Watford Community Housing Trust (202301550)

REPORT

COMPLAINT 202301550

Watford Community Housing

24 January 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. Works to insulate the porch area.

Background

2. The resident is a shared owner of a semi-detached, 3-bedroom house owned by the housing association landlord. The lease began on 20 June 2018. the development comprises 6 pairs of newly built semi-detached houses. The landlord is the developer and the owner of the estate.
3. The resident wrote to the landlord in December 2018 regarding drafty windows and condensation/mould build-up. The landlord sent its operatives to inspect in January 2019. Shortly after the inspection, the resident wrote to the landlord and said operatives had told her that the lace curtains she hung by the windows had contributed to mould forming in her home. She said she had told operatives that she disagreed with this explanation. Later, she had overheard operatives repeating words to the effect of blaming the resident’s lifestyle as the primary contributor of mould and drawing a comparison to the other 11 houses in the development, which supposedly did not have this issue.
4. There is a gap in the evidence, and it is unclear whether the resident pursued her complaint or if either party took any action to resolve the damp and mould in the property.
5. On 28 July 2022, the landlord wrote to all residents and said several properties had experienced similar defects, which were:
   1. Water ingress from the roof – as a precaution, the landlord would complete remedial works on all properties.
   2. Missing insulation in the porch area – remedial works would be done from the outside to minimise disruption to residents.
6. The resident responded to the landlord, explaining that she worked as a teacher and could only be home during school holidays. She asked that the landlord plan to work on her house when she was home. The landlord responded on 8 August 2022 and reiterated that remedial works would be done from the outside; therefore, the resident was not required to be present. However, in September 2022, the landlord wrote to the resident regarding the porch insulation work. It said that, in some cases, it would need to work from the inside. It said: “If no insulation were found, remedial works would likely be done from the inside. If insulation were found, this could be topped up from the outside”.
7. The remedial works to insulate the porch in the resident’s home took place in November 2022. The resident had to work and left her keys with the landlord. When she returned home, she realised the jobs had been done from the inside by building additional walls internally, making her hallway smaller. She wrote to the landlord and said the new walls were blocking the light, and the smaller space had aggravated her claustrophobia. She asked the landlord to restore the previous hallway and carry out the work from the outside.
8. Discussions were ongoing between the resident and the landlord, and on 15 February 2023, the resident formally complained to the landlord. She said:
   1. She had reported several defects in her property during the defect liability period that were still outstanding.
   2. The landlord visited the property in December 2022 and said it was concerned about the level of mould in the property. It later said it would send operatives to wash the mould from the resident’s home, but this did not happen.
   3. She did not receive any communications about insulating the porch by creating additional walls internally. She wanted the landlord to insulate her porch externally, just as it had done in the first 2 properties adjacent to the resident’s home. She said she could not live with the compromised space: she felt claustrophobic every time she walked into her home, and she would not have bought the place had she known this was the layout. She ‘pleaded’ with the landlord to restore the previous layout.
   4. The resident said the landlord had a duty of care to ensure the family enjoyed the property peacefully. She said her son, who has autism, was struggling to cope with the change and was substantially disadvantaged. The landlord should make reasonable adjustments and do the remedial work from the outside. She was “fed up” with the landlord’s “total disregard” for the well-being of the people living on the property.
9. The landlord responded on 15 February 2023 and said:
   1. Regarding the damp and mould, previous inspections had found no apparent reason for their occurrence. According to its policy, the next step was to issue the resident a mould cleaning kit as an interim measure whilst further surveys were carried out to determine whether there was a physical or structural reason for the problem. To progress the matter, it would conduct a detailed survey to determine the cause and best course of action.
   2. Regarding the insulation fitted, it would ask the surveyor to review the works and determine whether it could have done the job less intrusively without “the loss of amenity and upset” to the resident and her children.
10. The landlord inspected the property on 1 March 2023, and it wrote to the resident again on 16 March 2023 and said:
    1. More intrusive inspections needed to be carried out to determine the cause of the damp and mould. These included opening composite cladding to ensure that insulation had been installed correctly and checking the extractor fan and flue.
    2. Regarding the porch insulation, it said it had been done this way because it was the only practical solution to provide adequate thermal insulation. However, it would be willing to remove the additional insulation and reinstate the hallway, provided that the resident would sign a waiver to the effect that she would raise no future defect or claims about this issue.
11. The resident responded on 19 March 2023 and said:
    1. She would not sign a waiver. This was not the design or structure sold to her. She would not accept a reduction in thermal efficiency as this should have been checked during the construction.
    2. She said she had lived in the property for 5 years. She experienced no quiet enjoyment of her home. The landlord had made matters worse by erecting the new walls without telling her, making the hallway smaller and darker, with a loss of natural light.
    3. There was nowhere to hang coats when they returned home.
    4. She said her autistic son was affected by the changes, and according to the Equality Act, she asked that the landlord make reasonable adjustments for the child’s needs and put the wrong things right. She asked to escalate her complaint to stage 2.
12. The landlord sent its final response letter on 12 April 2023 and said:
    1. the additional survey carried out on 1 March 2023 recommended several jobs which it had completed, including the inspection of composite cladding, extractor fan, flue and cavities. However, further time was needed to complete the ventilation installation in the storage cupboard, as this would require the involvement of the structural warranty provider.
    2. Regarding porch insulation, it proposed 2 options: it could complete the work it had already started and install the insulation inside or reinstate the original hallway on the condition that the resident accepted the impact of her decision on the thermal insulation of the property.
13. The landlord wrote to the resident again on 16 August 2023. it said that following a review of its inspection reports, it was not satisfied that the top floor and the storage room were ventilated sufficiently, which could lead to a build-up of condensation and promote mould. To rectify this, the internal ceiling, plasterboard, and insulation in some parts of the property would be removed to install spacers, which would aid ventilation. The landlord made a revised offer to the resident:
    1. Regarding the porch insulation, it said it would remove the insulation it installed internally and would install insulation externally. The landlord said this was not a solution it endorsed, and the resident must agree that the landlord or any of its contractors “shall not be liable for any shortfall in meeting the thermal efficiency requirements of building regulations”.
    2. Looking back at reported defects and repairs at the resident’s property, it noticed a leak in the bathroom, and an issue with the flushing cistern had been reported. Whilst any repair outside the defect liability period usually falls on the homeowner’s responsibility, it was happy to repair these.
    3. Finally, as a gesture of goodwill, it offered the resident £2,500 in compensation.
14. The resident contacted this service on 14 June 2023 and said she had ongoing issues with mould in the property, which the landlord ignored ever since she moved into the property in 2018. To resolve the complaint, the resident would like the landlord to “own up to its mistakes and put the wrong things right”. 

