Westminster City Council (202300742)

REPORT

COMPLAINT 202300742

Westminster City Council

28 June 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

The resident’s complaint is about:
1. The landlord’s response to the resident’s application for a transfer.
2. The landlord’s response to the resident’s reports of damp and mould.
3. The Ombudsman will consider the landlord’s complaint handling.
4. The Ombudsman will consider the landlord’s record keeping.

Jurisdiction

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.
Paragraph 42(j) of the Scheme states as follows:
The Ombudsman may not consider complaints which, in the Ombudsman’s opinion, fall properly within the jurisdiction of another Ombudsman, regulator, or complaint-handling body.
After carefully considering all the evidence, in accordance with paragraph 42(j) of the Scheme, it is considered that the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The landlord’s response to the resident’s application for a transfer.
The accompanying guidance to the Memorandum of Understanding between the Housing Ombudsman and the Local Government and Social Care Ombudsman (LGSCO) Memorandum of Understanding – Housing Ombudsman (housing-ombudsman.org.uk) sets out that the LGSCO investigates complaints regarding applications to the local authority housing register (such as increasing the applicant’s banding, or priority) under Part 6 of the Housing Act 1996.
In October 2022, the resident made an application to the landlord’s Housing Register to transfer to another property on medical grounds and was given priority. The grounds of her application were her mobility issues, as the building she lived in had stairs and a bath, rather than a shower. According to the landlord, the resident had not make an application for a management transfer. It stated that a management transfer may be considered on an exceptional basis for households who were at risk of harm from someone who did not live in the same home. Such a request was always considered as a last resort, after all other options to resolve the risks have been explored. During the course of the complaint, the resident requested that the landlord assist her in being housed sooner than the following year because of the stairs. Correspondence from the Housing Register signposted the resident to alternative means of rehousing. The investigation will consider whether the landlord should have considered offering the resident a management move.
In the circumstances, given that the resident had made a transfer application through the allocations system of the housing register and under the Housing Act 1996, the Ombudsman considers that the LGSCO would be better placed to consider any complaint about the timing of her rehousing.

Background

The resident occupied a two-bedroom, first-floor maisonette in a purpose-built block with her adult son or sons under a secure tenancy agreement. She moved into the property in 2014. The landlord had recorded as her vulnerabilities physical disability, long term illness and “mould and damp risk”. In 2016, the landlord had recorded mobility issues and long-term health problems. The resident made her complaint through her son who will be referred to in this report as “S”.
Health conditions cited in housing applications by the resident to the landlord included mental health condition, arthritis/osteoarthritis, pain condition, operations to feet, slipped disc, and mobility issues.

Legal and policy framework

The landlord did not provide the resident’s tenancy agreement to this Service, however statutory terms were implied into the tenancy agreement as follows:
1. Under Section 11 of the Landlord and Tenant Act 1985 (“the Act”), the landlord must keep the structure and exterior of the property in repair.
2. Under Section 9a of the Act, the landlord has an obligation that the property is fit for human habitation during the term of the tenancy in relation to freedom from damp and other hazards set out in the Housing Health and Safety Rating System introduced by the Housing Act 2004.
The landlord is expected to meet the home standard set by the Regulator of Social Housing including that it meets the current statutory minimum standard for housing and provides a reasonable degree of thermal comfort under the HHSRS which is concerned with avoiding or minimising potential hazards. Under Section 9a of the Housing Act 1985, this is enforceable by the resident through the county court as regards being fit for human habitation. The local authority cannot enforce the obligations against itself.
Under the Equality Act 2010, Section 6 defines a disability as a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to carry out normal daily activities. Under Section 20, the landlord had an obligation to take reasonable steps to avoid any disadvantages to a disabled person presented by a provision, criterion, or practice.

