Notting Hill Genesis (NHG) (201909344)

REPORT

COMPLAINT 201909344

Notting Hill Genesis

31 July 2023

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:
1. The landlord’s handling of the replacement of windows at the resident’s property.
2. The landlord’s handling of the resident’s reports of ceiling mould following a roof leak.
3. The associated complaint.

Background and summary of events

The resident is a leaseholder and the landlord, which is a housing association is the freeholder.
The resident lives in a two-bedroom flat. The block is made up of two flats and the resident’s flat is located on the first and second floors. The landlord states the lease began on 1 April 2004.
Schedule 4, Section 3.4 of the Lease states the resident is to clean the inside and outside of the windows in the property as often as reasonably necessary.
Schedule 4, Section 3.6 of the lease state the resident is to give written notice of any damage to the property or building or of any defect or want of repair which the landlord is responsible for remedying.
The landlord did not provide a copy of its repairs policy. Its website states it has three categories for repairs it is responsible for. Emergency repairs should be completed within 24 hours, urgent repairs within seven days and routine repairs within 28 days.
The landlord has a two stage complaints process with stage one complaints being responded to within ten working days and stage two within 20 working days.

Scope of the investigation

The resident first reported a leak to the roof in March 2019 and the landlord provided a schedule of works in October 2019. The resident went through an insurance process and payments were paid to her in Spring 2021. This was after the landlord repaired the roof in March 2021. These matters are context for the issues considered in this investigation which will review events that were raised in the formal complaint of 28 November 2021.

