Westminster City Council (202323410)

REPORT

COMPLAINT 202323410

Westminster City Council

31 July 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 complaint is about the landlord’s response to the resident concerning:
1. Damp and mould.
2. Noise from a neighbour’s positive input ventilation system.

Background

The resident is a secure tenant of the landlord, a local authority. The property is a flat in a block. The resident has vulnerabilities.
In late November 2022, the resident says he reported damp and mould, after which a surveyor visited in December 2022 and a damp specialist visited in January 2023. The resident says that after reviewing the specialist’s report, the surveyor raised repairs for the roof, a window, a drainage inspection, and pointing. The outcome of the reported roof repair is unclear. The resident says a window was inspected, but was not thought to be a cause. The information provided advises that the drainage was surveyed on 24 February 2023, and pointing was completed on 3 March 2023.
In late February 2023, a positive input ventilation system was installed in the resident’s neighbour’s hallway, along with extractor fans in their kitchen and bathroom. The resident says that from this point, he began to hear a high pitched noise in his own property, which particularly affected the room where he slept and his ability to sleep. He initially reported the issue to the local authority noise team, who told the resident that they could not hear anything when attending after midnight.
In March 2023, the resident reported the noise to his landlord, explaining that he was struggling with a high pitched sound all night. He queried if the units causing the noise could be moved or turned off at night.
In mid-April 2023, there was an inspection, where the resident notes 2 people involved in the installation could not hear the noise and 3 others could, and he supplies a witness statement from someone confirming they could hear a noise. In late April 2023, there was a further inspection by a ventilation specialist, who reported that there was a quiet and intermittent noise, and that they believed the resident’s neighbour’s newly installed bathroom extractor fan was noisy and needed to be inspected and checked for a possible fault.
From the information provided, the issue may have been initially sought to be resolved by the neighbour being encouraged to turn off the system at night, but the resident continued to raise concern about the high pitched noise, saying it needed to be moved or adjusted to be quieter to avoid tension between him and his neighbour. In August 2023, a works order was raised to replace the bathroom extractor fan and this was completed on 5 September 2023. In a post-inspection, it was noted that the extractor fan was fitted to a partition wall, away from the party wall, and a part had also been removed to reduce the volume of the extractor. It was also noted that the extractor could not be moved due to issues with the boiler flue and windows.
In October 2023, the resident made a complaint via an MP.
1. He said there were continued mould issues in various areas and damp in a living room cupboard. He noted that there had been various visits and external pointing had been carried out, but a number of repairs had not been done. He said that after a balcony drain was surveyed, there had been no follow up for a repair booked in July 2023 to fill cracks around the drain. He said he understood that sealing needed to be done around the balcony door and generally. He said that it had also been agreed to have an additional air vent by the front door to help improve airflow.
2. He said that the high pitched noise issue had not been resolved by recent works. He supplied a medical letter which noted that he did not sleep well at the best of times, and his sleep and mood had been negatively impacted. It noted that it was understood that a quieter device could be installed or the device could be moved away from the partition wall.
On 12 October 2023, the landlord inspected the property. It identified minor mould in several areas and this was washed, scraped off and treated the same day. It was noted that the resident did not want any decoration works for these. It also noted that there were damp issues in the living room near the balcony door and in a cupboard, potentially being caused by the balcony, which would need further investigation.
On 30 October 2023, the landlord issued its stage 1 response, which only addressed the noise issue. It noted the resident’s issues and how he was affected. It noted that a surveyor had inspected and recommended replacement of his neighbour’s bathroom extractor fan, which was done in September. It noted he reported that the noise continued and noted that it had post-inspected, the unit was found to be working correctly, and a surveyor had been unable to hear any noise when they had conducted a sound test in the neighbour’s property. It said that moving the fan was not possible due to the layout. It awarded £30 for failings in respect to complaint handling.
Following this, the resident contacted the Ombudsman, detailing the impact on him and raising concern that the fan next door was intended for lofts or had been incorrectly installed.
The landlord escalated the complaint after contact from the Ombudsman, and issued a stage 2 response on 12 January 2024.
1. It said that the fan was replaced to ensure it was not defective, complied with building regulations for noise, had not been heard in a sound test, was away from the party wall, and could not be moved to another location. It said it had exhausted all avenues, and suggested that the resident contact the local authority environmental health team, as they had specialist equipment to identify the source of the noise and could attend after 8pm as the resident requested.
2. It apologised that it had not addressed damp and mould previously. It noted that a surveyor had previously inspected and works were raised for:
  1. balcony covering, repoint walls and capping.
  2. repoint all external walls.
  3. remove the existing downpipe and check for leaks and remedy as appropriate.
  4. renew silicone seals to balcony door.
3. It noted that mould treatment and an inspection was done in October 2023 which found some areas to be damp. It said that this was unusual considering the works that had been done. It also said that there should have been further investigation after the inspection, and it apologised for the delay and poor communication and said it would carry out a further inspection on 16 January 2024 and arrange any further repairs. It noted that the surveyor would discuss the possibility of passive vents, but noted that it had advised these would have little effect on the prevention of mould, would make the property colder, and a passive input ventilation system which the resident had refused would have the most effect on mould prevention, air quality and health. It said the system had features to ensure it ran very quietly and the surveyor would bring a leaflet about it.
4. It awarded £680, which comprised £30 at stage 1, £250 for delays completing repairs identified at the October 2023 inspection, £100 for poor complaint handling and failing to investigate the damp and mould at stage 1, £250 for distress and inconvenience, and £50 for time and trouble.
The resident says that he subsequently asked the surveyor not to attend the 16 January 2024 visit in the stage 2 response, and to instead look at surveyors’ reports from 5 previous visits. He says that multiple surveyors had visited but jobs they stated need doing are not being carried out, including resurfacing of the balcony roof and agreed installation of passive air vents in the hallway. The information provided shows that the resident and the landlord were in discussions in March 2024, and it offered for a surveyor to sit down with the resident and investigate and follow up repairs issues.
The resident says the high pitched noise continues to affect his sleep, mental health, and ability to function during the day. He understands that his neighbour’s flat requires the system for damp and mould, but he has queried its running in months such as May when there is no condensation, damp or mould, and queried if the system could not be put on a timer.

