Clarion Housing Association Limited (202013901)

REPORT

COMPLAINT 202013901

Clarion Housing Association Limited

29 April 2022

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 the landlord’s handling of her concerns regarding damp and mould at her property.

Jurisdiction

Scope of Investigation

Paragraph 39 (e) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.
The resident has reported that there has been an issue with damp and mould in the property for a number of years. However, there is no indication that a formal complaint was raised about this prior to September 2020. It is also noted that the repair records show no reports of damp/mould in 2019. In light of this, and in keeping with paragraph 39 (e), this investigation focuses on matters from 2020 onwards.

Background

The resident is a tenant of the landlord. The property is a one bed flat situated in a block owned by the landlord.
The Housing Health and Safety Rating System (the HHSRS) is concerned with avoiding or, at the very least, minimizing potential hazards. Under this rating system the landlord has a responsibility to keep a property free from category one hazards, including damp and mould growth. This means taking preventative measures that could have a significant effect on harm outcomes relating to moisture production and ventilation.
The landlord’s repair policy as was in place at the time set out that appointments for non-emergency repairs were offered the next available appointment that suited the resident, and would be within 28 calendar days of the repair being reported.
The complaint policy as was in place at the time stated that there was a two stage complaint process, but did not set timeframes for the response at either stage.

Summary of events

A repair record from January 2020 shows the resident reporting that the flat was ‘full of mould’. The landlord attended to carry out a mould wash.
On 8 September 2020 the resident submitted a complaint to the landlord in which they said ‘I would like to request a senior manager attend the property to go through all of the faults and the state of the property. Also a housing officer as this has been going on for years now. My furniture is ruined my little girls bed is mouldy and you are taking no responsibility.’
On 9 October 2020 the repair records show that the landlord renewed loft insulation in the communal area of the building to address damp issues/cold bridging in the property.
A damp inspection was carried out on 19 October 2020, which concluded that there was no penetrating dampness, and that the property was suffering from condensation. The report recommended thermal board insulation, removal of vine growth from an external wall, and the installation of a positive input vent (PIV).
On 30 October 2020 the landlord emailed the resident explaining that, in line with the report, it would install a PIV unit which would reduce condensation to the external walls. Regarding the thermal board insulation, the landlord said ‘…we can decide if this is required after the fan has time to reduce the moisture….’ and suggested that they wait until January 2021 and then check to see to see if the PIV unit had resolved the matter.
An appointment was subsequently booked for 3 November 2020 but was cancelled by the contractor. On this same date the resident emailed the landlord stating that they would not allow the PIV unit to be fitted, saying that the property was not suitable for the family, and expressing dissatisfaction at being expected to wait until January 2021 to see if the PIV unit worked. They said, ‘You have taken no responsibility for the damage to our belongings, you have offered no reduction of rent and you have offered no acceptable solution.’
The landlord spoke with the resident on 4 November 2020, and the resident explained that they had just gained custody of their partner’s child and were very concerned that the damp and mould at the property were causing the child to become very unwell with respiratory problems. The resident requested that the family be decanted while the PIV unit was installed.
An appointment was made for 16 November 2020 for an initial inspection to check the positioning for the PIV unit and make sure there was no asbestos testing required (with the plan to make a further appointment to install the fan). The repair record states that the resident refused access on 16 November 2020, explaining that they had told the landlord they were not allowing the PIV unit to be installed.
An internal email dated 17 November 2020 indicates that the landlord had also decided to carry out the insulation works at the property, and would carry out mould washes in the meantime, with the resident to be advised that a PIV unit needed to be installed to help with the mould.
On 23 November 2020 an internal email confirms that the landlord raised an order to insulate the walls, and would also arrange to remove the external vine. Shortly after the resident informed the landlord that the household was isolating in line with Covid-19 restrictions, and so no appointments could take place at the property.
