Southwark Council (202111233)

REPORT

COMPLAINT 202111233

Southwark Council

13 January 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:
1. The landlord’s handling of the resident’s request for a transfer under medical grounds.
2. The landlord’s handling of the resident’s reports concerning damp and mould at the property, including outstanding repair issues.
3. The landlord’s handling of the resident’s request for compensation for outstanding repair issues at the property.
4. The landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(m) of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. The landlord’s handling of the resident’s request for a transfer under medical grounds.
The resident has complained about how the landlord, which is a local housing authority, processed his transfer application for health reasons in light of his and his wife’s medical conditions. However, paragraph 39(m) of the Scheme states that the Ombudsman will not investigate complaints which “fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”. As complaints concerning applications for re-housing that meet the reasonable preference criteria, such as medical grounds, that are dealt with by local housing authorities fall properly within the jurisdiction of the Local Government and Social Care Ombudsman, a determination will not be made on this aspect of the complaint.

Background and summary of events

Policies and procedures

Section three of the landlord’s repairs guide confirms that, following reports of damp, it will carry out an inspection within 20 working days to assess the most appropriate course of action.
Section five of the landlord’s repairs guide provides residents with information on condensation, its causes, and suggestions on the steps residents can take to reduce condensation.
The appendix document within the landlord’s complaints policy confirms a compensation offer of £5, £10 or £20 per week for a delay in delivering a service, where there is a repeated failure by the landlord to achieve its expected standards. It further confirms that it may make a compensation offer at the same rate for distress and inconvenience as a result of the issues complained about. The landlord’s compensation policy adds that it is permitted to recognise time and trouble experienced in resolving complaints with compensation from £50.
The landlord’s complaints policy confirms that it will try to call the resident to make personal contact to discuss the complaint, and acknowledge it within three working days. It would then respond to stage one complaints within 15 working days and final stage complaints within 25 working days.

Background

The resident is a tenant of the landlord.
There is a historical element to this complaint concerning the resident’s dissatisfaction with the landlord’s handling of the resident’s reports concerning damp and mould at the property from 2016 to 2020, which is outside of the scope of this investigation. This is because the Ombudsman cannot consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period of normally within six months of the matters arising, and the resident began to formally complain to it about this in his stage one complaint on 29 April 2021. This report will therefore focus on events from 29 October 2020 onwards, being within six months of his stage one complaint.

