Camden Council (201914051)

REPORT

COMPLAINT 201914051

Camden Council

25 February 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

The resident complains about:
1. How the landlord handled the mutual exchange in August 2016.
2. How the landlord handled repairs needed at the property including dampness, from the start of the tenancy to date.
3. The effect of the living conditions on her health.
4. How the landlord handled her housing transfer application and the points awarded.
5. How the landlord handled her formal complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39 (i) of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction: the complaint about the effect of the living on conditions on the resident’s health.
Under paragraph 39 (i) of the Scheme, the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.
Considering the resident’s complaint about the effect of the living conditions on her health would require an assessment of the landlord’s liability for damage to her health. Such a decision would be more effectively made by the courts who have the authority to determine legal liability for personal injury and who have the processes and expertise to consider the relevant medical evidence. For this reason, this aspect of the complaint is not within the jurisdiction of the Ombudsman.
Additionally, under paragraph 39 (o) of the Scheme, the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion seek to raise again matters which the Housing Ombudsman, or any other Ombudsman has already decided upon.
On 30 October 2020, the Local Government and Social Care Ombudsman published a decision in response to the resident’s complaint about how the landlord handled her transfer application including her request for medical points and the direct offers made. This aspect of the complaint is therefore outside of the jurisdiction of the Housing Ombudsman.

