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London Borough of Bexley (20 007 889)

Category : Adult care services > Disabled facilities grants

Decision : Upheld

Decision date : 28 May 2021

The Ombudsman's final decision:

Summary: We have found fault in the Council’s supervision of building works on Ms B’s property and there was a delay in completing the works. This meant Ms B and Ms E were living in accommodation that did not fully meet Ms E’s needs for a long time. The Council has agreed to apologise to Ms B and Ms E and a financial remedy.

The complaint

  1. Ms B complains about the works the Council carried out to her house to adapt the property so that her daughter, Ms E, would be able to better access the property. She says there was poor workmanship causing damage to her property and a very long delay in completing the works.

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What I have investigated

  1. I have investigated Ms B’s complaint about the works which were carried out and the delay in completing the works. Paragraphs 105 and 106 explain why I have not investigated the damages claim Ms B has submitted or her complaint that the works made Ms E’s medical condition worse.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have discussed the complaint with Ms B and I have considered the information she and the Council have submitted and the relevant law, guidance and policies. I have considered Ms B’s and the Council’s responses to the draft decision.

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What I found

Disabled adaptations

  1. Disabled Facilities Grants (DFG) are provided under the terms of the Housing Grants, Construction and Regeneration Act 1996. There is also detailed guidance on good practice.
  2. Councils have a statutory duty to provide grant aid to disabled people for certain adaptations.
  3. The Council will need to check that the proposed works are:
    • necessary and appropriate to meet the disabled person’s needs.
    • reasonable and practicable depending on the age and condition of the property.
  4. Councils will often consult an occupational therapist (OT) from the social services department to carry out the assessments.
  5. The maximum grant that can be paid in England is £30,000 and the grant is means tested.

What happened

  1. Ms B and Ms E lived in a two bedroom house (property 1) which they rented from a housing association. Ms E had health issues which affected her mobility.
  2. An occupational therapist (OT) provided a report on 20 September 2017 and recommended the following works to make the house more accessible for Ms E:
    • A platform and ramp at the front of the house.
    • Levelling of the patio door and platform at the back of the house.
    • Kitchen floor/hall floor to be replaced with reduced slip flooring. The OT noted that there was damp beneath the laminate flooring in the underlay and this increased Ms E’s risk of respiratory infections.
    • Kitchen to be reconfigured.
    • The toilet and bathroom to be combined and adapted.

May 2018

  1. The Council hired a building company to carry out the works in May 2018. It is our understanding the works were expected to take four to six weeks. There were problems with the first contractor so a second contractor was hired to complete the works.

Summer 2018 - October 2018

  1. Ms B said the outside works had been done incorrectly causing water to pool and damp to appear.

19 November 2018 - complaint

  1. Ms B complained to the Council. She said:
    • The builders failed to put in proper drainage to the rear, side and front of the property.
    • The drain gulley and the patio were not on a suitable slope to drain away. There was a break in the drain gulley so water was leaking into the ground. The builders had placed concrete on top of concrete.
    • The airbricks were left on the level of the concrete so that, when it rained, water entered the property.
    • All these probleMs Eaused damp to the property.
    • She started noticing problems with damp on the walls of the ground floor during the summer of 2018. She raised her concerns with the Council but the Council ignored the problem and dismissed her concerns.
    • The Council’s surveyor came out three times over the summer and said there were no problems.
    • In October 2018 it became clear that there were severe damp problems on the ground floor.
    • The builders put the toilet in incorrectly which caused it to get blocked repeatedly. The builders caused two floods in the house and put in two sinks incorrectly.
    • The consequences of the builders’ failures were severe. The house was ruined and resembled a building site. Ms E’s medical conditions were made worse by the exposure to the damp and mould. Ms E was restricted to one room for over eight weeks during the summer. They were without a kitchen for three weeks which was difficult as Ms E had a special diet.
    • Ms B referred to information from one of Ms E’s professors which said: ‘…there is strong evidence that such a mould infestation can and does adversely affect the clinical course and prognosis of patients suffering from … as is the case for my patient.’
    • The works should have been completed within four to five weeks but they had now been ongoing for six/seven months.

