Lewisham Council (202347050)
REPORT
COMPLAINT 202347050
Lewisham Council
29 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
- The complaint is about the landlord’s handling of:
- The resident’s reports of damp and mould affecting her property.
- A temporary decant.
Background
- The resident has been a secure tenant of the landlord since 2013. She lives in the property with her 5 children aged between 1 and 16. The property is a 3-bedroom, second-floor flat. The landlord is a local authority.
- The resident had reported mould in her property previously and instigated a disrepair claim against the landlord. The parties settled this out of court in August 2022. The resident accepted a sum of compensation and the landlord committed to undertaking the necessary works. The compensation and the works requested as part of the previous claim will not be considered in this assessment.
- The resident contacted the landlord on 2 February 2024 and advised that the mould had returned in her property. She attached a letter from her GP in reference to her 3-year-old child. The GP’s letter said that the child had had several consultations over the previous months relating to recurrent cough, fever and breathing issues, and had been diagnosed with an unusual type of pneumonia. The GP stated an awareness that the child was living in a property with recurrent damp and mould issues. They said the situation should be dealt with as a matter of urgency, as a link between the mould and health effect could not be ruled out. As a minimum it would be impeding the child’s recovery and as a maximum it was a potential cause.
- The landlord circulated the email internally on the same day highlighting the issue to a number of different departments. On 9 February 2024, a request was made for a surveyor to visit the property on 27 or 28 February 2024.
- The resident made a stage 1 complaint on 13 February 2024. She repeated that the damp and mould had returned throughout the property. She stated that this posed a risk to her children’s health, especially her youngest child who had been experiencing severe respiratory problems including pneumonia. She attached the GP letter confirming this. She asked the landlord to take urgent action to resolve the issues in the property or to move her.
- On 14 February 2024, the landlord contacted the resident to arrange a visit to inspect the property. Due to the resident’s availability this was arranged for 8 March 2024.
- The landlord issued its stage 1 response on 5 March 2024 It listed the following points:
- It acknowledged that the resident’s child was suffering respiratory issues, and she was concerned that damp and mould had returned to her property.
- Its contractor had previously attended to treat mould in a bedroom and renew tiling in the bathroom. It was aware that the silicone sealing around the bath, wash hand basin, shower tray and mirror had not yet been completed.
- To address the resident’s concerns, it had tried to arrange an inspection for 28 February 2024, but the resident had refused because of a clash with a GP appointment. On 4 March 2024 it had spoken to her and arranged an appointment to attend on 8 March 2024.
- It partially upheld the complaint due to the outstanding snagging works in the bathroom.
- The inspection report from the visit on 8 March 2024 indicated minor mould in each of the 3 bedrooms and moderate mould in the hallway, caused by a previous leak. The hall wall was found to be dry at the time of the inspection and no other leaks were detected. The surveyor commented that the rooms were small and contained a lot of belongings, some covering radiators. All trickle vents were closed at the time of inspection. The report recommended provision of advice on ventilating rooms and uncovering radiators, temporary wash of hall walls, overhaul of the UPVC windows, and replacement of the sealant around the bath, wash hand basin and mirror. The surveyor said the damp and mould was mild and would normally be treated with tenants in occupation, but due to children being present, the best course of action would need to be presented to the resident before work commenced.
- The resident escalated her complaint on 13 March 2024. She said:
- She was appalled at the way the landlord had handled her case and did not believe its decision was fair.
- She could not ask someone to leave their home to come and stay in a hotel with her to look after her children. (As suggested by the landlord so that it could book 2 rooms)
- One of her children suffered with asthma and her 3-year-old was also unwell because of the unsafe living environment. The landlord had not considered the impact on her children’s health, which should not be at risk because of its inaction.
- She had continually complained about mould in the property. The landlord had not acted to permanently address the problem.
- In its handling of her case the landlord had failed to comply with its temporary decant policy.
