Nottingham City Council (202128547)

REPORT

COMPLAINT 202128547

Nottingham City Homes Registered Provider Limited

27 June 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

1. The complaint is about the landlord’s:
   1. handling of reports of damp and mould; and
   2. complaint handling.

Background

2. The resident is a secure tenant of the landlord, a housing association. The property is a one-bedroom high rise flat of which she is the sole occupant. The resident advises she experiences anxiety and depression.
3. The resident reported damp and mould in the bathroom of her property in September 2021. The landlord stated that between October 2021 and July 2022 there were a number of attempted inspections which were not carried out due to the resident not granting access. The resident disputes this.
4. The resident spoke to the landlord on 14 April 2022 to query some planned inspection dates and during the conversation, the telephone call was terminated. The resident made a complaint about the conduct of its staff the same day and a stage one response was issued on 28 April 2022 in which the landlord upheld the resident’s complaint and apologised for the service received. It also advised that a new damp and mould appointment had been arranged for 4 May 2022. The landlord’s records show that it was unable to gain access on this day; however the resident disputed this and stated that no one attended.

5. On 6 May 2022, the resident raised a formal complaint about the landlord’s handling of her reports of damp and mould. The resident stated it did not attend its arranged inspections on 21 February nor 4 May 2022 and asserted that its contactor did not use the buzzer or knock, but simply left a missed appointment card. The landlord acknowledged the complaint on 9 May 2022.
6. The landlord issued its stage one response on 19 May 2022 and stated it had attended the property three times on 6 January, 21 February and 4 May 2022 and each time the resident did not answer the door. The landlord upheld her complaint and acknowledged the resident’s claim that she was at home on each occasion. The landlord booked a new inspection for 7 July 2022 and informed the resident that it had emailed the damp and mould manager giving instructions that the contractors were to use the resident’s buzzer and knock loudly. The landlord provided records to show there was no answer on 7 July 2022, however, the resident again disputed this. She stated she was at home all day and that no one attended.
7. Dissatisfied with the stage one response and the fact that an inspection had still not taken place, the resident requested to escalate her damp and mould complaint on 16 August 2022. The next day the landlord wrote to the resident explaining it refused to escalate her complaint to stage two as there were insufficient grounds given that the resident had not permitted an opportunity for the landlord to carry out the resolution as set out in its stage one response. The landlord said that once an inspection had been completed the resident would be advised of the work the landlord needed to carry out.
8. On 24 August 2022, the resident again requested her complaint be escalated to stage two. On 13 October 2022, this Service requested the landlord to provide its stage two response. The landlord issued this on 17 October 2022. It:
   1. reiterated its position set out in its stage one response stating the resident had not provided access for inspection.
   2. considered five unsuccessful appointments was not a fair and reasonable use of its time.
   3. offered 14 November 2022 as a potential inspection date and asked the resident to liaise with the patch manager.
   4. said it was keen to work with the resident to resolve the issue but could not do so until the resident provides access.
9. The resident had contacted this Service on 30 March 2022. The resident advises that there is still damp and mould present in the property’s bathroom and, as a resolution to her complaint, she wishes the landlord to deal with it.

Assessment and findings

Scope of investigation

10. This Service acknowledges the resident’s comments that this is a longstanding issue with the property. She has advised that the issue has been present for eight years.
11. While this may be the case, this investigation will not seek to consider matters as far back as eight years. This is as the Ombudsman expects residents to bring issues they are dissatisfied with to the landlord’s attention in good time. This is set out in paragraph 42 (c) of the Scheme, which explains that the Ombudsman may not investigate a complaint which was not brought to the attention of the landlord, by way of a formal complaint, within a reasonable period – which would normally be within six months of the matter arising. As such, the scope of this investigation is limited to the events which occurred up to six months prior to the resident’s complaint in April 2022 and up until the resident exhausted the landlord’s complaints process.