Summary of events

The resident wrote to the landlord on 1 February 2021 to say she was concerned that the ceiling in her bedroom was swollen and looked like it could collapse. The resident said she had to book an emergency plumber to attend to inspect the ceiling. The resident stated that she had contacted the landlord’s out of hours service over the previous weekend but had not had a response.
The leaseholder arranged for a plumber attended the property on 2 February 2021 and confirmed the ceiling was bowing due to water holding on the roof and looked like it would collapse. The plumber confirmed the plasterboard needed replacing and the joist would need to be replaced or repaired when opened up. The landlord was informed of the plumber’s assessment by the resident the same day.
On 17 March 2021 the landlord’s contractor and insurance contractor inspected the roof of the resident’s property and confirmed that the required repairs had been completed. The resident said that there remained water ingress in the main bedroom windows of the property and this was due to the windows not being replaced as had previously been promised by the landlord. The landlord had initially stated to the resident the windows would be replaced in a scope of works raised in October 2019. The resident stated the bedroom windows and a ceiling repair in her bedroom were still outstanding and were needing repair as a result of the damaged roof.
On 21 May 2021 the landlord wrote to the resident and stated it received drawings for the windows and was assessing them for planning requirements.
The resident wrote to the landlord on 18 August 2021 stating she was waiting for new bedroom windows to be installed. The landlord responded on 31 August 2021 and stated it had applied for planning permission and was needing to update the Council with the further information it had requested. The resident responded the same day and stated she had not asked for UPVC windows but had asked for timber frames with double glazing.
The landlord wrote to the resident on 17 September 2021 to confirm which option the resident wanted to proceed with. An option of like for like replacement which would not require planning permission or a double-glazing replacement which would require planning permission as the property was in a conservation area. The resident responded on 22 September 2021 to say she wanted to proceed with the like for like option.
On 25 October 2021 the resident wrote to the landlord and advised she needed the windows replacing as a matter of urgency as her son’s bedroom had a mould infested window and her son’s health was deteriorating due to sleeping in a room with mould for several years.
The resident appointed a private contractor to conduct a survey of the flat roof subfloor at the property and this was conducted on 8 November 2021. The survey stated the flat roof subfloor, and joists were affected by ‘Coniophora puteana’ which was wet rot on the subfloor. The contractor provided a quote to treat the affected timbers to eradicate the fungal growth.
The resident wrote to the landlord on 9 November 2021 and provided a copy of the survey. The resident stated the ceiling had been removed and she was ready to have a new one installed. The resident said had been advised the ongoing water ingress over the previous two years, which the landlord repaired in March 2021, had negatively impacted the structure of the property and repairs fell under the landlord’s obligations. The resident also stated she had not received a date for the installation of the windows at the property.
On 15 November 2021 the landlord wrote to the resident and stated its contractors had been contacted to provide a quote for the required works and as it anticipated the works would exceed the threshold for the property a Section 20 consultation was required and was expected to take around 70 days.
The resident responded the same day and stated that the landlord was incorrect as the works were part of a disrepair notice, and no charge was applicable. The resident stated she could not complete the insurance works to replace the ceiling until the works had been completed.
On 24 November 2021 an appointment was made for the landlord’s window contractor to attend and measure for replacement windows on 26 November 2021.
On 28 November 2021 the resident wrote to the landlord to make a complaint and stated:
1. The windows in her son’s bedroom were full of mould and had been waiting since October 2019 for a replacement. Her bedroom window also needed replacing.
2. Her bedroom ceiling had been removed for a new ceiling but due to Fungai on the sub roof caused by moisture from the ongoing leak it took the landlord two years to repair the bedroom was uninhabitable.
3. Her son’s bedroom was close to her uninhabitable bedroom, and he was at risk of becoming ill compounded by the fact he was sleeping in a room with mould around the entire window.
4. A Section 20 was not applicable as the repair was part of the ongoing water leak that previously occurred, and the agreement was that no costs would be applied to those repairs.
The landlord acknowledged the resident’s complaint and said a response would be provided within 10 working days.
On 30 November 2021 the landlord wrote to the resident and said it had liaised with its insurance team who advised the resident had received a payment from its insurers to complete the internal works required at the property as a result of the leak. This included works to fix or reinstate the ceiling. The resident not completing the works had caused the Fungai growth as having the ceiling removed for so long had caused hot air from the property to go up through the gap in the ceiling into a void area causing condensation and fungal growth.
The landlord issued its stage one response on 8 December 2021. The landlord in its response stated:
1. Its contractors attended the resident’s property on 26 November 2021 and measured for new windows and were in the process of putting in the order for the replacement windows.
2. The roof leak was repaired in Spring 2021. It had advised the resident in an email on 30 November 2021 that it had liaised with its insurance team and been advised the resident received a payment to complete the internal works required as a result of the leak including the ceiling. From the information the resident provided those works were not complete and that caused the Fungai growth.
3. It agreed to carry out the repairs but would recharge the resident under schedule 4 clause 4.5 and paragraph 15.1 of the resident’s lease. It stated that was because it believed the Fungai growth would not have occurred if the ceiling had been replaced soon after receiving the insurance payment to complete the works.
