Tower Hamlets Council (202005068)

REPORT

COMPLAINT 202005068

Tower Hamlets Homes

   May 2021

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 in the property.

 

2. The resident’s complaint.

 

 

Background and summary of events

 

Scope

 

2. The representative reports that the resident (and family members) have suffered health issues as a result of the damp/mould reported as part of this complaint. He wants compensation to be paid because of this. However, this Service is not able to assess whether there is a causal link between the landlord’s actions (or lack of) and the resident’s / resident’s family’s reported deterioration of health. Any compensation sought would need to be pursued via a legal claim as this service does not have the remit or expertise to reasonably assess the matter. A court of law would be an appropriate venue for such a claim.

 

Summary of events

 

3. On 21 December 2018 the resident’s representative, a family member, emailed the landlord to report ongoing damp and mould issues at the property which had been occurring “for several years”. He considered that temporary fixes had been made. He commented “this has had a big impact on our health and safety causing respiratory issues for me and my family over the years which is unacceptable”.

 

4. The representative gave a history to the matter. A new kitchen had been installed in 2012 at which point a problem with damp was identified as pre-existing the installation. Attempts had been made over the years to find solutions including plastering, decorating and checking the roof of the building but no permanent solution had been found. During these periodic works the resident had suffered significant inconvenience in accommodating them and her representative expressed concern that the situation would simply repeat itself until “the root cause” of the problem was identified. During an inspection of the property on 10 December 2018 the potential cause of mould in the kitchen was identified as coming from a rainwater pipe outside the premises.

 

5. The landlord’s contractor had attended on 13 December 2018 and concluded there was no point in dealing with the mould in the kitchen until the leak was properly identified and fixed. Repairs were undertaken on the 17 December 2018 but the resident remained sceptical as to whether this would be the end of it and considered that cavity wall insulation and work to the roof of the building was required to put a permanent end to the problems. The representative requested that the landlord provide a history of repairs at the property and set out its intended next steps to deal with the issue. He also questioned why the resident was being asked to repaint the affected area when the landlord’s contractor had done this previously when mould had been treated. He reported that its contractor was due to attend on 17 January 2019 to deal with the current mould in the kitchen.

 

6. On 3 January 2019 the landlord acknowledged the representative’s contact. It noted that an issue with an external pipe and mould in the bedrooms had been resolved and that it had agreed to decorate the kitchen walls as the mould issue in that room might relate to the external pipe too. It noted the resident had a tumble dryer which it considered might be creating condensation and causing damp and mould. Otherwise, its view was that the property was habitable and any further internal decoration works were the resident’s responsibility.

 

7. The representative replied on 8 January 2019, asserting it was a problem with the roof that was causing the damp and that neighbouring properties were experiencing the same issue. He reiterated that he considered redecoration to be the landlord’s responsibility when it was required due to an external leak.

 

8. On 14 January 2019 the landlord responded that as all works to the external wall had been completed, it did not anticipate any further water permeating the property. It explained that the resident should report any future leaks from the roof if and when they happened, but the representative was not satisfied with this and requested the roof be checked anyway.

 

9. On 18 January 2019 the landlord contacted the representative, recording its understanding that its contractor had now dealt with redecorating the kitchen to complete the works required to get rid of the mould. It denied that its inspector had suggested a roof inspection was required but commented that the resident’s upstairs neighbour could report the problem if they considered it necessary.

 

10. In January 2020 the representative contacted the resident’s councillor to complain about the landlord. He set out the history, reported that the mould was back and that “mushrooms” were growing out of the kitchen wall. He was specifically concerned that this was causing health problems for the resident. By way of resolution, he wanted a permanent solution to be found and he wanted compensation. The councillor agreed to contact the landlord on his behalf, which was then done. 

 

11. On 3 February 2020, the landlord replied to the councillor. It confirmed its investigations showed it had previously carried out internal and external repairs to resolve mould issues and that during an inspection on 13 December 2019 it had noted recurring mould issues in the kitchen but had been unable to organise a further inspection with a more senior operative to try to get to the root of it. However, a further inspection had now been arranged for 6 February 2020.

 

12. The resident was unhappy with this response and provided “visual evidence” to the councillor of the ongoing problem and by late March 2020 she had raised it again as a “members enquiry” with the landlord.

