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Peabody Trust (202202191)

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REPORT

COMPLAINT 202202191

Peabody Trust

20 June 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

  1. The complaint is about the landlord’s decision not to investigate the historic damp and mould experienced by the resident.

Background

  1. The resident is a shared owner of a two-bedroom flat on a second floor of a purpose-built block owned by the housing association landlord. The lease began on 19 December 2008.
  2. On 23 March 2016, the resident provided the landlord with an invoice she had paid to fix a leak in her bathroom on 7 November 2015. The plumber who carried out the repair noted a badly fit shower screen; and a badly fit concealed cistern that the builder had cut through the flush pipe, causing a leak since installation and that there was extensive damage. As the resident’s building insurance agreed to cover the cost of tracing the issue but not the repair, the resident requested that the landlord pick up this cost. As a goodwill gesture, it agreed to do so. Records show that in 2016, the resident also pursued the landlord to repair the internal damage her property sustained (including damp and mould). There is no evidence to suggest that this was agreed upon or that the resident took this issue forward after 2017.
  3. The resident advised this Service that she had complained to the landlord in March 2021 about damp and mould, and no further action had been taken. This Service has not had sight of the complaint. Based on advice provided by this Service, the resident approached the landlord and requested that it provide a stage two response. The landlord explained, however, that it had no active complaints, and as such, it could not progress a complaint to stage two. It instead opened a new complaint at stage one.
  4. On 16 May 2022, the landlord provided its stage one response. It explained that in accordance with its policy, it would not consider events which occurred more than six months before the complaint was made; however, it noted that the leak originated from fixtures and fittings serving the resident’s flat exclusively and therefore was the resident’s responsibility to repair.
  5. On 20 May 2022, the resident wrote to the landlord and said she repeatedly expressed dissatisfaction with the mould on her property caused by a leak on the flush pipe that the builder installed incorrectly. The resident also said that the insurance company (from a separate leak in 2022) told her that the extractor fan and the leak in 2015 had contributed to the mould in the bathroom. She said these issues were not her fault and asked to escalate her complaint to stage two.
  6. The landlord issued its final response letter on 24 June 2022. It explained that while the leak may have originated from poor work quality, the builder was no longer responsible for the repair because of the time that had passed. The landlord said: “We realise this may not be fair because you did not cause the leak. [However,] we are working within the confines of the legal definitions of defects, what we are allowed to recharge through service costs and the developer’s responsibilities”. The landlord explained that this was one of the reasons why it required residents to raise complaints within six-month from the time the event occurred. It said that if the resident was unaware of the complaint process, it was reasonable for her to ask for information. The landlord highlighted that since 2008 when the resident moved to the property, she did not raise the issue of ventilation in the bathroom. Therefore, by now, the fan passed its expected life cycle, and it is reasonable that the resident may need to upgrade it, especially if there was an ongoing issue with moister build-up, as was identified by the insurer in 2022.
  7. The resident wrote to this Service on 9 August 2022 and said: “I was not the builder, nor did I install the air vents, so I feel that [the landlord] has a duty of care which they have chosen to ignore by logging my quite obvious complaint in 2015 as a query and not a complaint”. To resolve the complaint, the resident would like the landlord to treat the mould in the bathroom, paint the ceiling and walls, replace the skirting board, door, and light fitting, and upgrade the extractor fan in both bathrooms.

Assessment and findings

Scope of Investigation

  1. The Ombudsman notes the resident’s assertion that the landlord’s handling of this case has negatively impacted her health. While the Ombudsman is sorry to hear this, it is beyond the expertise of this Service to determine a causal link between the landlord’s actions (or lack thereof) and the impact on the resident’s health.
  2. Often, when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration of a condition. Without that evidence, this Service cannot draw any conclusions on whether the resident’s health has been affected by how the landlord handled the resident’s report of damp and mould in her bathroom. This question may be better for the courts where the appropriate expertise can be drawn on. Should the resident wish to pursue this matter, she may want to seek legal advice.

Policies and procedures

  1. The lease says the property includes the plaster walls and any other finishes on the inside of the wall; any floorboards and any other floor finishes; radiators and water sanitary apparatus; gas and electrical apparatus; all pipes and drains […] and all fixtures and appurtenances belongings wholly to the premises. “The Landlord shall not be liable for any damage suffered by the Leaseholder through any defect in any fixture tank pipe wire staircase machinery apparatus or thing in the Estate or through the neglect default or misconduct by the Landlord in connection with or for any damage to the Premises due to the bursting or overflowing of any pipe tank boiler or drain in the Building except insofar as any such liability may be covered by insurance effected by the Landlord.”
  2. The landlord repair policy says the leaseholder is responsible for the repair of Internal painting and wallpapering; plastering; skirting board bath panel; bath sinks and taps (leaks and dripping); shower curtains and pours shower screens; toilet and cisterns condensation and mould; individual extraction system (MTV or MVHR); plumbing leaks.
  3. The landlord’s damp and mould policy applies to all homes irrespective of tenure type once the property is outside the defects liability period. The developer will address any issues that may arise within this period. The policy says leaseholders and shared owners are responsible for their property as per individual lease agreements, which supersede this policy.

The landlord’s decision not to investigate historic damp and mould experienced by the resident.