Chronology

The Energy Performance Certificate of May 2018 set out that the property was rated as a C. (above average) It was assumed there was no wall insulation, the windows were fully double glazed, and had a property above and below.
According to the resident, the resident first reported damp and mould to the landlord in November 2022. On 7 December 2022, the landlord raised a job for its surveyor to inspect the property and a surveyor attended on 15 December 2022.
A report dated 15 December 2022 notes that there were “8 issues” consisting of condensation to the balcony door, lounge, and bedroom windows, as well as water damage to the ceiling. It also noted “slight mould growth” on the lounge ceiling. There were no further notes, for example, what recommendations were made and no follow-up to the resident. According to the resident, she chased the landlord on 27 and 31 January 2023, 2, 8,13, and 20 February 2023.
According to the repair records, a job was raised to the ventilation team described as having been reported on 3 February 2023 and to service a fan.
On 20 February 2023, S made the following complaint on behalf of the resident:
1. The resident had first complained about mould in November 2022. She telephoned the landlord several times. The surveyor who inspected the property on 15 December 2022 stated the resident should contact him if no one attended in the following 2 weeks however, the surveyor did not pick up his calls. S set out dates of calls he and/or the resident had made to the landlord, as well as the names of the officers that he spoke to. The officer on 13 February 2023 was “very rude”. The resident had been told “very recently” that the case had been closed. There was a change of reference numbers.
2. Another property surveyor was to attend the following day.
3. He referred to the case reported in the media of a child who died in December 2022 due to damp and mould. This was a health and safety matter. The resident was disabled and had mobility issues. The mould in her bedroom was such that she had been sleeping upstairs in the living room for the last 3 months now.
4. She needed to be close to the toilet because of health issues.
5. She was due to have a knee operation on 6 March 2023. She would need to be able to sleep in her bedroom as her mobility would be adversely affected.
6. The mould was an “annual” occurrence.
On 20February 2023, the complaints team chased its “ventilation team”. It noted that the first repair was raised in December 2023. It set out a number of queries including when this was the issue first reported, the notes on the first job were unclear, why no-one followed up after the inspection, why the surveyor did not respond to calls/emails, and why no repairs have been done.
An undated report showed 4 issues identified that all the windows were “outdated” and “steaming up” “throughout” the property which was causing condensation.
According to internal emails of 1 March 2023, there were fully functional extractor fans in the kitchen and bathroom, and a “PIV” fan in the hallway. It would install heat recovery units in the bedrooms and living room. The job to install the heat recovery unit was raised, according to both the internal emails and the repair records.
On 2 March 2023, the local authority housing register confirmed that the resident was unlikely to be rehoused that year.
On 3 March 2023, the landlord wrote with its Stage 1 complaint response as follows: (The letter was drafted by the same surveyor who attended on 15 December 2022):
1. The complaint was about delays in eradicating mould in the resident’s property and poor communication.
2. The resident initially reported mould growth on 7 December 2022. An inspection was carried out on 15 December 2022 and identified condensation around the bedroom windows, living room windows and the balcony door; as well as “very slight” mould growth in the corner of the living room wall.
3. Its surveyor advised this was due to a lack of ventilation and high levels of humidity throughout the property and it was agreed a ventilation specialist should attend to see if there were any additional measures that could be installed to reduce the levels of condensation.
4. A survey request to the ventilation team was made the following day to schedule an inspection however this was not carried out until 21 February 2023. It apologised and appreciated the frustration this must have caused.
5. The surveyor apologised “if” he missed any calls in relation to the condensation issues. He would be available for to discuss her repair issues in future.
6. Following the ventilation survey, an order was raised for 3 Heat Recovery Units to be installed in the bedrooms and living room. Its contractors would contact her shortly to schedule the works.
7. It apologised for the “negative experience” and had fed back to its Contact Centre Managers to investigate and to listen to the call recordings in question.
8. It they identified unsatisfactory customer service or areas for further training, this would be picked up and implemented accordingly.
9. It partially upheld complaint as it attended to investigate following the resident’s report but there had been a delay in arranging the follow-on appointment.
10. It offered £40 for the delays in arranging an appointment “in addition to its apology for the service failure”.
On 5 March 2023, S wrote as follows:
1. The resident had reported the damp and mould in November not December 2022. December 2022 was when the appointment was made.
2. The surveyor had said fans should be installed in 2 weeks. An operative had only come to clean the mould the previous week. The landlord was due to paint and add silicone (to the windows).
3. The fan were due to be installed 22 March 2023.
4. The complaint response did not address her circumstances. She was having breathing difficulties in the bedroom yet needed to sleep there. The resident’s operation was due to take place on 10 March 2023.