 

13. On 6 April 2020, the landlord responded to the councillor again. It confirmed that “one area of the kitchen wall, facing onto the communal walkway, is currently suffering as a result from water penetration. (Its staff member) has not been able, at this stage, to determine where the water ingress is originating from…” It was investigating two possible areas. The first was a water tank overflow at the top of the communal staircase (and which was complicated by the presence of asbestos) and the second, a downpipe situated just outside the property. It was noted that there was a join in that pipe buried in the concrete and a decision had been made to break it out to investigate whether this was the source of a leak. However, the work had been disrupted by the recent pandemic restrictions, but it would be dealt with as urgent once it was safe to do so. In the meantime, advice was given on treating the mould within the kitchen.

 

14. However, by the end of August 2020 the situation remained the same and the resident’s councillor once again became involved and suggested the representative make a formal complaint which she would endorse. On 2 September 2020 she then contacted the landlord again on the resident’s behalf.

 

15. Also, on 9 September 2020 the representative complained on the resident’s behalf. His complaint was recorded that the landlord’s contractor had attended her property unannounced (2 September) and left a note stating “water leak” and indicating they would return on 4 September. However, the resident’s working arrangements made this unsuitable but she was unable to get through to the contractor by telephone to rearrange this. This was in addition to the fact the resident had waited in for two appointments in August for contractors to carry out gas safety checks only for no one to turn up.

 

16. On 11 September 2020 the landlord replied to the councillor. It explained that in early March an inspection had taken place and a defective communal downpipe running immediately outside the property was considered to be the source of the problem. Works were “raised” but before they could be carried out, restrictions were put in place because of the pandemic. As a result, the repair should have been placed on hold but unfortunately it had been closed instead.

 

17. The landlord had, therefore, raised a fresh works order and its contractor attended on 2 September for an inspection but the resident was not there and a ‘no access’ card was left instead stating a return visit would be made on the 4th. After that, there were communication issues, but a further visit was now planned for 16 September and which would be external to the property anyway. The landlord confirmed that a drying out period would be required once the works were completed and before removal of mould and redecoration of the kitchen could take place.

 

18. In the meantime, the landlord acknowledged the representative’s complaint and stated its aim was to provide a full reply by 7 October. The landlord’s internal records show it tried to contact the resident by telephone on 11 and 14 September without success.

 

19. On 16 September 2020 the contractor reported to the landlord that it had attended the property that day and identified a leak from a rain water pipe. It had carried out repairs and reported what further needed to be done to resolve the repair. It supplied photographs to illustrate its report.

 

20. The landlord wrote to the resident on 7 October 2020 with its stage one complaint response.

 

1. It apologised for the fact that its contractor had turned up without an appointment and for the difficulties the resident had experienced in contacting them to rearrange a further planned visit.

 

2. It confirmed that the source of the leak had been identified and repair works undertaken with follow up works on 22 September.  It committed to monitoring the area for eight weeks to ensure it had dried out and to check the repair had been effective and if so, it would then arrange the necessary works to replaster and redecorate the resident’s kitchen and renew a damaged worktop in there.

 

3. With regard to the two missed gas appointments, it stated that its contractor would send vouchers of £20 (£10 per appointment) to compensate the resident for this.

 

4. In conclusion the landlord stated it would be in contact with the representative within the next five working days to ensure he was satisfied with the outcome to the complaint.

 

21. On 14 October 2021 the representative rejected the landlord’s proposed resolution and requested the complaint be escalated to stage two of its complaints procedure. He stated this was because no compensation had been offered to reflect what he referred to as “8 years of negligence and failure in properly addressing this issue during this period”.

 

22. On 13 November 2020 the resident contacted this Service as he had not received a response to his escalation request. As a result, this Service contacted the landlord to establish what stage the complaint had reached in its internal procedure. The landlord did not respond until 8 December, 2020, due to this contact being allocated to a ‘junk’ email box.

 

23. In the meantime, the landlord’s internal records show the kitchen worktop was renewed on 7 December 2020.

 

24. On 15 December 2020 the landlord emailed the representative and offered compensation of £100, made up of three missed appointments at £10 each, (£30) and £70 for the distress and inconvenience experienced by the resident.

 

25. On 5 January 2021 this Service contacted the landlord on the resident’s behalf confirming he was not satisfied with the level of compensation offered because of the damage to the property by way of damp and mould growth. The landlord was asked to provide a complaint response to the representative. 

 

26. On 6 January 2021 the landlord replied, indicating it would escalate the complaint to stage two of its complaints procedure.

