Moat Homes Limited (202311616)

REPORT

COMPLAINT 202311616

Moat Homes Limited

24 April 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 resident complains about:
1. concerns of asbestos and the asbestos sampling process
2. damp and mould
3. delays undertaking repairs
4. the associated complaint and the compensation offer.

Background

The resident has an assured tenancy with the landlord, which is a housing association. She has lived in the property since February 2021 with her 3 children. The resident experiences anxiety and panic attacks. She has said that her children have developed asthma, and that she and her child have a physical health issue (small holes in their hearts) which has contributed to her concerns regarding damp and mould.
In March 2021 the landlord noted that there was damp and mould in the bedrooms. Remedial works took place which included fascia and guttering repairs. On 1 November 2021 the landlord advised the resident that a mould wash was assigned to its contractor.
On 15 November 2021 the resident asked the landlord for an asbestos test on her ceilings. The landlord subsequently noted that the asbestos was safe unless disturbed, and that a test was not needed as no works to the ceiling were planned.
The resident sent the landlord a list of belongings which she said had been damaged by mould, the total cost being £3,835. She also said that the landlord had mentioned replacing her windows and doors. On 20 May 2022 the landlord noted that the resident’s doors were leaking water into the property.
The resident continued to raise concerns about the asbestos. The landlord arranged for a specialist survey on 27 June 2022 which identified “asbestos textured coating” in several areas of the property and described this as low risk but to be monitored.
On 22 August 2022 the landlord arranged an independent damp inspection. The inspection report said that “the source of moisture allowing mould in the property to proliferate is atmospheric and in general, this is driven by occupational activity and issues with the effectiveness of the installed ventilation.” It recommended that the landlord checked the undercuts to the internal doors and remediate as required. In addition, it referenced the need for effective ventilation.
The landlord said that it would bring forward the replacement of the resident’s windows and doors into its current programme of works, and that the asbestos survey would be reviewed by its asbestos manager. It asked the resident to provide supporting evidence for a compensation claim that she had made for £4,284. Alongside the damage to her possessions that she had reported, the resident requested compensation for non-use of a bedroom, the inconvenience of not enjoying the property, and stress. She also reported some general repairs including a cracked banister, damaged flooring, and damaged doors and handles.
On 13 October 2022 the landlord issued a stage 1 response. It said that damp readings had found no excessive moisture, and that the independent survey had found no evidence of structural damp. The landlord would, however, follow up on the survey recommendations. It said that compensation would not be offered for rent or for non-use of bedrooms, the property’s energy performance was above average, and that the doors and windows would be replaced. It confirmed that 2 bedroom ceilings would be replaced where there was minor cracking due to the resident’s concerns about asbestos. It said that it would arrange a further asbestos inspection, along with an inspection for the general repairs. The landlord offered the resident £250 compensation for the time that it had taken to resolve matters, as well as a professional clean of items that had been damaged by mould
The resident was unhappy with the landlord’s response. She referenced feeling blamed for the damp, and she disputed the cause of it. The landlord subsequently arranged remote monitoring of the damp and for another survey to take place.
On 17 October 2022 an independent asbestos inspection recommended that 1 bedroom ceiling and the porch ceiling were replaced. Minor cracks were identified in other areas of the property, which the inspection report recommended were repaired and encapsulated.
In its stage 2 response, dated 28 March 2023, the landlord advised that recent investigations had highlighted a lack of insulation on the front elevation of the property, which would have contributed to the mould. It said that works would be progressed, and it increased its offer of compensation to £900in recognition that its investigation had taken too long, and that relevant points had been missed.
In September 2023 the resident formally complained to the landlord about the asbestos sampling process that had taken place in June 2022. She said that the sample areas had not been sealed to prevent contamination, and she raised concerns about the health implications. The landlord investigated with its contractor who said that it had sealed the sample areas. The resident disputed this and contacted the Health and Safety Executive (HSE).
The landlord inspected the asbestos sampled areas. In its stage 1 response it said that there was damage to the ceilings that was consistent with sampling that had not been sealed. The contractor, however, said that the damage was not there when it had inspected on 17 October 2022. The landlord said that it would arrange for the areas to be sealed, and that it would await the HSE’s outcome.
The resident escalated her complaint to stage 2. In its response the landlord confirmed that the contractor’s photographic records only showed the ceiling before sampling took place but that it could not see any evidence to dispute the contractor’s statements.