Assessment and findings

Scope of investigation

15. The resident’s assertion that the landlord has discriminated against her child by not making reasonable adjustments has been noted. Unlike a court, this service cannot determine whether discrimination occurs. This is a legal term better suited for a court to decide.
16. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues and reach an informed conclusion on the events which occurred. As issues become historic, it becomes increasingly difficult to unpick the events that took place and how matters were handled. Evidence becomes difficult to obtain and authenticate, and accounts become less reliable. The resident reported damp and mould in December 2018. There is a gap in the evidence until July 2022. this service cannot say what happened in between. Therefore, this investigation considered events from July 2022.

The landlord’s handling of the resident’s reports of damp and mould

17. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles, which include treating people fairly, following fair processes, putting things right, and learning from outcomes. The Ombudsman must first consider whether a failure on the landlord’s part occurred and, if so, whether this adversely affected or caused detriment to the resident. If a failure by the landlord adversely affected the resident, the investigation will then consider whether the landlord took enough action to ‘put things right’ and learn from the outcome.
18. In this case, the resident is a shared owner of a house. Upon final staircasing to 100%, the resident would become the freeholder. As such, the resident was responsible for all repairs. The landlord’s repairing obligation would come into place if there were structural defects, which it was responsible for under its role as the developer. The property has a structural warranty for its first 10 years until 2028. The landlord would be accountable for addressing damp and mould at the resident’s property to the extent that a structural defect caused it.
19. The landlord inspected the resident’s property on 15 December 2022 for an unrelated matter. During the inspection, the landlord said to the resident that it was concerned about the level of mould in the property and that it would arrange for an intrusive survey. As an interim measure, it sent the resident a mould removal kit. The landlord acted appropriately here.
20. The Ombudsman’s spotlight report on damp and mould says that landlords should ensure that their responses to reports of damp and mould are timely and reflect the urgency of the issue. Landlords should communicate their diagnosis clearly with residents and provide a clear action plan and timetable for the work. The landlord did not inspect the property until 1 March 2023, following the resident’s formal stage 1 complaint on 1 February 2023. It is unclear why it has taken 3 months to organise an inspection. It is clear that the landlord did not reflect the urgency of the issue and, therefore, did not act appropriately.
21. During the intrusive inspection of the resident’s property, the landlord cut the plasterboard in the resident’s home and discovered water ingress and mould forming behind it. The inspection report indicated that the issue was likely caused by how the bathroom window was originally installed and sealed. It recommended to change the fixed pane window to an opening sash window to improve ventilation. However, the landlord did not share this part of the report with the resident. Instead, the landlord said it remembered that the resident had requested the window to be changed to an opening sash. In order to resolve the resident’s complaint, it said it would install an opening sash window as a gesture of goodwill, but only if the resident paid for it. The landlord did not treat the residents fairly here.
22. Evidently, the landlord discovered defects in construction that had caused damp and mould at the resident’s home. It was in the landlord’s best interest to install an opening sash window to improve ventilation. The landlord did not accept responsibility for the defects. It addressed the need to replace the window as a gesture of goodwill to the resident, which she had to pay for. This was not appropriate.
23. The landlord later wrote to the contractor and said the window had failed tests carried out by the landlord. It acknowledged this should not have been the case after 5 years, particularly not from a fixed pane window. The landlord said to the builder that this indicated issues with the installation and that the window needed replacing. The landlord’s assertion was not conveyed to the resident; therefore, the landlord did not treat the resident fairly and it did not act appropriately.
24. The landlord sent its final response letter in April 2023. During the formal complaint process, the landlord did not accept failure on its part. This was also reflected in the limited learning identified in its complaint response, which was merely about recording defects during a defect liability period. The landlord, therefore, did not offer to compensate the resident during the formal complaint process.