Background and Summary of events

The resident became a secure tenant of a ground floor one-bedroom flat (the property) by way of a mutual exchange on 8 August 2016. The landlord is a leaseholder to the property and the freehold to the building is owned by a private individual.
The landlord has provided evidence that it inspected the property on 21 July 2016 (prior to the mutual exchange) and noted that the property was “in good condition with no alterations to the original layout. All kitchen and bathroom fixtures are in place and no works are required”.
The resident has provided repair records relating to the property from before the date of the mutual exchange. These include references to a leak into the kitchen requiring the ceiling to be replastered dated 11 July 2016; a report of damp to the bedroom on 22 January 2016; “damp throughout the basement property” dated 14 January 2015 and a leak under the stairs dated 9 July 2012 and 26 June 2009.
On 12 September 2016, the resident reported wet patches to the living room wall. An inspection took place on 19 September 2016 which found evidence of dampness in the living room and bedroom. In the bedroom there was evidence of condensation and the landlord agreed to install a vent to help with this. In the living room, damp meter readings were “relatively high” and the conditions indicated either rising damp or penetrating dampness. The landlord’s notes state that a request was made to contact the freeholder who was responsible for structural repairs.
On 11 November 2016, the landlord wrote to the freeholder about damp at the property. It advised the work required was the freeholder’s responsibility and requested they arrange a survey.
A surveyor attended the property on 17 January 2017. The landlord’s notes of the inspection refer to dampness to the right-hand side party wall. The notes state that “there was a sharp change from wet to dry indicating rising damp. The walls have been treated in the past and it would appear that this has failed”. The notes also refer to reported water ingress to the under–stairs cupboard which the resident considered was connected to rainfall. The inspection found that some works had been completed recently to the main steps but more works were needed. The resident was advised that the defects were the responsibility of the freeholder and in the light of this it was agreed the surveyor would report back to the landlord seeking advice as to what action would be taken next.
The resident obtained a surveyor’s report dated 21 March 2017 which noted visible signs of dampness, indicating the presence of rising dampness, condensation, and visible signs of rainwater penetration. On 22 March 2017, the landlord wrote to the freeholder requesting an update.
The landlord’s repair records include an entry dated 17 March 2017 (noted as completed on 26 September 2017), which refers to blockages and bad smells to drains. The landlord’s contractors attended and found concrete in a drain but were unable to clear this. The notes state that the repair was passed to “Major works”. The landlord’s repair records of 23 May 2017 refer to a jetter attending and reporting that concrete in interceptors needed “breaking out” and they had partially cleared the blockage.
On 5 June 2017, the landlord informed the resident’s Councillor that it had put the freeholder on notice that the landlord would seek redress through the courts if he did not address the damp issue. It planned to provide the freeholder with the specialist damp report and if he did not respond appropriately, it would ask its legal department to take legal action against the freeholder for breach of lease. The landlord’s internal correspondence refer to it having contacted the freeholder who had ignored its requests to take action.
The landlord obtained a specialist damp report dated 12 June 2017, which noted defective pointing allowing moisture ingress; high plinth allowing bridging of the damp proof course; high ground level due to external steps; and defective drainage to the rear of the property. The report refers to internal moisture readings in excess of 79% WME (wood moisture equivalent) and proposed extensive works including removing wall plaster, injecting a damp proof course and replastering a 10m2 area.
The landlord’s records evidence that the resident chased up the repairs on 18 October 2017 and 1 November 2017. On 13 December 2017, the resident asked the landlord for a realistic timescale for the legal proceedings. On 5 April 2018, the resident’s legal representative wrote to the landlord about outstanding repairs in the property.
The resident has provided copies of correspondence between the freeholder and the landlord’s legal team from June 2018 in which the landlord requested a meeting to discuss the works and said it would commence court proceedings if it did not hear back by a certain date. Correspondence from the freeholder to the landlord states that they had asked questions of the landlord and were disputing responsibility for various repairs.
The resident has provided some correspondence with her solicitor from June 2018 which states that the landlord was not responding to correspondence at that time. On 27 June 2018, the resident’s legal representative sent draft court documentation to the landlord requesting it provide proposals to resolve the disrepair claim, failing which proceedings would be issued by the resident against the landlord.