Events post completion of the landlord’s internal complaints process

New windows and front and back doors were installed in January 2023. This Service understands that the landlord is installing a new extractor fan in the kitchen as part of the ceiling works currently taking place.
The landlord has advised this Service that it made a final offer of compensation to the resident of £6,192.92, which she accepted. The landlord noted that £500 of this overall amount was for “Compensation” and that £1,657.92 was for “loss of amenities”. The rest related to items damaged by mould.
On 12 March 2024 the resident was decanted for all ceilings to be replaced, and for general repairs to be carried out. In her contact with this Service the resident advised that the damp and mould had impacted her child’s health and the household’s living conditions. She said that she had lost the use of 1 bedroom for 22 months and that she had not had complete use of another room for 15 months. She raised concerns regarding the asbestos sampling process, the time taken for the landlord to replace the doors and windows, and its handling of the general repairs. She said that while the landlord had compensated her for items that were damaged, she had not been compensated for the distress and inconvenience that she had experienced.
The resident has recently advised this Service of her concerns that the current ceiling works have resulted in asbestos particles in her carpet and in her cooker. In addition, she has advised of an ongoing issue with damp and mould and has said that some works are currently taking place, while she is decanted, to address this. She has specifically referenced damp under the kitchen flooring and has advised this Service that flooring taken up by the landlord in December 2022 has not yet been replaced.

Assessment and findings

Scope of investigation

The Ombudsman was sorry to learn of the physical impact on her child that the resident has referenced in relation to damp and mould. While this Service does not doubt the resident’s comments, this Service is unable to establish whether this was directly affected by the landlord’s action or inaction. This matter may be better suited to consideration by a court or via a personal injury claim. This Service can, however, review whether the landlord followed its own policies and procedures, the law and industry best practice. Consideration has also been given to the general distress and inconvenience which the situation may have caused the resident.

