Clarion Housing Association Limited (202205997)

REPORT

COMPLAINT 202205997

Clarion Housing Association Limited

25 October 2023

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

This complaint is about the landlord’s handling of:
1. The boiler replacement.
2. Reports of mould within the property.
3. The resident’s request for a replacement kitchen.
4. The resident’s request for adaptations to a communal door.
5. The associated complaint.

Background

The property is a two-bedroom ground floor flat. The resident has an assured tenancy agreement. The resident moved into the property via mutual exchange on 7 February 2022.
The landlord has recorded on its system that the resident is vulnerable. The resident explained she is disabled, with breathing difficulties and severe allergies.

Scope of investigation

The resident said the landlord’s actions impacted her health. The Ombudsman empathises with the resident. However, as this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are better suited for consideration by a court or via a personal injury claim. Nonetheless, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.

Obligations

Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on the landlord to keep the structure and exterior of the property in repair. The landlord also has a responsibility under the Housing Health and Safety Rating System, introduced by The Housing Act 2004, to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord is required to consider whether any damp and mould problems in its properties amount to a hazard and require remedying.
In determining whether a property is unfit for human habitation under the Homes (Fitness for Human Habitation) Act 2018, the key question is whether a property is “not reasonably suitable for occupation in that condition” because of various factors, which include repairs, freedom from damp, and ventilation.
Under the terms of the tenancy agreement, the resident is responsible for keeping the inside of the home, including fixtures and fittings, in good condition. The resident must not alter any fixtures and fittings or fit laminate or other hard flooring without obtaining written permission from the landlord.

Landlord’s policies and procedures

The complaint policy states, “initial queries will be resolved by one of our teams where possible before a formal complaint is recorded.” The landlord has a two-stage complaint process. There are no timescales provided within the complaints policy that the landlord submitted to this Service.
The mutual exchange policy says incoming residents have the same rights of repairs that are the landlords’ responsibility. Responsibility for any repairs that were the responsibility of the outgoing/former resident will pass to the new/ incoming resident, as they agree to accept the property ‘as seen.’ It also confirms the landlord will usually conduct gas safety and electrical inspection checks on or after the day of the mutual exchange.
The aids and adaptations policy says the landlord requires an occupational therapist referral for all aids and adaptation requests.
The repairs and maintenance policy says an emergency repair should be made safe within 24 hours and a non-emergency repair handled within 28 days. Major component replacements such as kitchens, bathrooms, and roofs are not considered a responsive repair.
The compensation policy explains compensation will be considered on a case-by-basis. For a loss of amenity because of a boiler replacement, the policy provides compensation of £5 per day after 14 days from the initial report. For missing an appointment, the policy states £15 compensation is payable.

