Stoke-on-Trent City Council (202222040)

REPORT

COMPLAINT 202222040

Stoke-on-Trent City Council

26 September 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 handling of repairs, including damp and mould, the roof of the property and chimney.
2. The Ombudsman has also considered the landlord’s handling of the resident’s associated complaint.

Background

3. The resident and landlord have a secure tenancy agreement. The property is a two bedroom house located next to a privately owned property.
4. The landlord’s repair log shows the resident first raised an issue with damp patches on a bedroom wall on 6 October 2022. A contractor attended the property on 13 and 20 October 2022, during which it identified that a mobile elevated working platform (MEWP) was required to gain access to the roof and chimney, which it had determined was the cause of the damp.
5. The resident continued to chase the landlord for an update throughout October 2022, asking when the repair would be carried out. The landlord said a “scaffold inspector” attended the property on 20 October 2022 and advised that the roof “didn’t appear to be leaking”. The landlord raised a subsequent work order for the resident’s loft to be insulated.
6. The resident made a complaint to the landlord about the damp and mould in their bedroom on 29 October 2022. They said there had been multiple visits to their property and that a contractor had identified damp and mould and determined what action was required to treat it on 11 October 2022. The resident also said:
   1. They had been told during contractor’s visit that although scaffolding was required, it was unlikely to be authorised due to the cost implications.
   2. The property was not ventilated properly and required plaster boarding.
   3. A contractor had “briefly” checked the loft and found “no leaks”.
   4. Another contractor had confirmed that plaster boarding would not solve the issue and that the chimney required fixing, but scaffolding would cost the landlord money.
   5. Water damage to the guttering, facia, and soffits had been identified.
   6. They were pregnant and the presence of black mould was causing concerns about their health.
7. The landlord acknowledged the resident’s complaint on 31 October 2022 and said it would provide a response within 10 working days. The resident contacted the landlord again on 16 December 2022, as they had not received a response to their complaint. The resident also told the landlord they had not been given a timescale for the repair work and the damp and mould was getting worse.
8. The landlord provided a written stage one complaint response on 20 December 2022. It acknowledged the “upset and inconvenience” the resident had experienced and apologised. The landlord also confirmed that a request had been made to the “working at heights” team and that if work could not be completed in one visit the contractor would reattend.
9. The landlord contacted the resident again on 21 December 2022 and said that the MEWP, required to complete the repairs, was not working and it could not confirm when it would be available. The landlord said the work order would remain open during the period it could not complete the repairs.
10. The resident responded to the landlord on 6 January 2023 and said they found the “excuse that the MEWP was unavailable” to be “not reasonable”. The resident contacted the landlord again on 10 January 2023 and referred to the damp in their bedroom, which the resident stated they were “unable to use”.
11. The landlord acknowledged the resident’s continued dissatisfaction and confirmed escalation to stage two of its complaint process on 13 January 2023. The landlord completed a stage two response on 8 February 2023. The landlord apologised for not addressing the resident’s complaint points at stage one. The response reaffirmed the non-availability of the MEWP and said:
    1. A drone had been used to identify issues with the capping on the chimney, pointing and roof tiles.
    2. The landlord recommended scaffolding be erected in order to remove the chimney and fix the damaged/missing roof tiles.
    3. An appointment had been made for 27 January 2023 to discuss the issue with the resident and the resident’s neighbour, who was jointly responsible for the chimney and roof.
    4. If the resident’s neighbour did not agree to the proposed work to remove the chimney and replace/fix roof tiles, the landlord would consider other repairs instead of removal of the chimney.
    5. The resident’s complaint was being “partially” upheld and feedback would be given to the appropriate teams.
12. The resident contacted the Ombudsman on 10 March 2023. They said the landlord had been experiencing issues when trying to communicate with the resident’s neighbour, and that it had asked the resident to obtain the neighbour’s agreement to begin repair work on the chimney/roof. The resident said, “that should be the landlord’s job”.
13. The landlord has since confirmed the stage two response was not sent to the resident until it was requested by them on 30 April 2023. The landlord said the response was sent to “internal post” in February 2023, but it had not been sent to the resident at the time.
14. The resident told the Ombudsman that the damp and mould issue and the preventative repairs to the chimney and roof remained outstanding as of 20 September 2023. The resident requested that the landlord treat the damp and mould and complete the preventative repairs within a reasonable timeframe. The landlord confirmed that a party wall notice had been sent to the leaseholder of the neighbouring property on 11 August 2023 and repair logs show the issue to be outstanding.

