Southwark Council (202301749)

REPORT

COMPLAINT 202301749

Southwark Council

28 November 2024

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 handling of:
   1. The resident’s reports of damp and mould.
   2. The resident’s rehousing application.
2. The Ombudsman has also investigated the landlord’s complaint handling.

Background

3. The resident held a secure tenancy at the property, a 1 bedroom flat. The resident informed the landlord that he had vulnerabilities including breathing conditions, mental health conditions and issues affecting his mobility. The resident was aged 69 at the time of the complaint.
4. The resident first reported issues with damp and mould to the landlord in 2015 and continued to report issues in 2016, 2017 and 2018. The landlord attended to treat the mould on a number of occasions and repaired a leak from upstairs. The resident sought legal advice and, through a solicitor, commenced a disrepair claim in January 2019. The claim was about damp and mould throughout the property as well as other repair issues. The claim was settled in 2019 with the landlord paying £2,000 in damages to the resident. The settlement was agreed on the condition that the landlord complete the required works by 24 January 2020.
5. As part of the disrepair claim, the landlord assessed the resident’s needs and suggested the resident be moved permanently. The resident agreed to this, however a suitable property was not found. In the meantime, the landlord offered temporary accommodation to the resident while it completed the required disrepair works. This was not agreed and the repairs were not all completed.
6. The resident sought legal advice again in 2021 and his solicitor contacted the landlord in November 2021 regarding a breach of the settlement of the previous disrepair claim. The landlord inspected the property and made attempts to organise the work required. However, this was not completed again. The resident was unhappy that the damp and mould had not been resolved and complained to the landlord (via this Service) on 14 April 2023. He also said he wanted to be rehoused.
7. The landlord responded at stage 1 on 18 May 2023 and confirmed the repairs were being dealt with by its disrepair team. It also confirmed the resident was already registered for rehousing with the highest priority banding and that the disrepair works could go ahead while he waited for a suitable property. The resident escalated the complaint on 13 June 2023 after the landlord’s contractor failed to attend an appointment.
8. The landlord responded at stage 2 on 12 July 2023 and confirmed it had now made an offer of suitable alternative accommodation to the resident and was awaiting a date for viewing. It said that the damp and mould was being addressed as part of the disrepair claim and so it would not address this in its complaint response.
9. The resident accepted the offer of alternative accommodation in July 2023 and the new tenancy started in September 2023. The breach of the disrepair claim was settled on the conditions that the landlord rehoused the resident, paid £2,000 in damages and made a home loss payment to the resident.
10. The resident remained dissatisfied with the landlord’s handling of the complaint and escalated the matter to this Service in August 2023. In doing so he said he wanted an offer of compensation for the impact that the landlord’s delay in resolving the damp and mould had on his health.

Assessment and findings

Scope of the investigation

11. As part of his complaint, the resident requested to be rehoused. This Service cannot consider complaints which concern matters in respect of Local Authorities which do not relate to their provision of social housing. This includes complaints about the availability of stock or waiting lists on Local Authority housing registers. The resident may wish to raise such a complaint to the relevant local authority and escalate it to the Local Government and Social Care Ombudsman (LGSCO) in due course if required. General consideration has been given in this investigation to the landlord’s handling of the resident’s request to be rehoused.

The resident’s reports of damp and mould

12. What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
13. Paragraph 42.f of the Scheme says that this Service cannot consider complaints that concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
14. As outlined above, the resident raised the matter of damp and mould and the impact on his health as part of a legal disrepair claim in 2019. This was then raised again through a legal claim regarding a breach of the settlement agreement in 2021. The resident had the opportunity to seek redress for the complaint about damp and mould through these legal claims and received a settlement on each occasion.
15. The resident has informed this Service that he remains unhappy with the level of compensation offered in relation to the impact he incurred as a result of the damp and mould. Where a settlement agreement is accepted by a legal representative acting on behalf of a resident as part of a disrepair claim, it is fairly assumed that the resident has been given competent legal advice about the offer made, the effects of accepting the offer, and their legal rights and prospects of success if rejecting it. In the event the resident was unhappy with the outcome following the settlement agreement, the Ombudsman is unable to assess the handling of negotiations between the resident’s solicitor and the landlord or enforce the terms of the settlement reached. An assessment of the offer made or terms accepted as part of the settlement agreement would be a matter best suited for the court. The Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing and this would also be a matter best suited to a court.
16. After carefully considering all the evidence, in line with paragraph 42.f of the Scheme, we have determined that the complaint about the landlord’s handling of the resident’s reports of damp and mould is not within the Ombudsman’s jurisdiction to consider.