Summary of events

On 22 December 2020, the resident’s local MP forwarded the landlord a report they had received from the resident. The resident explained that his property had “terrible damp”, with mould also developing within the property that “constantly smells as it is impossible to get rid of, and he provided photographs of the condition of his property and belongings in support of this.” The landlord was described as having previously attempted to treat the mould, however this had been followed by his wife being hospitalised, which he attributed to the mould treatment being “much too strong”. As a result, the resident had declined its offer to re-treat the mould. He requested a move from the property due to the impact of the condition of the property on him and his wife and their health.
On 13 January 2021, the landlord’s records confirmed that it had raised work requests to wash down and treat the mould in the resident’s property without using a spray that had affected the resident’s health, and to install a new ventilation system there to address the “severe condensation issues”. The work request to wash down and treat the mould was recorded by it as having been attempted to be arranged with him by it on 8 February 2021, and when it inspected the property on 9 March 2021, before it noted that this was completed on 19 March 2021 at his request. The landlord’s records also showed that it subsequently arranged appointments to install the ventilation system with the resident for 22 April and 19 May 2021, but that it was unable to gain access for these or reach him to rebook them.
On 18 January 2021, the landlord responded to the above correspondence forwarded to it by the resident’s MP, and it addressed his request for a transfer under medical grounds. With regard to outstanding repair issues at his property, it confirmed that “this is for the repairs team to deal with.” Although the landlord did not otherwise address the resident’s above report about the condition of the property.
On 25 February 2021, the landlord’s records confirmed that its medical assessment in response to the resident’s completed change of circumstances to it of 22 January 2021 included a recommendation that the damp at his property be referred to local environmental services for appropriate action. This further recommended that any damp be given effective treatment “as soon as practicable.”
On 29 April 2021, the resident submitted his stage one complaint to the landlord, which is summarised as follows:
1. He felt that the landlord had failed to treat the damp and mould at his property in a timely manner. Furthermore, its treatment was not effective as the damp and mould returned “about six months later”, for which he had recently been asked by it to leave the property for two days for further treatment. He also believed that he and his wife had developed medical conditions as a result of the damp and mould in his property.
2. He was also unhappy that the landlord had not offered him compensation for “serious” outstanding repairs at his property, or for his ill-health, as a result of his complaint, and he felt that £5,000 was a fair compensation offer in settlement of the complaint for pain, time, trouble and developing medical conditions.
On 30 April 2021, the landlord acknowledged the resident’s complaint and confirmed that it would provide its stage one complaint response by 24 May 2021.
On 21 May 2021, the landlord issued its stage one complaint response to the resident. It referenced a telephone conversation with him, and it proposed further action his request for a transfer under medical grounds. In respect of his reports of damp, he was referred to its website for guidance as to how to deal with this, and it recommended that he open his windows often.
On 28 May 2021, the resident submitted his final stage complaint to the landlord. He was unhappy as he had not spoken to it following his stage one complaint, as stated in its stage one complaint response. Additionally, the resident was unhappy with the “serious state of dampness and mould” at his property, which he reiterated had impacted his and his wife’s health and wellbeing and “always resurfaced”. He requested confirmation of the timescales for its final response, and the compensation he had requested in his stage one complaint.
On 21 June 2021, the landlord acknowledged the resident’s final stage complaint. It apologised for the delay in escalating his complaint, and it confirmed that it would provide its final response by 26 July 2021.
On 26 July 2021, the landlord issued its final stage complaint response to the resident, which is summarised as follows:
1. It had found there to be issues with its communication in respect of the repairs in his property, and for its complaint handling, for which it apologised for any frustration or inconvenience that had been caused. The landlord recognised that the delay in carrying out the work to install the new ventilation system there was excessive, and remained outstanding, despite it responding to his recent mould reports by attending and instructing treatment and ventilation works orders for these. Furthermore, it recognised that, although the corona virus restrictions contributed to this delay, “some of this delay could likely have been mitigated or avoided”.
2. It confirmed that it would provide an update on the outstanding works that it had requested be carried out as soon as possible “as soon as it becomes available”, and that compensation may be payable in respect of any delay in installing the new ventilation system. The landlord agreed that it would monitor the progress of the repair, and inform the resident of any compensation that may be payable once the work was completed. Although it found that its technical quality officer had not reported that his property would be considered uninhabitable because of damp or mould, but that this would be remedied by treatment and a mechanical ventilation system, apologising and partly upholding his complaint for delaying the latter.
3. In respect of its complaint handling, it explained that it had referred to a telephone conversation with the resident in error in its stage one complaint response on 21 May 2021, for which it apologised as well as for its complaint handling following its delay in responding to his final stage complaint.
The landlord’s records showed that it chased its contractor for updates on their installation of the mechanical ventilation system at the resident’s property from 12 July 2021 onwards. It recorded that the contractor booked an appointment to do so on 20 August 2021 before the resident rearranged this to firstly 23 August 2021, when they were unable to gain access for this and offered him a new appointment on 3 September 2021, and then to 1 and 27 September 2021, when they were again unable to access the property. The landlord went on to confirm on 10 November 2021 that the ventilation system works were completed by its contractor.
The resident complained to this Service, however, that the landlord had delayed treating the damp and mould that he had reported to it at his property, which had resurfaced six months after its treatment and that he had to pay to leave the property for two days for its latest treatment. He reported that the damp and mould nevertheless still returned to his property, to which he attributed his and his wife’s medical conditions due it not promptly and thoroughly treating this, and he requested a transfer under medical grounds, together with compensation for their ill-health and its repair delays.

Assessment and findings

Scope of investigation

The resident has raised concerns over the effect of the delayed completion of the damp and mould repairs at his property on his and his wife’s health and wellbeing, for which he has requested compensation. The Ombudsman does not dispute his comments regarding their health, but we are unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing or to award damages for these. This is because we do not have the authority to do so in the way that a court, tribunal or insurer might. However, we have considered the general distress and inconvenience which the situation has caused the resident, and we have recommended that the landlord provide him with details as to how to seek damages for ill-health from it below.
The resident has also raised concerns to this Service over the condition of the property at the start of this tenancy in 2016, which is outside of the scope of this investigation. This is because the Ombudsman cannot consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period of normally within six months of the matters arising, whereas the resident submitted his stage one complaint to the landlord on 29 April 2021.

