Lewisham Council (202345128)

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REPORT

COMPLAINT 202345128

Lewisham Council

28 November 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:
    1. Reports of loss of heating and hot water.
    2. Reports of damp and mould.
    3. The complaint.

Background

  1. The resident holds a secure tenancy with the landlord in a 2-bedroom flat with his wife, who is diabetic, and young child.
  2. On 10 March 2023 the resident reported no heating or hot water in the property. The landlord’s contractor attended the same day and found the boiler was beyond economical repair and left 2 temporary fan heaters. On 31 March 2023, the landlord’s contractor carried out various works to the boiler, and left the resident with hot water. On 6 April 2023 he made further reports of no heating or hot water.
  3. On 20 April 2023 the resident made a formal complaint to the landlord about damp and mould. He said that there was mould in the property and despite repeated attempts to remove it, it grew back rapidly. He added that his young child experienced repeated coughs and cold like symptoms. He noted the window had not been changed since he moved in and said there was no heating in the property for a prolonged period. On 28 April 2023 the landlord issued its stage 1 response. It upheld the complaint and arranged an inspection for 7 June 2023.
  4. On 1 June 2023 the resident made a formal complaint about the loss of heating and hot water. He said he reported this on 10 March 2023 and the boiler was replaced on 26 May 2023. He said that during this time his young child experienced health issues which he attributed to adverse temperatures in the property without hot water for sanitation.
  5. The landlord issued another stage 1 response on 14 June 2023 regarding the boiler issues. It said its gas contractor replaced the boiler on 26 May 2023 and it was now functioning as designed. It said its contractor apologised for the delay and offered £81 compensation. The resident asked to escalate his complaint, however, as he was unhappy with the compensation offered and said at the time he had to visit friends and family to access hot water. He added that his electricity bills increased. As an outcome, he wanted further compensation.
  6. On 21 July 2023 the resident contacted the landlord about damp and mould again. He said that although there was an inspection on 7 June 2023, he had received no further response and no follow up repairs were arranged. On 16 August 2023, the landlord issued its stage 2 response regarding damp and mould. It apologised for its service and acknowledged the last damp and mould inspection took place 9 weeks ago. It said a full mould wash was required to the windows in the property which was booked for 21 August 2023. It offered £50 compensation to acknowledge the distress and frustration from the delay.
  7. On 22 August 2023 the resident asked to escalate his complaint regarding damp and mould to stage 3. He said the landlord did not attend on 21 August 2023 as promised and the appointment was rescheduled. He remained unhappy with the delays and the amount of compensation and noted he had taken time off work to accommodate the contractors. On 30 August 2023 the landlord issued a stage 2 response regarding the boiler complaint. It advised the work was carried out on 1 June 2023 and no further faults were reported. It apologised for the delays and increased the amount of compensation to £100.
  8. On 5 February 2024 the landlord issued its stage 3 final response which covered both complaints. It apologised for the delay in issuing its final response. With respect to the boiler, it acknowledged the resident had been left in cold temperatures and suggested he had not been provided with alternative heating. It also considered the impact of no hot water on the household. It said the damp and mould was first reported in April 2023. While it inspected the mould in June 2023 and identified mould washes to the windows were needed and planned to carry this out in August 2023, this did not happen. Overall, it upheld both complaints and recognised it delayed replacing the boiler and addressing mould which it said caused significant avoidable distress and inconvenience. For the heating and hot water, it offered further compensation equivalent to one-third of the resident’s rent for a 10-week period, in addition to £100 already offered at stage 2. For the damp and mould, it offered a further £125 compensation, in addition to £50 already offered at stage 2 for failing to carry out a mould wash sooner and committed to carrying this out immediately.
  9. The resident referred his complaint to this service on 4 March 2024. In July 2024, he advised that the boiler had been replaced, and there was no damp and mould currently. He remained unhappy about how the landlord handled his reports and felt the compensation did not adequately reflect the detriment the household experienced. As a resolution, the resident wanted further compensation.