Report 1 - 5 December 2018

  1. The Council instructed an independent specialist damp company to inspect property 1. Their report said:
    • They noted that the plasterwork had been taken down to and below the level of the floor screed, bridging the damp proof course.
  2. They recommended:
    • The builder should remove the skirting, cut plaster short of the floor, clear plaster below the screed to expose the damp proof course.
    • Inject a DPC to the external wall of the property.

December 2018 to February 2019

  1. The DPC was injected in December 2018 and the floor covering was taken up and dehumidifiers were installed to allow the floor to dry out.
  2. Ms B wrote to the Council in December 2018 and said the damp problems were ongoing and they had now been living with problems for eight months. She asked that the Council complete the works quickly or rehouse her and Ms E if the works were going to take a lot of time.
  3. Ms B wrote to the Council in February 2019. She said the damp problems were continuing as were the problems with the toilet. The situation was affecting Ms E’s health and she asked the Council to rehouse her and Ms E until the problems had been addressed.

February 2019

  1. By February 2019, it became clear that the floor was not drying out. The Council decided it would have to take up the screed and concrete slab on the ground floor to find out what the problem was.
  2. The Council offered Ms B and Ms E a move to alternative accommodation while the works were carried out.
  3. Ms B and Ms E moved to the different property, property 2, at the beginning of April 2019. Ms E says she was told that this would be for about three months while the Council did the works at her home.
  4. Ms B contacted the Ombudsman in April 2019 and said the Council had not provided its response to her complaint from November 2018. The Ombudsman referred the matter back to the Council to respond.

Complaint response stage 1 – April 2019

  1. The Council’s Head of Housing Services replied to Ms B’s complaint and said:
    • ‘I would wish to start by apologising for all the problems you had had due to the way in which the works was dealt with at your property’.
    • ‘The standard of work and how this was dealt with was not acceptable and I will do everything required to correct this.’
    • ‘You should not have had to suffer in the way you have, and I accept that we were at fault.’
  2. The Head of Housing agreed to the following as a remedy. He would:
    • Arrange for all the corrective works to be carried out at the property.
    • Provide alternative accommodation while the works were being carried out.
    • Make sure Ms B did not suffer any financial loss as a result of the problems the Council had created. He agreed to pay any additional utility bills, including telephone and internet charges at the alternative accommodation.
    • Pay £500 compensation for the stress.
  3. I understand the Council also paid Ms B’s rent at property 2, provided her with basic furnishings and gave her a pre-paid card for incidental costs so she was not out of pocket because of the move.

April/June 2019

  1. The floor screed was taken up in April/May 2019 and revealed there was a problem at the front and the back of the property which meant that water was entering the property and causing dampness to the floor.
  2. On 8 April 2019, there was a leak under the bath at property 2 and water came through the ceiling below. The Council changed the bath taps which resolved the problem.
  3. On 25 April 2019 there was a leak in the downstairs toilet and the basin waste at property 2. The Council fixed the leaks. The Council stain blocked the area and redecorated. The Council also boxed the toilet so that no pipes were visible.
  4. Ms B wrote to the Council on 2 June 2019 as she was not satisfied with the Council’s complaint response. She asked that the complaint be dealt with as a stage two complaint.
  5. Ms B also wanted an independent surveyor to inspect property 1. The Council agreed and appointed an independent company.

Report 2 – 23 June 2019

  1. The independent company carried out a survey of property 1 on 23 June 2019. Its brief was solely to find out the cause of the damp and to recommend a solution to the problem. The report noted:
    • The Council’s builders had broken up the existing path to the front and relaid it, removed the kitchen units and removed the floor screed.
    • ‘The initial problem appears to have been caused by poor workmanship in respect of the installation of the new concrete path around the front, right wall and rear.’ The path was apparently constructed in such a manner that water drained off its surface and entered the property. This resulted in the screed becoming wet and the walls also becoming damp.’
    • ‘Now that this path has been re-laid, with new perimeter drainage and bitumen tanking to the below ground brickwork and correct falls, the risk of further water intrusion has been reduced considerably.’
    • Since then, the property had been empty so the residual moisture should have had time to reduce so that the screed could be re-laid.
    • However, the walls to the left and rear were still showing high moisture levels. This high moisture was most likely residual and it was possible that using a dehumidifier for a period of time would reduce the high moisture readings.
    • A redundant gas pipe which was corroding was noted in the living room. This could cause the screed to crack so it should be removed.
  2. The report recommended the Council should:
    • Apply a liquid damp membrane to the concrete slab.
    • Place timber grounds around the perimeter of the rooms.
    • Allow the screed to dry out and repair a crack to the entrance and living room.
  3. Ms B said she had concerns about mould at property 1 and asked for a further report to be carried out by a company that specialised in mould. The Council agreed the request.