On 1 December 2020 the landlord sent its stage one response noting that the resident had stated that there had been damp and mould for a number of years, this was so bad internal doors had warped, and said the whole block was affected. It was noted that the resident had said that they did not want any more mould washes carried out, and wanted to be decanted.
The letter advised that no damp had been found at the property, and the mould was caused by condensation. The resident had been offered advice on the placement of furniture to allow air flow, and the damp survey made recommendations for works such as installing a PIV unit. An appointment was subsequently booked for 3 November 2020 but was cancelled by the contractor. An appointment was then made to attend on 16 November 2020 to inspect for the placement of the PIV unit, but the resident had refused to allow this to be installed.
The landlord said that it also agreed to install insulation, and an appointment was made for this and the PIV unit work to take place on 8 December 2020, but was cancelled due to the resident advising that the household was isolating, and had said that they would make contact to rearrange. The landlord said, ‘The delays encountered in carrying out the repairs fall short of the service that we aim to provide and as service failures were identified we would like to apologise for any distress or inconvenience caused.’ It offered a total of £365.00 compensation as follows:
1. Missed appointment £15
2. Time taken to resolve complaint £50
3. Time taken to repair £100
4. Inconvenience £100
5. Repeat Visits £100
The landlord provided advice on how to make an insurance claim in relation to the resident’s concerns about belongings damaged by damp. It also said that a decant was not necessary for the works that were planned.
The resident emailed the landlord on 15 February 2021 requesting the complaint be escalated. They said that the main issue was in the living room, although damp and mould also affected the bathroom and kitchen. The landlord had carried out a number of mould washes but this had not resolved the problem. The resident said that they had been advised that the PIV unit would make a noise, and the resident was unhappy that this would keep the family awake at night. The resident said that the condition of the property was unacceptable, they had lost a lot of belongings due to the mould, and said, ‘A damp proof specialist has attended the property and told you that it is damp, no effort has been made to do the damp proofing.’ The resident chased the landlord on 28 February 2021 as they had received no response.
The landlord acknowledged the escalation request on 11 March 2021, apologising for the delay and explaining that this had been due to higher than usual complaint numbers. It said that it aimed to provide a formal response within 20 working days.
On 26 March 2021 the landlord sent its stage two response, explaining that attempts had been made to carry out the works proposed at stage one, but it had not been able to find a convenient time with the resident to do so. The resident had expressed concerns about the disruption the works would cause, and the landlord said that it would be happy to make arrangements to decant the family for this period, as the resident had requested. A copy of the damp report was provided, to demonstrate that the issues in the property were caused by condensation rather than damp, and that the proposed works should resolve this. Finally, £50 compensation was offered for the delayed stage two response.
The resident replied on 30 March 2021 asking where the landlord would decant the family to, explaining that they needed access to cooking facilities and a washing machine. They said that once this was clear they would be happy to book the works in to be completed.
An internal email dated 13 April 2021 notes that the resident had been chasing up the decant as they had not been contacted about it. The landlord noted that the appropriate team had received no instruction on the decant. The landlord sought an update on the situation, noting that the resident was becoming inpatient given the time that had passed since the stage two proposed resolution. Further internal communication shows the landlord actioning this, and asking that the resident was called weekly to keep them updated (although there is no evidence of this then happening).
The resident contacted this Service in July 2021 explaining that there had been no progress since the stage two response, with no decant or works booked in. The resident explained that they had no home insurance, but had made a claim for damaged belongings to the landlord’s insurer which had been rejected.
Following on from contact from the Ombudsman, the landlord advised this Service that same month that it had spoken to the resident recently who had advised that they wouldn’t allow the work to go ahead and wanted to be moved permanently.
The resident has stated that the landlord then granted a managed move, and they left the property in October 2021.

