London Borough of Lewisham (202319152)

REPORT

COMPLAINT 202319152

Lewisham Council

20 October 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 damp and mould reports.

Background

2. The resident has been a secure tenant of the landlord since 28 May 2013. She lives in the property with her partner and 2 children, who were aged 10 and 3 when the issues began. The resident and her eldest child have asthma.
3. On 24 December 2022 the resident reported that damp and mould had returned in the bathroom and living room, and that new black, furry mould had grown in the children’s bedroom. The landlord did not respond the report.
4. The resident made a stage 1 complaint on 6 March 2023. The complaint said that despite multiple mould washes the problem kept returning and she was unhappy that the landlord had not responded to the latest report. She told the landlord that the whole family had been unwell since March, with vomiting and coughing, which she attributed to the damp and mould. She mentioned that she and her child had asthma, which she said the landlord should have been aware of. She also said the issue was affecting her mental health. As a resolution she wanted the landlord to check for wall cavity insulation, carry out a mould risk assessment, and advise of the next steps in a prevention plan. She also asked for compensation for damaged furniture and stress.
5. The landlord sent its stage 1 response on 28 March 2023. It apologised for the lack of communication and booked in a damp and mould inspection. It said that if the landlord felt the property was uninhabitable, it could discuss potentially decanting the resident to another property temporarily. The landlord said it would raise any follow on works after the inspection and that the resident should make a claim for any losses or damages through her contents insurance, if she had it. It also offered her £100 compensation.
6. The inspection went ahead on 13 April 2023 and the surveyor recommended further works including mould washes and decorating the affected areas. The landlord missed an appointment to carry out a mould wash on 3 May 2023 but completed it on 11 May 2023. The resident chased the landlord twice in July 2023 to book the remaining works.
7. The resident escalated her complaint to stage 2 on 29 July 2023. She told the landlord she was dissatisfied with the ongoing lack of communication and its failure to meet deadlines. She said the landlord was not taking her concerns about the effect on her family’s health seriously and that the situation was causing her continuous stress.
8. The landlord sent its stage 2 response on 31 August 2023. It apologised for the poor communication and the resident’s overall experience. The response said the landlord would contact the resident to schedule a stage 3 mould wash and decorating work. It advised the resident again about making a claim on her contents insurance and increased its compensation offer to £150.
9. The landlord completed the decorations on 27 September 2023. The resident remains dissatisfied, however, as she says the paint has cracked and the damp and mould has returned. She also feels the compensation offer was not sufficient. As a resolution she would like the landlord to demonstrate more caring towards the situation, find the underlying cause of damp and mould and resolve it, and pay further compensation for distress and inconvenience.

Assessment and findings

Scope of investigation

10. The resident stated in her complaint that the damp and mould had affected her family’s health. The Ombudsman does not doubt the resident’s comments. However, it is beyond our expertise to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more appropriately dealt with as a personal injury claim through the courts or the landlord’s liability insurance. The courts can call on medical experts and make legally binding judgements which is not within the Ombudsman’s remit.
11. Our decision not to consider this aspect of the resident’s complaint is in accordance with paragraph 42.f. of the Scheme, which says “the Ombudsman may not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”. We have, however, considered the general distress and inconvenience that the situation may have caused the resident, as well as the landlord’s response to the concerns she raised about health.