The landlord’s response to concerns of asbestos and the sampling process

The resident’s concerns and anxiety about asbestos within her home are wholly understandable. However, the Ombudsman’s role is not to investigate the level of asbestos in the property and potential risk to the resident, but rather, it is to provide an independent review of the landlord’s actions in its response to the resident’s concerns. In doing so, the Ombudsman is guided by its Dispute Resolution Principles, which are, ‘be fair – treat people fairly and follow fair process; put things right; and learn from outcomes.’
The landlord has an asbestos management policy which states that it will ensure that accurate records are maintained and that systems are kept up to date. It will manage specialist contractors and make sure that they have the necessary information and training to fulfil their obligations on the landlord’s behalf. The contractor will record all findings, which will be supported by photographs and other documentation.
The presence of asbestos itself does not constitute disrepair. A landlord is not obliged to remove asbestos from a domestic property if it is in a sound condition and can be left undisturbed as the risk of exposure is extremely low. However, if it is damaged or deteriorates and there is the risk of asbestos dust, then the landlord has a duty under the Housing Health and Safety Rating System (HHSRS) to repair, or if necessary to remove the damaged asbestos.
The resident first requested an asbestos test on her ceilings in November 2021 during a telephone call with the landlord. The landlord noted that the call disconnected before it could advise her that asbestos was safe unless disturbed, and that a test was unnecessary. When considering the nature of the resident’s request and the landlord’s asbestos management responsibilities, it would have been good practice for the landlord to have followed up with the resident after the call disconnected. By not doing so, it missed an opportunity to better understand the reasons for her request and to take any action needed. This was a shortcoming on the landlord’s part, especially when considering that subsequent investigations recommended the replacement of some ceilings.
In June 2022 the landlord arranged an independent asbestos survey. This was an appropriate response; however, it was approximately 7 months since she had initially requested that the ceilings were tested. The time taken to progress matters was protracted in this respect. The survey identified asbestos textured coating in various locations throughout the property. The risk was assessed as low and it was recommended that the condition of the coating was monitored. The landlord was entitled to rely on the survey findings as they were carried out by a suitably qualified specialist. Nevertheless, due to the resident’s ongoing concerns, it asked for the survey to be reviewed by its specialist team. This was a reasonable approach which demonstrated the landlord’s attempt to reassure the resident.
The landlord’s specialist team determined that “in the current condition they [the ceilings] do not pose a threat”. Nevertheless, in its stage 1 response, dated 13 October 2022, the landlord said that it would replace 2 bedroom ceilings where there was some minor cracking (as preventative work). In addition, it said that it would arrange for an independent condition report of the ceiling surfaces, and that any identified risk or damage would be addressed. The landlord acted proactively in this respect to remedy the resident’s concerns, despite the specialist’s team’s findings that there was no risk.
The independent condition report, dated 17 October 2022, identified that the majority of ceilings had minor cracks which the report recommended were repaired and encapsulated only. However, it also recommended that one bedroom ceiling was renewed and that the porch ceiling was replaced. This further demonstrates that the landlord’s continued investigation was appropriate, when considering that this work had not been identified during its previous investigations.
There is nothing to suggest that the landlord failed to take relevant information into account in reaching its decision. In addition, it agreed to replace all ceilings in the property which went beyond its specialist’s recommendations. Nevertheless, while it is acknowledged that the landlord advised this Service that the resident did not want to move out for the ceiling works until the end of July 2023, the time that it has taken overall to fully resolve matters has caused her distress, inconvenience, time, and trouble pursuing her concerns.
The resident raised a complaint with the landlord about the asbestos sampling works carried out by the landlord’s specialist contractor. The first reference that this Service has seen in relation to this issue is dated 6 September 2023, over a year later. The resident advised the landlord that the sampled areas had not been sealed, and that this had posed a risk to the family of exposed asbestos for over a year. The landlord subsequently inspected the ceilings and it investigated the resident’s complaint directly with the contractor. This was a fair and reasonable approach.
In its stage 1 response the landlord said that it could not confirm or deny whether the damage to the sampled areas was due to the contractor’s survey. It said that as the resident had contacted the HSE, it would await the outcome of the HSE’s investigation. The landlord offered to follow up directly with the HSE on the resident’s behalf and it asked her for a reference number. This was an appropriate response and demonstrated an attempt on the landlord’s part to progress matters.
On 8 December 2023 the landlord issued its stage 2 response. The resident had advised that the landlord, rather than her, had to report the issue to the HSE. However, the landlord said that it had researched information on the HSE’s website and it said that the resident could report such issues herself. It provided the resident with relevant information from the HSE website. While it is acknowledged that the resident received conflicting information which caused her confusion and frustration, the landlord’s response was reasonable in the circumstances, especially given it had previously offered to follow up with the HSE itself.
The landlord informed the resident that the photographic evidence within the contractor’s report only showed “before sampling” pictures and not those that were taken after the sampling areas had been sealed. The landlord’s asbestos policy makes specific reference to the importance of good record keeping and photographic supporting evidence. Strong record keeping is needed in such cases to ensure that the landlord can be confident that it is meeting all relevant legislation and regulation. The landlord has not evidenced any action it took once the lack of photographic evidence was identified. This was a failing on the landlord’s part. An order is made below to address this.
The landlord inspected on 19 September 2023 and subsequently advised that “it was clear that there was damage to areas of the textured ceilings in your home that was consistent with sampling activities and that this had not been sealed on completion as is standard practice”. It was appropriate that the landlord was transparent with the resident in this respect. Nevertheless, in its stage 2 response the landlord advised that, “From the information available to me at the time of my investigation I can see no evidence to dispute these [contractor’s] statements”. Ultimately, however, the lack of supporting evidence had hindered a robust investigation which was to the detriment of the resident. This was unfair in the circumstances.
In summary, while the landlord evidenced some good practice, events were protracted and there were record keeping failures. This contributed to the resident’s distress, time, and trouble. In addition, the landlord failed to demonstrate its learnings. Service failure has therefore been found with regards to the landlord’s handling of this aspect of the resident’s complaint.

