Kingston upon Hull City Council (202005965)

REPORT

COMPLAINT 202005965

Kingston upon Hull City Council

17 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

1. The complaint is about the landlord’s response to:
   1. the resident’s reports of damp and mould between 2015 and June 2019
   2. the resident’s reports of damp and mould from June 2019.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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.
3. After carefully considering all the evidence, in accordance with paragraph 25(a) of the Housing Ombudsman Scheme (“the Scheme”), the following aspect of the complaint is outside of the Ombudsman’s jurisdiction – the landlord’s response to the resident’s reports of damp and mould between 2015 and June 2019.
4. Paragraph 25(a) of the Scheme provides –

“The following people can make complaints to the Ombudsman about members:

A person who is or has been in a landlord/tenant relationship with a member landlord.”

5. Whilst the resident has been at the property since October 2015, he did not become a tenant until June 2019, when the joint tenancy agreement began. Whilst it is noted that the other resident within the property was a tenant during this period, the complaint has not been referred to this Service by them. Given that the resident entered into the landlord/tenant relationship on 3 June 2019, this assessment has focused on events from this date onwards.

Background

6. The resident is a tenant of the landlord and commenced a joint tenancy on 3 June 2019 after being a lodger at the property since 10 October 2015. The property is a ground-floor flat.
7. The landlord’s tenancy agreement with the resident confirms that he is not responsible for repairing or maintaining the structure of the property, nor the installations for the supply of electricity.
8. The landlord’s corporate customer feedback process provides for a two-stage internal complaints procedure, with a member panel request stage after the final stage. At stage one it will aim to respond within ten working days or advise the resident if more time is required. At the final stage it states it will aim to respond within 20 working days or advise if it needs more time. Within 20 working days of the member panel request, the resident is to be advised if the complaint will be reviewed.

Summary of events

9. On 13 March 2019 the landlord wrote to the resident to advise that it was proposing to carry out improvement works to ground-floor flats in the housing scheme and it wished to discuss decanting the resident during these planned works.
10. The resident raised a stage one complaint, dated 14 November 2019, with the landlord in which he reported experiencing mould issues in the property for the last four years. He stated that he had been unable to live in the third bedroom in the property due to the mould. He added that he had reported the mould several times in 2015-2016 and had been told that it was “surface damage”.
11. The resident noted that the landlord was now in the process of carrying out renovation work to install damp courses in the building and contended that this was inconsistent with being previously told that the mould was “only surface damage”. He asserted that he had been inconvenienced by not being able to use the third bedroom due to the mould and felt that compensation was due as “it was clearly in need of being dealt with correctly in the first place”.
12. After acknowledging the resident’s complaint on 26 November 2019, the landlord issued a stage one response to him on 11 December 2019. In this, it acknowledged that damp issues were reported to it on 20 November 2015. Following a surveyor’s inspection, works were raised to carry out a mould wash of the affected areas and replace the existing air vent in the bedroom. The resident refused these works as he was dissatisfied with their specification.
13. The landlord relayed that it received another report of damp in the property on 29 June 2016 and the same works were raised, and again these were refused by the resident. It noted that he had informed them that he wished to strip the wallpaper before the works were carried out, but no further contact was received from him about the matter.
14. The landlord said that the damp and mould issue reported by the resident was the result of condensation, which had been confirmed by its surveyor. It acknowledged that the resident had taken steps to combat the condensation and that this posed an issue to “numerous” other residents living on the estate. The landlord confirmed that it had investigated this and found that no damp-proof membrane existed in the properties and therefore it decided to “invest… in carrying out improvements to all the ground-floor flats” which included providing a damp-proof membrane. It explained this was to “improve the building design and thermal efficiency”.
15. The landlord said that the proposed damp-proofing works were “an improvement to the original design of the building” and did not result from a failure on its part, therefore it could not offer compensation.
16. The resident called the landlord on 9 January 2020 to escalate his complaint to the final stage. He was dissatisfied that electrical appliances in the room affected by damp would “blow up cause of the damp and mould” which was becoming “unbearable”. The resident was unhappy that no damp-proof course had been installed and wanted compensation for the affected room in which three “humidifiers” were used.
17. The landlord issued a final stage complaint response to the resident on 3 February 2020. It reiterated that historical remedial works had been offered which the resident had declined; he had also reported mould in the bedroom on 3 January 2020 but he again had declined an inspection. In response to the resident’s reports of electrical faults, the landlord advised that it had arranged for an electrician to inspect the electrics in the bedroom.
18. The landlord said that the forthcoming damp-proofing works were an improvement to the property, to improve its sustainability and not a result of any failure on its part. Therefore, it repeated that it could not offer him any compensation.
19. The resident escalated his complaint for a member panel request on 20 February 2020, stating that the landlord’s response was “not good enough”. He was unhappy that each response he had received was from a different member of staff and wanted a refund of bedroom tax paid for four years for the room affected by damp and mould. On 10 March 2020, the landlord advised that his member panel request had been denied. It explained that it had offered remedial work, which had been refused, and it had acted in accordance with its obligations.

Assessment and findings

20. The tenancy agreement, as detailed above, provide that the landlord is responsible for maintaining the structure of the property and the installations for the provision of electricity. Therefore, it acted in accordance with this obligation when it responded to the resident’s report of electrical issues on 9 January 2020 by arranging for an electrical inspection, confirmed in its final stage response on 3 February 2020.
21. When the landlord receives a report of a defect or repair, its first action should be the inspect the issue. It is noted that in response to the resident’s report of damp and mould issues on 3 January 2020, it offered an inspection, which he declined. This was a reasonable response from the landlord and without conducting an inspection first, there was no remedial work that the landlord could order or propose. It follows that there was no failure on the landlord’s part in this regard.
22. The landlord’s obligation to carry out certain repairs does not extend to the carrying out of improvement works. As the building which comprises the resident’s property was not built with a damp-proof membrane originally, the subsequent installation of one constitutes an improvement – and is not a “responsive repair” for which the landlord is obliged to carry out under the tenancy agreement, or under the Landlord and Tenant Act 1985. That it carried out improvements works does not imply that there had been any defect that it had failed to address.
23. In response to the resident’s request for compensation, the landlord advised that as there was no service failure on its part, there was no grounds for compensation to be paid. Whilst the resident’s comments that he has not been able to use one of the bedrooms within the property have been noted, the Ombudsman has not been provided with any evidence which demonstrates that the condition within that room was a result of a failure to carry out repairs by the landlord. It follows that there is no evidence to suggest that the landlord was responsible for the condition of that room, or the resident’s inability to use it. As such, the landlord’s decision to decline compensation was appropriate in the circumstances. 

Determination (decision)

24. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s reports of damp and mould from June 2019.

Reasons

25. The landlord acted reasonably and in line with its obligations, by offering inspections for the reported electrical and damp issues. The resident refused to allow the landlord to conduct any inspection, and as a result no further action was taken in response to the resident’s report. This was not a failing by the landlord.
26. The landlord did subsequently carry out improvement works, in the form of installing a damp-proof membrane. However, this is not evidence that there has been any unresolved defect in the property. Given that there was no failing by the landlord, it was appropriate for it to decline compensation during the course of the complaints procedure.