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

12. The landlord’s repairs policy says that it will:
    1. Complete routine repairs within 20 working days.
    2. Log and order repairs promptly.
    3. Maintain clear and accurate repair records.
13. It also explains that, on occasion, completion of work may fall outside of its target response times. When this happens, the policy says the landlord will proactively schedule appointments for follow up visits and keep the resident informed. Examples of such occasions include:
    1. Completing follow up work that cannot be achieved in a single visit.
    2. Inspections to make a diagnosis to initiate a repair or to order materials.
    3. Proactive monitoring of an ongoing and complex repair such as a damp or structural issue.
14. The resident reported damp and mould on 24 December 2022. The landlord did not respond at all. Effective communication is vital in all aspects of a landlord’s service delivery. To have trust in a landlord, residents need to know that it will take their issues seriously and act upon them in line with the landlord’s policies. When making a report, residents must be able to have confidence that the landlord will respond, without them having to chase it up. The failure to respond was inappropriate and not in accordance with the landlord’s own policies.
15. Additionally, the Ombudsman’s January 2021 Spotlight report on damp and mould, ‘It’s not lifestyle’ (the Spotlight report), explains that we expect landlords to have a zero-tolerance approach to damp and mould and to recognise that it can have an ongoing detrimental impact on the health and wellbeing of residents. They should, therefore, ensure their response to any reports are timely and reflect the urgency of the issue. The landlord did not act in accordance with these recommendations.
16. On 22 February 2023 the resident applied to the landlord for a free hygrometer, which it was offering to its residents. She mentioned in her email that she was waiting for a response to her damp and mould report yet, while the landlord confirmed it would send her a hygrometer, it still failed to acknowledge the report. This caused the resident further frustration and led her to make a stage 1 complaint on 6 March 2023.
17. The resident said in her complaint that the damp and mould had affected her family’s health. She said that the landlord had done multiple mould washes in the past, which only bided time and did not resolve the issue permanently. She also said she had made a further report on 28 December 2022 and called the landlord to chase a response on 8 February 2023. The Ombudsman has not seen evidence of this report and attempted contact. However, the landlord has failed to provide evidence of several contacts and visits in this case and this could be another instance of poor record keeping.
18. The Ombudsman’s Complaint Handling Code (the Code) says that landlords should acknowledge stage 1 complaints within 5 working days and respond within 10 working days. The landlord acknowledged the resident’s stage 1 complaint in 6 working days and responded after 16 working days, on 28 March 2023. While these delays were relatively minimal, they did not help to demonstrate to the resident that the complaint was being taken seriously and prioritised.
19. The landlord acknowledged and apologised for its lack of communication, which was positive. It also booked in an inspection and raised the possibility of a decant, if appropriate, which was encouraging. It was also good that the landlord acknowledged the resident’s report of damaged furniture and directed her to its insurer to make a claim. However, the landlord should have told the resident that she could make a claim for the reported effect on her family’s health as well.
20. The landlord’s compensation policy says it will pay between £51 and £250 where the resident has suffered a level of inconvenience and/or distress because of service failure that exceeds what a reasonably tolerant person could be expected to accept. The landlord’s offer of £100 compensation was appropriate and in line with its policy.
21. The landlord inspected the property on 13 April 2023. The surveyor found that the damp and mould was caused by a combination of historic leaks, a lack of adequate air circulation around goods and the lack of an extractor fan in the bathroom. Internal emails on 18 April 2023 indicate that multiple properties in the block had had new bathroom windows fitted with no thought given to the need to install extractor fans. The emails show that the landlord agreed for the contractor to install one at the resident’s property but that it deemed it to be too late and costly to review this for the other affected properties. The landlord should consider doing so to prevent future damp and mould issues.
22. The landlord confirmed that it would remove and treat mould in the children’s bedroom, living room, bathroom, kitchen and hallway and then redecorate the affected areas. The works schedule did not mention installing an extractor fan and there is no evidence that the landlord ever did so. The resident emailed the landlord on 3 May 2023. She said that there had been an appointment that day for the mould wash but the landlord had not attended. The landlord apologised and said the contractor would contact her to reschedule. There is no record of this appointment in the evidence, which is inappropriate.
23. The Ombudsman expects landlords and their contractors to maintain comprehensive records of all contact with residents, repair requests and services provided. This should include details of appointments, any pre- and post-inspections, surveyors’ reports, work carried out and completion dates. This is because clear, accurate, and easily accessible records provide an audit trail and enhance landlords’ ability to identify and respond to problems when they arise.
24. The resident also asked the landlord if it could share the surveyor’s report with her, which she said they had promised to do within 2 weeks of the inspection. The Spotlight report recommends that landlords share the outcomes of all surveys and inspections with residents to help them understand the findings and be clear on next steps. However, there is no evidence that the landlord ever shared the inspection report with the resident and to date, she says the landlord has never told her what is causing the damp and mould. This is particularly concerning as the inspection found that a lack of adequate air circulation around goods was a contributing factor. While landlords should not place the onus for damp and mould on the resident, it should advise them of any actions they can take to help mitigate it and support them to do so.