Report 3 – 24 July 2019

  1. The specialist mould company carried out microbial air sampling at property 1 on 24 July 2019. The report said:
    • The European Union’ mould exposure standards for indoor mould spore counts were: below 50/m3 – very low, 51 to 200 – low, 201 to 1000 – medium, 1001 to 10,000 high, above 10,000 – very high. It said that 500 spores per m3 was the cut-off point.
    • The house had a mould spore count ranging from 53 per m3 (in the dining room) to 200 (in the kitchen). These were within acceptable limits (500 per m3).
    • ‘Based on the results presented above, these would not appear to have significant health risks. However, as a precaution, remediation is recommended to further reduce and normalise risks.’
  2. Ms B was not satisfied with the quality of this report and asked the Council to fund another report by another mould expert which she recommended (company K).

Report 4 – 29 July 2019 – company K

  1. A second independent specialist mould company (company K) inspected property 1.
  2. The report said:
    • the UK had extremely poor guidance and standards in terms of indoor environmental health so company K used USA and international standards where necessary.
    • Due to the varying levels of immune response, there were no widely accepted or regulated standards or guidelines for the interpretation of microbial data. This absence of standards made the interpretation of microbial data difficult and controversial.
    • The house scored 0.8 on the Environmental Relative Mould Index (ERMI) within a range of less than -4 to over 20. The range was ‘medium’ which meant ‘further investigation may be needed to determine the source of mould if the occupants were reactive.’
    • The report also included a HERTSMI score which was a risk calculation for those diagnosed with chronic inflammatory response. The score was 4 which was low. A score of 11 to 15 was borderline in term of remediation and over 15 was high.
  3. The report made the following observations about the construction:
    • The original construction probably had a plastic vinyl tile applied to the floor which would act as a damp proof membrane.
    • The original construction probably did not have an adequate or conventional damp proof membrane installed but relied on the plastic floor tiles as a barrier.
    • Now that those tiles had been removed, moisture could evaporate from the wet concrete floors.
    • The damp proof course was just 10mm from the concrete floor so any screed would cause bridging and cause wet walls.
    • The design of the paths was wrong as they had bridged the DPC and caused moisture.
    • The majority of the concern was the floor and DPC issues, but the external issues of the pathway were likely to increase the severity of future water and biological damage.
    • The property was a health hazard which was likely to increase in severity unless the problems were addressed.
  4. The report recommended:
    • Remove and redesign the external path.
    • Consider cutting a gap between the path and the external wall and lower gap to beneath the DPC.
    • Stop screed bridging DPC.
    • Decontaminate all joists, rafters and the whole house.
    • Empty loft of all insulation.
    • Remove all wallpaper.
    • Consider use of heat recovery ventilator.
  5. The Council said the report was not entirely clear on how some of the probleMs Eould be resolved so the Council asked for a visit with company K to discuss the recommendations. This joint visit took place on 10 September 2019. Company K recommended company L to install a ventilation system.
  6. Company L visited the property on 8 October 2019 and this triggered a long email conversation about the details of the system they would be installing. Company L revisited the property on 3 December 2019 and provided a quote for the works on 3 January 2020.
  7. In February 2020 Ms B asked for a ground floor toilet to be fitted for Ms E as Ms E’s needs had increased. The Council agreed these additional works.
  8. The Council sent a revised schedule of works to the housing association on 13 February 2020. This schedule included the works recommended by company K, company L and the ground floor toilet.
  9. Company L installed the ventilation system on 26 February 2020.
  10. There were utility meters in the space where the ground floor toilet was to be placed so these meters had to be moved. However, the Council said that, because of the Covid-19 pandemic, the utilities companies were not carrying any works that were non-emergency work so this caused a delay. The contractor also furloughed their staff until June.
  11. The Council said the relaxation of some of the Covid-19 restrictions meant that the relocation of the meters could go ahead in June 2020 and this then allowed the Council to complete the other works by September 2020.