5. They had a radiator replaced in her room and it seemed to be working now but her room still did not seem to get warmer.
6. The mould affected the property every year. “Permanent” changes needed to be made.
7. He understood they would be unlikely to move that year and asked for assistance.
The landlord’s internal complaint notes of 6 March 2023 set out as follows:
1. The complaint team noted the resident’s points and asked internally for clarification regarding the discrepancy between the accounts, the reason for the delay and asked to arrange painting over the stains and replace silicone in the windows “as soon as possible”.
2. It noted the reports of the resident’s health and the request for works to be carried out for her return from hospital. It queried if any steps could be taken about the temperature of the bedroom and the resident’s position on the housing register.
3. According to an internal email of 6 March 2023, a mould wash had been raised on 1 March 2023. The landlord spoke to the resident to arrange the works. The resident, or S, reported that the mould wash had been carried out on 21 February 2023 and that the remaining works were to decorate and lay silicone around the windows. The resident was unhappy only 1 square metre of the ceiling would be painted and felt that the entire living room needed painting. It was noted there was a contradiction between what S had reported and its records. The surveyor was asked to clarify. It was not clear from the records what the landlord had promised. The repair records simply noted that the resident and cancelled the mould wash without further explanation.
According to the internal emails of 21 March 2023 and the repair records, the additional fans were installed on 22 March 2023.
According to internal emails of 22 March 2023, decorative works were raised but were to take place after the additional ventilation units were installed. The landlord called the resident that day and reported that the resident wanted the bedroom to be painted grey. However, the paint was a specially mixed mould paint that was only offered in white or magnolia. It reported that the bedroom was already painted white. It attached a photo of the bedroom which appeared to be painted white. It offered to decorate the following week but the resident was unavailable due to appointments. It offered to start decorations on 28 March 2023. The resident refused redecoration due to the disagreements over paint colour and areas to be painted. In a subsequent call. It suggested allowing the current scoped decorations to commence and then resolve any disagreement as to the redecoration so as not to cause a further delay.
On 28 March 2023, the landlord wrote with its Stage 2 complaint response as follows:
1. It did not have a record of there having been a report of damp and mould in November 2022 and without supporting evidence, it accepted the information on its system. It would review any evidence.
2. The surveyor that carried out the inspection took pictures of the mould and, due to the nature of his findings, he had passed this on to its specialist mould and ventilation team and a mould wash was carried out within 3 working days.
3. The surveyor confirmed he did not state that the fans would be installed within 2 weeks but that the team would contact her within 2 weeks.
4. There was a service failure in the delay to raising the further inspection.
5. The fans were installed on 22 March 2023.
6. A mould wash was completed in December 2022 and again in March 2023 once the heaters were installed.
7. The landlord was to provide a total of £405 (£135 per room) in decoration vouchers.
8. It would contact her on 31 March 2023 to make the arrangements and also provided contact details if she wished to chase.
9. It explained her position on the housing register in detail.
10. It partially upheld the complaint for the following reasons:
  1. It was satisfied that the dates on its system were consistent with the investigation of the report of mould.
  2. Her ventilation needs had “been met”.
  3. The decoration vouchers would enable the decoration works in her home to be completed.
  4. However, the overall delay regarding the installation of the heaters in her home and the compensation offered at Stage 1 in acknowledgement of that service failure was inadequate and did not reflect the time that has passed since she initially raised the issue.
11. It considered its original offer at Stage 1 was inadequate. She should not have had to pursue this further and it was “disappointed” that it did not deliver a service of the standard it expected.
12. It offered £150 comprising of £100 for delays in installing the heaters and £50 for time and trouble in pursuing the complaint.
Internally, the landlord noted on 28 March 2023 and 3 April 2023 that the resident was “unwell” and her report that the vouchers may not cover someone to carry out the redecoration. However, it took into account that her sons were living in the property who could carry out the decorations and only “minor decorations” were required in the property.
On 26 April 2024, the landlord contacted the resident. The resident informed the landlord that the damp and mould issues were not resolved and stated (she was “cleaning mould and condensation off windows daily”. She was awaiting a mould inspection that afternoon. The surveyor has confirmed “this was not booked with repairs”. On 29 April 2023, S informed the landlord that the contractor due to carry out an inspection did not take place.
According to internal emails of 26 and 29 April 2024, a mould inspection or wash was booked for that day but no access was provided. The landlord had difficulty initially locating the appointment. The landlord tried to call the resident on 1 and 8 May 2024. It provided to this Service photographs of calling cards attached to the resident’s door on 8 May 2024, an appointment letter for 15 May 2024 and of it being delivered.