Assessment and findings

The scope of the Ombudsman’s investigation

  1. The resident advised that the loss of heating and hot water, and damp and mould impacted the health of the household. It is beyond the remit of this service to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more appropriately dealt with through the courts. Nonetheless, consideration has been given to the general distress and inconvenience that the situation may have caused and this investigation will therefore consider whether the landlord acted in accordance with its policies, and whether it acted fairly in the circumstances.

The landlord’s handling of reports of loss of heating and hot water

  1. The tenancy agreement confirms that the landlord is responsible for the repair and maintenance of the installations it provides in the property for the supply of water, gas, electricity, heating and sanitation.
  2. The landlord’s repairs policy states that emergency repairs include those that are to restore a total loss of heating in winter. It should attend within 2 hours to make the situation safe. If the repair cannot be completed immediately then it will carry out follow on work as urgent or routine repairs. This policy provides a completion timeframe of 3 working days for urgent repairs which include a possible health and safety risk such as partial failure of heating systems.
  3. On 10 March 2023 the resident reported a total loss of heating and water. While March is not a winter month, the landlord’s final response acknowledged the temperatures at this time were particularly cold. The landlord initially acted fairly by attending the same day, leaving temporary heaters and arranging to replace the boiler. This was broadly in line with its policy for an emergency repair. However, the landlord failed to carry out the boiler replacement within its policy repair timescales.
  4. On 22 March 2023 the resident was told a new part for the boiler would be installed. However, it is clear from the contractor’s initial attendance note of 10 March 2023 that the boiler was beyond economic repair. This would have confused the resident given its contractor’s previous attendance where he advised he was told that the boiler needed replacement. The landlord’s notes appear to suggest the resident refused a booking, but this appears to be for installation of a new part, as opposed to the boiler replacement.
  5. Typically, while the landlord is entitled to attempt repairs, considering its contractors had identified on 10 March 2023  that the boiler was beyond economic repair, it is unclear why it pursued repairing a part. This likely contributed to the overall lengthy delay between March and May 2023, which the landlord recognised as avoidable. The Ombudsman has also seen evidence to suggest poor communication in co-ordinating its contractors and approving a quotation for a new boiler contributed to the delay. In the circumstances, it should have thoroughly probed its contractor’s records and acted with more urgency to arrange the boiler replacement sooner.
  6. In regard to the hot water, the landlord’s contractor’s records indicate that following attendance on 31 March 2023, the resident was left with hot water working from the switch from immersion. Yet, the resident continued to make reports of no hot water on 6 and 13 April 2023. The landlord’s contractor’s records show that following attendance on 13 April 2023, the immersion heater was working fine, but also reiterated that the boiler was beyond economical repair. It is therefore unclear if the resident did not have access to hot water for the entirety of the period until the boiler was replaced.
  7. A new boiler was installed on 26 May 2023, and the landlord’s contractor quality checked the fitting on 1 June 2023, where they confirmed the resident was left with heating and hot water. Nevertheless, the landlord carried out this replacement significantly outside its policy timescales aim by around 10 weeks. During this time the household, which included a young child and diabetic woman, had limited or no provision of heating or hot water and advised they frequently visited relatives’ houses to shower and bath. This caused distress and inconvenience to the resident who said they were unable to access heating and hot water during a cold time of year.
  8. In the landlord’s final response, it stated it had “seen nothing to suggest the Council provided you with alternative heating”. This, however, is inaccurate. The resident confirmed to the service that the landlord provided temporary fan heaters. The landlord’s records indicate these were supplied on 10 March 2023 – on the day of the report of total loss. Indeed on 13 April 2023, its contractor also noted that the resident had immersion heater working and “2 temporary fan heaters”. Additionally, throughout its formal responses the landlord did not comment on specifically what happened and why the delays took place. This was a missed opportunity to reassure the resident that it had thoroughly investigated the matter and addressed his concerns. This was a shortcoming on the part of the landlord.
  9. Nevertheless the landlord recognised it took longer than it should to replace the boiler, which should have been an urgent repair and apologised for this. In the landlord’s final response, it offered compensation calculated as one-third of his rent for a 10 week period, in addition to the £100 already offered at stage 2. This equated to £486.77. The landlord fairly considered this timeframe from 17 March, this being 1 week after the resident first reported the issue, until 26 May 2023 when the boiler was replaced which was an acceptable approach.
  10. Moreover, contrary to its stage 3 response, an alternative form of space heating was indeed provided within the required timescale and the resident did not pay a service charge for heating and hot water, therefore it is unclear why it chose to calculate the amount of compensation based on a pro-rata refund. In any case, the landlord’s final figure of compensation was broadly in line with the Ombudsman’s remedies guidance which suggests awards of £100 – £600 where a failure which adversely affected the resident but with no permanent impact. Overall, while not diminishing the effect the loss of heating and hot water had on the household, the landlord acted fairly by providing temporary fan heaters and replacing the boiler, albeit delayed. It then appropriately recognised its errors and the impact the delays caused and offered an appropriate level of compensation which reasonably reflected the distress and inconvenience of these delays.
  11. The landlord did appear to offer to reimburse the resident for any increased electricity costs. This would have been a suitable approach in accordance with its compensation policy which states the landlord should consider reimbursing residents where an incident has resulted in their incurring an additional expense such as electricity usage. In this case, the resident reported increased electricity costs in June 2023. A recommendation has been made below.