Complaint –September and October 2020

  1. Ms B sent further complaints. She said:
    • The works had been delayed time and time again.
    • They were living in an unsuitable property as there was mould at property 2 and this was affecting Ms E’s health. Ms E had a reaction every time she went into the bathroom.

Report 5 – 25 September 2020 – company K

  1. Company K, which had prepared the report on 28 July 2018, also assessed the temporary property where Ms B and Ms E were living (property 2) as Ms B was concerned about mould and damp.
  2. The report said:
    • The mechanical ventilation was defective.
    • There were signs of historic water damage.
    • The water damage indicated hidden mould growth.
    • The boxing of a wc leak was not professional remediation and should be opened up and remediated properly.
    • They had analysed the dust in the air and on surfaces and it showed the presence of potentially toxic moulds. However, the mould growth was historic and not current.
    • Considering the health issues of the tenants, there was a health risk.
  3. The report recommended actions the Council should take which included:
    • Open the water tank to check for possible contamination.
    • Remove plasterboard walls and ceiling where affected.
    • Repair the extract fan.
    • Open up the bath, underneath and remediate and seal.
    • Remediate water damage and decontaminate surfaces and air.

Report 6 – 13 October 2020

  1. On 13 October 2020 the Council’s building surveyor inspected property 1. He said:
    • There were no visual signs of water penetration, mould or damp and the readings were below the acceptable threshold.
    • The property was deemed dry and suitable for habitation.

Report 7 – 20 October 2020 – company K

  1. Company K, which had prepared a report on 28 July 2018, revisited property 1 on 20 October 2020 to carry out a mould inspection. The report said:
    • Company K had asked for the ventilation system to be turned off before they attended. The ventilation system was running so they could not carry out a valid inspection.
    • There were wet masonry walls and elevated moisture content on the plasterboard walls and ceilings.
    • There was visible mould to joists and rafters in the loft.
  2. Company K recommended the Council should:
    • Remove mould and debris from the loft and remove dust debris from the house.
    • Cut out and replace west plaster and remediate water damaged areas.
    • Finish external building works.

Complaint response stage 2 – November 2020

  1. The Council responded to Ms B’s further complaints as a stage 2 response linked to their initial response of April 2019.
  2. The Council addressed Ms B’s complaint about the works to property 1 and the delay. It said:
    • ‘We accepted that some undue stress and inconvenience had been caused to you because of the delay and poor quality of work that had been carried out in [property 1].’
    • It did not uphold the complaint that the remedial works to property 1 had taken too long.
    • It acknowledged the works had taken a long time but said this was caused by the ‘substantial and changing nature of the work’, the fact that the work had been complex and involved several specialist companies and negotiations between the different agencies and people involved, as well as a delay because of the Covid-19 pandemic.
    • It had gone to great lengths and spent a substantial amount of money to resolve the damp problem. ‘Further expenditure of public money, the use of significant officer time and Council resources can no longer be justified.’
    • It had read company K’s October 2020 report and would advise Ms B on the next steps. However, the aim was for Ms B to return to the home as soon as possible.
  3. In response to the complaints about property 2, the Council said:
    • There had been two leaks early on in the tenancy. These were fixed, the pipework boxed and the bath sealed.
    • In February 2020, Ms B asked to move as Ms E was reacting to mould in the bathroom. The Council offered two properties. Ms B did not visit one of the properties. She visited the other property but said she could smell mould in the bathroom, although there was no mould visible.
    • The Council said its contractor visited property 2 in February 2020 and at the time ‘the bath extractor fan was working, the bath sealant had a few dark spots but there were no signs of mould on the walls or ceiling.’ Despite this the Council agreed to fit a humidistat fan, but then failed to do this. So the Council apologised for this.
    • The Council had read report 5 which said there was damp in property 2. Ms B had told the Council that she did not want any visits or works carried out at property 2 until she had sought further advice.