Assessment and findings

Scope of investigation

The resident reported how the events complained of affected her and her children’s physical and mental health. The Ombudsman cannot conclusively assess the extent to which a landlord’s service failure or maladministration has contributed to or exacerbated a complainant’s physical and/or mental health. We cannot assess medical evidence and do not make findings on matters such as negligence which are better suited for a court of law. However, the Ombudsman does carefully consider what a resident tells us about how they have been affected by the issues in their complaint, including the overall impact on them, and may set out a remedy that recognises the overall distress and inconvenience caused to a complainant by a particular service failure by a landlord.
During the course of the complaint, S stated that the damp and mould had been ongoing for several years. The complaint however was about the events from November 2022. It is noted a mould wash was carried out in January 2020 but the Ombudsman did not identify any other reports of damp and mould in the repair records The Ombudsman does not consider it reasonable and proportionate investigate historical events. However, the Ombudsman will bear in mind the historical context of the resident’s complaint.

Damp and mould

There was a dispute as to the date the resident reported the damp and mould to the landlord. The landlord relied on when a repair was raised. It did not seek to investigate further by, for example, listening to the calls, but reached a firm conclusion that no reports had been made. There was evidence that though the resident chased, no action was taken. The Ombudsman does not conclude that, as no job was raised, no report was made and therefore gives the resident benefit of the doubt. While the resulting delay was short-lived, this would have been frustrating for the resident.
While there was an intention to arrange an inspection by the landlord’s “ventilation“ team, it was not clear from the repair records what job was raised and when, except a reference to servicing a fan. While the surveyor had given a timescale of 2 weeks, it was not reasonable not to feedback to the resident what the next steps would be. This led to a dispute as to what the resident was expecting. Any benefit from the surveyor providing his phone number was negated by his not responding to any of the resident’s calls. While the question was raised by the complaints team, no explanation was provided. This led to the resident having to chase the landlord several times.
There was a significant dispute about the extent of the mould. The resident reported that there was mould in the bedroom and she was therefore unable to sleep there, despite significant inconvenience to the resident. The surveyor reported only slight mould growth in the lounge, although the decoration and mould treatment included the bedroom and there was significant humidity. The surveyor did not take photos of the property, apart from the windows, which given the resident’s report, was poor practice. The Ombudsman is unable to make definitive findings about the extent of the mould, however concludes that there was a not insignificant issue with damp and presence of mould in the property.
It was reasonable that the landlord raised a specialist inspection to address condensation and ventilation which identified the underlying cause, namely the condition of the windows. The landlord responded by installing heating units which would extract moisture from the air as well as reduce energy costs. It was also reasonable that the landlord arranged for the ventilation units to be installed in time for the resident to be discharged from hospital.
It was not clear who replaced the radiator in the resident’s bedroom. There was no evidence that the landlord addressed the resident’s further reports that the temperature in her bedroom was not satisfactory. While it is hoped that has been resolved, the Ombudsman will make an order accordingly.
There was no evidence either way whether the bedroom window was sealed and the Ombudsman will make an order accordingly. The landlord did not explain whether it had any major works planned to address the windows.
It was reasonable and appropriate that the landlord contacted the resident to check on the up-to-date position. Given that the resident reported in April 2024 that the damp and mould was ongoing, it was also reasonable and appropriate that the landlord arranged an inspection. While access was not provided for reasons that are not known, and progress may have been made since mid-May 2024, the Ombudsman will make an order.
There was a disagreement about the extent of the decoration works. The landlord indicated that it did not feel it necessary to undertake as much decorating as the resident wanted. It reasonably tried to resolve the decoration issues. Its explanation for applying white paint was reasonable, as was taking into account that the other occupants (S) had not reported any health issues and so may be likely to assist in the redecoration. In all of the circumstances, the landlord’s proposal to offer £405 in decorating vouchers was reasonable.
While there was a disagreement about the date the resident reported the damp and mould, the landlord accepted there had been a delay to raising an inspection. There was an effective overall delay of over 2 months. The works progressed at a reasonable pace from then on. It was not made clear whether the final offer of £150 included the £40 offered in the Stage 1 response. There was insufficient clarity whether the landlord considered the reasons for the resident sleeping in the living room. This caused her not insignificant discomfort, in particular given the resident’s health needs. It meant her using the stairs and being away from the toilet. It also gave her concern about whether she would be able to use her bedroom after being discharged from hospital. While it was positive that the landlord recognised the delays, it did not sufficiently consider the impact on the resident, given her circumstances. The landlord was aware of those health needs, given her applications for housing and her reports. One of the vulnerability markers on her records was risk from damp and mould. In the circumstances, the Ombudsman does not consider that £150 or £190 was sufficient redress, even given the short-lived impact, finds maladministration and will make an order accordingly.
There was no clear evidence as to when the bedroom window was siliconed and whether the room temperature was checked. This will be addressed in the complaint handling and record-keeping below.
The landlord has reviewed its performance in assessing damp and mould so the Ombudsman will not make any specific orders and recommendations but would expect the landlord to consider this case as part of its review.