Damp and mould

Sections 9 and 10 of the Landlord and Tenant Act 1985 place an obligation on landlords to ensure that properties are fit for human habitation and remain fit for the duration of the tenancy. When assessing fitness for human habitation landlords need to consider ventilation and whether any damp or mould is present.
The landlord’s repairs policy states that it aims to undertake urgent repairs, where it is not an emergency but the issue would cause nuisance, within 7 calendar days. It aims to respond to routine repairs within 30 calendar days, and emergency repairs within 24 hours.
The landlord’s compensation policy advises that residents are responsible for arranging their own home contents insurance, and that the landlord will only consider compensation claims if damage to a resident’s property or decoration has occurred as a result of a failure to repair. The policy says that any compensation payable is dependent upon the value of the items damaged, and photographic evidence should accompany the claim together with relevant receipts. Claims of £1,000 or more are submitted to the landlord’s insurers to consider. In addition, the policy advises that 20% of the weekly rent is compensated if a bedroom or living area is unavailable after 7 days.
On 1 March 2021 the landlord noted mould and damp in the resident’s bedrooms. It undertook remedial works and yet the issue remained unresolved. On, or around, 17 November 2021 the resident advised that her walls felt damp. She reported mould coming through her bathroom tiles, and by the kitchen window. It is noted that the landlord inspected on 20 December 2021, yet there is no evidence that it ensured that the issue was progressed with any urgency. This was especially unreasonable given the household’s vulnerabilities.
On 14 February 2022 the resident said that she was co-sleeping with her children due to the damp, and she raised concerns about their wellbeing. She later advised that her doctor had said that her child’s health issue was likely to be due to their living conditions. The landlord is reminded that damp and mould should be treated with the utmost seriousness. Furthermore, the landlord has a responsibility under the HHSRS to assess hazards and risks and respond to any risks promptly. There is no evidence that a risk assessment took place, or that the landlord requested supporting medical evidence to help inform its decision- making. This was unreasonable in the circumstances.
The landlord arranged for an independent inspection. While this was an appropriate response, it ought to have considered this earlier. The inspection report, dated 22 August 2022, noted that the source of the moisture was considered to be “driven by occupational activity and issues with the effectiveness of the installed ventilation”. It recommended that the landlord ensured effective ventilation to the kitchen and bathroom, and that it checked the undercuts to the internal doors and “remediate as required.” While this Service understands that extra ventilation works are taking place along with the ceiling works, no action has been taken with regards to internal doors as referenced in the report. A recommendation is made below to address this.
The landlord asked to meet with the resident to discuss the inspection. This was a welcome approach which offered the resident an opportunity to ask questions. On 13 October 2022 the landlord issued its stage 1 response in which it advised that no excessive moisture had been identified during its investigations, and that the independent inspection had not identified any structural issues. While landlords are entitled to rely on the opinions of qualified staff, if a problem remains unresolved then it should look again rather than allowing the problem to continue. It was appropriate therefore that the landlord offered a further visit, and that it arranged remote monitoring of the damp. In addition, it organised a second inspection on 28 November 2022. The landlord’s actions demonstrated its attempts to “put things right”.
On 28 March 2023 the landlord issued its stage 2 response. It explained that further investigations had highlighted a lack of insulation to the front elevation of the property, “which will have contributed to formation of mould”. It said that it would undertake the necessary works, and it reiterated that no structural issues had been found. It is acknowledged that there will always be some damp and mould cases that are more difficult to diagnose and/or repair and, therefore, take longer to rectify. Nevertheless, the time taken to identify all issues in this case was protracted. This caused the resident distress, inconvenience, time, and trouble. The landlord is reminded of this Service’s Spotlight report on damp and mould: Housing Ombudsman Spotlight report on damp and mould (housing-ombudsman.org.uk). This report highlighted that landlord’s should adopt a zero-tolerance approach to damp and mould interventions and should ensure that their responses to reports of damp and mould are timely and reflect the urgency of the issue.
The landlord appropriately acknowledged that its investigations had taken too long and that it had missed relevant points. It appropriately reviewed its compensation offer and increased the amount to £900, which better reflected the detriment to the resident. In addition, it advised that it was undertaking a full and comprehensive review of how it managed damp and mould cases which was a welcome approach. The Ombudsman notes that, in April 2023, the landlord developed a damp and mould policy which is published on its website. The landlord demonstrated this Service’s dispute resolution principle, “learn from outcomes” in this respect.
This Service understands that the landlord’s final offer of compensation was £6,192.92 broken down as follows:
1. loss of amenities – £1,657.92
2. compensation – £500
3. cost of damaged items – £4,035
The landlord reimbursed the resident in full for the items that she said were damaged by mould and damp. This was despite a lack of available supporting evidence due to the time that had elapsed. In this respect, the landlord used its discretion when considering its compensation policy and this demonstrated its attempt to “put things right.”
In addition, while this Service acknowledges the impact on the household’s living conditions, the landlord has advised this Service that it did not consider that the rooms were unusable. Neither do the inspection reports suggest this, or any other evidence that has been provided to this Service. The landlord’s payment of £1,657.92 for loss of amenities is therefore considered to be reasonable in the circumstances.
Overall, the landlord’s final offer of £6,192.92 is considered to be reasonable redress. In addition, it exceeds the minimum amount that this Service’s remedies guidance recommends for cases where there has been maladministration which has had a significant impact on the resident. However, recommendations are made below to address some of the outstanding issues that this Service has identified.

