Orbit Group Limited (202315846)

REPORT

COMPLAINT 202315846

Orbit Group Limited

17 January 2025

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 handling of:
1. Damp and mould.
2. The resident’s authorisation for her son to act on her behalf.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident has been an assured shorthold fixed term tenant of the landlord, a housing association, since January 2021. The property is a 1 bedroom bungalow.
The landlord has it recorded that the resident has mental and physical health conditions. Due to the resident’s medical issues, her son acts as her representative. For the purposes of this report, unless it is otherwise necessary to distinguish between them, all communications from the resident and her son are referred to as coming from the resident.
In January 2021, the resident reported damp, mould and condensation in the property. The landlord completed a damp survey and subsequently carried out works to address this between May and July 2021.
On 3 February 2023, the resident reported mould in the kitchen and porch of her property. Seven days later, the resident’s son called to chase this up. The landlord declined to speak with him and said this was because it did not have the resident’s authorisation to do so.
The resident made a complaint to the landlord on 13 February 2023. She said she had reported mould in the past, which had not been dealt with properly and had now returned. The landlord had refused to speak to her son, who was authorised to represent her. The following day, the resident provided written authorisation for her son to act as her representative. She said the works done in 2021 were only partially completed and to a poor standard, which meant the mould issue was ongoing. She had given authorisation for her son to act on her behalf in 2019 and despite moving properties since then, she had not withdrawn this, so the arrangement should be ongoing.
On 21 February 2023, the landlord provided its stage 1 complaint response. It said the complaint was not upheld because there was no evidence that the current mould was the result of previous sub-standard repairs. It would carry out a mould wash and an inspection of the property. It had acted in accordance with data protection regulations when it declined to speak to the resident’s son, as authorisation was not received until 14 February 2023.
The landlord inspected the property on 1 March 2023 and noted a mould wash was required. On 17 March 2023, the resident asked to escalate her complaint. She said the landlord had rushed to conclude the investigation but not actually resolved anything. In April and May 2023, the landlord completed a mould wash and works to seal the external porch walls.
On 18 May 2023, the landlord provided its stage 2 complaint response. This said it agreed with the conclusions reached in the stage 1 response. However, the complaint was partially upheld because it should have provided dates for the mould treatment and inspection to be carried out at stage 1. It also acknowledged the stage 2 response had been delayed. It apologised for the poor complaint handling at both stages and offered £150 compensation in respect of this. The resident escalated her complaint to this Service in July 2023, and said she was dissatisfied with the landlord’s compensation offer.

Assessment and findings

The resident first reported damp and mould in the property in 2021. Complaints should be brought to the attention of the landlord within a reasonable time of the problem occurring, usually within 12 months. This is so that the landlord has an opportunity to resolve the issues while they are still ‘live’ and the evidence is available to properly investigate them (reflected at paragraph 42.c of the Scheme).
In this case, the resident made a formal complaint to the landlord in February 2023, therefore, the scope of this investigation has included events 12 months prior to this. Anything that happened before February 2022, will be considered for context but not assessed or determined as part of this investigation.
The resident told the landlord that the mould negatively affected her health. The Ombudsman does not doubt the resident’s comments; however, it is beyond the remit of this Service to make a determination on whether there was a direct link between the landlord’s actions and the resident’s ill-health.
The resident may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or failure by the landlord (reflected at paragraph 42.f of the Scheme). While the Ombudsman cannot consider the effect on health, consideration has been given to any general distress and inconvenience the resident experienced as a result of any service failure by the landlord.