On 5 September 2018, the landlord completed a “Recommendation for Rehousing” form referring to extensive damp proofing required and the condition of the property was described as “poor – extensively affected by penetrating dampness”. The form states that a move was considered urgent and the question as to whether there were health and safety concerns requiring an urgent transfer is ticked “yes”.
On 27 September 2018, the resident’s legal representative wrote to the landlord’s legal department referring to a meeting having taken place. The correspondence referred to the resident’s request for damages.
There is evidence that the landlord sought legal advice, and in October 2018, the landlord was advised that litigation was “unavoidable”, the question was as to whether the resident issued proceedings against the landlord or the landlord issues proceedings against the freeholder first. The legal advice included that “a case must be brought before this matter can be satisfactorily resolved” and that the landlord must be seen to be actively chasing a resolution with the freeholder. The landlord decided not to issue court proceedings at the freeholder at this time and instead waited for the resident to start proceedings.
On 15 October 2018, the landlord’s legal team advised the resident’s solicitor that it had not received a response from the freeholder therefore did not have the freeholder’s consent to carry out the works. It did not agree to pay compensation and confirmed that if the resident issued proceedings, it would make a Part 20 application in respect to the freeholder (joining them to the proceedings).
On 4 November 2019, the freeholder wrote to the landlord in response to a letter of 18 July 2017 asking various questions and attaching a report of March 2019. The freeholder chased a response on 11 February 2020. The freeholder wrote again on 29 July 2020 chasing a response to this letter requesting confirmation that the landlord would pay costs of proposed works.
On 21 November 2019, the resident requested to appeal a complaint response she had received from the landlord. She referred to issues relating to the transfer process but also that the landlord had let her do a mutual exchange into a property with known damp and leaks; the landlord’s surveyor would not engage with her until she employed a solicitor; and that even since then the landlord had not adequately pursued the freeholder. She complained that the freeholder told her they had requested a quote for work in March 2019 but not received a reply and for three years she had been living in a property with damp, leaks and mildew. She chased up a response on 5 December 2019. She also provided a list of repairs required to the property. The landlord did not escalate this aspect of the complaint at this time stating that as she had commenced a legal disrepair claim, it would respond in accordance with the legal protocol.
On 4 February 2020, the Ombudsman contacted the landlord requesting it update the resident in relation to her complaint. The Ombudsman chased up a response to this on 19 February 2020.
On 22 April 2020, the landlord wrote to the resident stating that the freehold to the property was transferred to a private individual in 2014 at which point the landlord became a leaseholder and was only responsible for internal repairs. Any external works would be the responsibility of the freeholder who would do work and charge the landlord their proportion of any costs. Further that it had looked at the property in July 2016 as part of the mutual exchange process and the building contract manger did not note any damp issues and reported that the property was in good condition.
The landlord also said that it was working with the resident in terms of rehousing and it had awarded her additional points to allow her to successfully bid for any property that met her criteria. It said she had viewed three properties and it made direct offers of properties and she had turned these down for various reasons. It said it was looking to move her as soon as there was a property that she was willing to accept. It also confirmed that the legal disrepair case had been closed.
On 1 May 2020, the Ombudsman contacted the landlord again stating it was unclear from its letter on 22 April 2020 at what stage of the complaints process it had responded and it had not advised the resident how she could escalate the complaint. The Ombudsman provided details of why the resident was dissatisfied with the response, in summary:
1. The landlord had not addressed the complaint that the landlord had sometimes acted unilaterally in relation to external repairs, having forgotten that they were not the freeholder, and the freeholder alleged that this caused structural damage due to poor repairs. Further, that the landlord had not responded to the freeholder’s letters about this.
2. The landlord had sent a surveyor after she moved into the property who explained that the mutual exchange inspections tend to “take less than five minutes” as they only check that “all the internal walls were still in place”.
3. The resident said that the dampness had deteriorated her asthma, leading her to take steroids that had compromised her immune system. This meant she was categorised as vulnerable and had to shield due to the COVID 19 pandemic, meaning she could not leave the property at all.