Assessment and findings

Repairs

15. The tenancy agreement between the resident and landlord sets out the responsibilities for both parties. The agreement states the resident has a “right to repair”, and “under the right to repair we [the landlord] must carry out certain qualifying repairs within set timescales. If you [the resident] have given notice of the repairs and we do not carry them out within a reasonable time, you can ask us to get another contractor to do the work.”
16. The landlord’s repair policy at the time refers to “emergency” and “routine” repairs. The repair policy states an emergency repair is when there is “an immediate and serious risk to people or property” and a routine repair is “all other repairs that need to be carried out to remedy building or component failure”. The timescales associated with each repair category are:
    1. Emergency – 2 hours to repair or make safe.
    2. Routine – by mutually agreed appointment.
17. The Ombudsman has considered whether the omission of a specific timescale for routine repairs is helpful to residents. Industry best practice suggests a response time of 28 days for non-emergency responsive repairs. The landlord should consider including a similar quantifiable timescale in its repair policy. The inclusion of a timescale for “routine” repairs will provide residents and stakeholders with a means to measure the landlord’s performance and manage resident expectations. With this in mind, the Ombudsman has made a recommendation for the landlord to review its repair policy.
18. Without the inclusion of a specific timescale, the Ombudsman has considered whether the landlord’s response times were fair and reasonable when dealing with the resident’s reported repairs. The landlord’s repair logs show the resident first reported an issue with damp in the property on 6 October 2022, and the damp and mould issue remained outstanding as of 20 September 2023. This meant the resident had been living with a damp and mould issue in their property for almost 12 months. This demonstrated a substantial failure by the landlord to treat and prevent a damp and mould issue within a reasonable timescale, which is likely to have had a significant impact on the resident.
19. While we have identified a substantial delay in repairing the damp and mould issue, the Ombudsman has also considered what action, if any, the landlord was taking during the time the repair remained outstanding, and whether the delays were appropriately communicated to the resident.
20. The landlord stated that it was unable to complete the required repairs due to the equipment being “unavailable”. The Ombudsman understands specialist equipment can be required to complete some repairs. However, the landlord still had an obligation to address the resident’s concerns about damp and mould within a reasonable timescale. The fact the MEWP was “off the road” should not have unreasonably impacted response times and the landlord’s obligation to resolve the substantive issue. The landlord could have sought alternative arrangements, such as hiring an alternative MEWP or equivalent, or requesting availability of the equipment from other contractors/landlords. The tenancy agreement also states the resident is able to employ a contractor to complete works when the landlord is unable to do so within a reasonable time. While there is no evidence to suggest the landlord made resident aware of this, it would have been unreasonable to expect the resident to undertake the responsibility of sourcing a contractor for such extensive works. The resident would also have had to co-ordinate with their neighbour regarding the party wall considerations, which would also have been an unreasonable expectation.
21. The Ombudsman has acknowledged that the landlord required permission from the resident’s neighbour, due to the neighbour’s property being privately owned and jointly responsible for the chimney and roof. The Ombudsman has seen that the landlord attempted to contact the resident’s neighbour on multiple occasions. However, there was a significant gap between two of these attempts which has further contributed to the substantial delays the resident had experienced. The landlord attempted to gain access to the neighbour’s property on 6 February 2023 and then again 5 months later on 27 July 2023. The Ombudsman has determined the landlord could have been more proactive in its approach, having only written to the leaseholder on 27 July 2023. The landlord said it faced difficulties getting in touch with the leaseholder, but it offered no explanation as to why it took until 27 July 2023 to contact them via letter.
22. The landlord has confirmed to this service that it was “considering an interim and less intrusive repair…..”  whilst permission to undertake removal of the chimney from the leaseholder for the neighbouring property remained outstanding. The Ombudsman has found no reason why the landlord did not consider this sooner. Had the landlord implemented the interim works available, this may have remedied the problems experienced by the resident, avoided a prolonged period of limited used endured by the resident while pregnant and not given rise to a complaint.
23. The landlord also stated it had assessed the damp and mould issue and decided against a decant (temporary move to another property) as the issue “could be effectively treated”. The landlord failed to effectively treat the damp and mould as the issue remained outstanding as of 20 September 2023. This continued inability to treat the damp and mould should have prompted the landlord to reconsider a decant, until the MEWP became available and repairs were completed or until an interim repair was done.
24. The Ombudsman has considered the landlord’s communication from the date which the resident first reported the repair. When a landlord uses a contractor to complete repairs, it is responsible for maintaining contact with the resident and providing appropriate updates for outstanding repairs. The relationship between a landlord and contractor should not negatively impact a resident, or their entitlement to have a repair completed within an appropriate timescale. In this case, the landlord and contractor’s failure to effectively communicate with the resident meant they spent time and effort to find out the status of the repair. Having this responsibility on top of the ongoing impact the damp and mould was having is likely to have added to the distress the resident was experiencing at the time – particularly during pregnancy.
25. While the resident has stated that an “anti-mould paint” was applied to the affected areas of the property in February 2023, the damp and mould issue remains outstanding. The permanent solution of removing the chimney and replacing roof tiles also remains outstanding. The landlord has failed to complete an “interim” or temporary repair, and this has meant the resident has lived with a damp and mould issue for 12 months, which they have said has prevented use of one of the bedrooms in the property. The communication from the landlord and contractor to the resident continued to fall below expectations, with the resident having to chase updates. Therefore, the Ombudsman has determined the landlord’s actions, or lack thereof, demonstrated continued failure to appropriately handle the resident’s reports of damp and mould and it must act to put things right, as set out below.
26. The Ombudsman’s approach to compensation is set out in our Remedies Guidance, published on our website. The guidance suggests that awards of £600 to £1000 may be appropriate for cases where there was a failure which had a significant impact on the resident. The Ombudsman acknowledges that the landlord identified some delays and addressed them in its complaint responses to the resident. However, the solution it offered fell short of being proportionate to the continued substantial failure to repair the damp and mould and there is no evidence that it considered whether an offer of financial redress may be appropriate. Therefore, this service has determined the landlord should pay the resident £800 compensation.
27. The Ombudsman has also considered whether compensation based on rent is appropriate. The resident was unable to make full use of their property, namely the second bedroom, due to the damp and mould. This is likely to have caused significant disruption to the resident and their family, particularly whilst pregnant. The Ombudsman considers that a 15% proportion of the resident’s weekly rent is appropriate for 36 weeks. The number of weeks has been calculated by taking the date the resident first stated they were “unable to use” the bedroom due to damp and mould (10 January 2023) and the fact work remains outstanding as of 20 September 2023. The Ombudsman has determined that it would be unfair to calculate the rebate using a date prior to the landlord being made aware the resident was unable to use the bedroom. This is because the landlord could not have acted upon information it had not yet been made aware of. The calculation is based on the basic weekly rent set out in the tenancy agreement, which is £76.65 (rounded up to £77). Therefore, the landlord is ordered to pay the resident an additional of £416 (rounded up from £415.80).
28. The Ombudsman acknowledges the action and planned action set out by the landlord to handle reports of damp and mould, provided after the resident’s complaint. While it was not implemented in time to prevent this issue and subsequent complaint, the Ombudsman is encouraged that it will improve and assist in the landlord’s handling and prevention of future reports of damp and mould.