Summary of events

Boiler records from 3 September 2021 state the landlord’s heating contractor made a referral for a survey to take place to explore a new boiler installation. Records indicate a survey was conducted on 27 September 2021. The survey has not been shared with this Service.
An asbestos test was required. Records show contractors chased for this throughout November and December 2021. Full records from this period have not been provided.
On 7 February 2022, the resident moved into the property via a mutual exchange. The same day, a gas safety inspection was completed. The engineer recorded the boiler was in poor condition and required replacement. Nonetheless, it passed the safety check.
The resident raised a complaint on 13 February 2022. She said:
1. The boiler makes a banging noise when it is working, or it does not work at all. There was no way of controlling the temperature.
2. The boiler was leaking, and the radiators were damaged, rusty, and in a state of disrepair.
3. She was told on 7 February 2022, that the heating system was due to be replaced yet no-one told her when this would happen and what this entailed.
4. She was dissatisfied with the condition of the kitchen and the kitchen flooring. She said she was offered a mould wash, which was booked in for 24 February 2022 and she was told she could seek permission to change the kitchen herself.
5. She had raised repair requests for smaller issues such as broken window vents, window handles, and a problem with the communal door, but she had not been given an appointment date.
6. She was disabled with breathing difficulties and severe allergies and felt the living conditions were untenable.
Two days later, the resident sent a video of the boiler to the landlord to demonstrate the banging noise. She explained the temperature within the property was 12 degrees centigrade.
On 17 February 2022, the landlord did not give the resident permission to replace the kitchen due to rent arrears.
The landlord contacted the resident on 21 February 2022. It confirmed an appointment had been made for a neighbourhood response officer to inspect her property on 23 February 2022. It passed her query regarding the new boiler to the heating operations team.
The boiler replacement was completed by 23 February 2022.
The day after the inspection by the neighbourhood response officer, the resident sent the landlord evidence to support her position, including photos. She explained she was withholding rent as she felt the kitchen needed replacing. She said she needed an urgent response as to whether the landlord would remove the current kitchen cabinets and flooring, and treat the kitchen ceiling, walls and floor for the damp and mould problem, or if it would give the resident permission to do this herself.
The landlord’s records show an inspection to the damp and mould concerns took place on 24 February 2022. The outcome of this was no reports of mould within the kitchen which was included in its internal correspondence dated 8 March 2022.
The resident chased for a response to her complaint on 1 March 2022.
The landlord’s records show it referenced the complaint internally on 8 March 2022 and said, “the operative has reported that the resident has ripped up the flooring and there is no mould in the kitchen.” It asked internally whether anything else could be done to resolve the complaint.
An occupational therapist emailed the resident on 21 April 2022 and said they would contact the landlord’s adaptations team to, “request 2 grab rails to be fitted over the bath and to check if the fire door closer can be adjusted so the door can open with less tension.” They also suggested that the resident uses the main door into the carpark rather than the smaller fire door in front of her door. They advised that the resident exit with her rollator frame folded until she gets outside.
The landlord’s internal records show it investigated the resident’s complaint in April 2022. It issued its stage 1 response on 12 May 2022 and summarised the resident’s complaint. It said:
1. It apologised it did not record a formal complaint for the resident until 11 April 2022, when she initially made the complaint on 13 February 2022.
2. It attended on 23 February 2022 to replace/repair:
  1. The stop valve under the sink
  2. The leaking hot feed to the bath mixer
  3. The lock and handle set
3. On 24 February 2022, the landlord attended to review the kitchen floor, work tops and base units. It reported no mould was found behind the kitchen cupboards. It advised the resident was responsible for flooring and decorating and said that as the property was obtained via a mutual exchange, the landlord was responsible for health and safety repairs only, for the first 12 months.
4. Follow on works were arranged for 25 February 2022, where it fitted a new framework for the bath panel, a new bath panel, skirting plinth, and trickle vent.
5. It also attended on 16 March 2022 where it repaired a leaking bottle trap and a minor weep on the tap connector under the bath.
6. It advised it had repaired the outstanding leaks and there was no evidence of damp and mould on its visits. It acknowledged this was likely due to the resident cleaning away the mould.
7. The resident informed the landlord during a conversation on 12 May 2022 that she had discovered damp and mould in several areas such as the floors, walls, skirting boards, and kitchen cabinets which she had addressed herself.
8. A new boiler was installed on 21 February 2022 within its service level agreement. It recognised the resident experienced a loss of heating and hot water. It apologised for the inconvenience and disruption caused.
9. It apologised for not initially updating its system to reflect the resident’s disability and vulnerabilities. It confirmed this had now been done.
10. It attended on 4 April 2022 to ease and adjust the hinges on the communal door and it also installed a draft excluder and a bristle bar. The resident disputed that adjustments were made and so the landlord arranged for a further appointment for 20 May 2022 to see if any further adjustments could be done.
11. It offered £535 compensation, comprised of £15 for a missed appointment, £70 for loss of heating and hot water, and £450 to recognise the time taken to resolve matters, repeat calls and emails, failure to follow process, lack of ownership taken, consideration of the household vulnerabilities and any inconvenience suffered.
On 19 May 2022, the resident escalated her complaint to stage 2. She said she disputed some of the landlord’s findings and she was dissatisfied with the lack of responsibility taken regarding damp and mould. She said this problem caused her severe pain, exhaustion, and exacerbated her condition.
Around 17 June 2022, the landlord shut down most of its services following a cyber security incident. It updated its website to inform residents that its emails, IT systems and phone services were not working as normal. Emergency repairs could still be reported but other than that, residents were asked not to call the landlord. It explained it would provide updates on its website and social media.
The landlord contacted the resident on 19 July 2022, to explain it currently had limited access to its IT systems due to the cyber incident and so it may not be able to respond within its normal timescales. It asked the resident to resend her stage 2 escalation request and explain what she was dissatisfied with and the outcome she was seeking.
The resident responded the same day and said:
1. She moved into a property that was uninhabitable due to her disability and allergies.
2. She felt ignored by the landlord in her attempts to remedy the situation.
3. The main issue not acknowledged was the mould on the kitchen walls, skirting boards, cabinets, and flooring, which she believes was caused by a leaking plinth heater due to the boiler pressure being too high on the previous boiler.
4. She felt the landlord had a cavalier attitude and it did not arrange for anyone to inspect the problem.
5. She was told over the phone that she could replace the kitchen at her own expense and was now in debt from removing the kitchen, conducting mould treatments, and installing a new kitchen.
6. She was dissatisfied with the response regarding the communal door. She said it was too narrow to fit a wheelchair through and too heavy. She felt she potentially could not escape if there was a fire.
7. She felt the landlord’s statement regarding resident’s rights following a mutual exchange was incorrect.
Following this, records show the landlord investigated the resident’s concerns internally.
The landlord issued its stage 2 response on 5 August 2022. It said:
1. Its service was disrupted following a cyber-attack. It apologised for any inconvenience caused.
2. It cannot find previous records of high boiler pressure or boiler leaks that would have contributed to any damp or mould issues.
3. There was a call out on 31 March 2022 regarding a small radiator leak in the lounge, which was resolved.
4. A mould treatment was offered to the resident, but she refused it.
5. During inspections of the home, no mould was identified, and the kitchen was found to be in reasonable condition. As such, if the resident wanted to replace the kitchen, it would be at her own expense.
6. The property was accepted ‘as seen’ as a mutual exchange. The resident had removed the previous resident’s flooring. The landlord inspected the marks on the subflooring and determined these were historic stains rather than evidence of an ongoing damp and mould problem.
7. The landlord managed all repair requests within its agreed service level.
8. It accepted it gave the resident incorrect information about it only addressing health and safety repairs for the first 12 months of the tenancy. It confirmed the incoming resident had the same rights as the outgoing resident and apologised for any inconvenience caused. It said this had been addressed with the area manager.
9. It arranged for a surveyor to attend her home on 5 August 2022 and said that if any repairs are identified, it would ensure appropriate works are done.
10. The communal door had been checked and was working as intended. It said if the door was not suitable for the resident’s needs, then it would be an adaptation rather than a repair. It explained all adaptations require an occupational therapist assessment and said the resident can apply to the local authority to request this.
11. The landlord awarded £100 compensation to recognise the delays issuing a stage 2 response and £150 compensation to reflect the misinformation provided about repairs within the first 12 months of a mutual exchange. As such, the landlord awarded a total of £785.00 compensation for the resident’s complaint.