Assessment and findings

Scope of the investigation

The resident has raised concerns about issues relating to a previous flat, and noise from another neighbour. He has raised concern about discrimination by the landlord. The Ombudsman understands the resident’s concerns, but we are unable to investigate all the resident’s complaints about his landlord, and this investigation focuses on the issues that were raised to the landlord and exhausted its complaints procedure. The resident has the option to ask the landlord to look into his other concerns, ask it to respond to them as a formal complaint if he remains dissatisfied, and then to refer them to the Ombudsman.

The landlord’s response to the resident concerning damp and mould

The resident says that he reported damp and mould issues in November 2022, after which a surveyor inspected in December 2022 and a specialist inspected in January 2023. This indicates that the resident’s report was attended in a timely manner.
The resident says that the surveyor raised repairs for the roof, a window, a drainage inspection and pointing, and that he also understood sealing needed to be done around the balcony door. He says that pointing was done, but around the time this was done he queried if the wall was done near his living room cupboard (that experienced dampness) which did not seem to be clarified. He says that window and drain inspections were done, but that there was no follow up works to a repair raised in July 2023 for drain cracks. The resident’s October 2023 complaint advised that no sealing had been done.
The landlord said in its October 2023 final response that a surveyor previously inspected and raised works for:
1. balcony covering, repoint walls and capping.
2. repoint all external walls.
3. remove the existing downpipe and check for leaks and remedy as appropriate.
4. renew silicone seals to balcony door.
The repairs logs provided do not show any repairs raised against the resident’s property for the above works, apart from a February 2023 repair raised for repointing of all external walls, which the resident confirms happened (although he raised concern at the time whether the wall by his damp living room cupboard was pointed). A repair was raised in mid-January 2023 against a neighbouring property for the roof, to sweep and apply bitumen as well as to investigate and seal where necessary underneath the UPVC balcony door cill. This was completed around April 2023 where a contractor noted that they sealed a small amount under the cill but recommended for the balcony to get resealed in its entirety and some forms of capping placed on top of the walls to try and prevent water ingress through the flat. The description of these bear similarity to works mentioned in the landlord’s complaint response and by the resident, but it is unclear how these impacted his property.
The landlord was positive to arrange a specialist inspection in October 2023. This identified only minor mould in some areas which suggests that, at this point, the issue was not significant. The landlord also took positive action to arrange treatment of this mould the same day. However, as the landlord acknowledged in its January 2024 stage 2 response, there was a lack of follow up to the specialist’s recommendation to further investigate damp issues in the living room near the balcony door and in a cupboard, potentially being caused by the balcony. This will have caused frustration to the resident and undermined his confidence in the landlord, so it was appropriate that it acknowledged, apologised and awarded compensation for this.
However, the landlord should be ensuring that its approach to inspections and completed works is clear and evidence-based. This is not apparent with events after the December 2022 and January 2023 inspections, as there is no clear evidence about what works were identified, raised and carried out, despite this being requested during the investigation. The landlord should also take an evidence-based approach to complaints, but there was limited investigation of the resident’s concerns that some repairs were incomplete. The landlord referred to a number of previous works in its response, which it said meant further issues noted at the October 2023 inspection were “surprising.” However, it does not satisfactorily show that the works were raised and completed at the resident’s property, and he disputed works such as balcony door sealing were done. The similarity of some of the works described with some carried out at the resident’s neighbour’s adds to a lack of clarity.
The surveyor inspection that the landlord suggested in January 2024 would have been beneficial for it to understand the current issues at the property, but the limited investigation of the resident’s concerns about incomplete works will have understandably given him little confidence that the landlord fully acknowledged his complaint and that things would substantially change. This leads the Ombudsman to find maladministration in the landlord’s response to the resident concerning damp and mould.