The landlord’s handling of reports of damp and mould

  1. The landlord has an obligation under the tenancy agreement to maintain the structure and exterior of the building. Additionally, under Section 9A of the Landlord and Tenant Act 1985, the landlord must ensure that the property is fit for human habitation during the term of the tenancy.
  2. The landlord’s damp mould and leaks policy dated January 2024 outlines that it will treat all reports of leaks, damp, and mould seriously and will take a solution, focused, holistic approach whenever it can, which puts the resident; not just the property, at the centre of the resolution. It adds it will communicate clearly and keep residents informed of what action it will take, why it is taking it and when it will do this. Where it is unable to take immediate action, it may offer an interim solution and support to limit the impact. The Ombudsman recognises that this policy was not available at the time of the resident’s initial damp and mould reports but is referenced to as a sensible guide.
  3. The landlord does not dispute that there were failings in its handling of reports of damp and mould. Where the landlord admits failings, the Ombudsman’s role is to consider whether the landlord resolved the resident’s complaint satisfactorily in the circumstances and offered appropriate redress. In considering this, the service assesses whether the landlord’s actions were in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
  4. As emphasised in our Spotlight report entitled “Damp and mould: It’s not lifestyle”, ventilation, together with sufficient heating and appropriate mould treatments where necessary, is essential for the prevention of mould. The landlord had attended the property as early as June 2023 and was aware of the extent of the issue at the time and identified that the mould was localised to the windows with patches at junctions of the external walls.
  5. In this case, the mould was likely caused by a lack of heating which coincided with the resident’s reports of no heating and hot water in March and April 2023.  Following the landlord’s surveyor’s first inspection of the mould on 7 June 2023, they considered that only mould washes were required. Considering the resident initially complained about damp and mould in April 2023, this was a considerable time before it inspected the property despite knowing that a young child lived there.
  6. The resident confirmed his inspection took place on 7 June 2023. However the Ombudsman has not been provided with the outcome of this inspection or if any repairs were booked afterwards. Although a new boiler was installed in late May 2023, the resident continued to pursue the damp and mould issue.
  7. A mould wash was arranged for August 2023. However the landlord’s notes seem to suggest that it would not book work or an inspection until it had confirmation from the resident. While this was in line with its repairs policy, it is concerning that it did not act with more proactivity particularly considering by August 2023 it still had not carried out a mould wash which it deemed necessary. In October and November 2023, the resident chased the landlord explaining there had been a number of appointments but the landlord had not attended. On 9 November 2023, the landlord arranged another damp and mould inspection for 28 November 2023. However, this did not appear to take place and it seemed from the landlord’s final response of February 2024 that a mould wash was still outstanding. This is very concerning. Effectively the landlord was on notice for almost 10 months and had not taken any meaningful action to resolve mould in a property. This would have caused distress and inconvenience to the resident who lived with mould for a prolonged period.
