Notting Hill Genesis (202014370)

REPORT

COMPLAINT 202014370

Notting Hill Genesis

29 April 2022

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 response to reports of damp and mould in the resident’s home.
The complaint is about the administration of the resident’s rent account following an error with Housing Benefit payments.

Background and summary of events

The resident lives in a one bedroom flat. The resident holds a fixed term tenancy which began on 6 August 2018. The resident says that she began having concerns about damp and mould shortly after moving into the property.
On 25 July 2019, the property was inspected by a surveyor working on behalf of the landlord. The surveyor reported that the damp issues were ‘minimal’. However, it was recommended that an asbestos test was done on the floor tiling and that a fungicidal wash was done in the kitchen, especially under the sink due to ‘slight mould’. The surveyor noted that silverfish were present in the storeroom. The landlord completed the works recommended by the surveyor on 21 November 2019.
On 1 December 2019 the resident reported her ongoing concerns about the damp and mould formally to the landlord and included her local Member of Parliament in the email. The resident said there was ‘a lot of mould throughout the flat’ and that the conditions were affecting her asthma and giving her skin rashes. The resident said that nothing had been done regarding improving ventilation or treating the kitchen sink area and that it was unfair that she should be paying a high rent for a property with such poor living conditions. The resident also reported doors coming off their hinges and the presence of silverfish and other bugs.
The resident’s email was acknowledged the following day and the landlord arranged a visit on 12 December 2019 to discuss the resident’s concerns and follow up on any outstanding matters. As a result of this, the resident was given a de-humidifier and a new mixer tap in the kitchen. It was confirmed that extractor fans for the kitchen and bathroom could not be installed because of obstacles close to the windows in those rooms. The landlord also gave approval at this time for the resident to use a ‘homeswap’ website.
The landlord says that it had difficulty contacting the resident in the period from 24 January to 7 February 2020 and some remedial work was cancelled as a result. At the start of Coronavirus restrictions in March 2020, all non-emergency jobs were cancelled as per government guidance.
Between April 2020 and July 2020 seven Housing Benefit payments were credited to the resident’s rent account in error. The landlord later took responsibility for this ‘clerical error’ although exactly what error occurred has not been explained other than the resident’s rent account was incorrectly credited with Housing Benefit from a former tenant at the address. A total of £2292 was credited to the account in error plus one further incorrect payment.
The resident says that she spoke to a member of the landlord’s customer services team in or around April 2020 regarding her rent account. The resident says she was advised by that member of staff to cancel her direct debit payment to her rent account and the last direct debit payment was made on 1 April 2020. Although there is no record of this call or the advice given, the landlord has acknowledged this was plausible given the resident’s rent account was in credit at the time due to the incorrect payments. However, the landlord has also pointed out that the resident did not check with her housing officer before cancelling her direct debit.
On 21 August 2020, the resident’s rent account went from a small credit to arrears of just under £2,000 when the error made by the Housing Benefit service was corrected. It was this change that alerted the landlord to the mistake that had been made.
The landlord contacted the resident by phone to discuss the situation and emailed the resident on 26 August 2020 explaining that a notice seeking possession would have to be issued due to the arrears. The landlord said that ‘no further action’ (to gain possession of the resident’s flat) would be taken while rent was being paid. The landlord apologised for the error and said the resident may be able to get further advice and assistance from a Citizens Advice Bureau or her college or university.
On 28 September 2020, the landlord issued a notice of seeking possession due to rent arrears. The landlord made a referral to their welfare benefits team and said that support with employment, debt and budgeting was available from its online ‘tenancy support network’. The accompanying letter set out the minimum payments that the resident would need to provide each month. This was a top up to the resident’s universal credit payment of £185.82 per month and an arrears minimum payment of £21.67 per month.
On 13 October 2020, the resident contacted the landlord and said that she had not yet been contacted by the welfare benefits team and asked for her referral to be sent again. The resident said that she had been unable to work during the Coronavirus lockdown and had expenses associated with her studies.
On 16 October 2020, the resident was contacted by a member of the landlord’s welfare benefits team. The landlord suggested a conference call with the Housing Benefit department and provided advice and support to the resident with her benefits. This included assistance with council tax exemption, work capability assessment and student finance options.
In the period from October 2020 to February 2021, the landlord was in regular contact with the resident through its welfare benefits team. On the 11 December 2020, on the resident’s request, the landlord provided a letter confirming the error that had been made with her benefits. The resident described the situation as ‘very confusing and depressing’ and on 9 December 2020, the resident said the situation was causing her ‘stress and anxiety’ and on 9 January 2021, the resident said the situation was ‘affecting her mental health’ and that it was not her fault.
On 28 January 2021, the resident used student finance to make a payment to her rent account of £1350 to reduce the arrears.
On 1 February 2021, the resident requested that the landlord write off her rent arrears in full saying that it was caused by an error which was not her fault. The landlord refused to repay the arrears in full but offered to credit the resident’s rent account by £250 as a goodwill gesture.
On 3 February 2021, the resident made a formal complaint saying she was not satisfied with the response provided. The resident highlighted the damp and mould problems and said that there had been ‘multiple service failures’. The resident said that she had experienced ‘exceptional hardship throughout’ her tenancy and it was not fair that she being ‘made to fix the negligence’ of the landlord.
The landlord sent a stage one complaint response to the resident on 12 February 2021. The landlord said that it had ‘legitimately charged’ the weekly rent and it was the responsibility of the tenant to ‘manage their rent account in line with your tenancy agreement.’ However, the landlord again offered a goodwill gesture of £250 and said that it ‘recognised a service failure caused by crediting your rent account incorrectly’.
On 23 Feb 2021, the resident was contacted by the landlord regarding her complaint. At this time, the landlord reviewed the complaint response and said that it was prepared to offer an additional £250 in recognition of the ‘upset and inconvenience’ the issues had caused. This would bring the total credit to £500 but it was again refused by the resident and the complaint was escalated to stage two.
The landlord provided its final complaint response to the resident on 19 March 2021. In the response, the landlord confirmed that

