following works to address damp:

inspection and rectifying of defective rainwater goods and render as well as any bathroom plumbing defects
thermal boarding and installation of a radiator in the bathroom plus upgrades to the bathroom extractor fan
redecoration and removal and reinstating of floor coverings.

It also recommended the following works that its operatives could complete:

injection of a chemical damp proof course
thermal boarding and re-plastering work
opening up of the fireplace to remove debris, block up and vent the opening.

The landlord raised a repair works order on 4 October 2019 for the damp-related works and recorded that these were completed on 11 November 2019.
The landlord has provided ‘before and after’ photographs that it said were taken in November 2019. They appear to show walls that have been newly plastered and thermal boarded (with dark laminate flooring in place).
The landlord raised a repairs order on 31 October 2019 to inspect the mould in the bathroom and treat with a wash. This was recorded as complete on 1 November 2019 and a follow-on redecoration order was recorded as complete on 13 November 2019.
The landlord’s repairs records show that the resident telephoned to request decoration works on 11 November 2019. An order was raised and recorded as complete on 26 November 2019 but it is unclear what works, if any, were carried out.
The landlord raised repairs orders on 10 December 2019 to redecorate walls and woodwork in the living room and study, install new electrical sockets in both rooms, renew boxing in and fix new tiles to boxing in the corner of the bathroom. All of these orders were completed by 13 January 2020.
The resident wrote to the landlord on 8 January 2020. She chased progress on a complaint that she said had gone unanswered. The landlord replied the same day. It advised the resident that it had logged complaints on 5-6 December 2019 and would treat her recent correspondence as an escalation request to which she should get a response within 20 working days.
The resident and landlord exchanged emails on 28 January 2020. The landlord said it had escalated a complaint about missed appointments but it was apparent that the resident’s primary focus was on disrepair and the replacement of her laminate flooring. The landlord signposted the resident to make an insurance claim and offered to escalate the resident’s complaint about damp.
The landlord completed a repairs order to reinstate electrics on 10 February 2020. Other repairs orders were raised and completed during February 2020 to reinstate items such as flooring and curtain rails.
Messages were exchanged between the landlord and resident during early February 2020 that demonstrate that arrangements were being made to re-install electrics and to fit tiles. The resident subsequently reported that the property had been ‘upside down’ since August 2019, that the landlord had lifted some flooring downstairs in the property due to damp and that the flooring was yet to be replaced.
The resident wrote to the landlord on 14 February 2020. She advised that she had reported the damp since May 2018 and that the landlord had only completed some temporary work and she had been confined to a small area of the property. She added that there had been no heating at the ground floor of her property since September 2019 and she sought a discount of 50% of her rent from May 2018 plus compensation. She clarified that the living room, study and bathroom had been ‘riddled’ with damp but that bedrooms also had mould growth.
The landlord’s repairs records show that the resident made a report on 22 February 2020 that her kitchen units were unsafe due to damp. It raised a repairs order on 16 March 2020 to mould wash in the kitchen and recorded this as complete on 23 March 2020.
The resident chased a complaint response from the landlord on 12 March 2020. She advised that her energy bills had been high and that part of her property, including the kitchen, had been out of use and clarified that she had not commenced legal proceedings.
The landlord issued a stage one complaint response on 9 April 2020. It advised the resident that as she had an open legal disrepair claim, she would need to liaise with her solicitors regarding any repairs matters.
Messages were exchanged between the landlord and resident during June 2020 that demonstrate that arrangements were being made to decorate the kitchen. The landlord noted on 29 June 2020 that it had completed works to the property.
The landlord issued its final complaint response on 1 July 2020. It said this was in response to a letter from the resident of 21 April 2020 and concluded that:
1. it was unacceptable that the resident had received no response to her damp reports in 2018 albeit it had been unable to locate copies of these letters
2. the resident’s solicitors sent a disrepair pre-action letter in June 2019 but this made no mention of damp so the resident should not have been told this matter could not be considered through the complaints process
3. a damp survey was undertaken in September 2019 and works were raised in October 2019, following completion of which it had tiled the bathroom, installed boxing in the lounge, redecorated the lounge and rear study, fixed sockets and treated the kitchen for mould
4. an inspection in March 2020 showed no evidence of damage to flooring but a follow-up inspection would be undertaken to check this
5. it offered to send the resident a claim form for any missed appointments and unusable rooms
6. it offered the resident a link to complete a liability form for damaged possessions.
The resident and the landlord exchanged emails during early July 2020 regarding an insurance claim the resident made that had been repudiated. The resident said that the claim was for around £6,000 of damaged possessions and mentioned the health impact of the disrepair. The landlord signposted the resident to take legal advice as it could not review insurance decisions through the complaints process.
The landlord has advised this Service that it inspected the property again in July 2020 to reconsider the flooring issue and found that it had been removed. It said that it decided to reimburse the resident to the value of her flooring quote given the ‘before and after’ photographs from its contractor were not concluded to be sufficient to refute the claim.
The landlord wrote to the resident on 16 July 2020. It advised that it would make a one-off payment to the resident for the replacement of laminate flooring (related to the dining room, living room and hallway) but that she would need to contact its housing repairs team if she wished to negotiate the level of payment. It added that it was unable to award compensation as it would only do so in exceptional circumstances and that a claim for damaged possessions was being considered by its risk and insurance team.
The resident advised this Service in July 2020 that works to her property were mainly completed and updated this Service in October 2020 to advise that only bathroom tiling works were outstanding.
The landlord advised this Service in September 2021 that it had arranged a further inspection to assess the bathroom and the rest of the property.