The landlord’s response to the resident concerning noise from a neighbour’s positive input ventilation system

The Ombudsman understands that a high pitched noise from a positive input ventilation system impacts the resident, including his sleep, mental health, and ability to function during the day, since the system was installed in his neighbour’s flat in February 2023. The evidence shows that after the issue was reported in March 2023, there was an inspection in mid-April 2023. The outcome to this is unclear, but it is understood that parties involved in the installation of the system did not hear the noise, while others could. There was then a further inspection by a ventilation specialist, who reported that there was a quiet and intermittent noise, and that they believed the resident’s neighbour’s newly installed bathroom extractor fan was noisy and needed to be inspected and checked for a possible fault. The landlord subsequently arranged replacement of the fan in September 2023.
From the information provided, it does not seem disputed that there was and is some form of noise or hum, and the resident provides witness statements from multiple individuals who confirm they can hear the noise, including a local councillor. The landlord says that the fan was replaced to ensure it was not defective, that it complies with building regulations, could not be moved and suggested that the resident contact the local authority environmental health team to investigate further.
The Ombudsman recognises the impact of noise on the resident, but we can see no significant failings in the overall issue. There is no evidence that the noise is fundamentally unreasonable as it is not considered loud. The resident has raised concerns that an incorrect system is installed, and while it is not in our expertise to decide on this, we cannot see evidence from documentation that the system is unsuitable for a flat. The resident has raised concern about why the system was installed, and it is evident that this was to address damp and mould issues in the neighbour’s flat. The resident has queried why the system is allowed to run in seasons where there is no damp and mould, and it is not abnormal for an extractor system to run throughout the year to mitigate against issues such as condensation. The resident has stated that he declined a dehumidifier due to the impact of noise on both him and his neighbours, and the running of ventilation systems would not be considered unreasonable as they perform important functions to address damp and mould.
The landlord should have regard to the noise and hum impacting the resident, and it took appropriate steps to inspect the issue early on and then arrange a visit by a ventilation specialist. The resident says the specialist told him then that the fan needed to be changed, which is not clear from the evidence, and its replacement of the fan reasonably addresses this and demonstrates a positive attempt to resolve the issue. It considered whether the fan could be moved, and established it could not be. It confirmed that the fan is installed on a partition wall rather than on the party wall, which it is understood means that the fan is not on a shared wall. It is understood that the resident lacks confidence in such departments, but the landlord was reasonable to refer him to the local authority environmental health team, as they are best qualified to carry out further assessments of the noise and whether it is reasonable.
While the above is the case, the landlord’s handling is not entirely satisfactory. Its records are unclear at points, and it does not provide clear outcomes to visits such as the first April 2023 visit, or when it acted on the April 2023 recommendation to check for a fan fault. If the September 2023 fan replacement was the outcome to this, the 5 months this took seems lengthy. Its communication seems poor at points, as the resident contacted multiple times between May and September 2023 without clear responses, and his October 2023 complaint indicated he had not been provided details of the replacement in September 2023. The landlord did not check the resident’s flat after the fan replacement, or show it considered if any other mitigations against the noise were possible in his flat such as insulation. He says a councillor tells him the landlord is considering insulation, but it is not evident to what extent this has been considered or if it has communicated this to him directly.
This leads the Ombudsman to find a service failure in the landlord’s handling and to make some orders. The resident has asked for the landlord to ensure that people are not housed around him who may be noisy at night, or to buy him an alternative property. These are not outcomes the Ombudsman can provide, however we are ordering it to consider some further steps to mitigate against the noise and to inform him of the outcome.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was:
1. Maladministration in the landlord’s response to the resident concerning damp and mould.
2. Service failure in the landlord’s response to the resident concerning noise from a neighbour’s positive input ventilation system.

Orders and recommendations

Orders

The landlord is ordered to, within 4 weeks, pay the resident £350. This comprises £250 for the issues identified with its handling of damp and mould, and £100 for the issues identified with its handling of the noise.
The landlord is ordered to, within 4 weeks:
1. review it and its contractors’ records from at least December 2022 onwards, to confirm what damp and mould works were identified at the resident’s property after previous visits, and what works have been raised and completed at the resident’s property.
2. liaise with the resident to carry out an inspection, to understand the current status of damp and mould issues and required works, and to confirm what previously identified works remain outstanding from his perspective.
The landlord is ordered to, within 6 weeks, write to the resident after its inspection, confirming the outcome of the review of its records and the inspection. This should include any identified repairs and its position on works for the balcony covering, pointing of the wall by the resident’s living room cupboard, the reportedly cracked drain, sealing of areas such as the balcony door, and installation of passive vents. It should also include proposed dates to complete any identified works based on availability the resident provides.
The landlord is ordered to, within 4 weeks:
1. consider the feasibility of the resident’s request for the fan to be on a timer.
2. consider if any mitigation such as sound insulation against the noise in the resident’s flat would be possible and effective.
3. write to the resident with the outcome to the above and his housing options if the noise and hum issue cannot be resolved.

Recommendations

The landlord is recommended to liaise with the resident and review further support it can provide and referrals for further support it can make.