Council’s response dated January 2021

  1. The Council said the following in response to the Ombudsman’s enquiries dated 15 January 2021:
    • ‘One of the central points of [Ms B’s] complaint is her belief that this authority, and the work carried out by our appointed contractor, are responsible for causing the problems to her property. She is adamant that prior to any of the work taking place, the property had no problems with dampness or mould. The evidence however doesn’t support [Ms B’s] position and whilst we regret the time it has taken to return her to [property 1], we do not believe that our actions are responsible for the damp in her property.’
    • The delay in resolving the problem was ‘made more difficult by [Ms B’s] insistence on using [company K] and that all work was checked and any issues identified (no matter how small) resolved before she agreed to return to the property.’ Therefore, it was unfair to conclude that the Council was solely responsible for the delay.
    • The occupational therapist noted damp beneath the laminate flooring before the works were started. Report 1 also noted that the plaster had been taken down below the concrete breaching the damp proof course and this plaster was there before the Council started the works. Report 3 noted no major issues with the air quality.
    • The works to the path were not done correctly, but this was unlikely to have caused the rampant damp and mould issues throughout the property. Report 1 pointed to the plaster as the expected cause of the damp.
    • The Council was not sure why the original officer who dealt with the matter ‘decided to go down the path he did in relation the subsequent extensive works’ at property 1.
    • The Council spent nearly £200,000 on the disabled adaptation works and to remedy ‘inherent mould and damp issues within the property’.
    • The Council also further explained why the delay in moving the meters stopped the works during the early months of the pandemic. It explained the utility feeds and meters prevented the pouring of the new internal concrete slab as well as working on the external paths as trenches for pipes and cabling would need to run in the area of the paths.

Further information

  1. In September 2020, the Council contacted the housing association which owned property 1 as it said there was a problem with the outside rain water drainage which was the housing association’s responsibility. The housing association started work on the drainage in November 2020 and completed this in December 2020. Ms B and Ms E moved back into the property in December 2020.
  2. I have not investigated the works carried out by the housing association between September and December 2020 as the actions of housing associations are outside of the Ombudsman’s jurisdiction.
  3. Ms B has also provided further evidence about the effect of damp on Ms E. She sent a letter dated 2 November 2020 from a nurse practitioner at Ms E’s GP practice. She has written that Ms E ‘has reports from consultants which suggests that the mould impacts conditions. This case is very complex from a General Practice position, it appears to be significantly impacting her. If this problem could be resolved promptly we are convinced it will have a positive impact on [Ms E’s] health.’
  4. Ms B commented on the Council’s position that there was already a damp problem in the property before the builders started the works. She said there had been a leak in the waste pipe the previous year, when the occupational therapist visited the property. She said the housing association addressed the problem and she had taken up the lino floor to ensure mould and damp would not form underneath. She said that, when the Council officers visited in August 2018, they said there was no damp in the property.

Analysis - fault

Standard of works

  1. Ms B has described the failures of the original builders. They failed to put in proper drainage to the rear, side and front of the property. The drain gulley and the patio were not on a suitable slope to drain away and there was a break in the gulley. They also put in the toilet incorrectly which meant the toilet kept blocking up. The builders caused flooding in the property.
  2. The Council admitted the fault in its original complaint response dated April 2019 and in its stage 2 response dated November 2020. The Council agreed the standard of works was not acceptable. I work on the assumption that the Council still agrees that there was fault in the original works.
  3. Therefore I conclude that there was fault in the way the Council supervised the original works that were carried out on property 1.