Handling of damp and mould

The landlord is responsible for addressing damp and mould in the property in accordance with section 9(a) of the Landlord and Tenant Act 1985. This says that the landlord has an obligation to ensure the property is fit for human habitation during the term of the tenancy, in relation to freedom from damp.
When the resident reported mould in the property in February 2023, the landlord’s damp and mould leaflet said it would respond within 5 working days. In this case, the landlord acknowledged the resident’s report on 9 February 2023, which was 5 working days after she reported this and so in line with its committed timescale.
As part of the acknowledgement, the landlord said it would inspect the property, but there had been an increase in the number of inspections needed and “to allow some time” for this to be completed. While sensible that the landlord warned the resident of a possible delay, it should have given a more specific timescale for this to be completed. Alternatively, if it could not provide this, it should have given a future date when a further update would be provided. This was important to ensure that the resident felt reassured that the landlord was taking the matter seriously.
When the resident reported mould in the property in February 2023, she said this was a result of the landlord’s failure to properly address this in 2021. The Ombudsman acknowledges that it was frustrating for the resident to have repeated problems with mould in the property. However, considering the length of time between the completion of the mould works in July 2021 and the resident’s report in February 2023, it was reasonable that the landlord concluded that the recurrence was not a result of poor workmanship in 2021.
Similarly, the landlord noted in July 2021, that the resident’s son said that all issues had been resolved. Therefore, it was reasonable that the landlord considered all works had been completed to a satisfactory standard.
The landlord raised a job for a mould wash on 20 February 2023. In a call with the resident’s son the following day, it confirmed this was being done to address the concern that the mould was a potential risk to the resident because of her health conditions. The proposed action was sensible in order to remove the mould and mitigate the risk. The job was raised on a 7 day priority; however, this was not completed until 14 April 2023, which was 54 days later and significantly over the 7 day target timescale. This delay amounts to maladministration and left the resident feeling that the landlord was not taking the risk to her health seriously.
The landlord’s damp and mould leaflet said it would inspect the property within 28 days. However, if there was an elderly person, or someone in the property with a health condition which was affected by mould, then it would complete the inspection within 5 working days. In this case, the landlord inspected the property on 1 March 2023, which was 27 days after the resident reported this issue. While this was in line with the 28 day timescale, the resident had told the landlord that the mould was negatively affecting her health. Therefore, it should have priortised the inspection and completed this in accordance with the 5 working day committed timeframe set out in its damp and mould leaflet. Its failure to do so amounts to maladministration.
The landlord noted on 21 February 2023, that it had reviewed photographs provided by the resident, which showed that the mould was “minor”. While positive that it reviewed the photographs, these did not cover the entirety of the property and so the landlord could not make a full assessment of the extent of the mould, or the potential impact on the resident based on these alone. Therefore, it was important that it completed the inspection at the earliest opportunity to be able to fully investigate this issue and carry out a thorough risk assessment.
The landlord’s damp and mould leaflet at the time said it would take photographs throughout any inspection, record its findings and conclude whether any repairs needed to be carried out. In this case, while the landlord took photographs, the only written conclusion it noted was that a mould wash was required. However, this had already been concluded and actioned prior to the inspection taking place.
The landlord made no record of its assessment of the severity of the mould, the underlying cause or whether any other works were required to address this; all of which are important factors to assess during an inspection and to make note of. Its failure to do so in this case means that the landlord has no evidence to support its decision making or show that it considered these issues. This was particularly important in this case as the resident subsequently said in May 2023, that she could not live in the property until the mould wash was completed.
The lack of evidence of a formal assessment of the severity of the mould means that the landlord has no evidence to show whether it had deemed the property habitable, or whether it had even considered this. The resident has subsequently asked the landlord for compensation for loss of use of the property, calculated in line with the rental charge, for the period she was unable to live there. While the Ombudsman does not doubt the resident’s comments on this, we are unable to make a retrospective assessment of whether the property was habitable or not. Therefore, we are unable to order compensation in that regard.
It is noted that in April 2023, the landlord implemented a damp, mould and condensation procedure. This sets out a detailed process for how it will manage reports of this nature. It includes specific guidance on what it will look at during inspections, as well as guidance on record keeping. This is positive and if properly implemented by staff, this will ensure that errors such as has occurred in this case, are avoided.
Therefore, an order has been made for the landlord to provide training to all staff who carry out damp and mould inspections on the process for and importance of recording these, in line with its current damp and mould policy. This order will be considered complied with, if the landlord can provide evidence that it has provided staff training on this subject within the last 12 months.
The landlord’s damp, mould and condensation procedure says that following an inspection, it will provide feedback to the resident to ensure they understand the diagnosis that has been made. While this procedure was not in place when the inspection was completed on 1 March 2023, this would have been a sensible action to take. However, there is no record that the landlord did this.
The landlord has subsequently provided this Service with an internal email dated 13 December 2024, which said that the mould issue in the porch was caused because there was no insulation. This meant the external and internal parts of the brick were connected directly to the outside. When these were built the porch was only intended to be used as an area to enter the property and was not part of the main living area. Therefore, they were not built to the same specification as the living accommodation. This is a reasonable and understandable explanation, however, there is no evidence that the landlord told the resident this.
The email does say that some advice was given to the resident’s son about cleaning the mould, however, it is not clear the extent of the conversation or how much detail was provided to him. Therefore, an order has been made below for the landlord to confirm in writing its diagnosis of the mould in the property, including the underlying causes, any actions the resident can take to manage this as well as any further actions the landlord will take to address this.
Five days after the inspection on 1 March 2023, the landlord raised a job to seal the external porch walls. It raised this as a 28 day priority, which was reasonable. However, this was not completed until 68 days later, on 12 May 2023. This was significantly over the 28 day target timescale and amounts to maladministration.
Overall, there was maladministration in the landlord’s handling of the damp and mould. In consultation with the Ombudsman’s remedies guidance, orders have been made for the landlord to apologise to the resident and pay her £250 compensation.