 

27. On or around 21 January 2021, the landlord’s internal record states “It has taken (contractor) some five years by my reckoning to solve. The area of wall affected was in the kitchen approx. 3 ft x 4ft….It was damp to the touch with fungi growing out. This fault was eventually pinpointed to a tiny fracture outside this flat within the joint of gulley of communal walkway directly above this flat. (contractor) broke the concrete within the communal walkway on the floor above to resolve and found this tiny fracture buried deep within the concrete. All repairs had now been completed apart from HDS works to the kitchen that I had promised (now on hold due to covid-19 restrictions)”

 

28. On 3 February 2021 the landlord wrote to the representative with its stage two response.

 

1. It apologised for failing to escalate the complaint to stage two when requested in October 2020 which it stated was due to a technical error.

 

2. It accepted that diagnosing the source of the damp and mould in the resident’s kitchen had taken “a considerable length of time” and ultimately a leak had been found in a rainwater pipe outside the property, buried in the concrete it was set in. The pipe fracture had been hidden and difficult to identify.

 

3. It confirmed that the repair work had been completed in September 2020. Following this, the landlord had agreed to replaster and repaint the kitchen – the latter being done as a gesture of goodwill given the landlord’s repairs policy. It also agreed to replace the worktop. Unfortunately, restrictions due to the pandemic had delayed this work but it would be done as soon as possible.

 

4. The landlord offered revised compensation of £170 which it divided up as to £150 for distress and inconvenience and £20 to reflect the delay the resident had experienced in getting the complaint addressed.  The landlord noted that £20 compensation had already been paid for two missed appointments for a gas check and it was treating this as a separate matter to the damp and mould issues.

 

29. This was not accepted by the representative and since then the landlord has made a further revised offer of compensation of £500 which has also been refused. No breakdown was provided as to how this figure was arrived at. The resident/representative remain dissatisfied with the landlord’s response and have referred the matter back to this Service.

 

Agreements, policies and procedures

 

30. The landlord’s Response Repairs Policy confirms its aim is to deliver repairs which are “right first time” where possible, thus avoiding repeat visits. Further, the landlord commits to monitoring its contractors and trying to avoid the same repairs being reported again inside the following six months. The policy acknowledges that sometimes the repair that is needed might not be clearly identifiable and that inspections/surveys may be required. Aside from this, the landlord’s aim is to complete emergency repairs in 24 hours and routine repairs in 20 working days.

 

31. The policy gives examples of the difference between “emergency” and “routine” with an example of the former being “a water leak that cannot be contained”; and an example of the latter being, “minor leaks and blocked drains and pipes”. 

 

32. The policy confirms that internal decoration is the responsibility of the resident and that the landlord is liable for the maintenance of communal areas.

 

33. The landlord’s Complaints Policy and Procedure sets out its approach to handling complaints. It operates a two stage procedure:-

 

Stage One : the landlord will telephone the resident within 48 hours to discuss their complaint. If it cannot be resolved immediately and informally, it will conduct an investigation and aims to provide a response within 20 working days.

 

Stage Two : If the resident remains dissatisfied they can request a review take place. The landlord commits to acknowledging the request within 48 hours and providing a response in 20 working days.

 

34. The landlord’s Redress and Compensation Policy allows it to offer financial compensation where recognition is needed that its service delivery had not been to the expected standard and the resident had suffered a loss, damage or injustice as a result. The policy confirms that compensation can be considered for the resident’s distress and inconvenience and also for their time and trouble in pursuing a resolution.

 

35. In terms of the amount of compensation involved, the landlord refers to the guidance given by this Service. Its interpretation of that guidance is that payments for time and trouble should normally be in a range of £25 – £250; payment for distress, inconvenience, frustration, anxiety and so on, would typically fit into a broad range spanning from £200 to £1,000 dependant upon the length of time the failing had gone on for and the severity of the impact on the resident.

 

Assessment and findings

The resident’s reports of damp and mould in the property

 

36. The landlord does not dispute that it is responsible for dealing with this repair. The representative states the matter has been ongoing for eight years, the landlord’s internal records show an admission of at least five years. The landlord’s repairs history spreadsheet shows intermittent/sporadic reports of water ingress and mould going back to 2013, although this Service cannot give an expert view as to whether all of the reports relate to the same repair issue – and an expert view would be required to establish that fact. Notwithstanding that, there is agreement that the issue has been outstanding for a considerable period – at least five years.