Damp was an ongoing issue in several flats in the block and it was working through the damp issues on a flat-by-flat basis.
Priority was being given to those properties with the most severe damp issues.
It would reassess the level of damp in the resident’s flat and the works required.
It may be able to increase the priority of the resident’s flat based on its current condition or the time it will take to resolve. It should have informed the resident earlier that this was a block-wide issue.
It apologised that the resident was not clearly advised the damp may return or given any literature on managing the damp problem.
The landlord offered £250 for its communication failures regarding the damp issue and offered to refund any evidenced pest control costs or pay an additional £100 to cover these costs.
It recognised that the allocation of a previous resident’s Housing Benefit claim to the resident’s rent account was a ‘clerical error’ made by the landlord.
Apologised for not spotting the incorrect Housing Benefit payments swiftly.
Said that the previous offer of £500 in recognition of the benefit clerical error was reasonable.

The total compensation offered was therefore £850 being £500 for the benefit error, £250 for the poor communication on the damp issues and £100 for resident’s costs on pest control.
The resident approached this service on 23 April 2021 stating that she was not satisfied with the landlord’s final complaint response. The resident informed this service in February 2022 that due to the damp conditions in the property and the affect that it was having on her physical and mental health, she had been staying elsewhere.

Assessment and findings

Response to Damp and Mould Reports

The landlord has a statutory obligation under the Landlord and Tenant Act 1985 to carry out repairs. Similarly, the Environmental Protection Act 1990 makes provision for the control of premises whose conditions are considered to be prejudicial to health or a nuisance. In addition, the landlord is expected to meet the home standard set by the Regulator of Social Housing.
The Housing Health and Safety Rating System (the HHSRS) is concerned with avoiding or, at the very least, minimizing potential hazards. Under this rating system the landlord has a responsibility to keep a property free from category one hazards, including damp and mould growth. Regarding damp and mould growth, the HHSRS says that preventative measures that could have a significant effect on likelihood and harm outcomes relating to moisture production and ventilation include damp proof courses; external fabric of the building kept in good repair to avoid rain penetration; and a properly ventilated roof and under floor spaces to ensure timber remains air dry. The failure to treat this can lead to health problems including breathing difficulties caused by mould; depression and anxiety caused by the living conditions and asthma.
Although the surveyor indicated in July 2019 that the damp was ‘minimal’, silverfish and mould were present indicating damp and the landlord has acknowledged that it is a known issue affecting the entire block.
The resident says that she raised the issue of damp and mould in her flat shortly after moving in. The first record of a report seen by this service was in December 2019.
In response to the resident’s reports of damp and mould, the landlord:

Carried out an inspection by a surveyor in July 2019 who described the damp issue as ‘minimal’
Provided a dehumidifier
Checked on the possibility of increasing ventilation by installing extractor fans (but was not able to do so)
Carried out a fungicidal wash in the kitchen area under the sink
Said a damp specialist would re-assess the resident’s flat following the final stage complaint response.
Carried out other repairs to the floor tiles and store room.