Events after the end of the complaint process

The surveyor attended the property on 5 August 2022 with instructions to inspect the issues raised by the resident in relation to damp and mould. The surveyor told the landlord via email that there were no works for it to do and the issues were resolved.
The resident told this Service she received the stage 2 response on 5 August 2022 at 10:02am, yet by this time, the surveyor had already attended and took photos of the property. She said the surveyor arrived unannounced and at the time, she was unaware of what the appointment was for.

Assessment and findings

Where there are admitted failings by a landlord, the Ombudsman’s role is to assess whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman investigates whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.

Boiler replacement

The Ombudsman considered whether the landlord met its repairing obligations regarding the boiler. Repair records show the landlord was on notice that a replacement boiler may be required from the end of September 2021. No records have been provided to demonstrate what happened during the mutual exchange process and what information was provided to the incoming resident. As the landlord was aware of the need for a boiler replacement and was actively exploring this prior to the completion of the mutual exchange, this should have been explained to the resident so she could make an informed decision about whether to accept the property in its current condition.
On 7 February 2022, the resident moved into the property and a gas safety inspection was completed. The engineer recommended the boiler was replaced, and this was completed by 23 February 2022. The Ombudsman finds that the landlord acted in line with its policies during the period the resident occupied the property. It completed a gas inspection on the date of the mutual exchange and replaced the boiler within a reasonable time frame. However, it failed to demonstrate that it gave sufficient information to the resident regarding the condition of the heating system before she completed the mutual exchange. This amounts to service failure.

Reports of mould within the property.