Assessment and findings

In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.

Damp-related works

The resident has advised that she began to report problems with damp in the property from January 2018. The landlord advised in its final complaint response that it did not have a record of correspondence from the resident in 2018 albeit it did offer an apology and stated it was unacceptable that these were not replied to. Given the only evidence seen by this Service shows that a damp report was initially made on 9 September 2019, this investigation can only assess the landlord’s actions since this date.
The landlord arranged for a surveyor to attend the resident’s property on 12 September 2019 and a diagnosis with recommendations was produced within two weeks of the original resident report – this was a reasonable initial response to the resident’s concerns about damp.
The surveyor report concluded on 18 September 2019 that there was a combination of rising damp and condensation in the property. It recommended that it should conduct works such as a chemical damp proof injection, thermal boarding, re-plastering and adjustments to a fireplace. The landlord proceeded to raise and complete works within eight weeks of the surveyor’s report. Given the required works were extensive and amounted to a value of almost £5,000 (indicating the works were complex), the landlord completed them within a reasonable timescale.
The surveyor report recommended additional works such as improvements to the bathroom to address condensation, redecoration and flooring works. The landlord’s repairs records indicate that decoration works were still ongoing in January 2020, tiling works were still ongoing in February 2020 and the flooring issue was unresolved until July 2020. This indicates that there were extensive delays of more than six months in the landlord completing some of the works recommended by the surveyor – this was outside of its repairs policy timescales and inappropriate.
It is of concern that the landlord has not been able to demonstrate that it post-inspected any of the works recommended by the September 2019 survey. It is therefore unclear whether all the recommended external works (including to the render and rainwater goods) were completed and whether all the internal works (for instance, bathroom improvements) were completed. The landlord has advised this Service that its procedure is not to produce a report following surveyor visits but to raise repairs orders instead. However, given the extent of works needed to the property and the vulnerability of the resident, it would have been appropriate for the landlord to check whether the works it completed had resolved the rising damp, penetrative damp and condensation that its surveyors report had identified.
The landlord has confirmed that it was aware that the resident is vulnerable. There is no evidence that the landlord considered the resident’s health conditions prior to commencing works at the property that it knew would cause dust and upheaval. It would have been reasonable for the landlord to discuss with the resident the potential impact of the works it conducted from October 2019 to July 2020 and assess whether an offer of temporary accommodation would have been appropriate, particularly given the resident reported that she had been confined to the upstairs of the property. The landlord has not demonstrated that it did so and therefore failed to show that it considered the resident’s vulnerability at all during the delivery of damp-related works – this was unreasonable.
The resident made a further damp report on 22 February 2020 – this was related to mould growth in her kitchen. A repairs order was raised to carry out a mould wash which it recorded as complete in just over 20 working days – this was an appropriate timescale in line with its repairs policy. However, evidence seen by this Service indicates that follow-on decoration works to the kitchen were still ongoing a few months later in June 2020 – this was inappropriate.
The only financial remedy that the landlord proposed was a reimbursement for the cost of the resident’s laminate flooring. The landlord’s decision to make a financial award followed inspections and consideration of photographs. Although there was a lack of clear evidence that contractors had caused damage to, or inappropriately removed, the flooring, the landlord nevertheless decided to award the reimbursement requested by the resident. This demonstrated that the landlord was resolution-focused in regard to the flooring.
However, the landlord failed to award any compensation for the impact of its service failures on the resident. Its compensation policy outlines that it will consider compensation where a serious failure had an ‘adverse affect’ on the resident and that it will consider the resident’s vulnerability. There is no evidence that the landlord assessed the delays outlined in this report and how they impacted the resident nor that it assessed the resident’s claim for a rent reimbursement given her comments about loss of use of rooms.
In summary, the landlord’s initial response to the resident’s report of damp in September 2019 was reasonable. It diagnosed potential causes of the damp and completed extensive works within two months of the report. However, it subsequently delayed by several months in completing follow-on works (such as decorations, flooring and bathroom improvements) and in carrying out kitchen-related damp works during March-June 2020. Although the landlord reimbursed the resident for the flooring issue, it should have considered compensation for distress and inconvenience caused to the resident, it failed to demonstrate that it considered the resident’s circumstances during the works and its procedure not to produce surveyor’s reports means it is unclear exactly what works were completed and how successful these were.