Assessment and findings

In their July 2021 complaint to the Ombudsman, the resident explained that their family of three lived in a one-bedroom flat which was ‘rife with mould’, and that this was affecting their child’s health. To resolve the issue, the resident wanted to be moved to a more suitable property. More recently the resident has explained that the landlord did eventually move them via a management move, but did not accept responsibility for damage to belongings at over £2000.
When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes;
2. put things right, and;
3. learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right.’
It can sometimes be the case that landlords blame ‘tenant lifestyle’ for problems with condensation and mould growth (for example drying clothes on radiators, not opening windows), with no further action taken to assist. In this case, the evidence available shows that the landlord treated the resident fairly by listening to and investigating their concerns via employing a specialist to assess the property for damp in October 2020, to determine whether there was a defect (such as a leak or water penetration) that required remedying. The damp surveyor attended over a month after the landlord received the resident’s complaint, which represents a delay in taking action this action, but loft insulation works were carried out in the meantime, within the 28 day period as set out in the repair policy.
The Ombudsman has seen a copy of the damp report which detailed small amounts of mould to the living room wall and ceiling. It found that moisture levels were within the prescribed limit of below 20%. It concluded that no works for penetrating dampness were needed, as the issue was caused by condensation. It made recommendations for thermal insulation, the installation of a PIV unit, and removal of the vine externally.
The landlord agreed to install a PIV unit as recommended which was a reasonable course of action, and demonstrates it taking measures to improve ventilation and so reduce potential hazards, in line with the HHSRS. It made an initial appointment within around a week of receiving the damp report. This was an appropriate timeframe although a delay was then caused by the contractor cancelling. The resident then refused to allow the inspection to go ahead on 16 November 2020, causing a further delay.
The landlord suggested that it wait for a period after the PIV unit was installed to determine whether this resolved the issue, and it is understandable that this was frustrating for the resident. However, while it perhaps would have been better had the landlord agreed to install the insulation in the first place given the recommendation in the damp report, it was not an unreasonable suggestion on the part of the landlord to wait to see if the PIV unit solved the issue. As it was, shortly after suggesting this it raised an order for the insulation work to be carried out as well.
All works were then booked in for 8 December 2020 (it is not clear whether this was with the resident’s agreements to allow the PIV unit to be installed). As the landlord received the damp report at the end of October 2020, this represents a delay on the part of the landlord in carrying out the works recommended, although this is somewhat mitigated by the resident refusing access on 16 November 2020.
This appointment was cancelled by the resident as the household was isolating in line with Covid-19 restrictions, causing a further delay. As set out in its stage one response, the landlord understood that the resident would make contact to rearrange the appointment.
The next record of contact is the resident’s stage two complaint, and there is no evidence of either party attempting to rearrange the appointment during this period. In the stage two complaint the resident stated that the damp specialist had told the landlord that the property was damp. This was not the case, as the report stated that there was no damp. The landlord provided a copy of the report to evidence this, which was a reasonable course of action to reassure the resident of the findings.
The stage two response also referenced being unable to find a convenient time with the resident to get the works booked in. The Ombudsman has seen no record of attempts to do so being made in early 2021, but notes that the resident did not refute this in their subsequent response, and said that they would book the works in once a decant had been arranged.
At this point the landlord agreed to decant the resident’s family. It is not entirely clear why the landlord changed its stance on this, given it had previously said that the decant was not necessary, but it may be that it was due to the concerns that the resident had raised, and an attempt to resolve these so that the works could go ahead. However, it is then apparent that the decant was not actioned by the landlord, and that this caused a further delay. There is no evidence to show that the landlord followed this up after the stage two response or otherwise took any further action in relation to the decant.
The landlord has stated to this Service that the resident then refused the decant, stating that they wanted a permanent move, which was provided via a management transfer.
In its stage two response the landlord apologised for delays and categorised elements of the compensation offer, but it did not state where it considered these delays had occurred. Overall, there do not appear to have been significant delays on the part of the landlord in attending to the repair, so it is unclear why it considered this sum to be warranted. It attended within the 28-day repair timeframe to install loft insulation. It then carried out a damp survey and booked in works soon after receiving the report. There was a delay with the initial missed November 2020 appointment but following this the delays were due to the resident not providing access or needing to isolate in line with Covid-19 restrictions. While the landlord’s lack of clarity in its compensation offer did not cause any adverse effect to the resident, a recommendation has been made to the landlord in this matter.
The most significant delay was in relation to the decant, which was offered as a resolution as part of the stage two complaint response of March 2021. Part 6.5 of the Ombudsman’s Complaint Handling Code states that a remedy offered during the complaints process should ‘clearly set out what will happen and by when…Any remedy proposed must be followed through to completion’. In April 2021, following further contact from the resident, the landlord identified that neither the works nor decant had been progressed and decided that weekly updates would be provided. However, the resident was still awaiting confirmation of the works and decant in July 2021.
The landlord’s failure to follow through on its stage two commitment, or keep the resident reasonably updated in this matter, caused distress and inconvenience, time and trouble.
In light of this failing, an order is made for remedy below by way of compensation. The amount takes into account the £300 already offered by the landlord, as well as the permanent move provided, which was a reasonable use of the landlord’s discretion given the circumstances of this case and that it had no obligation to do so. It is noted that the permanent move was the resident’s preferred outcome.
In relation to the resident’s concerns about damage to their belongings and compensation for this, it was not wholly reasonable for the landlord to advise on how to make a claim on its own insurance policy in the first instance. A landlord should initially at least consider whether there is any evidence that it has been at fault for any claimed damage, rather than refer straight to an insurer. In this case it had concluded that there had been delays on its part, and so it would have been appropriate for it to have considered whether this may have led to the damage that the resident claimed, before referring to its insurer. There is no indication that it did so.
Having said this, while the Ombudsman understands that the resident is dissatisfied with the outcome of the insurance claim, the Ombudsman is not in a position to determine issues of causation and liability and cannot, therefore, comment on the conclusions of the insurance claim. Claims for damages and disputing a provider’s response to an insurance claim would be better dealt with through the courts.

Determination (decision)

In accordance with Section 54 of the Scheme, there was maladministration on the part of the landlord in its handling of the concerns regarding damp and mould at the property.

Reasons

The survey conducted in October 2020 found no damp and did not detail a significant mould issue. The landlord attempted to carry out the works recommended, offered the resident £300 in compensation for delays in carrying out works, and eventually a permanent move.
However, it did not follow through on its stage two commitment to provide a decant, or keep the resident reasonably updated in this matter, causing distress and inconvenience, time and trouble.

Orders

Within one month of the date of this report, the landlord should pay the resident £450, comprising:
1. The £300 offered in the complaint procedure for delays in carrying out works (if not already paid).
2. £150 for the adverse effect caused by its handling of the decant.

Recommendations

When responding to claims for damage, the landlord should ensure that it considers whether there is any evidence that it has been at fault for any claimed damage rather than refer straight to an insurer. The landlord is advised to consider the Ombudsman’s Guidance on Complaints Involving Insurance, found on this Service’s website (Guidance on complaints involving insurance issues (housing-ombudsman.org.uk)).
When responding to complaints, and especially when offering redress such as compensation, the landlord should ensure that it sets out the detail of the failings identified so that there is a clear rationale for redress offered.
The landlord should advise the Ombudsman of its intentions regarding the above recommendations within four weeks of this determination.