The resident commissioned a damp and timber survey that was carried out on 1December 2021. The survey found there was dampness detected in the front bedroom window timber frame, mould spores cause by long term condensation in a bedroom and said to remove the mould growth with a multicide cleaning solution.
The resident passed this to the landlord on 10 December 2021. The resident stated that the surveyor who surveyed the property in November 2021 had not taken any moisture readings which the survey in December 2021 did and established no structural issue. The resident stated the survey stated her son’s bedroom had significant damp levels and mould. The resident asked the landlord to withdraw the section 20 process and grant her permission to install the ceiling in her bedroom while waiting for an installation date for the windows from the landlord.
The resident also responded to the stage one response on 11 December 2021 to escalate the complaint and stated:
1. The landlord had referred to a different address in the complaint response.
2. She had been waiting since October 2019 for the windows to be replaced and her son was sleeping with mould for several years.
3. When the insurance claim was settled the ceiling was in situ and no surveys were undertaken so the landlord could not state she caused the Fungai growth when it did not have any knowledge of the sub roof condition.
4. An independent survey showed the sub roof to be dry.
5. There was no reference to her property having a bridging loan.
6. The landlord had no knowledge of the condition of the sub roof and did not send a surveyor as requested by the resident to substantiate the works required. Instead, it blamed her because it failed to fix the roof in a timely manner.
7. Had previously submitted a Notice of Claim regarding disrepair and was at liberty to commence court proceedings without further notice as the landlord had not complied with the statutory process as the repairs and or replacements still remained as per the agreed Schedule of Works dated October 2019.
8. Asked that the Section 20 was revoked so she could replace the ceiling as she had not been able to use of her bedroom for three years and she was sleeping on her sofa, and no works were required to the sub roof.
The landlord responded to the resident on 16 December 2021 and apologised for using the wrong address in the stage one response. The landlord said it would be proceeding with the works to the Fungai on the roof subfloor and joints and was obtaining quotes for the works. The landlord confirmed the complaint had been escalated to stage two.
The resident responded the same day to ask the landlord to explain the basis for the Fungi works if no works were required. The resident said the landlord did not refer to the survey report that said no works were required.
The landlord issued its stage two response on 17 February 2022. In the response the landlord stated:
1. It had agreed to replace the windows as part of an agreed schedule of works in October 2019 and it had committed to paying the costs.
2. Its contractor produced a report in August 2020 that reference the windows and said the existing windows would respond well to decoration and regular cleaning. This meant the windows were not in significant disrepair and did not require replacement. Despite that report it was still committed to replacing the windows, but the state of the windows was unlikely to have a significant impact on the habitability of the rooms in the property.
3. The report from the resident’s own surveyor stated condensation and mould growth was affecting the property. It was referenced specifically to a bedroom window which it felt backed up its assertion the windows were not in need of replacement or a contributor to dampness in the property. It stated condensation was coming on single glazed windows and needed to be managed from inside the property. The report did not identify any points of water ingress or remedial work required.
4. As its own surveyor did not believe the windows needed to be replaced and the resident’s surveyor did not identify the windows as a point of water ingress, it had not been in breach of its landlord’s responsibilities under the terms of the lease by not replacing the windows sooner.
5. It agreed the time taken to replace the windows was too long and had not been enough communication with the resident regarding this.
6. It had reviewed the mould growth on the subfloor and it was its insurers position that the resident not having replaced the ceiling was the main contributing factor to the mould growth on the ceiling joists and ceiling boards.
7. The resident’s surveyors report stated there was no moisture recorded in the ceiling boards and a surface temperature was recorded that would encourage condensation. The surveyor did not indicate water ingress from the building structure was a contributing factor.
8. Having reviewed that report it seemed likely the failure by the resident to replace the ceiling promptly caused the mould growth and that its decision to remove the mould growth and recharge the resident was reasonable.
9. The resident’s surveyor report appeared to correlate with the findings from its surveyor report in August 2020 about measures needed to control ventilation and humidity in the property.
10. It had sympathy with the resident that the leak from the roof caused the resident to have to remove the ceiling in the first place and entering into a discussion about who would pay for the costs of cleaning the ceiling would delay matters further.
11. It offered to carry out the work to clean the mould from the ceiling boards and joists at its own cost despite what it believed to be clear evidence the resident not replacing the ceiling was the main contributing factor. It would have offered £250 for the delays in replacing the windows but as the works for removing the mould was expected to cost between £2000-£3000 it considered the compensation that would be due would instead be covered by the offer to pay for the mould clean.
12. It proposed a timetable for the works to be completed which stated that the clean down of the ceiling joists would be arranged within two weeks of the date of the stage two response, subject to contractor availability. Following the cleaning of the boards the resident would replace the ceiling within four weeks. Windows would be installed within 8 weeks, but installation would not commence until the mould and ceiling works were completed.
13. It would have offered £50 for the delay in issuing the stage two response but considered the offer to cover the cost of the mould clean would offer reasonable redress for this failure.

