Southwark Council (202118163)

REPORT

COMPLAINT 202118163

Southwark Council

17 August 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

1. The complaint is about the landlord’s:
   1. Response to the resident’s reports of damp and mould in her property and in the basement below it.
   2. Complaint handling.

Background

2. The resident is a secure tenant of the landlord. The property is a one–bedroom ground floor flat. There is a basement area below the flat.
3. On 5 December 2019, following an inspection of her property by the landlord, the resident raised a complaint as she said the landlord had confirmed there was damp in the basement, and that she should not store things there because of it. She complained that the landlord had refused to do anything to address the damp. She also pointed out that there were some holes in the walls of the basement that were filled with rubbish. The outcome she sought was for the landlord to “explore further options e.g. damp proofing, proper ventilation, dehumidifier etc.” so that she could use the basement for storage.
4. In its stage one complaint response on 19 December 2019, the landlord said that the main reason it would not damp proof the area was because the basement did not form part of the resident’s dwelling. It said the basement was part of the communal areas of the building and its purpose was to provide access to the communal pipework that ran through it. It said it did not object to the resident using the area for storage but it felt it had a duty to warn her that the damp might damage anything stored there. It said as the basement’s intended purpose was for access rather than storage, the measures she had requested were not necessary for the area’s intended purpose. It did however agree to add vent grills to the holes that were already in the cellar, which were there for ventilation. The landlord installed the vent grills on 19 December 2019.
5. On 17 August 2021 the landlord raised a repair job in response to the resident’s report of a dipping ceiling in her kitchen. The resident escalated her 2019 complaint on 10 September 2021 as she said the damp in the basement was ongoing and it was affecting her asthma and making her property and belongings smell. She said, as the flat was too small to store her belongings in anywhere other than the basement it was also affecting her mental health. She said her “expectation from the council is to do the necessary work to the basement so that it is safe for my health and I am able to store things in there without them being destroyed”.  She also said that when the landlord was repairing her dipping kitchen ceiling recently there had been mould found on the concrete under the plasterboard. She said that she believed it was “highly likely that there is mould throughout my flat that needs to be treated. What I expect from the council is to find the cause of the leaking so that the mould doesn’t appear again once it has been treated. I also expect all plasterboards on the ceilings through the flat to be removed so the cause of the leaks can be found and treated properly”.
6. The landlord completed a damp inspection of the property on 7 October 2020. In its stage two complaint response 26 October 2020, it said “The basement in your property was initially a cellar that are usually prone to dampness/condensation and further work to undertake any dampness would be considered an improvement, which is beyond the scope of the Repairs Team. In addition, the basement does not form an element of the property that is defined under the elements of your property and as its purpose is for communal access to view pipework this issue does not impact your use of the property which you rent”. It also said that the moisture levels found during the inspection of the rest of the property “were within reasonable levels” but as the results were slightly higher on the kitchen ceiling it would raise a job to inspect the flat roof above the kitchen. It said “Based on the opinion of the officer who inspected it is not necessary for any additional works to be undertaken to the ceiling”. It did not agree that there was a need for all of the plasterboard in the property be removed and mould treatment carried out. It said further work may be required depending on the results of the flat roof inspection, which it would arrange as soon as possible.
7. The resident contacted this Service in November 2021 as she felt the landlord should damp-proof the basement so that she could store her possessions there.

Assessment and findings

The landlord’s response to the resident’s reports of damp and mould in her property and in the basement below it.