25. The landlord attended on 11 May 2023 and completed a mould wash. Again, there were no repair logs to evidence this and we only know it happened as the landlord referenced it in internal emails. Following the mould wash the landlord should have proactively arranged a follow up appointment to continue with the scheduled works, as per its repairs policy, which says it will proactively manage repairs so that the resident does not have to chase works. However, it failed to do so which led the resident to chase the landlord twice in July 2023.
26. The first time the resident chased was referenced in an internal email but there is no other evidence of this. The resident clearly did make contact as proven by the internal email but the landlord has not kept sufficient records. On 20 July 2022 the resident said in an email that if she did not hear back from the landlord within 5 working days, she would escalate the complaint to stage 2. The landlord could have stopped the complaint from escalating at that point if it had responded. The resident was clear that she would only escalate if the landlord did not respond and was very reasonable in giving it 5 working days to do so, but it failed to take the opportunity. This was a failure to act in line with the principles of the Code, which says that landlords should resolve complaints at the earliest opportunity.
27. The Code says that landlords should respond to stage 2 complaints within 20 working days. The resident escalated to stage 2 on 29 July 2023 and the landlord responded 23 working days later, on 31 August 2023. Again, while this was a relatively minor delay, the landlord had already failed to keep its promises to and communicate well with the resident, and it should have made a greater effort to improve its service to her.
28. The landlord again acknowledged its poor communication and apologised to the resident. When a landlord admits failing, the Ombudsman’s role is to consider whether the redress offered puts things right and resolves the resident’s complaint satisfactorily. In doing so, the Ombudsman considers whether the redress was in accordance with the Dispute Resolution Principles of ‘Be fair’, ‘Put things right’ and ‘Learn from outcomes’.
29. The landlord attempted to put things right at stage 2 by offering the resident £150 compensation. The resident had not accepted the earlier offer of £100 so the £150 was for the whole period of the complaint. However, this amount does not reflect the level of distress and inconvenience caused by the landlord’s failures. The resident had initially experienced a delay of 54 working days from her report to the inspection. The landlord then failed to attend an appointment and when it did attend, it failed to arrange follow-up works despite her chasing. It also failed to respond when the resident attempted to resolve the situation without resorting to a stage 2 complaint. At the point of the stage 2 response, the works had been outstanding for 8 months. Considering all of this, £150 was not a reasonable offer.
30. The response said that the landlord would contact the resident that week to schedule a stage 3 mould wash and decorations. The landlord has not provided us with evidence of any phone calls to or from the resident. However, the resident emailed the landlord on 11 September 2023 to say the damp and mould team had called her that morning. She had been busy at work and asked them to call back on her lunch break. She said the landlord agreed but failed to call back. The resident reminded the landlord that she is a joint tenant and that if she is not available, it should call her partner. She had already reminded the landlord of this in an earlier email. Failing to use all the communication methods available for a resident is a failure on the landlord’s part to communicate effectively and make enough effort to arrange works.
31. The resident told the Ombudsman that the landlord completed all the outstanding works on 27 September 2023 which, again, the landlord did not provide evidence of. However, she reports that the paint has cracked and while an operative did try to remedy it, she says they told her there was nothing more they could do. She also told us the damp and mould has returned and to date, the landlord has not informed her what the underlying cause is.
32. The Ombudsman has subsequently concluded that there was maladministration in this case. Throughout, the landlord did not demonstrate that it had learned lessons from the complaint. Even after upholding the stage 1 and stage 2, it did not improve the way it communicated with the resident or try and expedite the works, with the resident still having to chase.
33. In addition, the landlord has not acted in accordance with its damp and mould policy, which came into effect in April 2023, or the recommendations in the Spotlight report. The landlord’s policy says:
    1. We will treat all reports of leaks, damp and mould seriously.
    2. We will ask key questions to help us determine the cause of a leak, damp or mould issue and to help us understand the extent of any risk. We will follow this up with remedial action to solve the problem, and where we cannot immediately determine what action to take, we will follow this up with a visual investigation and additional lines of enquiry or follow up visits to help us to resolve the issue.
    3. We will communicate clearly and keep residents informed of what action we will be taking, why we are taking it, and when we will do it (date or timeframe).
34. The landlord identified the cause of damp and mould yet there is no evidence it acted on this by installing a bathroom extractor fan. This, plus the delays and failure to communicate effectively with he resident, are particularly concerning in this case as the household includes at least 2 members with asthma. Damp and mould are known to exacerbate respiratory conditions and the resident reported it has affected their health. While the Ombudsman is unable to determine whether that is the case, the landlord does not appear to have given the household’s vulnerabilities any consideration.
35. Had the landlord acted on the first report, inspected within 20 working days, then completed 2 sets of follow on works within that same timeframe, it would have completed the works by 22 March 2023. However, it did not complete the last set of works until 27 September. This means the landlord was responsible for a 6-month delay. The works in question fell into the category of works that the repairs policy says may not be completed within expected timeframes. However, the landlord still failed to abide by the policy as it was not proactive in arranging follow on works or keeping the resident updated.
36. To reflect this, plus the time and trouble the resident has spent progressing her complaint, the landlord should increase its offer of compensation to £600. This is in line with the Ombudsman’s remedies guidance which recommends compensation of this amount for maladministration with an adverse, non-permanent impact on the resident.