Handling of the resident’s authorisation for her son to act on her behalf

It is reasonable that landlords obtain written authorisation from residents before agreeing to speak with a third party on their behalf, including family members. This shows that it takes the privacy of its residents seriously and is mindful of its requirements in respect of data protection legislation.
Where third party authorisation is given, it is important that landlords record this consistently on its system, in a central location that is easily accessible for all staff. This ensures that the landlord does not decline to speak with an authorised third party in error and avoids the resident having to repeatedly provide written authorisation.
In this case, the Ombudsman has identified that on 23 January 2021, the landlord noted within its contact records that the resident had given authorisation for her son to act on her behalf, in 2019. This was before she moved in to the property, however, there is no reason this could not continue after she moved in as there were no other noted changes in circumstances.
While the landlord may choose to periodically review third party authorisations, these should not be removed or amended without the consent of the resident. It is also important that these are not lost if or when a resident moves to another property. In this case, there is no evidence that the resident asked or agreed for the authorisation to be withdrawn and the note dated 23 January 2021 indicated that this arrangement was to be ongoing.
As the resident had already given authorisation for her son to act as her representative, the landlord should not have declined to speak with him in February 2023. Similarly, it was unnecessary to ask the resident to provide further written authorisation and meant she incurred time and trouble to do so. These failures amount to maladministration and were frustrating for the resident.
The note dated 23 January 2021 was included within the landlord’s contact records and discovered as a result of a detailed review of the evidence by the Ombudsman. It is not clear from the evidence provided whether the resident’s authorisation for her son to act on her behalf had been centrally recorded on the landlord’s system, so as to make it easily accessible for staff. Whether it was or not, there was a failure by the landlord as it either failed to record this, or, if it was properly recorded, staff failed to properly check the records. Either way, this amounts to maladministration.
An order has been made for the landlord to review and if required, update its records to ensure the resident’s authorisation for her son to act on her behalf is centrally recorded and easily accessible for staff. Written confirmation to be provided to the resident, including details of any periodic reviews it will carry out of this arrangement. A further order has been made for the landlord to provide guidance to all customer facing staff on the process for checking its systems for third party authorisation arrangements.
While understandable that front line staff may have missed the note dated 23 January 2021, it is a concern that this was not identified as part of the landlord’s complaint investigation. This suggests the investigation was not done thoroughly and failed to properly review its records in respect of this issue. This was a missed opportunity for the landlord to identify its errors and put things right for the resident at an earlier stage.
In reply to the stage 2 complaint response, the resident said that the landlord had failed to engage with her son after the second written authorisation was given on 14 February 2023, as it failed to call him back when requested. The Ombudsman does not doubt the resident’s comments, however, we have seen no evidence of this and so cannot make any further comment in respect of this concern.
Overall, there was maladministration in the landlord’s handling of the resident’s authorisation for her son to act on her behalf. In consultation with the Ombudsman’s remedies guidance orders have been made for the landlord to apologise to the resident and pay her £150 compensation.