Post Complaint

The resident was contacted by the landlord on 11 March 2022 and informed the landlord had not been able to locate a suitable contractor to complete the mould works. It had contacted the company who provided the resident with the original quote but had not had a response.
A contractor arranged by the landlord attended the resident’s property on 13 April 2022 to carry out the mould inspection. The inspection found the ceiling was completely covered in mould. It required a mould washdown and repainting with anti mould pain. Works and labour were quoted to be £449.
The resident wrote to the landlord on 9 May 2022 asking why the quote had changed from £3000 in the stage two response to £500.
The landlord contacted the resident on 6 July 2022 stating it would like to book an appointment to carry out the mould treatment.
The mould treatment was completed in August 2022 with the windows being replaced in June 2023. The landlord did not provide an explanation for the delays in completing the required works.

Assessment and findings

The landlord’s handling of the replacement of windows at the resident’s property.

It is not disputed by either the resident or the landlord that the landlord had agreed to replace the windows from October 2019.
The landlord submitted planning permission for window replacements. The resident informed the landlord that she wanted the windows to be replaced on a like for like basis on 22 September 2021 and therefore this would not require planning permission. Once this was established it took the landlord until 26 November 2021 for the windows to be measured for fitting.
Following on from this the landlord informed the resident in its stage two response that it would not be proceeding with the window installation until the ceiling works had been carried out. The landlord stated the reason for this was the lack of ceiling and mould growth. There is however no evidence to explain why this would have a bearing on the window installation. The landlord had agreed to replace the windows in October 2019, measurements of the windows were still being done in November 2021 and as of the stage two response in February 2022 the windows had not been replaced. This service views these further delays as unnecessary. There is no evidence provided that shows the windows had to be installed after the ceiling works were completed and therefore no justification in the landlord further delaying works that had already taken over two years to complete.
In the stage two complaint response the landlord made a further commitment to replace the windows at the property. The landlord stated that although it had a contractor and it would order the windows to allow installation within eight weeks, it considered the replacement of the windows to be non-essential. It would not progress with the replacement of the windows until the works had been completed on the mould growth on the ceiling board and joists and the ceiling was replaced. Post complaint the landlord encountered difficulties in obtaining a contractor who could complete the mould works thus delaying the installation of the windows further. Given there is no reason given by the landlord that specifically required the works to be completed in the order suggested this led to a further unnecessary delay to the resident having these works completed.
The landlord stated it would have offered £250 compensation to the resident for the delays in installing the windows. This amount is not considered to have been appropriate. The landlord has said the windows replacement were non-essential, but the fact remains that the landlord made a commitment to replace the resident’s windows in October 2019 and as of the stage two complaint response in February 2022 these had not been completed. An award of £800 is considered to be an appropriate amount given the time the resident has waiting and no practical reason why the installation could not proceed before the ceiling works were completed.

The landlord’s handling of the residents reports of ceiling mould following a roof leak

The landlord completed the roof repair in March 2021 and the resident subsequently received a payment to replace the ceiling through an insurance payment.
The landlord as the freeholder is required to ensure the structure of the building is in good repair this included the walls, ceilings and windows. This would include subfloors. Once the resident reported her concerns to the landlord it should have taken steps to investigate and if required repair any part of the building it was responsible for. Since 2020 the landlord has not evidence that it instructed its own survey of the property to be completed.It has not evidenced that it sent a contractor to investigate the mould and possible causes of the mould. The resident provided two survey reports to the landlord which the landlord did review in its assessment and responses to the resident.
The landlord has stated the fungal growth was caused by the resident not replacing the ceiling as part of an insurance settlement to do so. The landlord states this is based on the insurer’s assessment however no evidence was provided by the landlord as to how it has come to that conclusion. The resident has supplied her surveyor’s report confirming that there was fungal growth in the ceiling joist. The landlord has not demonstrated how it investigated and came to the conclusion that the resident was at fault for the fungal growth. It is not clear from the evidence provided by the landlord as to when it established the ceiling was removed however the evidence shows the ceiling was still in place in February 2021 when an emergency plumber needed to visit the property as the ceiling was bowing. The landlord stated the mould was caused by hot air rising but has not evidenced how it came to that conclusion.
After the stage two complaint response the landlord followed up its commitment to carry out the repairs to the mould. In an email sent in July 2022 by the landlord to a contractor to complete the mould treatment, the landlord stated the mould was due to a roof leak that had affected the joists in the ceiling. This contradicts the explanation given to the resident as to the cause of the mould.
The landlord during the complaint process stated the resident’s action had caused the mould but would carry out the repairs and recharge the resident. It later changed its position and stated although it still believed the resident was at fault it would carry out the works with no charge to the resident.
However, the landlord has not shown any evidence that demonstrates it was not responsible for completing the mould works and there have been lengthy delays in the progress of these works. This is despite the landlord first stating it would carry out the repairs in the stage one response issued on 8 December 2021.
The landlord was first informed of the mould on 9 November 2021 and the works were still outstanding as of the stage two response on 17 February 2022. This was a time period of 101 days. This is significantly outside the landlord’s repair policy timescales of 28 days for a routine repair. It is accepted a specialist contractor would be needed for the works and this may cause a delay. However, there is no evidence shown by the landlord what steps it took to secure a contractor and the reasons for the delay. Therefore, as well as the landlord covering the costs of the mould works it is ordered to pay an additional award of compensation of £400 to be paid to the resident.