8. It is noted that the resident has stated that she considers that the damp and mould has affected her physical and mental health. The Ombudsman does not doubt the resident’s comments about her health. However, it is beyond the remit of this Service to make a determination on whether this was the case. This is an accordance with paragraph 39(i) of the Housing Ombudsman Scheme which says the Ombudsman will not investigate complaints which 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. The resident therefore may wish to seek independent advice on making a personal injury claim through the courts or the landlord’s liability insurer (if it has one) if she considers that her health has been affected by any action or lack thereof by the landlord.
9. The Ombudsman has not been provided with a record of the resident’s initial enquiry about damp in the basement or the date of the initial visit that led to the complaint, so it is not clear whether this was responded to within a reasonable timeframe. However, the landlord’s advice during the visit that storing items in the basement was likely to lead to them being damaged by the damp was reasonable as the property information (which the landlord has provided to this Service) does not mention the basement, or include it as part of the living area of the property and it was never intended to be used for storage. There is no evidence of any formal agreement between the resident and the landlord to include the basement as part of her property or allow her to store items there, although it is acknowledged that the landlord is not objecting to the resident using the basement for storage.
10.  Once the resident raised her complaint in December 2019, and requested that work be done so that she could use the basement as a storage area, the landlord took appropriate steps in its stage one complaint response to explain that it would not be damp-proofing the basement to make it suitable as a storage area, as the basement did not form part of the resident’s dwelling and its sole purpose was to provide communal access to the pipework that runs through it. It also acted reasonably by agreeing to add vent grills to the existing holes in the walls of the cellar, as, as it explained in internal emails, the alternative option of blocking up the holes would likely add to the damp problem.
11. When the resident reported that her kitchen ceiling was dipping in August 2021, the landlord acted appropriately by carrying out repairs to the ceiling. After mould was found on the concrete underneath the plasterboard during those repairs, the resident requested on 10 September 2021 that her original complaint about the damp in the basement be escalated. It would have been appropriate for the landlord to have raised a new complaint at that point in view of the length of time which had passed since the original complaint. However, the landlord took appropriate steps to test the moisture levels in the resident’s property in order to investigate the resident’s concerns that there may be damp and mould throughout the property, along with a potential leak. Its decision not to carry out any work in the rest of the property was reasonable as the tests revealed that the moisture readings were at an acceptable level in those areas. As the moisture level for the kitchen ceiling was slightly higher than those for the rest of the property, the landlord acted appropriately by agreeing to raise a job to inspect the flat roof above the kitchen ceiling, and to carry out any further repairs that the inspection identified as necessary.
12. The landlord’s decision in its stage two complaint response on 26 October 2021, not to carry out any damp proofing or repair work to the basement so that it could be used as a storage area, was reasonable as the basement is not part of the living area of the resident’s property, and its purpose is to enable communal access to the pipework, rather than to provide a storage area. However, although it was reasonable for the landlord not to carry out improvement work to make the basement suitable as a storage area, the resident had also raised concerns that the damp smell from the basement was spreading to her living area and affecting her health and making her clothing smell. Therefore, it would have been appropriate for the landlord to have addressed this as a separate issue to the resident’s requests about storage. The basement is a communal area, and the landlord’s repairs policy states that by law it must repair and maintain both the structure and outside of the property, along with its common parts and communal facilities. As such, it would have been appropriate for the landlord to have inspected the basement again at this point, to test its moisture levels and to check whether the damp smell from the basement was spreading to the resident’s living space, and for it to have taken remedial action to resolve the issue if that was the case. As the landlord failed to do this there was maladministration by the landlord in respect of its response of the resident’s reports of damp and mould in her property and in the basement below.
13. This Service considers it reasonable for the landlord to award compensation of £150 in recognition of its failings, which is in line with the Ombudsman’s remedies guidance (published on our website), which suggests awards of £50-250 for instances of service failure resulting in some impact on the complainant which could include distress and inconvenience, time and trouble, disappointment, loss of confidence, and delays in getting matters resolved. The landlord should also arrange to inspect the basement in order to test its moisture level and to check whether the damp smell is spreading into the resident’s living space, and to carry out any appropriate repairs to remedy this if it is the case. To clarify, this Service is not ordering that the landlord should carry out work to enable the basement to be used as a storage space.  Rather the landlord should carry out any necessary work to ensure that the damp in the cellar is not at a level where the damp smell is spreading into the resident’s living area. Such work could include restricting access to, or insulating the door of the cellar, so that the risk of any damp smell spreading from the basement is eliminated.