As per the landlord’s mutual exchange policy, the property is accepted “as seen” by the incoming resident. As such, it is important for the incoming resident to ensure they have thoroughly inspected the property to confirm they are satisfied with its condition, and it meets their needs.
Within the landlord’s investigation it said damp, mould and leaks were not highlighted on the initial inspection. This Service has not been provided with evidence of the initial inspection or evidence to show what the resident observed when she viewed the property. This is a record keeping failure. The Ombudsman finds that the landlord should have provided detailed records to evidence its actions, communications and decision making during the mutual exchange process. Without this information, we cannot determine what happened here.
Regardless of what happened during the mutual exchange process, the landlord had a responsibility under the Housing Health and Safety Rating System (HHSRS) to assess hazards and risks within its rented properties. Damp and mould growth are a potential hazard and therefore the landlord was required to consider whether any damp and mould in its properties amount to a hazard and required further action.
Following the resident’s initial report of mould within a property, the Ombudsman would expect a landlord to conduct an inspection to understand the extent of the problem, the probable cause and decide an appropriate course of action or whether a specialist damp survey is required. In this case, the landlord arranged for a property inspection to take place on 23 February 2022 by a neighbourhood response officer. This Service has not seen anything to show if this member of staff was appropriately qualified to investigate reports of mould or any information from the inspection. It also is not clear from the information available when the inspection was first arranged and how long the resident had to wait for it. Considering the resident’s circumstances, the Ombudsman would expect a landlord to act swifty to assess any potential risk to the resident and explore reasonable adjustments. The lack of evidence provided is a failing on the landlord’s part.
The landlord acknowledged in its stage 1 response that the resident had made it aware of her vulnerabilities and it had not updated its system. It was appropriate for the landlord to ensure its system was updated so the resident could be supported going forward. Additionally, this Service finds the landlord acted reasonably by recognising its failure when it considered the impact on the resident and compensation.
Considering the resident has an allergy to mould, the Ombudsman finds it was appropriate for the landlord to arrange a mould wash in the first instance. We would expect this to be completed as soon as possible. However, the landlord should have also arranged for investigations into the cause of the mould and taken ownership of the problem. Its failure to do so meant the resident spent time examining her property for issues and raising repair requests to resolve various leaks within the property. This caused further distress and inconvenience to the resident at an already stressful time when she was concerned about the impact her living conditions were having on her health.
There is no evidence to show whether the mould wash scheduled for 24 February 2022 took place. The landlord said within its internal investigation that the resident was offered a mould wash on two occasions, but she refused.
The resident has disputed that the mould wash was refused. This was on the basis that the resident stated she had already undertaken this remedy two or three times per week and engaged a contractor to carry out a mould remedy at this stage. Therefore the offer came too late.
The resident informed this Service that she funded her own deep clean of the property at the start of the tenancy and she also paid for her own mould treatments. The resident has not provided evidence to show the date she arranged her own mould treatment(s), when this took place, or how much it cost. As such, the Ombudsman is unable to assess whether the landlord was given a fair opportunity to investigate the resident’s reports of mould before she took her own actions. Nonetheless, we recognise the resident acted for her own safety.
The landlord accepted it incorrectly told the resident that it was only responsible for health and safety repairs for the first 12 months following the mutual exchange. The landlord provided its repair records for the property. The records demonstrate that upon moving into the property, the resident immediately began raising repair requests and continued to do so throughout the period under investigation. These records show the landlord dealt with all repairs as per the terms of its repair policy, including fixing several leaks, which may have contributed to the mould identified by the resident. Therefore, while it gave the resident the wrong information about its policy, the Ombudsman is minded that the landlord handled the repair requests promptly and it communicated with the resident throughout regarding appointments and next steps.
Since the landlord replaced the boiler and completed the reported repairs to the property, this Service has seen no evidence of further reports of mould from the resident. Therefore, it is surmised that in completing the reported repairs, combined with the mould treatment arranged by the resident, the matter was resolved.
Overall, the landlord should have provided more comprehensive evidence to this Service to show its actions and decision making. However, it accepted its failings regarding the incorrect information provided to the resident and considered the disruption, inconvenience, and impact to her. It awarded appropriate compensation and ensured that the repair requests were managed within a reasonable timeframe. This Service is aware that the landlord has since created a specific damp and mould policy and it has self-assessed against the Housing Ombudsman’s recommendations contained within our damp and mould spotlight report. This demonstrates the landlord has reflected on and learnt from its mistakes, as expected under the dispute resolution principles. In considering all the information available, the Ombudsman finds the landlord offered reasonable redress to the resident prior to the complaint being considered by this Service.

The resident’s request for a replacement kitchen.

The landlord informed the resident that the property was accepted as seen via a mutual exchange and it did not require replacement. It said if the resident wanted a new kitchen, she would need to undertake this at her own expense. The landlord’s repair policy explains replacement kitchens do not fall under its repair policy and are considered as part of planned repair programs. Based on the above, the Ombudsman concludes the landlord acted reasonably and in line with its policies.