The landlord’s handling of reports of damp and mould

12. The landlord has an obligation to respond and carry out appropriate repairs upon receiving reports of damp and mould. Its maintenance repair policy states that a property will be inspected within four weeks of being notified of the issue and, if it approves remedial works, these will be carried out within three months.
13. The landlord provided this Service with records to show that the resident has not granted access for an inspection, whilst the resident disputes that she did not grant access. The fact remained that both parties agreed there have been difficulties in carrying out a damp and mould inspection and that one has still not taken place. The landlord has stated that once an inspection has taken place, work will be arranged to address any issues found and it has not been able to take any further steps.
14. This Service acknowledges the landlord made a number of attempts to arrange an inspection on a series of dates following the resident’s notification of the issue in September 2021. The landlord has provided evidence it attempted five damp and mould inspections.
15. Section 3.5 of the tenancy agreement states that the resident will allow the landlord’s staff, landlord’s agents, landlord’s contractors, or anyone else working on its behalf, access to their home to carry out necessary inspections or maintenance or repairs. The resident would usually be given a minimum of 24 hours’ notice in writing unless there is an emergency and this is not possible.
16. Section 3.17 of the tenancy agreement sets out steps that the landlord may take where it considers the resident has not adhered to clause 3.5, including:
    1. Write to resident to ask them to comply with the clause or to put things right, and/or
    2. Give written notice of the landlord’s intent to enter the resident’s home to carry out the necessary work, and/or
    3. Take legal proceedings to get possession of your home, or obtain a demotion order (if appropriate), and/or take action to force you to carry out the tenancy clause to put things right, and /or
    4. Charge the resident for the reasonable costs for any more work it had to carry out and the legal cost arising out of any action.
17. The landlord said it was unable to gain access and therefore had the option of the alternative steps outlined in Section 3.17 of the tenancy agreement. From the evidence this Service has seen, however, it does not appear that the landlord attempted to gain entry via any of these methods. Nevertheless, this Service is mindful that the landlord may have given due consideration to the resident’s vulnerability and believed that permitting access by way of a previously notified inspection date was most appropriate. Forcible entry in this case may not have been proportionate as the resident was not obligated to provide access for the treatment of damp and mould.
18. Given the number of unsuccessful attempts though, this Service would have expected the landlord to be more proactive and logical in its approach. After the second or third occasion, where the resident continued to dispute that operatives were showing up, this Service would have expected the landlord to have put in place more concrete arrangements. As the resident disputed that operatives were alerting her once they arrived, it was appropriate that the landlord advised that they would knock loudly and ring the buzzer. In the Ombudsman’s opinion, nonetheless, the landlord could have also arranged for the resident to have a specific (or two hour) appointment slot where possible, for the resident to be called upon arrival, and for missed appointment cards to be dropped on every occasion where access was not possible. It would have been good of the landlord to have taken a more proactive approach to gain access to resolve the issue once and for all.
19. Although the facilities of the bathroom are available to the resident, the Ombudsman considers, upon notice of damp and mould, that the landlord crucially gains access to the property as soon as possible in order to determine the root cause so that appropriate remedial work can be carried out.
20. The potential detriment of damp and mould to a resident’s health and wellbeing has been highlighted in this Service’s spotlight report and the longer it is left untreated, the more damaging it can be to a person’s health. Under the Housing health and safety rating system (HHSRS), damp and mould is classified as a category two hazard. The government plans to make amendments to the Social Housing Regulation Bill to introduce ‘Awaab’s Law’, which will make it compulsory for landlords to investigate and fix damp and mould in its properties within strict time limits. While the law is not in place yet, it highlights the expectations of landlords and demonstrates the significance and weight that should be given in consideration upon receiving reports of damp and mould.
21. This Service has seen evidence that the resident sent photos to the landlord in September 2022 and it is reasonable to deduce that the landlord was aware of the extent of the issue before it issued its stage two response in October 2022.
22. To ensure that a full inspection of the damp and mould takes place at the earliest opportunity, this Service has set out that the landlord should agree with the resident a further inspection date, confirming a time and date and contacting the resident on arrival.  Should this not enable the landlord to gain access to the property, the landlord should seriously consider taking action under an appropriate subsection of 3.17 of the tenancy agreement.
23. Considering the fact that the resident first notified the landlord about the damp and mould in her bathroom in September 2021, and more than 12 months later the landlord was not able to provide the resident with a resolution, an alternative approach should have been attempted. This Service does appreciate the difficult situation the landlord had been presented with, however as its approach to gain access was unsuccessful it should have given due consideration to a different tack.
24. As the evidence suggests that several appointments were raised to address the damp and mould, this Service has not established that there was a significant failure in the landlord’s handling of matters. Given the issue and the risks the issue posed to the resident, however, the Ombudsman would have expected a more proactive approach from the landlord. As there was a failure to employ this, this Service has determined that there was a failure in service.