- On 13 March 2024, the landlord told the resident it had booked her a hotel with 2 interconnecting rooms from 16 March until 29 March 2024. The room specification had been confirmed by the hotel. It advised that the work in her property would start on 18 March 2024 and she would need to provide access from 8am.
- On 17 March 2024, the resident told the landlord that when she went to the hotel, she was offered rooms on different floors. The hotel staff had also advised that the 16-year-old could not occupy a room without an adult. She was under the impression that the landlord had consulted with the hotel and confirmed the arrangements specific to her family’s needs. The resident stated that after days of organising and managing 5 children for the trip, she then had to take them all back home.
- The landlord responded the same day. It stated that the reservations team at the hotel had confirmed that the family were booked into an interconnecting room. It had made the booking directly over the phone and followed up with the hotel the same day. The landlord then sent a further email stating it had spoken to the hotel management. They had confirmed the family were provided with 2 interconnecting rooms that were next door to each other on the same floor. The landlord said it was waiting to hear if the rooms were still available and was also searching for hostel accommodation. It later advised that it had sourced accommodation in a neighbouring borough.
- The landlord then informed the resident it had rescheduled the work for 25 March 2024. When it attended on that day to conduct the work, the operatives were unable to gain access.
- On 26 March 2024, the landlord emailed the resident. It said that it had found 2 properties in neighbouring boroughs that would accommodate her family and provided the postcodes. It acknowledged it was her preference to stay in the borough but said that it did not have any nearby properties of a size that could accommodate her family. It advised that the move would only be for 2 weeks and urged her to consider these options.
- On 27 March 2024, the resident’s support worker contacted the landlord. They asked for the work to be put on hold until the landlord could find suitable accommodation in the borough. This was because of the disruption and problems that a move out of the borough would cause for the resident’s children.
- The landlord emailed the support worker on 4 April 2024. It said it did not have any 6-bedspace properties in the borough. It offered a hotel in a neighbouring borough, 36 minutes on public transport from the resident’s property, that would allow for 6 people between 2 interconnecting rooms. It asked if the resident would accept this solution. The support worker advised they would check.
- On 16 April 2024, the landlord issued its stage 2 response. It provided the following information:
- A technical inspector had visited the resident’s property on 8 March 2024 and confirmed damp and mould had returned to the bedrooms and hallway.
- Due to the resident’s concerns about the impact of the work on the children’s health, the landlord had agreed to a temporary decant.
- For short-term decants it normally used hotel accommodation. It had arranged a hotel stay on 16 March 2024 with interconnecting rooms for the resident and her children. It was aware when she arrived, she found the rooms were not interconnecting.
- Since then, it had found accommodation in 2 neighbouring boroughs large enough to accommodate the resident’s family. She had refused these options because they were too far from home.
- It had been in regular contact with the resident and her advocate about the decant and continued to look in the borough. However, due to the size of the family, suitable properties were difficult to find. It was therefore unable to provide a timescale when accommodation would become available.
- The resident had told the landlord that she wanted to move permanently. She had been awarded band 2 medical priority due to the medical information provided. It stated that there was a considerable wait for family sized accommodation in the borough. It was aware she continued to bid on properties. Its housing team had contacted her about her options in February.
- The landlord had not upheld the complaint because it had been supporting the resident to find suitable accommodation so it could undertake the works to her property.
Events post internal complaints procedure
- The landlord reiterated that it wanted to conduct the work to the property to make it safe. The resident requested information on what works it proposed to do. On 17 May 2024 the landlord provided the following information:
- It apologised for the delay in getting back to the resident since its inspection.
- It had arranged for an operative to attend and wash down the mould with the same product used by the NHS in hospitals.
- It would strip the wallpaper from the hallway, wash off the mould and re-paint the hallway.
- It would also strip the tiles from the walls in the bathroom and fit acrylic panels.