On 22 May 2020, the landlord provided a Local Resolution response to the complaint. The landlord said that separate actions were being taken between it and the freeholder to decide who would do what works and when, and the situation had been made more difficult due to it carrying out works after it had sold the freehold. The landlord listed works which it had completed which should have been referred to the freeholder as fitting an additional vent; applying mastic to the main steps to front door, clearing of gutters and works to chimney. The landlord referred to the repairs history, including that it had intended to refer a drainage issue to its major works team in 2017 but this had not happened, and the issue should have been referred to the freeholder.
The landlord said that it had requested various damp reports to discuss with the freeholder who was responsible for the works and these discussions were ongoing. In conclusion, the landlord partly upheld the complaint apologising that its previous response did not cover all the points or indicate what part of its complaint process the response was sent. It said that as her landlord and leaseholder it had taken action to try to remedy the issues it was responsible for and it had asked the freeholder to act. These actions were ongoing and it was continuing to work with her to rehouse her into a property on a permanent or temporary basis whilst works remain outstanding.
On 3 June 2020, the resident responded that the landlord had not acknowledged:
1. That the flat should not have been allowed onto the mutual exchange programme due to known structural issues (damp and leaks).
2. That the mutual exchange inspection did not happen until after she had moved in and was “cursory”. She was told that he was only checking if the internal walls were all in place.
3. The landlord had kept the freeholder waiting over a year to reply to letters seeking to clarify where different responsibilities for repairs lie.
4. The landlord had refused to discuss the issues until she paid for a solicitor to assist her and it did not acknowledge that repairs were required until it met with her and her solicitor.
5. The poor quality of works that the landlord had done, for example, repointing works where the workman did not notice that the pointing was actually expandable foam.
In conclusion, the resident felt it was not reasonable for the landlord to claim that the situation with the freeholder was ongoing when it had failed to respond to the freeholder and the damp and leaks should have been resolved before she moved in.
On 16 July 2020, the Ombudsman contacted the landlord again requesting it respond to the complaint by 30 July 2020.
On 31 July 2020, the landlord provided a final response to the complaint. The landlord upheld the complaint about its delays in responding to the complaint and the inconvenience caused and apologised for this. The landlord said that inspection of properties is carried out visually for issues such as unauthorized adaptions such as walls being removed and visual checks on gas and electricals. It said that “properties are accepted as seen and any decorations, kitchen and bathrooms are accepted as they are we do not necessarily look at the whole entire repair history of the property”. The landlord said that the inspection should be completed prior to the mutual exchange being authorised.
The landlord acknowledged that it had completed works that were not its responsibility under the lease, it could be in breach of its lease by those actions and therefore it could not progress any further with the works as they are the freeholder’s responsibility. It said that the negotiations between the freeholder and the landlord were ongoing and it was not currently able to detail what works or actions would be agreed until these decisions were finalized. In conclusion, the landlord apologised for any confusion caused and the delays. It offered the resident £100 compensation for the delay and £100 for the time and trouble.
The resident has provided with Ombudsman with a list of costs she has incurred totalling £8,617.20. These comprise solicitors fees; a damp survey and a chimney sweep. She has provided invoices for a chimney sweep at the property dated 12 May 2018 totalling £132 and a survey fee for £300 dated 1 March 2017. The resident has also described the impact on her wellbeing, for example, she has been unable to have friends over to the property as the conditions are embarrassing and she refers to the stress caused by having to deal with the landlord.
The resident has also provided a letter from the residents of a neighbouring property stating they have been aware of unresolved damp issues affecting the property and the two previous tenants had also complained to them about damp.
The landlord has informed the Ombudsman that when it became clear the freeholder was not progressing the works, it seemed that a permanent or temporary decant would be required before works could start and the process was put in place to allow the resident to bid. However, the resident did not secure any properties during this period and was not pro–active in bidding. It has advised the Ombudsman that it is currently unable to inspect the property due to only emergency inspections being allowed, but once COVID 19 restrictions are reduced to enable an inspection, it will inspect the property, confirm that the liability to carry out the damp works is with the freeholder and work with the legal team to have the lease terms enforced so that work is completed.
As far as the Ombudsman is aware, there has not yet been an agreement between the freeholder and the landlord as to the extent of works required and the responsibility for completing this.