Consequences of the fault in the works

  1. In its original complaint response the Council accepted that the poor workmanship in the original works caused the problems in Ms B’s property and it therefore agreed to do ‘everything required to correct this’. However, the Council changed its position in its response to the Ombudsman in January 2021 and said the works were not responsible for the damp problem as this was an existing problem.
  2. I have considered this further.
  3. I agree with the Council that the occupational therapist mentioned damp in the underlay on the ground floor. I also agree that report 1 said the original plasterwork breached the damp proof course.
  4. However, report 2 said the damp problem was caused by ‘poor workmanship’ in the installation of the concrete path around the front, right wall and rear. The poor construction meant that water drained off its surface and entered the property.
  5. Report 4 also said the that the design of the path was wrong as it bridged the DPC and caused moisture.
  6. In addition, report 4 speculated that the plastic membrane on the floor would have acted as a damp proof membrane and that the removal of this floor meant that moisture could evaporate. Particularly as the DPC was only 10 mm from the concrete floor so any screed would breach it.
  7. I can consider all the expert evidence. The fact that the original workmanship was poor is not in dispute. The question is whether this caused the damp problems to the house. One expert (report 1) said there was already a problem as the original plaster (before the Council’s involvement) breached the damp proof course. Two of the experts (reports 2 and 4) said the poor workmanship in the Council’s building works caused or contributed to the damp problem.
  8. Therefore, I can conclude, considering all the expert evidence, that the Council should have considered that the poor workmanship contributed to the damp problem and made the problem worse, even though it may be that there was already a problem as the original plasterwork had breached the DPC.

Delay

  1. I note there was a significant delay in the Council’s response to the original complaint.
  2. In considering the delay to the works, I considered the first original works (May 2018 to December 2018) and then the remedial works (December 2018 to September 2020).
  3. It is not clear how long the original works should have taken, if the works had been done correctly. I think it would be fair to say they should have been completed within two months.
  4. The first builders made several mistakes, not just on the construction of the outside paths and drainage, but also the toilet and causing flooding inside the house. The first builders were then replaced by other builders to complete the works which caused further delay. There was then further delay as the damp started to appear. I am of the view that it is fair to say that, if the works had been completed correctly, they should have been completed by June 2018. Therefore, the months between June and December are delay caused by the fault.
  5. The Council started the remedial works from December 2018 onwards.
  6. In terms of the delay from December 2018 to September 2020, I am of the view that, at some level, all the delay was the Council’s fault because, if there had been no fault in the building works, then there would not have been any need for the remedial works.
  7. Nevertheless, I do not think it would be fair to not properly consider the remedial works themselves. Was there further fault causing delay in the way these works were carried out or did the Council ensure these works were carried out as fast as it could?
  8. I have done this analysis by comparing the Council’s actions with the actions any council would have taken, given a similar situation.
  9. The Council first had to establish what the cause of the problems was before it could rectify the problem. The Council did this by hiring an independent specialist damp company in December 2018 (report 1). There is no fault in that action. The Council then followed the recommendations of report 1. I also find no fault in this action as it was difficult to see what else the Council could have done.
  10. It was clear by February 2019 that the problem had not been resolved by the remedial works.
  11. The Council could not take up the ground floor until Ms B and Ms E moved out. Ms B and Ms E moved out in April 2019. The Council took up the floor screed in April 2019 and discovered the problems. The Council then commissioned report 2 (a further independent survey) in June 2019 and report 3 (specialist mould company) in July 2019. I find no fault in the commissioning of the further reports as the Council needed these to get to the heart of the problem.
  12. The Council then instructed company K for report 4 (specialist mould company). I am not clear why report 4 was needed as it seemed to duplicate the work of report 3. However, I would not say there was fault in commissioning report 4 as this report was done at the request of Ms B and as the Council was, presumably, trying to be as thorough as it could be in its examination of the problem.
  13. I find no fault in terms of delay in the Council’s actions in the following months. The Council met with company K to discuss the recommended works. The Council commissioned company L, on the advice of company K, and company L visited the site twice and then provided its quote. This took place between September 2019 and January 2020. It is difficult to say whether this could have been done quicker but I accept that the Council was, to a certain extent, dependent on the speed of companies K and L in this respect.
  14. The brief of the works was amended in February 2020 to incorporate a downstairs toilet so there is no fault in the small delay that this caused.
  15. Unfortunately, although company L completed the works on the ventilation system in February 2020, there was then a period of four months when the works were stalled. However, I accept the Council’s explanation that the Covid-19 pandemic halted the works by the utility companies to move the meters and I also accept that the Council could not proceed with the works without moving the meters.
  16. The works resumed in July 2020 and were completed in September 2020.