These were all reasonable steps to take given the landlords repair and maintenance obligations outlined above. The evidence does not suggest there was a significant delay in carrying out these repairs.
There is no evidence to suggest that the resident’s property is uninhabitable or that there are category one hazards present. The landlord has said that a move to alternative accommodation is not possible and this is reasonable given that there is insufficient evidence to support an urgent move or management transfer.
The resident formally raised her concerns about damp in December 2019 and the landlord followed up on those concerns in the period from then until March 2020. The landlord was unable to carry out non-emergency repairs for several months after that due to the government guidance on Coronavirus at the time. However, it is not disputed by the landlord that the damp and mould has been a continuous issue that has had some impact on the resident.
The resident says that the damp and mould issues have impacted her physical and mental health and while it is not possible for the Housing Ombudsman to assess medical evidence, it is known that damp and mould issues can trigger and aggravate asthma as well other skin conditions. The resident has also said that in recent months she has been staying elsewhere again demonstrating that these issues have had a significant impact.
In its final complaint response, the landlord says that the damp experienced by the resident is a known issue affecting the entire block where she lives. Work is underway to remove large water tanks in the loft of the block and there is evidence to suggest that these tanks or issues obstructed by the presence of these tanks, could be a possible cause of the damp and mould problems experienced by the resident and others in the block.
The landlord says it has assessed the risks to each flat and is ‘working through the damp issues on a flat by flat basis.’ The landlord recognised that it should have informed the resident of this earlier and provided better information about damp prevention and offered to re-assess and possibly re-prioritise the residents flat as result.
An update on this re-assessment following the final stage complaint response was requested but the landlord has not provided one. This is a cause of concern and an order about this issue has been made below.
Whatever the case, the landlord has accepted that there is a known ongoing damp issue in the resident’s property which at the time of issuing its final complaint response was unresolved. This indicates a significant failure to meet its repair obligations. Even though the landlord may have been undertaking some measures to combat the spread of mould in the resident’s flat, such as replacing the kitchen sink taps, the underlying cause of the damp was still unresolved at the time of the final complaint response.
The landlord has therefore recognised some service failure in terms of communication in resolving the damp issue. The key service failure however, is failing to resolve the cause of the damp and mould within the block for a period of at least two years.
Given the significant impact on the resident of the above highlighted service failures and given the landlord has not been able to provide an update or any evidence of recent improvement in the damp and mould situation, an increase to the redress offered to the resident is appropriate. An order has therefore been made below that in addition to the residents pest control costs of £100, the landlord double the compensation offer in respect of damp and mould to £500.

Administration of the Rent Account

It is not disputed that a clerical error by the landlord lead to an incorrect credit on the resident’s rent account. Nor is it disputed that the landlord gave incorrect advice about this issue around April 2020. The landlord has acknowledged that it should have spotted the benefit mistake earlier and this is a clear failure in the administration of the resident’s rent account.
Where there are admitted failings by a landlord the Ombudsman’s role is to consider whether the redress offered by the landlord – an acknowledgment of its error, an apology, a goodwill payment and compensation offer is sufficient to put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles; be fair, put things right and learn from outcomes.
The landlord has offered redress for these failures in the form of financial compensation. In its final stage complaint response, the landlord offered £250 for these failures and a further £250 in recognition of the ‘severity of the error and the length of time it took to address.’
In addition to financial compensation, the landlord also provided redress in the form of extensive support and assistance with the resident’s overall benefits situation in the period from October 2019 to January 2020. As well as general advice and signposting to other agencies such as Citizens Advice Bureau, the landlord offered support with Universal Credit, Council Tax, and applications for work capability assessment and student finance.
The landlord also provided suitable verbal and written reassurance to the resident before and after issuing its notice of seeking possession saying that it would not take further legal action if the resident was taking steps to pay some of her due rent.
Additionally, it was reasonable for the landlord to point out in its initial response that the rent was legitimately due and that it was the resident’s responsibility to ensure that correct benefits were in place to assist if needed. Section 1.2 of the resident’s tenancy agreement states that ‘we may have to pay back overpaid benefit and you must pay extra rent equal to the amount of benefit we must pay back.’
It is noted that the landlord became aware of the resident’s arrears at the end of August 2020 and although a referral to the welfare benefits team was made following this, the resident had to chase this up and was not contacted by the welfare benefits team until 16 October. This is evidence of a slight delay and ideally contact should have been with the resident sooner and without the resident having to chase it up.
With that said, the landlord has acknowledged its service failures regarding the Housing Benefit issue and offered compensation that the Ombudsman considers was proportionate to the distress and inconvenience experienced by the resident.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman scheme, there was maladministration in the landlord’s handling of damp and mould issues in the resident’s flat.
In accordance with paragraph 55b of the Housing Ombudsman scheme, the landlord has provided reasonable redress for its acknowledged service failures in administering the residents rent account.

Reasons

The landlord has not provided evidence that it has resolved the cause of the resident’s damp problem and has acknowledged service failures in communication regarding the damp and mould problem.
The landlord has acknowledged that it should have spotted the clerical error with Housing Benefit earlier. It offered reasonable redress for this in the form of a compensation offer of £500 as well as advice and support with benefits.

Orders

It is ordered that the landlord offer the resident £600 compensation minus any compensation already paid for damp and mould issues in her flat.
It is ordered that the landlord provide an update to the resident and this service on any further planned works to alleviate damp and mould issues works in her block within four weeks.

Recommendations

It is recommended that the landlord offer the resident £500 compensation minus any compensation already paid in respect of failures administering the resident’s rent account.