Assessment and findings

How the landlord handled the mutual exchange in August 2016.

The landlord’s Mutual Exchange policy states that once an exchange is approved a referral is made to the surveyor for a property inspection to take place within five working days. It states that at the inspection, the surveyor will draw up a list of repairs, clearly detailing which are the tenant’s responsibility and which the landlord’s and any unauthorized improvements or adaptations. The surveyor collates safety certificates and a report which is sent to the mobility team. The mobility team advises the tenant that it is their responsibility to request repairs via the repairs contact centre unless these relate to gas or electrical safety which are ordered by the surveyor. The incoming and outgoing tenants are provided with a copy of the property report and decide between themselves whether these works are to take place before or after the move. Finally, if the inspection identifies major repair works requiring a decant, both parties are asked how they wish the works to be progressed, either before or after exchange.
The policy also sets out the only grounds upon which the landlord can withhold consent for an exchange in accordance with legislation. These grounds do not refer to outstanding repairs.
The Deed of Assignment relating to the mutual exchange states that in agreeing to exchange, the resident is “accepting your new property as it stands and in its present condition…”
The resident complained that the landlord should not have allowed the property onto the mutual exchange programme, that the inspection did not happen until after she was moved in and was “cursory”.
There is evidence that the landlord did inspect the property prior to the exchange (on 21 July 2016), which was appropriate and in accordance with its policy. While the recorded findings of the inspection are brief, no repairs are noted. It is acknowledged that the landlord’s repair records evidence that some of the repairs issues complained of had been raised previously (as set out at paragraph 9 above), most notably a references to damp in January 2016 and January 2015. The resident has also provided a letter from neighbours confirming that previous tenants had reported damp issues.
While it is not in dispute that damp issues had been identified in the property prior to the mutual exchange, there is no evidence to confirm that these were outstanding at the time of the mutual exchange. Therefore, there is no evidence available to confirm the resident’s belief that the landlord was aware that these issues were outstanding at the time of the mutual exchange and should have been identified by the surveyor’s inspection or that the mutual exchange should have been prevented from progressing. In addition to this, the terms of the mutual exchange made clear that the resident was accepting the property in its present condition. In the light of this, the landlord’s response to this aspect of the complaint was reasonable since it was in accordance with the evidence available and the terms of the assignment.
When responding to the complaint, the landlord explained that inspection of properties is carried out visually for issues such as unauthorized adaptions such as walls being removed and visual checks on gas and electricals. It said that “properties are accepted as seen and any decorations, kitchen and bathrooms are accepted as they are we do not necessarily look at the whole entire repair history of the property”. It is noted that this explanation does not take account of the step in its policy for the surveyor to draw up a list of repairs and provide this to both tenants. Given the importance of this step, the Ombudsman has made a Recommendation in relation to this issue to ensure the relevant landlord staff are aware of this part of the policy.