25. Meanwhile, In May 2023, a resident’s neighbour decided to investigate the cause of condensation by installing loft hatches in sealed loft areas and cutting out a section of plaster. The landlord later summarised the findings as follows: “The method of construction [of the resident’s property] did not follow drawings or accepted good practice; behind the plasterboard, it found “soaking wet” insulation from condensation. The loft space in the rear of the property had a timber spandrel panel instead of a fireproof panel, [which contravened] Building Regulations.” The landlord said it had evidence that the resident’s property would be affected in the same way as the neighbour’s property, which would “increase condensation and encourage mould”. According to the evidence, the landlord did not inform the resident about its finding at this time. This was not appropriate.
26. This service understands that the landlord informed the warranty provider in September 2023 about the defect it had identified. It is unclear what was the warranty’s provider response.
27. Overall, the landlord failed to ensure its responses to the resident’s reports of damp and mould were timely and reflected the urgency of the issue. It failed to communicate its diagnosis clearly to the resident, and it did not provide a clear action plan and timetable for the work. During the internal complaint process, the landlord did not recognise failings on its part, and it did not offer to compensate the resident. Although the landlord carried out intrusive inspections, there is no evidence that it acted on its findings and carried out the remedial works required, nor that it kept the resident up to date. This was not appropriate.
28. According to the evidence, 3 months after the landlord’s final response letter in August 2023, the landlord wrote to the resident. Incidentally, this was on the same day it received a notice that the resident had instructed a solicitor to pursue a disrepair claim. The landlord wrote to the resident with a “complaint settlement”. It said it would carry out the remedial works on the resident’s property. Having offered no compensation in its formal complaint process, the landlord offered £2,500 in compensation. It also said it wanted to replace the resident’s bathroom window.
29. According to the evidence, no new information came to light between the landlord’s inspection of the neighbour’s property in May and its complaint settlement letter in August. If the landlord wanted to revise the final response letter it sent in April, it should have done so within a reasonable time. It is unclear why the landlord suddenly changed its mind and agreed to offer the resident £2,500, having previously offered no compensation. The landlord did not identify any learning from the case in its complaint settlement letter, which could have explained why it decided it should now pay the resident £2,500 in compensation. Therefore, the landlord’s complaint settlement letter cannot be considered as reasonable redress.
30. The service understands that the resident’s solicitor engaged an expert surveyor who inspected the resident’s property in September 2023. after the surveyor’s inspection had taken place, the resident informed this service that she had told the landlord to postpone the remedial works until the expert published the report. This was the resident’s prerogative. However, the landlord cannot be held liable from September 2023 if it does not have access to carry out remedial works. However, compensation for the resident is due from December 2022, when the issue of damp and mould was raised, until September 2023, when the landlord had no access to the property to carry out the remedial works.
31. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors, including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and omissions. It considers whether any redress is proportionate to the severity of the failure by the landlord and the impact on the resident.
32.  The damp in the resident’s home primarily affected the first floor, where she has the family’s bathroom, her bedroom, and her child’s bedroom. Evidently, the delay in identifying what had caused the mould and damp in the resident’s home caused distress and inconvenience to the resident and her child. Apart from having to sleep in a mouldy room, the resident explained that the repeated inspection of operatives caused distress to the entire family. However, she was particularly concerned for her child, who has autism and had been distressed by operatives coming in and out of the house, lifting floorboards and cutting holes in the walls.
33. In recognition of the distress and inconvenience experienced by the resident, an order has been made below for the landlord to compensate the resident in line with the Ombudsman’s remedies guidance.
34. Additionally, an order has been made below for the landlord to set out an action plan for the works with times to be adhered to. It must then write to the resident setting out its proposal for the works and try to reach an agreement for the work to take place.