The landlord’s complaint handling

The Ombudsman has considered whether the landlord, as a resolution, should have invited the resident to make an application for a management move. The Ombudsman would not expect a tenant to be able to distinguish, or know about, the various routes to rehousing, without this information being given to her. The landlord could have referred to this route to rehousing, however given this would only have raised the resident’s expectations and was unlikely to succeed, the Ombudsman does not find this a complaint-handling failure. The Ombudsman bears in mind that a management move is exceptional, and the landlord sought to resolve the issues of damp and mould, so that it was proportionate to address the issues by a repair rather than a move. The landlord reasonably enquired of its housing register team and explained the position in detail in its Stage 2 response. The landlord could have signposted the resident to independent advice and its housing officer and the Ombudsman will make a recommendation accordingly.
It was also unreasonable that the landlord did not feedback on its promise to listen to the call where the resident said the call handler was “rude”, despite S providing a name and date of the call. There was also an unexplained change of reference number and the resident being told the job was closed. This was an instance where the records were not clear even to its own staff and led to further frustration for the resident.
It was positive that the complaints team sought to investigate the reasons for the delay of the inspection by the ventilation team and the surveyor’s lack of contact, however there was no conclusion to all the queries. It reasonably asked to arrange remedial works and to apply silicone to the relevant window. While it was positive that the complaints team raised issues internally such as the temperature of the resident’s bedroom, this was not followed up.
The Stage 1 response did not address the lack of contact after the inspection of 15 December 2022, it was signed by the same surveyor who had attended on 15 December 2022 and in the circumstances, it was poor practice that the very staff member the resident complained about responded to the complaint. However, the surveyor apologised for the lack of contact and gave reassurances that he would respond in the future.
It was unreasonable not to have addressed the temperature of the resident’s bedroom or her health issues in the complaint response, although the works were done in time or.
While there were benefits to the landlord’s complaint handling, there were a number of deficiencies which in the opinion of the Ombudsman, amounted to maladministration.