- Circumstances meant that the resident stayed in the property rather than moving into hotel accommodation arranged by the landlord. The work commenced the same month. On 31 May 2024, the resident contacted the landlord about the work taking place. She advised of 2 near miss accidents involving her children and the operatives. She disagreed that the work could be undertaken safely with her family in situ. On 6 June 2024, she said the ongoing works were causing health impacts on her children. She told the landlord that her 12-year old’s asthma had flared up and her 3-year-old had had an asthma attack and experienced a decline in her breathing. Further, when the operatives used the mould spray it had caused the 3-year-old to start vomiting. The house was without a bathroom, which was causing significant difficulty for her and her children. Due to the issues the work had caused she would not be permitting the operatives back into her property.
- To date the Ombudsman understands there has been no further progress on completion of the work or finding the resident suitable temporary accommodation. As a resolution the resident would like to be decanted within the borough and for the issues with damp and mould to be permanently resolved.
Assessment and findings
Scope of the investigation
- Throughout the resident’s complaint, she detailed how the landlord’s inaction has impacted on her mental health and the physical health of her children. The Ombudsman does not dispute or underestimate her concerns, but we are unable to make a determination about the causal link between the landlord’s actions and the health impacts described. Instead, we will consider the overall distress and inconvenience that the landlord’s handling of the issues in this case may have caused. A determination relating to damages caused to the resident’s health is more appropriate for the courts or a personal injury claim, and the resident has the option to seek legal advice if she wishes to pursue this.
The landlord’s handling of the resident’s reports of damp and mould affecting her property
- The landlord 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. A property with dampness and/or high humidity can lead to threats to health from associated mould or fungal growths, resulting in the presence of a category 1 or 2 hazard. The principle underlying the HHSRS is that any residential premises should provide a safe healthy environment for any potential occupier or visitor. To satisfy this principle the landlord must ensure the dwelling is free from both unnecessary and avoidable hazards.
- The Ombudsman’s spotlight report on damp and mould, published in October 2021, said landlords should have a zero-tolerance to damp issues; communicate effectively internally and with residents; consider the vulnerabilities of households; and deal with such issues in a timely manner.
- The landlord’s repairs policy states that it adopts a “right first time approach” whereby it proactively manages repairs so that residents do not have to chase repairs. Where possible it will complete repairs in a single visit to minimise disruption. The policy lists the following repairs categories and timescales:
- 24 hours for emergency repairs to remove immediate danger to people.
- 3 working days for urgent repairs where there is a health, safety or security risk.
- 20 working days for repairs that do not fall into the categories above.
- The landlord’s compensation policy allows it to make offers of compensation where it has failed to deliver on its service standards. It lists the following categories and payment bands:
- Low impact – where the impact is no greater than a reasonably tolerant person could be expected to accept. Payment range: £0 to £50.
- Medium impact – a level of inconvenience and/or distress that exceeds what a reasonably tolerant person could be expected to accept. Payment range: £51 to £250.
- High impact – inconvenience and/or distress because of a serious or repeat service failure. Payment range: £251 to £1,000.
- The resident reported that she has been experiencing on and off damp and mould in her property since she moved in. The records provided show that the landlord has been conducting damp and mould related works in the property since 2022. Most recently, due to a leak on the shower, the landlord retiled the bathroom in October 2023. Due to defective workmanship, it retiled it again in December 2023. It is therefore unsurprising that the resident was worried and frustrated when she contacted the landlord to report that the mould had returned in February 2024.
- The resident was clear in her email to the landlord on 2 February 2024 that she was concerned about the impact of the mould on her children’s health. This was further emphasised by the concerns raised in the GP’s email about her 3-year-old child who had been diagnosed with pneumonia. When the housing team contacted her on 9 February 2024, they advised she should notify the repairs team about the damp and mould. As the resident had made the landlord aware of the issues, it was unreasonable for it to require her to further report it to the repairs team for it to progress the matter. Unfortunately, the evidence shows the housing team had in fact shared the information with the repairs team but had not told individual sending the email. This is evidence of silo working and poor communication between teams. Ultimately, this left the resident feeling unsupported and led to her raising a complaint.