Complaint handling

The landlord’s complaints policy at the time said it would acknowledge stage 1 and 2 complaints within 5 working days. In this case, the Ombudsman has seen no evidence that the landlord acknowledged either of the resident’s complaints. Therefore, it did not act in accordance with its complaints policy.
The landlord provided its stage 1 response in 7 working days. This was in line with the committed response time of 10 working days, set out in its complaints policy at the time.
The landlord’s complaints policy at the time said it would provide stage 2 responses within 20 working days. In this case, it provided the stage 2 response in 41 working days, which was more than double the committed response time. The landlord told the resident the response was going to be delayed on 28 April 2023. As this was 29 working days after the resident had asked to escalate the complaint, this was already over the committed response time and should have been provided sooner. These delays left the resident feeling that the landlord was not taking the complaint seriously.
The landlord told the resident it was delayed in providing the stage 2 response because it wanted to ensure it had covered all points raised and was able to provide a thorough response. This was reasonable and in accordance with its complaints policy at the time, which said it would contact the resident to tell them when it was unable to respond within the target timescale.
The resident responded to this update and asked the landlord why it was delaying the response. While noted that the landlord had already explained the reason for the delay, it should have replied to the resident to reconfirm this. However, the Ombudsman has seen no evidence that the landlord did this. This was disappointing for the resident and left her feeling ignored.
After the landlord provided its stage 2 response on 18 May 2023, the resident replied the same day asking it to respond to some points which had been unaddressed. As the landlord had already provided its final response to the complaint, it was under no obligation to provide any further comment or response to the issues raised. However, out of courtesy, it should have replied to the resident to confirm its position.
Again, the Ombudsman has seen no evidence that the landlord replied and when the resident escalated her complaint to this Service in July 2023, she said that the landlord had not responded to this contact. This left her feeling that the landlord was not truly committed to putting things right for her.
Within the stage 2 response, the landlord acknowledged there had been failures in its complaint handling, apologised and offered £150 compensation. Considering the full circumstances of this matter and in consultation with the Ombudsman’s remedies guidance, this was reasonable. Therefore, the landlord has offered reasonable redress to the resident for its complaint handling.
A recommendation has been made below for the landlord to pay the resident the £150 compensation already offered, if not done so already. The reasonable redress finding is made on the basis of this sum being paid to the resident, as it recognised genuine elements of service failure by the landlord.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of:
1. Damp and mould.
2. The resident’s authorisation for her son to act on her behalf.
In accordance with paragraph 53.b of the Scheme, the landlord has offered redress to the resident, which in the Ombudsman’s opinion, satisfactorily resolves the complaint about its complaint handling.

Orders and recommendations

Orders

Within 4 weeks the landlord is ordered to:
1. Confirm in writing its diagnosis of the mould in the property, including the underlying causes, any actions the resident can take to manage this and any further actions the landlord will take to address this.
2. Apologise to the resident for its handling of damp and mould and its handling of her authorisation for her son to act on her behalf.
3. Pay the resident £400 compensation, made up of £250 for its handling of damp and mould and £150 for its handling of her authorisation for her son to act on her behalf.
4. Update its records to ensure the resident’s authorisation for her son to act on her behalf is centrally recorded and easily accessible for staff. Written confirmation to be provided to the resident, including details of any periodic reviews it will carry out of this arrangement.
The landlord to provide evidence of compliance with the above orders, to this Service, within 4 weeks.
Within 8 weeks, the landlord is ordered to provide:
1. Training to all staff who carry out damp and mould inspections on the process for and importance of recording these, in line with its current damp and mould policy. This order will be considered complied with, if the landlord can provide evidence that it has provided staff training on this subject within the last 12 months.
2. Guidance to all customer facing staff on the process for checking its systems for third party authorisation arrangements.
The landlord to provide evidence of compliance with the above orders, to this Service, within 8 weeks.

Recommendations

The landlord to pay the resident the £150 compensation already offered for its complaint handling, if not done so already. The reasonable redress finding is made on the basis of this sum being paid to the resident, as it recognised genuine elements of service failure by the landlord. An update on the landlord’s intentions regarding this recommendation to be provided to this Service within 4 weeks.