The landlord’s record-keeping

This investigation was hampered by the quality of the landlord’s record keeping and provision of documents. This investigation has highlighted a number of instances where records were either unclear or missing. The repair records showed that the resident simply “refused” the mould wash. This was open to misinterpretation and was not sufficiently explanatory. It did not reflect the reason for the “refusal” which was that a mould wash had taken place, which was in itself missing from the records. For example, the surveyor’s notes were inadequate, the dates of the mould wash were confusing, the landlord had difficulty in locating jobs which were also missing from the landlord’s repair log provided to this Service, and the provision of evidence for this investigation was patchy. Yet the landlord was assiduous in evidencing to this Service that it had attended the resident’s home in May 2024 but at no other time. A landlord should keep track of its attendances and leave missed appointment cards but the Ombudsman would expect the landlord to provide all the relevant evidence for our investigations. The record-keeping would have impacted on the landlord’s own ability to monitor and track its own actions. The Ombudsman therefore finds service failure in relation to the landlord’s record keeping.
It is noted that the landlord carried out a “Knowledge and Information“ (KIM) self-assessment on 25 March 2024. This included staff training about the requirements of the Equality Act 2010. This events in this complaint took place prior to that review. It set out that the training including the relevance of the Equality Act, “particularly the importance of ensuring all services are accessible and do not disadvantage those with protected characteristics. The training also focuses on how reasonable adjustments can be identified and recorded using (its case management system) to provide better services to residents, considering their needs”.
In the circumstances, the Ombudsman will not make further similar orders in that regard.

Determination (decision)

In the opinion of the Ombudsman, in accordance with Paragraph 42 (j), the following aspect of the complaint is outside the Ombudsman’s jurisdiction.
1. The landlord’s response to the resident’s application for a transfer.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s response to the resident’s reports of damp and mould.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s complaint handling.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s record keeping.

Reasons

While the landlord installed heat recovery units in order to address damp and mould in the resident’s property in time for her discharge from hospital, there was an unreasonable delay to carrying out a specialist inspection, though it acted reasonably thereafter. The landlord did not take into account the resident’s vulnerabilities in its response.
While there were benefits to the landlord’s complaint handling, including looking to address the issues in the resident’s home, it did not follow through on the bedroom window and temperature or address the resident’s health issues which gave the impression it did not take them into account.
There were gaps and lack of clarity in the landlord’s record-keeping which appeared to contribute if not cause the delays to the inspection by the landlord’s specialist team.

Orders

The Ombudsman makes the following orders:
1. Within 4 weeks, the landlord should pay the resident the sum of £700 in addition to the £190 already offered and consisting as follows:
  1. An additional £400 in relation to her reports of damp and mould.
  2. £200 in relation to its complaint handling.
  3. £100 in relation to its record keeping.
2. Within 3 weeks of this report, the landlord should apply silicone to the bedroom window (and any other windows if required), if the landlord has not done so already.
3. Within 3 weeks, if it has not done already, it should carry out a RICS surveyor inspection of the property including:
  1. assessing what further works are required to address the damp and mould in the property.
  2. assessing the temperature on the bedroom if not already done so and carry out any works required to address this.
  3. considering whether there is a major works programme the property could be added to, in order to improve the windows in the property.
4. Within 5 weeks, the landlord should send a report together with the surveyor’s recommendations, a schedule of any works and timescales for works to take place within a reasonable period (depending on the complexity of those works) but no later than 10 weeks of this report.
5. Within 8 weeks, the landlord should carry out a review of its complaint handling and record keeping. It should provide guidance notes addressing:
  1. The need to record its findings in inspections and feedback to residents, which feedback should be in writing.
  2. The need to monitor that recommended actions are carried out.
  3. The need to record findings and decisions and to follow upon inspections with residents.
The landlord should confirm compliance with the above orders to the Housing Ombudsman Service within 4, and 8 weeks of this report.

Recommendations

The Ombudsman makes the following recommendations:
1. The landlord should consider this case as part of its review of its performance in assessing and responding to damp and mould.
2. While the KIM self-assessment is noted, the landlord should ensure that a resident’s vulnerabilities and disabilities are taken into account when responding to a resident.
The landlord should notify the Ombudsman of its intentions regarding these recommendations within 4 weeks of this report.