The landlord’s complaint handling

25. The obligations of a member landlord are set out in paragraphs 9 to 12 of the Housing Ombudsman Scheme. Paragraph 9 of the Scheme confirms that a member must manage complaints in accordance with its published procedure or within a reasonable timescale.
26. A stage one response to the complaint of 14 April 2022 regarding customer service was made on 28 April 2022. The landlord stated there had been a misunderstanding of the queries regarding alleged missed appointments that the resident wished to be resolved and it was appropriate for the landlord to apologise to the resident for its advisor terminating the phone call without prior notice.
27. The formal complaint regarding the damp and mould was made on 6 May 2022, acknowledged on 9 May 2022 and its stage one response issued on 19 May 2022. The Ombudsman considered the landlord issued this stage one response in a timely manner in accordance with its own policy. The resident requested to escalate her complaint on 16 August 2022.
28. On receiving the resident’s request to escalate her complaint, however, the landlord refused to do so. This was as it believed that the resident had continued to refuse access, and therefore prevented it from carrying out the resolution it had suggested in its stage one response. The landlord took the view that the stage two response would not provide a final resolution.
29. Following contact with this Service, however, the landlord had been made aware that the stage two response provided opportunity for it to set out why it felt it had approached the complaint in the right manner and to assess the reasons why the resident felt her complaint was unresolved. It was expected to make all reasonable attempts to try and resolve the complaint as well as taking into account any exceptional circumstances.
30. Section 4.14 of the Ombudsman’s Complaint Handling Code (the Code) states a landlord must not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons set for taking that course of action. It also states reasons for declining to escalate a complaint must be clearly set out in the landlord’s complaint policy and must be the same as the reasons for not accepting a complaint.
31. In its own complaint policy, there is no clause that states it will not escalate a complaint in instances where a resident does not allow it to carry out a stage one resolution or provide access to the property. There is also nothing to suggest this particular situation was an exception or exclusion. The resident disputed the landlord had attempted to gain access and this was part of her grounds for escalation.
32. Following contact with this Service, the landlord did promptly offer the resident a stage two response. Within this, it explained to the resident why it had refused her escalation request and this was appropriate. Still, however, the landlord’s initial decision not to escalate the complaint would have caused the resident some distress and inconvenience. By delaying the resident in exhausting the landlord’s complaints process, the resident would have been set back in being able to bring her complaint to this Service for investigation. The Ombudsman has therefore found that there was a service failure.

Determination

33. In accordance with paragraph 52 of the Scheme, there was service failure in the landlord’s:
    1. handling of reports of damp and mould.
    2. complaint handling.

Orders and recommendations

Orders

34. The landlord must:
    1. Pay the resident £100 compensation for the failings identified in its handling of reports of damp and mould.
    2. Write to the resident and agree definite dates and times in which an inspection and the remedial works can be carried out in order to deal with the damp and mould. It must provide the dates agreed to this Service.
    3. Pay the resident £50 compensation for the failings identified in its complaint handling.
    4. Confirm compliance with the above orders within four weeks of the date of this decision.

Recommendations

35. The landlord should review its complaints policy in line with the Code and clearly set out what it will and will not accept as a complaint or a complaint escalation.
36. The landlord should consider additional measures if it is unsuccessful in obtaining access to a property. These could include arranging a member of landlord staff to attend with its contractor and calling the resident once outside the property. This would alert the resident to the contractor’s presence. This, in conjunction with using the buzzer, knocking loudly and a missed appointment card, would be deemed sufficient.