The landlord’s handling of works to insulate the porch area 

35. The Defective Premises Act 1972 imposes a duty of care on landlords and their operatives involved with constructing or working on a house. Landlords could be in breach of their duty of care under the act if construction defects were not repaired, making the house unfit for human habitation.
36. On 28 July 2022, the landlord’s investigation of neighbouring properties identified a “significant failing by the contractor in meeting building regulations”. The porch area, which included the hallway and toilet, had missing insulation. This was also the case in the loft area of the porch. There was also a lack of fire stopping (Spandrel Panel) between adjoining properties. The landlord has taken action to address the failing, and it informed the resident in July 2022 and August 2022 that remedial works would be done from the outside of the house to minimise disruption to residents. The landlord acted appropriately here.
37. In September 2022, the landlord said that it might be necessary to carry out some of the work from the inside. Once the nature and extent of the work became apparent, the resident wrote to the landlord expressing her dissatisfaction. She said she was unfamiliar with the construction industry. For her, it was not clear that by “doing work from the inside”, the landlord meant it would build additional walls internally, making the layout different and the space smaller. The resident said: “We have had a lot of communications about this work, and you initially told me it would be done from outside and I don’t need to be in. I later discovered it’s being done indoors, but no one on the ground had spoken to me about the work”. The landlord failed to communicate its action plan with the resident. This was not appropriate.
38. Evidently, the landlord initially considered carrying out the work from the outside as this was the least disruptive for residents. The landlord completed work on the first 2 houses by removing cladding and inserting insulation from the outside. Although it resulted in the correct thermal efficiency, it was a complex process due to obstructions such as sealing around a gas meter and services. Therefore, a decision was made to install insulation behind new plasterboard walls internally. There is no evidence that the landlord communicated its decision to the resident clearly and transparently before starting the work in her home. This was not appropriate.
39. The landlord said in January 2023 that it had no choice but to install the porch insulation internally as it met building regulations and the original design. However, the original design incorporated built-in insulation and a larger hallway. Evidently, the landlord took the decision to insulate the porch because the original design had not been followed, and the house at the point of sale was not compliant with building regulations at that time.
40. As the resident was dissatisfied with the remedial works, the landlord offered to remove the additional walls and restore the house as it was at the point of sale. This was conditional on the resident accepting responsibility for any defects arising from the lack of insulation. However, insulation is part of the structure of the house and the resident, under the terms of the lease, was not allowed to “make any structural alterations or structural additions to the premises”. The original construction had a structural defect that made the house non-compliant with building regulations, and the landlord could not contract out of its obligations; therefore, this offer was not appropriate.
41. Moreover, in September 2023, the landlord informed the structural warranty provider for its ‘information purposes’ and said: “We found no insulation [in the porch area]. Not only is all this in breach of building regulations, but it also placed our residents at significant risk with the lack of a spandrel panel had there been a fire incident”. There is no evidence that the landlord informed the resident of the increased risk in the event of a fire. This was not appropriate.
42. The landlord’s offer to remove the additional walls and restore the house as it was at the point of sale was a serious failing by the landlord that did not take the resident’s safety into consideration. This service understands that the landlord did not claim from the warranty provider in relation to the porch insulation works, and instead, it reached an agreement with the builder to carry out the remedial works. The resident rejected the landlord’s offer to revert the hallway to its original design, conditional on the resident’s agreement to accept responsibility for the defect.