The landlord’s complaint handling.

14. In 2021 the landlord made changes to its complaints policy that came into effect on 1 March 2021.The complaint policy that was in effect when the resident made her complaint in December 2019 says “We operate a two phase complaints process, which gives the complainant the right to have their complaint reviewed at more senior levels should they be dissatisfied with the outcome of the initial response.
    1. Complaint phase: The complaint will be dealt with by officers, contractors or the service manager in the section providing the service. If the complaint is about the manager a more senior member of the management team will handle the complaint.
    2. Review phase: If the complainant is dissatisfied with the outcome of their complaint, the customer resolutions team will carry out an independent review of the complaint on behalf of the chief executive. On some complaints we may provide a final decision at the complaint phase so that there no need for the complainant to go through to the review phase. This is where we deem that the council is not at fault and that our response would be the same after a review of the complaint. When this happens complainants will be informed of their rights to refer the complaint to the Local Government Ombudsman or Housing Ombudsman or the council will refer the complaint to the Ombudsman directly.
15. The complaints policy also states “The time limit for a full response is 15 working days for the complaint phase and 25 working days for the review phase. Responses will include a clear escalation phrase.”
16. When the resident raised her complaint in December 2019 she said “This is a stage one formal complaint” and the landlord acted appropriately and in line with its complaints policy by responding with stage one complaint response on 19 December 2019, which was within the 15 working days in the complaints policy. However, it would have been reasonable and in line with that policy for it to have included “a clear escalation phrase” in its response, that explained how the complaint could either be escalated to the review phase, or, if it considered the stage one response to be its final response, how the resident could contact this Service. As the response did neither, and instead just gave its contact details if the resident wanted to “discuss this further” there was service failure by the landlord in respect of its complaint handling.
17. When the resident requested that the landlord escalate her complaint in September 2021, as it had been 21 months since the original complaint had been made, the complaints policy had changed in the meantime and the resident was discussing an additional issue of suspected mould throughout the property and the effect she believed it was having on her health, it would have been appropriate for the landlord to have opened a new complaint. This would have enabled the resident to have requested a review if she was not satisfied with the landlord’s response to the additional issues. As the landlord failed to open a new complaint, there was further service failure by the landlord.
18. At some point during its stage two complaint investigations the landlord incorrectly labelled the original complaint and stage one response as being in December 2020, rather than in December 2019. This resulted in the timeline that was used during the investigation being incorrect and the incorrect date being used when referring to the original complaint, in its stage two response, which would have been confusing for the resident. This was further service failure by the landlord. Although in its stage two response, the landlord took appropriate steps to address the resident’s concerns that there may be widespread mould throughout her property, and its decision not to carry out further work in the rest of the property(other than the kitchen ceiling) was appropriate, it failed to address the resident’s concerns that the damp smell from the basement was spreading into her living area and that action should be taken to investigate that. It is not clear whether the landlord was following the old or new version of its complaints policy, however as both policies advise that the stage two response should be provided within 25 working days of the escalation request, and the response was provided 32 days after the escalation request, with no record of the resident being made aware of this delay.
19. Due to the level of failings in its complaint handling, this Service considers that there was maladministration by the landlord in respect of its complaint handling and it would be appropriate for the landlord to award compensation of £150 in recognition of this. This amount is in line with the Ombudsman’s remedies guidance, as referenced above.

Determination

20. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord, in respect of its response to the resident’s reports of damp and mould in her property and in the basement below it.
21. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord, in respect of its complaint handling.

Orders

22. Within four weeks of the date of this letter the landlord is ordered to:
    1. Pay the resident a total of £300 compensation. Comprised of:
       1. £150 in recognition of its failings in respect of its response to her reports of damp and mould in her property and in the basement below.
       2. £150 in recognition of its complaint handling failings.
    2. Inspect the basement below the resident’s property, to test the moisture levels and to confirm whether the damp smell is spreading into the resident’s living area and to arrange follow on work to remedy this, if it is the case.