  8. The resident also estimated he had lost earnings as result of taking days off work to accommodate scheduled appointments not attended by contractors. The Ombudsman appreciates the distress caused when the resident has taken time off to accommodate contractors, only for appointments to be rescheduled. This would have caused frustration; and this was clearly a resident who wanted to engage and work with his landlord to resolve the mould issues. The Ombudsman’s remedies guidance states it would not be fair or reasonable for the Ombudsman to order a landlord to pay a resident reimbursement for loss of earnings for repairs. However, there may be circumstances when the Ombudsman decides that it is appropriate to make an order for a landlord to pay compensation in recognition of the inconvenience caused, for example where the landlord had failed to resolve a repair issue.
  9. While it is noted the household did not appear to have any respiratory health conditions or vulnerabilities, it is concerning that the landlord did not carry out a risk assessment in this case given the repeated reports of damp and mould, the fact that a young child occupied the property and mould was reported in the bedrooms. Under the Housing Health and Safety Rating System, damp and mould growth is classified as a hazard and it is the case that, the longer it is left untreated, the more damaging it can be to a person’s health.
  10. Our Spotlight report also outlines that ‘landlords should recognise that issues can have an ongoing detrimental impact on the health and well-being of the resident and should therefore be responded to in a timely manner’. It continues that ‘landlords should consider appropriate timescales for their responses to reflect the urgency of the case and set these out clearly to manage resident’s expectations’. In this case, the resident was left exposed to damp and mould in his property for a prolonged period because of the landlord’s inability to satisfactorily coordinate necessary mould washes. Further, the adverse effect caused to the resident was likely to be more significant given the fact he occupied the property with a young child.
  11. The resident confirmed to this service that in or before July 2024 the mould had been resolved and a mould had been undertaken. This was a considerable amount of time since his first report of April 2023. While it was appropriate for the landlord to apologise for failing to raise repairs in a timely manner, in this case, the complaints process did not serve to move the remedy for the damp and mould forward, therefore its apology and offer of compensation of £175 did not adequately ‘put things right’. The resident continued to report damp and mould and was not given clear times and dates of when suitable and lasting repairs would take place, contrary to its policy.
  12. Overall, the landlord’s handling of damp and mould was poor. It failed to undertake the mould wash it deemed necessary within a reasonable time and failed to keep the resident regularly updated. Indeed, instead of it being proactive, it only appeared to react once the resident contacted it. The Ombudsman’s remedies guidance suggests compensation between £100 – £600 should be considered where there has been a failure that affected the resident. While the landlord’s offer of compensation was within this range, the Ombudsman considers this did not go far enough considering the impact the landlord’s inaction had on the living conditions in the property, and the time and effort spent pursuing the matter. While the resident has confirmed to the service that the damp and mould appears to be resolved for the time being, the landlord advised a follow up inspection scheduled for 11 November 2024 did not take place but that it would rearrange. This has been considered as part of the Ombudsman’s orders.