43. The landlord revised its offer on 17 August 2023. It said it would revert the hallway to its original design and insulate the porch externally. However, the resident must accept that the landlord and any contractor undertaking these works “shall not be liable for any shortfall in meeting building regulations”. The resident declined this revised offer. She explained that she purchased the property according to the plans provided by the landlord. These should have been compliant with building regulations. It was unreasonable to ask the resident to indemnify the landlord against defects in construction or poor workmanship. This was not appropriate.
44. On 9 June 2023, the landlord received an email from its contractor, which said it could complete the porch insulation from the outside within 4 weeks of the landlord’s instruction. However, the contractor said the landlord would have to pay for the remedial works if done from the outside. According to the evidence, to carry out the job from the outside to meet building regulations meant “rebuilding the entire front porch to both the resident and her next-door neighbour as this was one unit”.
45. The landlord raised concerns internally that if he did the work from the outside for the resident and her next-door neighbour, it might have to consider carrying out the work externally for all remaining houses, which it said would be “expensive and extensive”. This might well be the case. However, the landlord, as the developer, bears the ultimate responsibility for the construction of the property. In any event, it would not be fair nor reasonable that the resident suffers the consequences of the failure to adhere to building regulation at the time of construction.
46. Overall, there were failings by the landlord, which adversely affected the resident and hindered the resident’s enjoyment of her home. During the formal complaint process, the landlord accepted little failure on its part. This was also reflected in the limited learning it identified, which was merely about recording defects identified during a defect liability period. This was despite the fact that most of the resident’s complaints were about defects that came to light after the defect liability period had ended. Therefore, the landlord did not offer to compensate the resident as part of its internal complaint process. In line with the Dispute Resolution Principles, the landlord was obliged to put it right for the resident and to learn from the outcome.
47. Throughout the complaint process, the resident explained how all occupants of the house were distressed and inconvenienced by the landlord’s handling of the remedial works to insulate the porch area:
    1. The remedial works caused distress to her son, who has autism. The changing environment, contractors coming into the house and changes in layout have “substantial disadvantages” for her son due to his disability.
    2. The current layout made the house darker; there was less light coming through to the corridor, which increased the resident’s anxiety and aggravated her claustrophobia. She said she felt claustrophobic every time she walked into the house.
    3. There had been no discussion with the resident before the work occurred. The resident said she felt that the landlord had treated her unfairly and differently, as the first 2 houses had their insulation done from the outside.
    4. Due to the landlord’s intrusive surveys, she had lived with open floors and cut walls for almost six months. Her wooden flooring was damaged.
    5. The resident also explained to the landlord that she worked as a teacher and could not take time off to accommodate repeated inspections. On occasions, the residents rushed home after work to meet the landlord at the property, but the landlord would not show up, which caused frustration and compounded her distress. It made the resident feel the landlord did not treat her respectfully or take her concerns seriously.
48. To put it right, an order has been made below for the landlord to compensate the resident for the distress and inconvenience caused by the landlord’s handling of the work to insulate the porch.
49. A further order has been made below for the landlord to carry out the remedial works on the porch from the outside, by whatever means necessary, to ensure It has the thermal efficiency and safety rating required to meet building regulations. On completion of the works, the landlord must validate by an independent surveyor that the remedial works satisfy building regulations.
50. Finally, there is no indication that the landlord has ‘learned from outcomes’ in this case or detailed any actions it would take to prevent similar issues from recurring. A further order has been made below for the landlord to review the case and identify learning and the actions it would take to prevent the reoccurrence of failings such as those identified in this case.