Review of policies and procedures

37. In this investigation, failures have been identified in the landlord’s handling of its repairs and record keeping which are similar to those identified in case 202124577. We have not, however, made any further orders for the landlord to improve this. This is because we made a wider order as part of case 202124577 which the landlord has now complied with. We expect the landlord to take forward the lessons and improvements it shared with this Service following the wider order and will monitor the progress of this. 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 outcome and action needed following the completion of the investigation.

Determination

38. In accordance with paragraph 52 of the Scheme there was maladministration in relation to the landlord’s handling of the resident’s damp and mould reports.

Orders

39. Within 4 weeks of the date of this report the landlord is ordered to:
    1. Apologise to the resident for the identified failures. The apology should come from a senior member of staff and be mindful of the Ombudsman’s apologies guidance.
    2. Pay the resident £600 compensation for distress, inconvenience, time and trouble caused by the lack of communication and delays. If it has already paid the £150 offered at stage 2 it must provide evidence of this and pay the resident the remaining £450.
    3. Complete a full damp and mould inspection within 4 weeks to confirm the cause of the problem.
    4. Complete any resulting works within 20 working days of the inspection. This should include fitting a bathroom extractor fan, if it has not already done so, and redecorating affected areas to a satisfactory standard.
    5. Confirm in writing that it will abide by any longer-term recommendations from the inspection, such as monitoring.
    6. Provide the resident with a report detailing the diagnosis, completed work and any future works or monitoring that are required. This should include a timeframe for a follow-up inspection to ensure the works have been effective.
    7. Provide the resident with details of how she can claim for damages related to her family’s alleged deterioration in health if she wishes to do so.
    8. Ensure the household’s vulnerabilities are recorded on its and its contractor’s systems so they can consider them when responding to future repair requests.
    9. Ensure the joint tenant’s contact details are recorded on its and its contractor’s systems so they can be used as a second point of contact.
40. The landlord must provide the Ombudsman with evidence it has taken these actions within 4 weeks of the date of this report.

Recommendations

41. The landlord is recommended to inspect the other properties where it fitted new bathroom windows without fitting extractor fans for damp and mould. It should then consider fitting extractor fans, as well as completing any other works that are required to remedy and/or prevent damp and mould.