Complaint handling

29. The landlord’s complaint policy explains how residents can make a complaint and the timescales it aims to respond within. The landlord operates a two-stage approach, and the timescales for each stage are:
    1. Stage 1 is to be acknowledged within 2 working days and a response issued within 10 working days.
    2. Stage 2 is to be acknowledged within 2 working days of the escalation request, and a response issued within 20 working days.
30. The resident first complained to the landlord on 29 October 2022. The landlord acknowledged the complaint within 2 working days and within the complaint policy timescales. However, it did not provide a stage 1 complaint response until 49 working days later, on 20 December 2022. Following a request to escalate their complaint on 6 January 2023, which was acknowledged after 5 working days, the resident requested a stage 2 complaint response 80 working days later. The landlord said it had sent the stage 2 letter to “internal post” within the appropriate timescales, but it had failed to send the response to the resident.
31. While the Ombudsman understands the landlord had completed the stage 2 response within the complaint policy timescales, it was still responsible to ensure the response was sent to the resident in time. The delays at both stages of the complaint process meant the resident had been waiting for an outcome to their complaint for much longer than the policy timescales suggest. This is likely to have added to the distress and inconvenience the resident was already experiencing at the time, with the ongoing damp and mould issue. This also meant the landlord missed an opportunity to put things right for the resident sooner. Therefore, the Ombudsman has determined the landlord must act to put things right.
32. The Remedies Guidance mentioned earlier in this report states awards of £50 to £100 may be appropriate for cases where the error did not significantly affect the overall outcome for the resident, and this was not appropriately acknowledged by the landlord. The Ombudsman has determined £100 compensation to be fair and proportionate to the delays the resident experienced at both stages of their complaint.

Determination

33. In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman has found maladministration by the landlord in its handling of repairs, including damp and mould, the roof of the property and chimney.
34. In accordance with paragraph 52 of the Housing Ombudsman Scheme, the Ombudsman has found service failure by the landlord in its handling of the resident’s associated complaint.

Orders and recommendations

Orders

35. The landlord is ordered to pay the resident £1316, made up of:
    1. £800 for substantial delays in repairing the damp and mould issue, not considering a decant, poor communication and the impact these failings have had on the resident.

2. £416 compensation calculated using rent as a basis for the resident being unable to use the affected bedroom, as calculated earlier in this report.
3. £100 for the delays in handling the resident’s associated complaint.

36. The landlord is ordered discuss a schedule of work with the resident to complete a permanent repair of the damp and mould at the property, including the chimney and missing/damaged roof tiles, within 28 days. The landlord should share a copy of the schedule of work with the resident and the Ombudsman.
37. The landlord must confirm compliance with the above orders within 4 weeks of the date of this report.

Recommendations

38. The landlord is recommended to review its repair policy, in particular the omission of a timescale for “routine” (all non-emergency) repairs. The landlord should consider including a timescale that is in line with industry best practice and within 28 days from a repair being reported.
39. The Ombudsman identified poor communication between the landlord, resident, and contractor during the investigation. The landlord may have since addressed these matters with the contractor through its contract management processes, but if it has not done so already, should review its relationship with any contractors to ensure communication is efficient and delays are avoided where possible. Where delays are not avoidable, the landlord should ensure an explanation is provided to the impacted resident.