- During its inspection on 8 March 2024, the landlord identified “minor” mould in the bedrooms and “moderate” mould in the hallway. It also identified that the windows and patio door needed to be overhauled and commented that the flat would benefit from an all-property ventilation system. While the landlord believed it could complete the work without the family having to move out, it agreed to a temporary move due to the resident’s concerns about her children’s health. This was a positive step by the landlord and showed it had listened to her concerns.
- The work was due to start on 18 March 2024, but due to the apparent errors at the hotel the family returned home and the work could not start. Without agreement on alternative accommodation, the landlord scheduled the work to start again on 25 March 2024 There is no evidence to support why the landlord made this decision. The resident has stated that this caused her frustration and meant that she would not allow the landlord access to complete the works on 25 March 2024. She then told the landlord she would not allow the works to take place until it had found suitable temporary accommodation.
- There followed a period of approximately 9 weeks where the landlord sought to find temporary accommodation without any work taking place. The landlord did inform the resident on 2 occasions that it had a responsibility to conduct the work and requested that she allow access, but she refused. As a result, it went on to advise that it could seek a legal injunction to enforce the works. However, in the circumstances, it is reasonable that the landlord took a sensitive approach and did not enforce access.
- On 10 April 2024, the resident asked that the landlord document in writing that the mould wash was safe to use in the presence of children. After internal checks, it confirmed that it had used the product previously in the resident’s property, that it used it on a daily basis, and that it was safe to treat homes. It asked if she could take the children out while the treatment was taking place and stated that its operatives would ensure all windows were open to facilitate thorough ventilation. The resident was not satisfied with the landlord’s response. She felt that it could not guarantee her children’s safety and that its suggestion to take the children out was not practical or considerate. It is clear the resident was concerned and a resolution was proving difficult to find. However, the landlord recognised these concerns and the need to treat the mould. We therefore believe its suggestion of taking the children out while it completed the mould treatment was not unreasonable. Equally, the resident was free to accept or decline the suggestion (as she did).
- In a further attempt to find a solution, the landlord undertook research to find a mould wash that would address the resident’s concerns. It then met with her at the property to clarify the required works. At the meeting it also discussed a mould wash used by the NHS, which was suitable for use in areas where individuals with breathing difficulties were present. It then followed up in writing confirming the necessary works. The landlord’s efforts in addressing the resident’s concerns were positive and showed it was attempting to finding a mutually acceptable way to address the mould. The resident accepted the solution and the works were scheduled to begin toward the end of May.
- On 31 May 2024, the resident notified the landlord that an operative had stood on one of her children’s feet and in another incident had nearly dropped a wash hand basin on one of the children. At this point, it would have been reasonable for the landlord to contact the resident and discuss the situation. However, it did not do so. Instead, it wrote to her on 5 June 2024 to acknowledge the incidents and advise it would speak to the operative. Unfortunately, by this time the resident had written to the landlord again advising that the mould wash had caused her youngest to be physically sick and suffer an asthma attack. The landlord’s delay in addressing this matter was unsatisfactory.
- The resident has told this service that these incidents caused significant distress for her and her children. When organising the works, the landlord may have believed she could have assisted in keeping the children separate from the areas where the work was taking place. However, these incidents and the operative’s comments that they could not work around the children, demonstrate this was not the case. Completing a risk assessment with the resident prior to the works commencing could have helped the landlord to set expectations and potentially avoided some of the incidents.
- The absence of a decant location suitable for the family, and the resident’s preference not to leave the property during the day, led the landlord to attempt the repairs with the family in place. While it bears ultimate responsibility for the health and safety of the occupants during works, the resident also had a responsibility to assist it in this respect.
- We acknowledge that the landlord’s efforts since 8 March 2024 have been positive and focused on finding a solution to a difficult situation. However, it would not have had to be conducting the work if it had completed it correctly on the first occasion in October 2023. The resident rightly voiced her frustration that the landlord was having to retile her bathroom for the third time in 8 months. This is unacceptable, the resident reported that this caused her significant distress and inconvenience throughout this period.