The landlord’s handling of the resident’s reports concerning damp and mould at the property, including outstanding repair issues

Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on the landlord to keep the structure and exterior of the resident’s property in repair. The landlord also has a responsibility, under section 9A of the Landlord and Tenant Act 1985 and section 1(3) Homes (Fitness for Human Habitation) Act 2018, to ensure that the property is fit for human habitation for the duration of the resident’s tenancy. Repairs and freedom from damp are factors to consider when determining fitness for human habitation, and therefore the landlord is required to consider whether any repair, damp and mould problems in the resident’s property affect this and require remedying.
Following the resident’s reports via his MP of damp and mould in his property on 22 December 2020, the landlord was obliged to carry out an inspection of the property to assess the most appropriate course of action for this within 20 working days, in line with its repairs guide detailed above. In response, it had raised work requests to wash down and treat the mould in the resident’s property, and to install a new ventilation system there, on 13 January 2021, which was 13 working days after receiving the report, and therefore within its target timescales for assessing such repairs.
Although the landlord’s policies do not specify target timescales for the completion of follow-up repair work, it was reasonable for the resident to expect either the completion of follow-up work to be completed within a similar timescale to their assessment, or to be informed of its target timescales if the work would take longer. In respect of the wash down and treatment of the damp and mould in his property, this was completed on 19 March 2021 following its earlier attempts to arrange this with the resident on 8 February and 9 March 2021.
This was 47 working days after the landlord had requested the damp and mould treatment work at the resident’s property on 13 January 2021, but no failing has been identified for the delay in the completion of this work. This is because it sought to carry this out at an earlier date, including 18 working days after it requested the work on 8 February 2021, but it was unable to arrange the completion of this with him until 19 March 2021 and so it was not responsible for this delay.
The landlord had also requested the installation of a new ventilation system in the resident’s property on 13 January 2021. This was not completed, however, until 10 November 2021, which was almost ten months later. Furthermore, the landlord acknowledged that it failed to keep the resident informed of the progress of this repair, which included failing to refer to the repair in its stage one complaint response on 29 April 2021, and its final stage complaint response of 26 July 2021 confirmed that a failing had been identified by it for its delays and poor communication on this aspect of his complaint.
The landlord took the opportunity of its full complaints procedure to acknowledge that this delay was excessive, and that it would inform the resident of any compensation that it may offer him once it had installed the new ventilation system at his property. This was despite its records showing that it was not fully responsible for the delay, as it previously attempted to arrange to install the ventilation system with him on 22 April, 19 May, 20 and 23 August and 1, 3 and 27 September 2021, but it was either unable to gain access to the property or he rearranged the appointments on these dates.
It is nevertheless of concern that there is no evidence that the landlord informed the resident of any compensation that it might offer him for its repair delays under its above complaints and compensation policies, and so it has been ordered to do so and recommended to review its staff’s relevant training needs in respect of this below.

The landlord’s handling of the resident’s request for compensation for outstanding repair issues at the property

The resident asked the landlord for £5,000 compensation for reasons including the damp and mould repairs at his property in respect of his complaint. In assessing the appropriate level of compensation where service failure has been found, this Service would use the landlord’s own relevant policies and procedures, along with our own remedies guidance, to establish a suitable level of compensation.
The landlord took the opportunity of its full complaints procedure to inform the resident in its final stage complaint response on 26 July 2021, that compensation may be payable due to the delay in installing the new ventilation system at the property, and that it would inform the resident of this, once the work had been completed. This was reasonable of the landlord, as it needed to understand the full extent of its delay in order for it to calculate its compensation offer to him, in line with its complaints and compensation policies as detailed above. This is because these recommended that the landlord award compensation for repair delays and any resulting distress and inconvenience based on the length of the delays, which had not yet been established by the above date.
This is also due to the fact that landlord’s records showed that, as outlined above, it was not fully responsible for the delays to the installation of the resident’s new ventilation system or any resulting distress and inconvenience, given its attempts to gain access to his property and agree appointments for this with him. As it sought to do so but was unsuccessful on at least seven occasions from 22 April 2021 before it confirmed on 10 November 2021 that the ventilation system had been installed, it was additionally appropriate that it awaited the completion of the installation before it determined the extent of its involvement in delaying this.
Therefore, while it remains concerning that the landlord has not yet demonstrated that it has informed the resident of the outcome of its calculation of any compensation due to him as a result of the ventilation system repair delay, no further orders or recommendations have been made for this by this Service. This is because the order for it to inform him of this and the recommendation for it to carry out relevant staff training mentioned above are proportionate to remedy this.