The landlord’s handling of the complaint

In the stage one response the landlord referred to a different property address. This was an error by the landlord which it apologised for in its acknowledgement of the escalation request.
The landlord in its stage one response provided the resident with an update of the current status of the windows replacement. The landlord did not address the resident’s points in her complaint that the windows had originally been agreed to be replaced in October 2019 or the mould affecting her child’s health. The landlord has not shown in the stage one complaint response it had given any consideration to those points and has not shown it acknowledged, investigated or offered an explanation about the delay in having the windows installed. It failed to offer a full and concise response at stage one to that element of the resident’s complaint
The landlord stated in the stage one response that the Fungai growth was caused by the resident not replacing the ceiling. It explained its reasoning for why it came to the conclusion however it did not provide the resident with evidence of its investigation and how it came to the conclusion. The landlord in the response stated it would carry out the repair works and recharge the resident but did not evidence why it had decided to charge the resident for the works it proposed to carryout.
The landlord issued the stage two response after 43 working days. This was 23 days outside its complaint policy timescale of 20 working days. The landlord acknowledged this in its complaint response and apologised for the delay. It offered £50 compensation for the delays. This Service would consider an award of £75 be an appropriate given the delays in the response and the standard of the response issued to the resident at stage one.
The stage two response was much more detailed in its response to the resident providing full background and explanations to the complaint points raised. The landlord proposed a programme of works to resolve the complaint within eight weeks however it did not keep to the commitments it had made.
It is understandable the landlord would commit to resolving the complaint and provide a timescale to the resident, however it is important the landlord provides realistic timescales to the resident and ensuring it has established contractor availability for the works required to be completed.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the replacement of the windows.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of ceiling mould following a roof leak.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint.

Reasons

The landlord had made a commitment to the resident to replace the windows at the resident’s property. It did not replace the windows within a reasonable timescale and the replacement windows were still outstanding at the time of the stage two complaint response without an appropriate reason being provided.
The landlord’s conclusion that the resident was to blame for the mould on the ceiling and joists was not evidenced by the landlord and this delayed the required repairs being completed. After agreeing to carry out the repairs, the landlord then failed to have the repairs completed in the timescales it provided within its stage one response and were still outstanding at the time of the stage two response. Although obtaining a specialist contractor may cause a delay, the delay incurred in this case was significantly too long with no evidence of updates being provided to the resident.
The landlord failed to offer a full explanation to the resident’s complaint at stage one. At stage two the landlord was late in issuing its response and proposed a timetable of works it was unable to fulfil further delaying the process to the resident.

Orders and recommendations

Within four weeks of the date of the report the landlord is to write to the resident to apologise for the service failures identified in this report.
Pay the resident £800 for the time taken to complete the replacement of the windows up to the end of the complaint process.
Pay the resident £500 for the time taken to complete the mould works up to the end of the complaints process.
Pay the resident £75 for its handling of the complaint, this includes the £50 already offered to the resident.