Repairs

In December 2021 the resident advised the landlord that it had mentioned that new doors and windows were required. In August 2022 the landlord confirmed that the resident had reported repairs relating to the front porch heating and insulation, the bathroom fan, and mouldy grout. On 5 September 2022 the resident reported a cracked banister. In response to the reported repairs the landlord issued a stage 1 response on 13 October 2022. In addition to the afore-mentioned issues, it referenced an ill-fitting toilet and bathroom floor repairs. In its response the landlord said that its inspections had previously identified an issue with the condition of the doors and windows, and that it would bring forward their replacement from its 2023/2024 programme of works to 2022/2023. It said that it would arrange an inspection in relation to the general repairs
The landlord demonstrated its commitment to put things right for the resident by bringing forward the date for replacing the windows and doors. It is recognised that the nature of such work means that an immediate resolution may not be possible. The landlord had advised the resident that they would be replaced by the end of March 2023, and this Service understands that works took place in January 2023. The landlord appropriately managed the resident’s expectations in this respect.
The landlord advised this Service that the resident asked for the general repairs to be completed at the same time to help minimise any inconvenience. This Service understands that the repairs are taking place as part of the current ceiling replacement works. Nevertheless, from August 2022 onwards the landlord advised the resident that the repairs were in progress. Events have clearly been protracted which is likely due to the time taken to schedule the ceiling works. This has contributed to the overall time and trouble that the resident has spent following up with the landlord and with this Service.
In summary, while the landlord demonstrated good practice with regards to the replacement of the windows and doors, it has been slow to progress the more general repairs. As such, a finding of service failure is made and an order is shown below to address this.