- The resident reported that after the work in October 2023, the operative left without attaching the shower rail, towel rail and mirror. In December 2023, the operatives again left the tiles in a poor condition with inadequate sealing of the bath and wash hand basin, which would have allowed water to seep behind units and exacerbated the damp and mould. These factors indicate that the landlord may not have been conducting adequate contract management and had failed to post-inspect the property to verify the work had been completed to a satisfactory standard. While the Ombudsman accepts it may not always be possible for landlords to post-inspect works or to address poor standards of work until after the event, it would have been reasonable for the landlord in this case to arrange increased supervision of works to the resident’s property following the initial occurrence in October 2023. Had it done so, this may have prevented the second occurrence in December 2023.
- The landlord’s repairs policy states that it has a ‘right first time’ approach to works. In this case it has failed to deliver on this commitment. This is further evidenced in the landlord’s recommendations after its inspection on 8 March 2024 and 13 May 2024. Among the works it recommended after these inspections were:
- An overhaul of the windows and doors, which were draughty.
- Replacement of the blown double glazed panels.
- Installation of an all property ventilation system.
- However, the above were not on the works list sent to the resident on 17 May 2024, meaning that the resident would face further work to address the same problem in the future. Given the difficulties the landlord had experienced in addressing the damp and mould, it is disappointing that it was not looking at a holistic solution and conducting all recommended works at one time. This shows a failure to learn lessons from its previous mistakes and put things right for the resident.
- The landlord’s failure to complete the work to a satisfactory standard in October 2023 created a stressful and distressing situation for her, which has caused frustration, time, trouble and inconvenience. Further, the failures have created situation where it may be necessary to decant a family of young children with both physical and mental health needs that could potentially have been avoided. For these reasons it is the Ombudsman’s opinion that the landlord’s handling of the resident’s reports of damp and mould amounts to maladministration. We have therefore made an order for compensation based on the landlord’s compensation policy, which is also in line with the Ombudsman’s remedies guidance.
The landlord’s handling of a temporary decant
- The landlord has a temporary relocation (decanting) policy. The policy states it will consider a decant in the following circumstances:
- Where the conditions or safety issues are so bad that it is not reasonable for a tenant to continue living in the property.
- If essential repairs are required but cannot be undertaken with the tenant and their family in the property.
- If work is to take less than 6 weeks the landlord would inquire if the tenant was able to stay with family or friends. If this is not possible the landlord will seek to find nightly paid accommodation.
- The location of nightly paid accommodation will depend on availability and needs of the family. A decision on location priority will be based on medical and other needs in accordance with the landlord’s location priority policy, which states:
- When reaching location decisions, the landlord will consider the principal needs of children in the household and the need to promote children’s welfare. It will have regard to any disruption to schools, medical care, social work, other key services and other support.
- The award of location priority does not guarantee the provision of temporary accommodation. It can only be provided if it is suitable and available.
- Priority for in borough accommodation can be awarded if the applicant or a member of their household is receiving treatment for a physical or mental health condition from a specialist hospital unit which cannot be transferred to another NHS service, or other exceptional circumstances which demonstrate a compelling need that cannot be met outside of the borough.
- The landlord will only consider the use of hotel accommodation where it cannot source alternative accommodation that it deems suitable for the household’s needs.
- After its inspection on 8 March 2024, the landlord completed a temporary decant approval form for the resident. It recorded the reason for the temporary decant as “tenant advises health issues”. The timeframe for the works was listed as 2 weeks. This shows the landlord had considered the resident’s concerns and the requirements of its policy in deciding that the family should be decanted.
- Both parties agreed on the hotel stay from 16 March 2024. It is not clear how the errors occurred that caused this arrangement to fall through. The landlord advised that it had booked and confirmed 2 interconnecting rooms in the hotel. The resident has stated that this arrangement was not what the hotel presented her with upon arrival. We acknowledge the efforts and challenges the resident faced in getting her family to the hotel, and the distress she and her children experienced having to return home. We agree that the situation described by the resident was unacceptable and that the alleged error should not have happened, although it may not have been something the landlord was reasonably able to foresee or control. However, due to the conflicting accounts, the absence of evidence and the involvement of a third party hotel, we have been unable to reach a finding of fault on this point. We have made a recommendation below for the landlord to consider when making future bookings that have special circumstances attached.