How the landlord handled repairs needed at the property including dampness from the start of the tenancy to date.

Under the terms of the resident’s tenancy, the landlord is responsible for keeping in repair and maintaining:
1. The structure and exterior of the property
2. The services supplying water, gas, electricity, sanitation, and space and water heating; and
3. Appliances for delivering these services which it has installed.
The landlord has provided a copy of a document called the Tenants’ guide dated August 2015 which also states that its responsibilities include maintaining the structure of the building which includes:
1. Clearance of rainwater goods where damage is being caused.
2. Roof repairs.
3. Repairing brickwork.
4. Damp-proof work.
A later version of the guide (2017) specifically lists internal walls, skirting boards and plasterwork as the landlords’ responsibilities (except for surface cracks to wall and ceiling plaster). The landlord is also responsible for repairs to internal plaster in accordance with Grand v Gill [2011] EWCA Civ 554.
In terms of timescales, the 2015 guide states that urgent repairs as set out in the Right to repair legislation will be completed within three working days. Other urgent repairs (not an emergency but which If not completed quickly would cause significant nuisance) should be completed within five working days. Routine repairs will be completed within 20 working days (not emergency or urgent). Programmed repairs will be completed within an agreed timescale (repairs that are complex, subject to leaseholder consultation or involve specialist works).
Programmed repairs include structural repairs, for example, roof repairs or damp-proof works, where scaffolding is needed or where leasehold consultation is required.
The lease between the freeholder and the landlord set outs that the landlord covenants to keep the property in good repair (including decorative repair). The freeholder covenants (in summary) to maintain and repair the structure of the building including the roof, foundations, external and internal walls (but not the interior faces of such part of the external internal walls as bound the property or the rooms therein or glass in the windows) and timbers chimney stacks, gutters and rainwater and soil pipes. It also refers to sewers, drains and water pipes in, under and upon the building except where they exclusively serve the property.
The evidence confirms that the landlord was aware that from at least September 2016, the living room in the property was affected by dampness (either rising or penetrating). In January 2017, an inspection confirmed that there was likely both rising damp and water ingress to an under stairs cupboard. By the time of the transfer request (September 2018), the landlord was aware that the damp in the property was extensive and an urgent transfer was required due to health and safety concerns.
Given the landlord’s responsibilities under the terms of the tenancy agreement, it is of concern that in over four years since these issues were identified, there is no evidence of substantial works being completed at the property. There is evidence of the landlord attempting a repair to the exterior steps and attempting to clear a drainage block, but no evidence of any repairs to address the damp issues or repair plasterwork. The landlord also subsequently acknowledged that the repairs it had attempted, it should not have done this as they fell under the freeholder’s responsibility.
There is evidence that the landlord took some appropriate steps to try and address the works. The landlord contacted the freeholder in November 2016 and March 2017. By June 2017, the landlord had obtained a specialist damp report and was considering legal action against the freeholder to ensure they completed the repairs they were responsible for. This was appropriate the situation where the landlord considered the freeholder was responsible for the works under the terms of the lease.
However, despite the resident chasing up the landlord in October, November and December 2017, there is no evidence of the landlord taking any further action until June 2018 following correspondence from the resident’s legal representative. There was therefore a significant delay by the landlord between June 2017 and June 2018.
In June 2018, the landlord was communicating with the freeholder to try and resolve the dispute around the various work, which was appropriate. Further, in September 2018, the landlord completed the rehousing form which resulted in the resident being able to bid for a transfer. Given that extensive repairs were required and the time they had already been outstanding, enabling the resident to bid for a permanent transfer was a reasonable step to mitigate the impact of the outstanding repairs on the resident. The landlord has said that a temporary decant was also an option, although there is no documentary evidence to confirm the landlord advised the resident of this or of how this would be arranged. Nevertheless, it was appropriate for the landlord to consider this option to reduce the impact of the works on the resident.
Following further correspondence from the resident’s legal representative, the landlord sought its own legal advice, which was appropriate. However, subsequently, there was a further delay in the landlord progressing the issue. There is no evidence of the landlord taking any positive action to address the repairs after October 2018. There is also evidence of the freeholder contacting the landlord and having to chase up a response (November 2019 and February 2020).
It is acknowledged that the landlord has at times taken steps to contact the freeholder to progress the works, it arranged inspections and spoke to its legal team, all of which were appropriate. It is also acknowledged that since March 2020, the impact of the COVID 19 restrictions may have prevented inspections for certain periods, particularly between 28 March 2020 and 1 June 2020 when the government guidance included a recommendation that access to a property is only proposed for serious and urgent issues. At the time of writing, government guidance states that for households in which one or more people are shielding, any non-emergency work should only be undertaken at the discretion of the individuals concerned and anyone entering a clinically extremely vulnerable household should take significant precautions to prevent infection. It is understood this applies to the resident.
However, there were extensive periods for which there is no evidence of the landlord taking reasonable steps to progress the repairs to the property, which is should have done. The landlord’s repairing obligations under the tenancy agreement included for it to keep in repair the structure of the property and the internal plasterwork. This was complicated by the lease agreement with the freeholder, under which the freeholder was responsible for repairs to the structure of the building. It is acknowledged that the legal obligations are complex and there appears to be some contradiction between the two agreements. However, the landlord’s obligations to the tenant still applied and it should have taken all reasonable steps to complete the repairs which includes making reasonable attempts to progress the matters with the freeholder.
While at one time the resident was considering taking her own legal action, it was not reasonable for the landlord to solely rely on the resident to start legal action. The repairing obligations under the tenancy agreement were the landlord’s responsibility so the onus should have been on the landlord to progress matters. Further, once it became clear that the resident was not pursuing the legal claim, the landlord should have re-considered how it was handling the matter and sought updated legal advice if this was required.
The landlord has not completed the repairs in accordance with its repairing responsibilities or its own timescales or taken reasonable steps to progress the repairs through its communication with the freeholder. Given the time over which the issue has extended and the limited evidence of the landlord taking pro-active steps to progress the issue, this was a serious failing by the landlord.
When responding to the complaint, the landlord has failed to recognise this failing and the impact of this on the resident. Living in damp conditions for several years and having to communicate regularly with the landlord about this has caused significant distress and inconvenience to the resident and the landlord did not recognise this.
The resident’s ability to bid for an alternative property may have resolved the issue and was an appropriate step to try and mitigate the impact on the resident. However, in the situation where the resident did not actually move, the landlord’s repairing obligations still applied and it should have continued to take reasonable steps to progress the works. The landlord noted on the rehousing form that the move was urgent and that there were health and safety concerns, therefore the handling of the repairs should have been treated with the same urgency.
In conclusion, given the length of time that repairs have been outstanding at the property and the substantial periods for which there is no evidence of the landlord taking steps to progress the communications and dispute with the freeholder about the repairs, there was a serious failing by the landlord in how it handled the reports of repairs. When responding to the complaint, the landlord did not recognise or offer appropriate redress to put things right. The Ombudsman has taken into account the following factors when deciding the appropriate compensation Order as set out below:
1. The length of the delays and length of time the resident has lived with outstanding repairs.
2. The extent of the damp problem in the property (evidenced by the substantial works recommended in the damp report of June 2017 and the landlord’s own assessment that the property was extensively affected by dampness and was a cause of health and safety concerns in its rehousing request form).
3. The inconvenience caused to the resident in pursuing the landlord in relation to the repairs.
4. The costs the resident incurred in arranging works and a survey.
5. The landlord’s actions to mitigate the distress and inconvenience caused.
The Ombudsman has not taken into account any further delay or inconvenience that may have been caused by the landlord’s handling of the transfer application for the reasons set out in paragraphs 6 and 7 above.
It is noted that the resident also refers to having incurred over £8000 in legal fees in pursuing the disrepair claim. However, an assessment as to whether these costs should be recovered from the landlord and were reasonably incurred, would be more appropriately decided by the courts who have the expertise to do so.