Determination

51. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with regard to the landlord’s handling of the resident’s reports of damp and mould.
52. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with regard to the landlord’s handling of works to insulate the porch area.

Orders

53. Within 4 weeks from the date of this report, the landlord must write to the resident with an action plan to:
    1. Complete works to insulate the porch area from the outside, which must include:
       1. Reverting the internal walls to their previous layout, including making good damage to flooring and decoration.
       2. Carrying out the works externally to a good standard of workmanship.
       3. Instruction of an independent surveyor to sign off on the quality of workmanship as well as adherence to building regulations.
    2. Complete works to solve the issue of damp and mould, which must include:
       1. Instruct a specialist damp surveyor to inspect the property and produce a report detailing the remedial works required.
       2. Within 4 weeks from the date of the surveyor’s report, the landlord must follow the report’s recommendations in full.
       3. Within 8 weeks from the date of the surveyor’s report, the landlord must confirm with its surveyor that the works were carried out in line with the surveyor’s recommendations and that the damp and mould issue has been resolved.
       4. The landlord must return to the property 60 days after it has completed the works to verify that it is free from damp and mould and that no further work is required.
       5. Given the likely intrusive nature of the works, the landlord should consider whether a temporary decant is needed.
54. In accordance with paragraph 54(f) of the housing ombudsman scheme, the landlord must consider whether the other 11 properties in the development require remedial works to address damp and mould. If so, this should be included in its action plan. If it is not felt necessary, the rationale for this must be explained in the landlord’s action plan. A copy of the plan must be sent to this service within 4 weeks from the date of this report.
55. Within 4 weeks from the date of this report, the landlord must pay the resident’s bank account a total amount of £3,420 in compensation broken down as follows:
    1. £1,000 for the distress and inconvenience caused by its handling of works to insulate the porch area.
    2. £800 for the distress and inconvenience caused by its handling of the resident reports of damp and mould.
    3. Compensation for the loss of room and loss of enjoyment of her home. The damp and mould affected 2 bedrooms and the family’s bathroom. This service calculates 30% of the rent paid for the period starting December 2022, when the landlord raised the concern about damp and mould, and concluding September 2023 when the resident notified the landlord of restricted access. This service has taken the average monthly amount paid by the resident during this period of 9 months, which was £600 and awarded £1,620.
56. Within 4 weeks of the date of this report, the landlord must review this case to identify learning and what action it may have taken / would take to ensure that errors such as those identified in the reports do not reoccur. The outcome of the review must be shared with this service, and it must include a process for defects identified during the defect liability period; latent defects identified outside the defect liability period.