 

37. The fact a property needs maintenance and/or repair does not, in itself, mean the landlord has failed in the service it offers. Things go wrong in properties irrespective of whether the occupant is a tenant or an owner/occupier. Further, whilst it is always hoped that the cause of a problem can be found quickly and repaired easily and economically, that is not always possible and again, does not necessarily point to a service failing.

 

38. However, there is a difference between taking a few attempts to diagnose a tricky issue, and taking years to property identify and fix it. The representative will state this situation falls in the latter and it is reasonable to conclude from the landlord’s internal record of 21 January 2021 that it takes the same view. Indeed, the resident has had to live with the consequences of the problem for a prolonged period of time and the landlord has offered compensation in redress for this. The landlord has essentially accepted that the service it offered fell below the standard the resident was reasonably entitled to expect.

 

39. What remains in contention is whether the amount offered by the landlord by way of compensation, is reasonable under the circumstances of this case.  The resident has had to live with damp and mould recurrence in her home for at least five years. She has had to accommodate tradespersons to deal with it. She has suffered the disappointment each time the problem has reappeared. Her representative has been put to time and trouble on her behalf in pursuing a resolution with the landlord, including contacting, and enlisting the assistance of, her councillor and this Service. As set out above, any resulting health issues cannot be taken into account by this Service.

 

40. In mitigation for the landlord is the fact that the fault was awkward to identify and the restrictions imposed by the pandemic will have slowed the repair down, albeit it was wrongly categorised as “closed” rather than put on hold, which did not help.

 

41. The landlord’s original offer of compensation of £150 was inadequate, and it has recognised this and raised it significantly to £500 (although this would appear to include the compensation it offered for its complaint handling – see below).

 

42. The landlord has referred to this Service’s remedies guidance in its compensation policy. That guidance suggests an award of £250 – £700 is appropriate where there is a considerable service failure which has had a significant impact on the resident but should have no long-term consequences. The length of time this matter went on for confirms an award at the top end of that bracket and £700 is considered to be a fair and reasonable award under the circumstances.

 

43. For the sake of completeness, it is noted that the landlord has agreed, as a gesture of goodwill, to carry out internal redecorations (to the kitchen) which it considers it is not responsible for. It wishes this to be taken into account when considering the fairness of the resolution it has proposed. The representative takes the view that where internal decoration is caused by a fault which is the landlord’s responsibility to repair, then the landlord should shoulder this cost in any event. Essentially the representative draws a distinction between the situation where redecoration is optional for cosmetic purposes and where it is necessary to make good after a fault. In this case it was the latter and it is this Service’s view that the resident was reasonably entitled to have the landlord make good the damage occasioned by its failure to identify and resolve the issue much sooner than it did. 

 

The resident’s complaint

 

44. The landlord dealt with the first stage of the resident’s complaint in accordance with its complaints policy, but delays arose when he was dissatisfied with the outcome and requested an escalation to stage two. The escalation was requested on 14 October 2020 and according to the policy a response should have been provided in 20 working days, that is on or before 9 November. However, a stage two response was not given until 3 February 2021 (a three-month delay) and only after the intervention of this Service.

 

45. This was inappropriate and represented a service failing on the landlord’s behalf. It originally offered £20 in compensation. When it increased its overall compensation offer it did not set out any apportionment.

 

46. The offer is considered inadequate because of the time and trouble the representative was put to in chasing the landlord and enlisting assistance to provoke a response. Compensation of £100 would be fair and reasonable compensation in this case.

 

 

Determination (decision)

 

47. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of the resident’s reports of damp and mould in the property.

 

48. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of the resident’s complaint.  

 

Reasons

 

49. The landlord’s contractor took at least five years to diagnose and solve a repair issue at the resident’s property which caused recurring incidents of damp and mould. The issue was difficult to pinpoint but the landlord might reasonably have been expected to get to the root cause without such a lengthy delay. The landlord has accepted its service was not ideal. The landlord’s initial offer of compensation was inadequate, and its revised offer still did not sufficiently reflect the impact on the resident. Similarly, its compensatory offer in respect of its delayed complaints handling did not reflect the time and trouble the resident/representative was put to drive an overall response from the landlord.

 

Orders and recommendations

Orders

 

50. The Ombudsman orders the landlord to award compensation to the resident of £800 (£700 + £100).
51. The landlord should contact this Service within four weeks to confirm that it has complied with the above order.

 

 

Recommendation

 

52. The landlord to make good the decoration to the resident’s kitchen, if it has not already done so.

 

53. The Ombudsman accepts that, because of the present restrictions due to the coronavirus pandemic, the timing of the above actions will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.