Complaint handling

The resident exchanged correspondence with the landlord in January 2020 when she advised that she wished to escalate a repairs complaint. She clarified on 28 January 2020 that this related to rising damp and that the matter was not being pursued through a legal route. However, the landlord failed to respond to the complaint until April 2020 and when it did, it incorrectly told the resident that the damp issue needed to be dealt with through solicitors – this was inappropriate and meant that the resident lost an opportunity to have her concerns investigated.
The landlord’s final complaint response of 1 July 2020 set out that this was in response to a letter from the resident of 21 April 2020. This demonstrates that it took the landlord more than two months to respond to the resident’s escalated complaint. This was outside of the landlord’s complaints policy that requires it to respond to complaint reviews within 25 working days and was therefore inappropriate.
The resident’s complaint partly related to claims that the landlord’s actions had led to damage to her possessions. The landlord gave the resident advice to make an insurance claim as early as January 2020 and repeated this in later correspondence. This advice was in line with the landlord’s compensation policy that sets out that it cannot consider personal injury or insurance claims through the complaint process and was therefore appropriate.
When the landlord became aware that the resident’s insurance liability claim had been rejected, it reconsidered the laminate flooring issue and made a resolution-focused decision to reimburse the resident for these costs (see paragraph 40 above). It advised the resident that it was unable to review insurance claim decisions through the complaint process – this was in line with its compensation policy and was again appropriate.
In summary, the landlord failed to log the resident’s concerns in January 2020 as a complaint, it incorrectly told the resident that the damp concerns could not be considered as a complaint because it wrongly thought these were part of a separate legal disrepair claim and it delayed in answering the resident’s escalated complaint. However, the landlord’s advice regarding the correct recourse for the resident to claim for injury and damaged possessions was appropriate.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of:
1. the resident’s reports of damp at her property and the related follow-on works;
2. the related complaint.

Reasons

The landlord failed to complete follow-on works within an appropriate timescale and has not evidenced if all the works recommended in September 2019 were carried out. It failed to demonstrate that it considered the resident’s vulnerability and the impact of the works on her living conditions.
The landlord inaccurately advised the resident that it could not consider her complaint about damp which contributed to a delay of around five months in the resident receiving a full response.

Orders

The landlord to write to the resident to:
1. apologise for the service failures identified in this report
2. advise when it will inspect her property, if it has not already done so
3. confirm whether it has completed all internal and external works recommended in the surveyor’s report from September 2019.
The landlord to pay the resident compensation of £400, comprised of:
1. £250 in recognition of the distress and inconvenience caused to her by the service failure in its handling of her reports of damp at her property and the related follow-on works
2. £150 in recognition of the inconvenience and time and trouble caused to her by the service failure in its handling of her complaint.

The landlord should confirm compliance with these orders to this Service within four weeks of the date of this report.

Recommendations

The landlord to ensure that it has procedures in place so that it can accurately identify what issues can be considered through the complaints process when a resident has an ongoing legal disrepair claim.

The landlord should confirm its intentions in regard to this recommendation to this Service within four weeks of the date of this report.