The landlord’s handling of the complaint

  1. At the time of the complaint, the landlord operated a three stage complaints policy:
    1. Stage 1 – where a written response will be issued within 10 working days.
    2. Stage 2 – where a written response will be issued within 20 working days.
    3. Stage 3 – where the complaint is seen by an independent adjudicator and a written response will be issued within 20 working days.
  2. In this case, the resident raised separate complaints about damp and mould and loss of heating and hot water that ran concurrently. The landlord initially issued stage 1 and 2 responses for each complaint and subsequently issued a stage 3 response in February 2024 which covered both complaints. Given the circumstances, this was a fair approach for the landlord to take and demonstrated a willingness to resolve matters. Further, the Ombudsman recognises that the landlord’s stage 1 responses were issued within its policy timescales.
  3. However, on 22 and 29 August 2023 the resident asked to escalate his damp and mould complaint particularly as the appointment for 21 August 2023 was rescheduled. While the landlord contacted the resident on 24 August 2023, instead of escalating the complaint, it simply said the compensation offer was final and that the reason for the change in appointment was due to staff shortages. This was inappropriate and, although it gave context as to why the appointment was rescheduled, it should have escalated the complaint at this point in line with its policy.
  4. With respect to the loss of heating and hot water, the resident asked to escalate this complaint to stage 2 on 14 June 2023. However, despite emailing again on 16 June 2023 and 14 July 2023, the landlord did not engage with his escalation request in a reasonable time. It subsequently issued its stage 2 response regarding the boiler on 30 August 2023. This amounted to a delay of 35 working days contrary to its policy. This caused distress and inconvenience to the resident who likely felt the landlord was not taking his concerns seriously.
  5. The resident subsequently asked to escalate his boiler complaint to stage 3 on 14 December 2023 and issued its response on 5 February 2024. Indeed, considering the resident asked to escalate his damp and mould complaint on 29 August 2023, the landlord’s final response was significantly outside its policy timescale. During this time, there is no evidence it appropriately managed expectations or advised when the resident may expect its final response. This would have caused further distress to the resident who had to wait 90 working days for a final response regarding mould.
  6. Furthermore, despite the resident explaining he was unhappy with stage 2 responses on 14 December 2023, the next day the landlord simply told the resident to follow the steps in the stage 2 response to escalate the matter. This was inappropriate and a missed opportunity for the landlord to assist the resident in escalating his complaint sooner.
  7. While the landlord offered an apology in its stage 3 final response for the delay, it would have been reasonable for the landlord to offer compensation for its complaint handling failings. The Ombudsman remedies guidance suggests awards up to £100 for a failing that caused distress and inconvenience but may  not have change the overall outcome of the complaint. In view of this, the service has made a finding of service failure and an order have been made below for remedy.

Further notes

  1. In this investigation, there were failures in the landlord’s handling of its repairs, record keeping and complaint handling, similar to those identified in case 202124577. We have not, however, made any further orders for the landlord to improve this. This is because a wider order was made as part of case 202124577 with which the landlord has now complied. We expect the landlord to take forward the lessons and improvements it shared with this service following the wider order, and we will monitor its progress in doing so.
  2. Moreover, the Ombudsman is currently undertaking a special investigation into Lewisham Council. This is conducted under paragraph 49 of the Scheme and allows the Ombudsman to investigate beyond an individual complaint to establish whether there is evidence of systemic failings. The findings of this report will therefore contribute to the actions needed following the completion of the special investigation.
  3. In late November 2024, the landlord confirmed that it had not yet actioned resolutions in its stage 3 final response, although it appears a mould wash was undertaken between February and July 2024. The resident confirmed to the service that the compensation has not been paid to date. This has been considered in the Ombudsman’s orders below.

Determination

  1. In accordance with paragraph 53.b. of the Housing Ombudsman Scheme, the landlord has made an offer of redress with respect to its handling of reports of loss of heating and hot water which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of reports of damp and mould.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s complaint handling.

Orders and recommendation

Orders

  1. Within 28 calendar days of the date of this report, the landlord must:
    1. Apologise to the resident for the failings identified in this report.
    2. Pay the resident £1,016.50 made up of:
      1. £516.50 calculated as one-third of his current rent for 10 weeks, plus a further £100, for the delay in replacing the boiler, as offered in its final response.
      2. £175 for failing to treat the mould as offered in its final response.
      3. A further £325 made up of:

(1)  £225 for the failings identified in the landlord’s handling of reports of damp and mould.

(2)  £100 for the failings identified in the landlord’s complaint handling.

  1. Inspect the property to ensure it has resolved any damp and mould and carried out appropriate remedial works such as further mould washes, where appropriate. The landlord must provide the Ombudsman and the resident with an outcome of the inspection.
  1. The landlord shall contact the Ombudsman within 28 calendar days to confirm that it has complied with these orders.

Recommendation

  1. The landlord should contact the resident requesting evidence of his increased utility bills when there was no heating or hot water and consider appropriate reimbursement.
  2. The landlord should confirm its intentions in regard to this recommendation to this service within 28 calendar days of the date of this report.