The landlord’s complaint handling

Following the resident’s stage one complaint on 29 April 2021, the landlord acknowledged his complaint on the following day, and it issued its stage one complaint response to him on 21 May 2021, which was in line within the 15-working-day timescale for it to do so in its above complaints policy. This was also within the timescale for it to respond to the complaint by 24 May 2021 that it had provided to him in the acknowledgement.
The resident nevertheless raised concerns over the landlord’s stage one complaint response on 21 May 2021, which referred to a telephone conversation with him that the resident had disputed had taken place. Within the landlord’s final stage complaint response on 26 July 2021, it therefore subsequently apologised to him for this, which it had confirmed had been included in error. This was a reasonable response from the landlord, as it had reviewed the resident’s concerns in this regard, and it offered a reasonable explanation and apology to him following this error.
In respect of the resident’s final stage complaint of 28 May 2021, the landlord provided its final stage complaint response to him on 26 July 2021, which was in line with its acknowledgement of the complaint on 21 June 2021 that stated that it would respond to him by 26 July 2021. However, as the resident had requested the escalation of his complaint on 28 May 2021, it was required by its above complaint policy to have acknowledged this within three working days instead of its acknowledgement 12 working days later than this. This also meant that the landlord’s final stage complaint response to the resident was 15 working days later than the policy’s 25-working-day timescale for this.
These total delays of 27 working days were unreasonable, and a failing has been identified on the landlord’s part for the delays in acknowledging and escalating the resident’s final stage complaint, which added time, trouble, distress and inconvenience to him. Although it is noted that it apologised to him for these delays in its above acknowledgement of the complaint, and as part of its apology to him for its complaint handling in the above final stage complaint response.
Therefore, to put matters right the landlord should consider its complaint handling delays in its review of the compensation that it may offer the resident following his complaint in light of its above compensation policy permitting this, together with its review of its relevant staff training needs, as ordered and recommended below.

Determination (decision)

In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in:
1. Its handling of the resident’s reports concerning damp and mould at the property, including outstanding repair issues.
2. Its complaint handling.
In accordance with paragraph 54 of the Scheme, there was no maladministration by the landlord in its handling of the resident’s request for compensation for outstanding repair issues at the property.

Reasons

There were significant delays in the installation of a new ventilation system in the resident’s property, but the landlord made numerous attempts to install the system that it was unable to gain access or appointments for, and so it was not fully responsible for the delays.
The landlord acknowledged that compensation may be payable for its repair delays, and that it would inform the resident of its consideration of this once it had installed the new ventilation system.
The landlord did not acknowledge or escalate the resident’s final stage complaint in a timely manner.

Order and recommendations

The Ombudsman orders the landlord to write to the resident within four weeks to confirm its offer of compensation to him for its repair and complaint handling delays in his case, if it has not done so already.
It is recommended that the landlord:
1. Contact the resident to provide him with details to enable him to submit an insurance liability claim against it for his and his wife’s ill-health.
2. Review its staff’s training needs in relation to their application of its policies and procedures with regard to repairs and complaints, in order to seek to prevent a recurrence of its above failures in the resident’s case. This should include consideration of this Service’s guidance on remedies, at https://www.housing-ombudsman.org.uk/about-us/corporate-information/policies/dispute-resolution/policy-on-remedies/, and the completion of our free online dispute resolution training for landlords, if this has not been done recently, at https://www.housing-ombudsman.org.uk/landlords/e-learning/.
The landlord shall contact this Service within four weeks to confirm that it has complied with the above order and whether it will follow the above recommendations.