  1. The Ombudsman’s role is to investigate issues relating to a specific complaint that has progressed through a landlord’s complaints process. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues and reach an informed conclusion on the events which occurred. Residents are encouraged to bring the unresolved problems through to the Ombudsman after the landlord’s complaints process, as this will enable any areas of potential service failure to be identified and addressed.
  2. The Ombudsman appreciates that as issues become historic, it becomes increasingly difficult to unpick the events that took place and how matters were handled. Evidence becomes difficult to obtain and authenticate, and accounts become less reliable. As such, it is common for a landlord’s complaints policy to set out a timescale within which it expects a resident to complain about an issue they are experiencing.
  3. In this case, the resident sought for the landlord to consider her circumstance and the way in which it handled this from as early as 2015. In its first stage response, however, the landlord explained that in line with its complaints policy, it would only review and investigate complaints raised within six months of the issue occurring. It explained the reason was that the purpose of the complaint process was to work with the resident to find a resolution at the earliest opportunity. The landlord further explained that due to limitations on the availability of the records, it could not thoroughly investigate complaints dating back several years. This was in line with its policy.
  4. The Ombudsman has considered the landlord’s policy and notes that while it is prescriptive, it does provide scope for the landlord to apply its discretion, depending on the circumstance. The policy explains that “[the landlord] may exercise discretion in exceptional circumstances when considering whether to accept a complaint submitted outside of this timescale”.
  5. In the Ombudsman’s opinion, this would have been appropriate if, as the resident suggested, she had brought her complaint to the landlord at an earlier time and made reasonable attempts to take this forward, but the landlord had failed to recognise this.
  6. In considering the resident’s contact with the landlord, this Service has drawn on the Complaint Handling Code (the Code), which defines a service request as: “a request from a resident to their landlord requiring action to be taken to put something right”. Conversely, the Code defines a complaint as “an expression of dissatisfaction, however made, about the standard of Service, actions or lack of action by the organisation, its staff, or those acting on its behalf, affecting an individual resident or group of residents”.
  7. With this in mind and from the evidence available to this Service, while the resident may have sought to raise a complaint, it was reasonable for the landlord to deem this a service request. The Ombudsman has seen that the resident’s original request was: “Hi, I had a leak from my main bathroom toilet on 7 November 2015. A plumber visited who advised […] I was wondering whether there is something you would be able to do as I have extensive damage to my property, which was caused by the leak”.
  8. The evidence shows that following the leak in November 2015, the resident emailed the landlord to inspect the mould in her bathroom in March 2016 and made several attempts to pursue the matter until July 2016. With the exception of a further service request in 2017, there is no evidence of either party raising the matter after this time or of the resident setting out her dissatisfaction with the landlord’s service.
  9. In the Ombudsman’s opinion, if this matter remained an issue, it would have been reasonable for the resident to have re-raised this with the landlord, and if there was no response / reasonable action, to have contacted this Service. It appears that the resident only did this in May 2022. It was, therefore, not unreasonable that the landlord took the decision not to expand the scope of its investigation.
  10. In the resident’s stage one complaint, she expressed dissatisfaction as she believed a latent defect existed up until 2015, which resulted in damp and mould in her property. She explained that she put this to the landlord at the time, and while the leak was resolved, the damp and mould remained an outstanding matter. She was dissatisfied that she had only just been advised that she could refer the matter to the latent defect team and that she had been told that her extractor fan had been deemed unsuitable and in need of an upgrade.
  11. While the landlord explained that due to the length of time that had passed, a full investigation of the events from this period would not be undertaken, it did consider some of the information the resident shared with it from this time. At stage one, the landlord explained that the leak experienced in 2015 was to fittings which the resident was responsible for and that while the resident suggested that there was a latent defect, this had not been assessed or accepted by the developer at the time. The landlord also explained that it had considered whether a previous complaint had been made but could only identify (from the resident’s evidence) service requests. It highlighted that the initial leak was from a pipe which exclusively served the resident’s flat and for which she was additionally responsible. This was a fair response.
  12. As the landlord had not accepted responsibility previously, and the question of the historic liability became one which fell outside of its scope, it was only reasonable to investigate and provide detailed records for the events in 2022. The landlord advised the resident of her responsibility to address the internal damp and mould as a leaseholder and to upgrade her fan. This was appropriate.
  13. On 24 June 2022, the landlord gave the resident a final response. It detailed the lease terms and reiterated why its response focused on the latest leak issue in 2022. The landlord set out the approach to defects and allegations of damage to newly built homes. It explained that while there might have been a latent defect, due to the length of time that had passed, this was no longer its responsibility to resolve. This was appropriate. The Ombudsman appreciates that this would be frustrating for the resident to hear. It was not unreasonable, however, that the landlord refused to consider its historic approach after several years without contact. It was appropriate for the landlord to explain how the length of time impacted its ability to consider the issue.
  14. Given the circumstance, it was also appropriate for the landlord to explain to the resident that it was not liable to replace extractor fans, skirting boards, treatment of mould, replacement of light fitting and the door in the resident’s bathroom.
  15. For the reasons set out above, after careful consideration, I have determined that there was no maladministration with the landlord’s handling of the resident’s complaint.
  16. Overall, leaks in a home can sometimes be challenging to identify and fix. However, there is no disputing how frustrating and inconvenient the ongoing problem will have been for the resident. While this Service appreciates that this may not be the outcome the resident wished for, the Ombudsman can only make decisions based on evidence. The landlord is recommended to continue working with the resident to find the ultimate cause or causes of the problem. If the damp and mould persist, it should share information with the resident on how to best tackle this.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration with the landlord’s decision not to investigate the historic damp and mould experienced by the resident.