The resident’s request for adaptations to the communal door.

The repair logs provided by the landlord show that it treated the resident’s concerns seriously by checking the communal door twice, completing minor repairs to it, ensuring the closer had been set to the minimum settings required for it to operate correctly, and checking to see if any other residents had reported problems. This Service finds it appropriate for the landlord to refer the resident to the local authority to obtain an occupational therapist assessment if she requires any adaptations to the door. This is because its policy requires an occupational therapist referral to consider any adaptation requests. Therefore, the Ombudsman has not identified any failings here.

The associated complaint.

The resident raised a formal complaint on 13 February 2022. The landlord issued its stage 1 response on 12 May 2022, 88 days later. While no complaint timescales were provided by the landlord to this Service, the Housing Ombudsman’s Complaint Handling Code (“the Code”), published in July 2020, specifies a stage 1 complaint should be finalised in 10 working days. A stage 2 complaint should be finalised within 20 working days. The Code serves to illustrate that this complaint was not handled appropriately.
The resident escalated her complaint to stage 2 on 19 May 2022. The landlord’s records show this was not acknowledged until 7 June 2022. The landlord has not explained the reason for the delay acknowledging the complaint. This is a communication failure.
At stage 2, the landlord explained its final complaint response was delayed due to a cyber incident which impacted its IT systems. The Ombudsman finds that the landlord updated the resident regarding this and directed her to its website where it regularly provided updates on the cyber incident. The stage 2 response was issued on 5 August 2022. The landlord apologised for the delay and awarded compensation to reflect this. This was appropriate in the circumstances.
At stage 1 and stage 2, the landlord demonstrated that it investigated the resident’s complaint points and considered the impact on her. It acted reasonably by explaining what evidence it considered and the reason for its position so the resident could understand its decision making. It admitted its shortcomings and evidenced learning from this to prevent similar failings from occurring again.
The Ombudsman notes that as part of the complaint resolution, the landlord arranged for a surveyor to attend the property to ensure there were no issues remaining. The resident explained the surveyor arrived before she received the final response, and so she was not aware of the appointment or its purpose. While the Ombudsman finds it was pragmatic for the landlord to arrange for a surveyor to check that all matters were resolved, advance notice ought to have been given to the resident.
The landlord awarded £785.00 compensation for the various failures identified. The Ombudsman’s remedies guidance (available on our website) states that compensation awards of over £700 may be used where there has been maladministration and a significant impact on the resident. Considering the evidence available and the timeline of events, the Ombudsman finds that the amount offered to the resident was reasonable in the circumstances and in line with what this Service would recommend.
Additionally, the Ombudsman is aware the landlord has since published an interim complaint handling policy on its website with specific timescales following the cyber incident.
Overall, the Ombudsman concludes that the complaints process was used as an effective tool to resolve the dispute and finds the landlord offered reasonable redress to the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the boiler replacement.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s handling of reports of mould within the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request for a replacement kitchen.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request for adaptations to the communal door.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s handling of the associated complaint.

Reasons

The boiler was replaced in line with the landlord’s repair policy and the resident was compensated for the loss of amenity as per the landlord’s compensation policy. However, the landlord should have evidenced what information was provided to the resident about the boiler prior to the conclusion of the mutual exchange.
The landlord gave the resident incorrect information about the type of repairs it would complete for 12 months following a mutual exchange and it didn’t update its system with the resident’s vulnerabilities at the earliest opportunity. However, it recognised its mistakes, updated its system, managed repair requests in line with its policy and provided appropriate compensation for its failings in line with the Ombudsman’s remedies guidance.
The landlord explained properties agreed by mutual exchange are accepted ‘as seen’ but the resident could arrange a kitchen replacement at her own expense.
The landlord checked the communal door twice to ensure it was operational and completed minor repairs. It signposted the resident to the local authority to arrange for an occupational therapist assessment if she required adaptations.
Complaint handling failures were identified at stage 1 and stage 2. The landlord recognised this and awarded compensation in line with the Ombudsman’s remedies guidance.

Orders and recommendations

Recommendations

It is recommended the landlord pay the resident the £785 compensation it previously offered if it has not done so already.
The Ombudsman is aware the landlord’s interim complaints policy falls outside of the Code with regards to complaint handling timescales. The landlord should review and amend this policy as soon as possible and ensure it is fully compliant with the Code.
It is recommended the landlord completes and publishes an updated self-assessment against the Code once its complaint policy is updated.