Complaint handling

The landlord’s Complaints policy states that it will aim to respond to Stage one complaints within ten working days and Stage two complaints within 25 working days.
The Ombudsman referred the complaint to the landlord on 4 February 2020 and chased this up on 19 February 2020. On 22 April 2020, the landlord responded to the resident but did not state at what stage in the complaints process it was responding or how the resident could escalate the complaint.
On 1 May 2020, the Ombudsman contacted the landlord providing reasons why the resident was still dissatisfied. On 22 May 2020, the landlord provided a Local Resolution response to the complaint. On 3 June 2020, the resident set out her dissatisfaction with this response. On 16 July 2020, the Ombudsman contacted the landlord again requesting it respond to the complaint by 30 July 2020. On 31 July 2020, the landlord provided a final response to the complaint.
There were therefore some delays in the landlord responding to the complaints and it did not do so in accordance with the timescales in its policy. The first written response also did not explain at what stage in its complaints process the complaint was at or how the resident could escalate the complaint. The resident sought assistance from the Ombudsman to progress her complaint. However, when responding to the complaint, the landlord recognised its shortcomings, apologised and offered a proportionate amount of compensation (£200) to put this right. In doing so, the landlord has offered a reasonable resolution to this aspect of the complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in respect of the complaint about how the landlord handled the mutual exchange in August 2016.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of the complaint about how the landlord handled repairs needed at the property including dampness from the start of the tenancy to date.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint about how the landlord handled the formal complaint satisfactorily (reasonable redress).

Reasons

While there is evidence that damp issues were previously reported in respect of the property, there is no evidence to confirm that these were outstanding at the time of the mutual exchange. The terms of the mutual exchange made clear that the resident was accepting the property in its present condition. In the light of this, the landlord’s response to this aspect of the complaint was reasonable since it was in accordance with the evidence available and the terms of the assignment.
While there were times when the landlord was corresponding with the freeholder and seeking legal advice in relation to the outstanding repairs to the property, there were also significant periods of time when the landlord was not taking reasonable steps to progress the repairs and this led to the resident experiencing significant distress and inconvenience of living in a damp property and repeatedly chasing the repairs. The landlord failed to recognise and address this shortcoming when responding to the complaint.

Orders

The landlord to apologise to the resident and pay her compensation of £3000 for distress and inconvenience caused by the landlord’s failures and delays in addressing the repairs to the property (within four weeks of the date of this Order).
If it has not done so in the last three months, the landlord to seek legal advice as to its responsibility for repairs at the property and how it should address these, including the best way to resolve any outstanding dispute with the freeholder as to the extent of repairs required and who should complete them. Once it has done so, the landlord to write to the resident setting out an update in relation to the repairs including the action it is currently taking and the reasons for this (within six weeks of the date of this Order).
The landlord to seek legal advice more generally about the situation where it is the landlord to a property with repairing obligations under the tenancy but it is not the freeholder, including what it can do to prevent delays to repairs where the freeholder is not completing repairs or there is a dispute about responsibility for repairs. Once it has obtained this advice, the landlord to report back to the Ombudsman setting out the action it is taking to prevent a similar situation occurring again, such as any changes to policy or procedures or staff training (within eight weeks of the date of this Order).

Recommendations

The landlord to re-offer to pay the resident the £200 it offered previously for the delays in it responding to the complaint.
The landlord to remind its staff handling mutual exchanges and complaints of the provision its Mutual exchange policy for a surveyor to inspect the property and draw up a list of repairs, clearly detailing which are the tenant’s responsibility and which the landlord’s, and provide the report to both tenants.