The resident’s rehousing application

17. The topic of rehousing was first raised with the resident in June 2019 as part of the initial disrepair claim. Following this, the landlord:
    1. Assessed the resident’s situation in June 2019 and recommended a temporary or permanent move. This was based on the level of disruption the disrepair works would likely cause the resident.
    2. Supported the resident with his application for sheltered housing in November 2019. The landlord helped the resident complete the registration form and submitted it online on his behalf. It confirmed the application had been accepted in December 2019.
    3. Made a direct offer of a sheltered accommodation property in July 2020. The resident refused this offer. The landlord confirmed it understood his reasons and there would be no penalty for the refusal.
    4. Listened to the resident’s concerns about the suitability of sheltered accommodation in July 2020 and amended his application to general needs accommodation upon his request. This change was processed in September 2020.
    5. Agreed to bid on a property on the resident’s behalf in May 2021 because of his limited access to the internet. Unfortunately the resident did not have the relevant medical assessment required to bid on the specific property he was interested in and therefore he had not met the criteria to bid.
    6. Supported the resident in completing a change of circumstances application confirming his medical requirements and referred him for a medical assessment in June 2021.
    7. Confirmed the resident required a disabled adapted flat (despite the medical assessment stating he had no medical requirement to move) and this led to the resident’s banding being increased to the top priority for rehousing in August 2021.
    8. Offered to rehouse the resident temporarily in February 2022 to enable the disrepair works to go ahead.
    9. Provided an advice sheet outlining how to bid on properties in February 2022.
    10. Offered again to rehouse the resident temporarily in April and May 2022.
    11. Made a direct offer of a suitable property in May 2022. The resident refused this on the basis that the heating system was unsuitable. The landlord confirmed it understood his reasons and there would be no penalty for this refusal.
    12. Visited the resident in November 2022 and spoke with the resident about how to bid on properties.
    13. Made a direct offer of a suitable property in July 2023 which the resident accepted. He moved in September 2023.
    14. Confirmed the resident would receive a home loss payment as a result of the move.
18. The above steps were in line with the landlord’s housing allocations policy and were therefore appropriate. In some areas, the landlord went above and beyond its policy in supporting the resident in his attempts to seek alternative accommodation, for example:
    1. By supporting the resident with his online applications.
    2. By promptly amending his application to general needs accommodation when the resident said sheltered accommodation would not be suitable.
    3. By offering to bid for properties on his behalf.
    4. By applying to increase his banding to the top priority and providing supporting evidence, despite the medical assessment stating he had no medical requirement to move.
    5. By accepting the resident’s reasonable refusal of a number of properties without penalising the resident.
19. In May 2021 the landlord’s internal emails show it had agreed to bid on a newly available property online on the resident’s behalf. However, there was an issue as the resident had not completed a medical assessment as part of his rehousing application and therefore had not met the criteria required for this property. The landlord was not aware beforehand that the available property was only available to applicants meeting certain medical criteria. This was understandably very disappointing for the resident who had his expectations raised about the property. However, the landlord was not responsible for the resident’s medical application and was already going above and beyond its usual service in offering to bid for the property on the resident’s behalf. This was therefore not a failure on the landlord’s part. The landlord then supported the resident in completing the relevant medical application forms and from this point, the landlord said it would no longer bid on behalf of the resident. This was a reasonable approach.
20. In terms of the overall time it took to rehouse the resident, this was out of the landlord’s control as it related to the availability of suitable alternative accommodation. The landlord did make 2 offers of suitable accommodation, which the resident refused, and offered to rehouse the resident temporarily on at least 3 occasions, which the resident also refused. The landlord acted reasonably in offering these properties.
21. In conclusion, although it is acknowledged that the resident waited a long time to be rehoused, the landlord acted in line with its policy and in some cases went above and beyond the required level of service. It also made several reasonable offers of permanent and temporary accommodation which the resident refused. For these reasons, this investigation has found that there was no maladministration in the landlord’s handling of the resident’s rehousing application.

Complaint handling

22. The landlord’s complaints policy notes it will not deal with complaints where legal proceedings or court action is being taken. The landlord applied this to its complaint responses and simply confirmed that the matter of damp and mould was being dealt with by its disrepair team. However, the evidence suggests the legal proceedings of the disrepair claims had not yet been issued to court.
23. This Service published a spotlight report on damp and mould in 2021. One of the recommendations in the report highlighted the importance of landlords continuing to use the complaints procedure until the point of legal proceedings being issued. There is no evidence of the landlord doing so in this case. On the contrary, the landlord failed to even confirm the stage or status of the disrepair case or book appointment dates with the resident through its complaint process. The landlord missed the opportunity to help move the case along and it is reasonable to conclude this may have prolonged the process. It was inappropriate that the landlord failed to utilise its complaints procedure to make attempts to resolve the matter outside of court.
24. In conclusion, the landlord acted inappropriately in failing to attempt to use its internal complaints process to resolve the complaint about damp and mould. This investigation has found maladministration in this regard. The landlord is ordered to pay the resident £250 in recognition of this failure (in line with the landlord’s compensation policy for failures where the landlord has not achieved the expected standards).

The Ombudsman’s spotlight reports

25. Landlords are encouraged to self-assess against the Ombudsman’s spotlight reports following publication. As the spotlight report on damp and mould was issued some time ago, it is acknowledged that the landlord will have already completed such a self-assessment. Therefore, no further orders have been made in this regard. However, in light of the findings of this investigation, this Service encourages the landlord to consider the findings and recommendations of the spotlight report on damp and mould with specific thought to its complaint handling practices.

Determination

26. Under paragraph 42.f of the Scheme, the complaint about the landlord’s handling of the resident’s reports of damp and mould is not within the Ombudsman’s jurisdiction to consider.
27. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s rehousing application.
28. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the complaint.

Orders

29. Within 4 weeks, the landlord is ordered to:
    1. Pay the resident £250 in recognition of the distress and inconvenience likely incurred by the resident as a result of its complaint handling failures.