The move to property 2

  1. Ms B says property 2 did not meet their needs as there was damp and mould in the property. I note that there were two leaks in property 2 (on 8 and 25 April 2019), but the Council resolved the problems quickly. Company K said in its report (report 5) that the mould growth at property 2 was historic and not current. Company K concluded there was a risk to health but this was based on the considerations of the health issues of Ms E.
  2. However, I note that the Council offered to remedy the problems identified in the property 2, but Ms B said she did not want this. I also note that the Council offered Ms B two other properties to move to if she did not want to stay at property 2. Therefore, overall I am of the view that there is no substantial fault in the Council’s offer of property 2 and the way it addressed concerns about property 2.

Analysis – injustice and remedy

  1. I have split my consideration of the injustice and remedy into the remedial action needed to rectify the underlying fault and then considered whether the complainant suffered any financial loss and any non-financial loss.
  2. The Ombudsman’s aim of the remedy is to put the complainant in the position they would have been in if the fault had not happened.
  3. The main fault was the poor workmanship in the original works and therefore the main remedial action was to put the works right. The Council offered to do this so that was an appropriate remedy for this aspect of the complaint.
  4. In terms of direct financial loss, Ms B says that some of her belongings have been damaged by the mould. This financial loss is being considered by the Council’s insurers and is out of the Ombudsman’s jurisdiction.
  5. That leaves the issue of non-financial loss. I am of the view that the loss of amenity and the increase of stress was significant, particularly while Ms B and Ms E were living in property 1.
  6. I have not investigated whether Ms E’s health has deteriorated as a result of the damp as this is outside of the Ombudsman’s jurisdiction. I accept that, overall, Ms E was affected more negatively by the works and the damp as a result of her underlying medical conditions. This is based on the medical evidence that Ms B submitted, namely the report by the professor and the letter by the nurse practitioner. The Council has also accepted this evidence, as far as I am aware.
  7. Ms B has also explained the difficulties she and Ms E had during that first year, when they had to cope with builders for long periods of time and that the fact that their house had been turned into a building site and certain areas were inaccessible during certain periods of time. Ms B said they were without a kitchen for three weeks, which was difficult for Ms E as she has a special diet. They were also confined to one room for eight weeks. In addition, Ms E needed the adaptations and these had been delayed.
  8. I also accept that, after the move to property 2, there was a continued injustice for Ms B and Ms E. They were still not living in a property adapted to Ms E’s needs and they had been removed from their support network at property 1.
  9. In terms of delay, I have found fault in the delay between July 2018 and December 2018 (six months).
  10. I have also considered the financial remedy the Council has already provided (apart from the building works themselves). This included £500 for distress, payment of rent and bills at property 2, payment for furnishings at property 2 and a payment card for expenses linked to the move to ensure that Ms B was not out of pocket by the move. The Council has also paid for storage of Ms B and Ms E’s belongings.
  11. I am of the view that a sum of £750 (5 months x £150) is appropriate to reflect the loss of amenity and stress Ms B and Ms E suffered by the delay between July and November 2018. As the Council has already paid Ms B and Ms E £500, I recommend the Council pays the remaining £250.
  12. I recommend a further sum of £1050 (21 months x £50) to reflect the delay from December 2018 to September 2020. This sum is lower to reflect the fact that I have not found fault causing further delay in the remedial works from December 2018 until September 2020 but, at a basic level, this delay was still the Council’s fault as the remedial works would not have been needed if there had been no fault in the works in the first place. The lower rate also reflects the financial package that the Council put into place after Ms B and Ms E moved to property 2.

Agreed action

  1. The Council has agreed to take the following actions within one month of the final decision. It will:
    • Apologise in writing to Ms B and Ms E.
    • Pay the sum of £1,300 to Ms B and Ms E.

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Final decision

  1. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

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Parts of the complaint that I did not investigate

  1. Ms B says her possessions and furniture has been damaged because of the Council’s actions. This is outside of the Ombudsman’s jurisdiction. Ms B’s claim is subject to an ongoing insurance claim and the Council’s insurers can consider a claim for damages.
  2. I have also not investigated whether Ms E’s medical condition was worsened by the damp and mould. The Ombudsman is not a court and Ms E’s claim of personal injury would require expert medical evidence better examined in a court.

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Investigator's decision on behalf of the Ombudsman

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