The associated complaint and offer of compensation

Paragraph 9 of the Housing Ombudsman Scheme requires landlords to manage complaints from residents in accordance with its published procedure or, where this is not possible, within a reasonable timescale.
The landlord’s complaints policy requires it to respond to complaints at stage 1 within 10 working days and to respond to complaints at stage 2 within 20 working days. If this is not possible, the landlord must explain why and offer another timeframe not exceeding another 10 working days. The landlord’s compensation policy advises that goodwill compensation for time and trouble up to £150 may be awarded which includes telephone costs and time spent resolving issues.
This Service does not look at claims for damages in the way that an insurance provider would, or award financial redress for damage to items which should be covered by insurance. The Ombudsman can, however, assess whether the landlord appropriately considered matters within the time of the complaint, and reasonably responded, applied its policy and procedure, complied with any relevant legislation, and followed good practice.
The landlord’s compensation policy states that any compensation payable will be dependent upon the value of the items damaged, and supporting evidence should accompany the claim. The policy also says that it will not pay compensation for stress following any incident or failure of service and that its policy does not cover personal injury claims.
The landlord visited the resident on 19 August 2022 to discuss the mould and damp, replacement of windows and doors, heating and insulation, the front porch, general repairs, asbestos, and her request for compensation. It followed up with an email on 26 August 2022 which outlined the issues and the actions that had been discussed. While this appears to be the landlord’s formal acknowledgement of the resident’s stage 1 complaint (which this Service has not seen a written copy of and understands was made verbally) the landlord is reminded that this Service’s complaints handling code requires a landlord to keep a full record of the complaint. Nevertheless, it was good practice for the landlord to meet with the resident in person and to provide her with an opportunity to ask any questions.
On 13 October 2022 the landlord issued its stage 1 response. This was outside the 10 working days timeframe set out in its complaints policy and this Service’s complaints handling code. It is acknowledged however that the landlord had visited the resident on 23 September 2022, and that there had been email exchanges between both parties during this time. Nevertheless, the Ombudsman’s complaints handling code states that any extension must be no more than 10 working days without good reason, and that the reason must be clearly explained to the resident. There is no evidence that the landlord did so, and the resident followed up with the landlord for an update during this time which was unreasonable.
On 12 December 2022 the landlord escalated the resident’s complaint to stage 2. However, its stage 2 response was not issued until 28 March 2023 which was unacceptable. On 17 August 2023 the landlord apologised to the resident for the delays in its complaints process. While it was appropriate that the landlord took ownership of its service failure in this respect, its handling of the resident’s complaint undermined the purpose of its internal complaints process and this contributed to the overall inconvenience, time, and trouble that she experienced.
The Ombudsman encourages landlords to use complaints to identify issues, learn from them and to introduce positive changes in service delivery. However, there is no evidence that the landlord demonstrated learnings or improvements in relation to its complaint handling. An order is made below to address this.
The resident requested compensation for stress and illness. The landlord advised that stress and illness were not covered under its compensation policy which was reasonable. However, the landlord would be expected to have provided the resident with advice on how to make a personal injury claim should she so wish and an order is made below in this respect.
In summary, the landlord’s handling of the resident’s complaint amounts to a service failure. While the delays in issuing its responses are not likely to have significantly affected the overall outcome for the resident, they contributed to her loss of confidence in the landlord and to delays in getting matters resolved.

Determination

In accordance with Paragraph 52 of the Housing Ombudsman Scheme (the “Scheme”) there was service failure in the landlord’s response to concerns of asbestos and the sampling process.
In accordance with Paragraph 53 of the Scheme, the landlord offered reasonable redress in response to the damp and mould.
In accordance with Paragraph 52 of the Scheme there was service failure in the landlord’s handling of repairs.
In accordance with Paragraph 52 of the Scheme there was service failure in the landlord’s handling of the associated complaint.

Orders

Within 28 days of this report the landlord is ordered to:
1. pay the resident an additional £400 compensation:
  1. £200 for the failings identified in relation to the landlord’s response to asbestos and the asbestos sampling process
  2. £100 for the delays that occurred undertaking repairs
  3. £100 for its complaint handling failures.
2. review its response to the lack of photographic evidence from its specialist asbestos contractor and advise the resident and this Service how it will ensure that such omissions are prevented going forward
3. advise the resident in writing how to make a personal injury claim, should she so wish
4. identify any learnings from this case with regards to its complaint handling and self-assess against this Service’s complaints handling code if it has not done so within the last 6 months. It should write to the Ombudsman with the outcome setting out how it will ensure that its complaint responses are issued within the timeframes set out in its policy, and that residents are updated in the event of any delays
5. The landlord should provide evidence of compliance with the above orders to this Service within 28 days of the date of this report.

Recommendations

It is recommended that the landlord:
1. contacts the resident, if it has not done so already, to discuss her recent concerns with regards to asbestos particles in her carpet and in her cooker
2. review any decision not to check the undercut on internal doors and remediate as required, as per the August 2022 inspection report
3. update the resident with regards to works to reinstall flooring in the kitchen if it has not done so already, and provide a timeframe for any associated works
4. clarify with the resident the apparent discrepancy between the £900 compensation offered at stage 2, and the £500 “Compensation” that was subsequently offered, which the resident herself queried with the landlord.