- After this point, the landlord made 2 offers of self-contained accommodation in neighbouring boroughs. The resident refused the properties as she considered any offer outside the borough to be unreasonable. She requested that any temporary accommodation offered was in the same borough as her current property. This was due to both herself and her eldest child having to attend mental health services and her youngest child having to attend hospital appointments. She also stated that out of borough accommodation would have presented challenges for her children getting to and from school. We acknowledge these are all important and valid reasons, and are also points listed for consideration in the location priority policy.
- In its responses to the resident, the landlord never refused to consider accommodation within the borough. It had always made clear that it had limited availability within its stock and that the size of the resident’s family created additional challenges. Also, the policy states that even if a family is awarded location priority, in borough accommodation cannot be guaranteed. The landlord can only provide the accommodation if it is available.
- Initially, in order to book 2 separate rooms, the landlord asked if the resident had an adult family member or friend who could come and stay with the family in the hotel. While the resident found this suggestion unacceptable, we believe it was reasonable for the landlord to explore it in search of a solution. We accept that the suggestion did not suit the resident, but the landlord could not have known this without asking.
- In addition to the aborted hotel stay, the landlord made 4 offers of temporary accommodation. These included 2 different self-contained properties in neighbouring boroughs; a hotel stay, in 2 interconnecting rooms in a neighbouring borough, that was 36 minutes on public transport from the resident’s current accommodation; and a property 10 minutes from the resident’s current accommodation. This fourth property required the resident to use the reception room to make it a 2-bedroom property. However, due to the location and the length of the temporary 2 week stay, it was reasonable for the landlord to offer it to the resident.
- Further, in the absence of being able to identify suitable accommodation, the landlord offered the resident expenses for paid days out with her family. While the resident initially accepted this arrangement, she has not engaged any further in the process. The offer of reimbursed days out was a positive step by the landlord and one that went beyond the requirements of its policies. The Ombudsman considers this an example of good practice in the circumstances.
- As a central London authority, the landlord faced challenges in securing suitable temporary accommodation. The landlord complied with its temporary decant policy. It has been clear it does not have property available in the borough and has made a number of offers that the resident could have considered. It is the Ombudsman’s decision that there was no maladministration in the landlord’s handling of the temporary decant.
- While making a finding of no maladministration, we understand that the work remains outstanding and that a temporary decant (or alternative measure) is still required. It is therefore necessary that both parties continue to work together to find a mutually agreeable solution. The landlord should continue its efforts to source temporary accommodation within its borough.
Determination
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of the resident’s reports of damp and mould affecting her property.
- In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s handling of the temporary decant.
Orders and recommendations
Orders
- Within 6 weeks of the date of this report (allowing for the Christmas period) the landlord must:
- Provide a written apology from a senior manager to the resident for the failures identified in this report. The apology must meet the criteria highlighted in the Ombudsman’s apologies guidance.
- Pay the resident £800 for the distress, inconvenience, time and trouble likely associated with its handling of her reports of damp and mould.
- Review the outcomes of the inspections on 8 March 2024 and 13 May 2024 and decide if the recommendations for an overhaul of the UPVC windows and doors, as well as a full flat ventilation system, are still required. The landlord should then write to this Service and the resident advising either:
- That the additional work is not required and the reasons why.
- That the additional work is required along with an up-to-date schedule of all works it intends to undertake.
- The landlord must provide evidence of compliance with the above orders within the time limit specified.
Recommendations
- When making hotel bookings in the future that have special circumstances attached, it is recommended that the landlord seeks tangible evidence that the hotel can meet the stated requirements. It can achieve this by either an in-person visit or by requesting that the hotel provide video or photographic proof.