The Ombudsman's final decision:
Summary: The Council acted without fault when responding to complaints of damp and mould and the possible presence of a Category 1 hazard in a local flat.
- In summary the complaint is when responding to complaints of damp and mould that may constitute a Category 1 hazard the Council failed to:
- Properly consider the exercise of its legal powers to require a landlord to remove Category 1 hazards at the complainant’s home;
- Properly assess the hazard’s in the complainant’s home;
- Properly assess the work undertaken by the landlord.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. She 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, she may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1))
How I considered this complaint
- In considering this complaint I have:
- Reviewed the information presented with the complaint;
- Put enquiries to the Council and studied its response
- Shared with Mr X and the Council my draft decision and reflected on any comments received.
What I found
- Under the Housing Act 2004, councils may carry out a Housing Health and Safety Rating System (HHSRS) inspection. Government guidance aids councils in those inspections.
- HHSRS assesses 29 categories of housing hazard. Each hazard has a weighting which helps decide if a property is rated as having category 1 (serious) or category 2 (all other) hazards.
- If there is a category 1 hazard the council must take action: whereas it has discretion whether to act upon category 2 hazards.
- A ‘hazard’ is any risk of harm to the health or safety of a resident arising from a deficiency in the property. Serious threats to the health and safety of a resident is rated as a category 1 hazard. Examples of a category 1 hazard may be a home without enough heating, a room or rooms with excessive mould growth, an unguarded steep staircase and exposed wiring.
- The government issued Operating Guidance in February 2006. In paragraphs 4.02 and 4.03 the guidance says:
“...the inspection should be thorough and comprehensive...[And]...detailed enough to gather all the necessary information on the state and condition of a dwelling. As with all inspections, a simple logical approach should be adopted to ensure internal and external parts of the dwelling are inspected. For local authority officers, such inspections generally will be restricted to visual and surface inspection without any destructive investigations and limited by furniture and furnishings.”
- The Operating Guidance continues at paragraph 4.08:
“...there may be similar deficiencies in various locations throughout the dwelling which contribute to the same hazard. There may be, for example, dampness affecting walls to several rooms and areas within a dwelling. It is the cumulative contribution of...deficiencies to the hazard of damp and mould growth which should be assessed”.
- Mr X complained to the Council about the damp conditions in his home. An environmental health officer, Officer Z, visited Mr X’s home in February 2014. He noted it was one of several flats with UPVC windows in both bedrooms. The Council wrongly believed this to be a 1960s construction when it is an old mill building. The Council says this occurred because in compliance with government guidance it only conducts a visual inspection. The redevelopment resulted in newer parts of the building and original parts looking the same. Mr X says it suggests Officer Z did not properly inspect the building.
- An extractor fan gives ventilation to the bathroom. Officer Z found no external defects on his visit. He noted some condensation on the windows in both bedrooms but no mould growth. Officer Z found no evidence of penetrating damp. Officer Z gave Mr X advice on ventilating his home through regular opening of windows because of condensation. Officer Z says this is accepted advice regardless of the age or construction of the building. Officer Z found no category 1 hazards. In his view the damp he saw was negligible.
- Mr X complained to the Council again in October 2014 because the damp and mould now presented a serious risk to the family’s health. Officer Z visited again. Officer Z says Mr X explained he could not risk opening windows to ventilate the flat because it would annul his home contents insurance. Officer Z suggested asking the landlord to provide opening limiters on the windows to improve security when windows are open. In Officer Z’s professional judgement the damp and mould met the criteria for a Category 2 hazard. As such the Council has discretion on what action to take. Officer Z took up his concerns about damp with the landlord’s letting agents. He suggested that to improve ventilation the landlord consider inserting passive vents in the bedroom window of the second bedroom because they had already done this in the master bedroom. Officer Z recommended an engineer inspect the extractor fan in the bathroom and that the landlord complete the works on the gas boiler.
- As a result the landlord replaced the extractor fan, repaired the boiler and installed a passive vent in the second bedroom. However, Mr X says the problem remained. So he complained for a third time to the Council in November 2014. He said in that complaint the Council had colluded with the landlord and his agent and blamed him for the damp he experienced in his flat. The Council says it provided advice on how to control damp through use of ventilation. Because of its advice the landlord improved ventilation through the replacement extractor fan and passive vents. Without identifying any Category 1 hazards the Council could not ask the landlord to do more. Officer Z visited again in December 2014. He decided to install moisture measuring equipment called a Tiny Tag to gather evidence of a Category 1 hazard such as significant damp.
- Mr X said the worst damp and mould occurred in the second bedroom where his daughter sleeps. He wanted the Council to put the Tiny Tag in there. Officer Z placed it in the master bedroom instead. It needed to be in place for a month to collect data the Council could assess. In January 2015 Mr X returned the Tiny Tag and Officer Z assessed the data it recorded. The data suggested to Officer Z the Tiny Tag may have been moved from its original position thus giving inconsistent readings. However, the readings for moisture levels were high. He decided the cause is the moisture level in the home caused by normal activity such as showering. But without proper ventilation such as opening windows for a short time, the moisture remained in the home. This causes dampness and some mould. In Officer Z’s view “...such consistently high humidity and temperature readings strongly suggest that occupant usage was the issue rather than any defects within...the dwelling...” Mr X disputes Officer Z’s account of his visit.
- Officer Z explained in his response to my enquiries he chose the master bedroom for the Tiny Tag because two adults sleeping in that room would create higher levels of airborne moisture leading to increased condensation and mould growth. That Officer Z says meant he would get the greater reading. Mr X wanted the Tiny Tag placed in his daughter’s room because that room in his view had the greater problem and he was concerned for his daughter’s health.
- The readings and Officer Z’s inspections led the Council to decide Mr X’s home did not have Category 1 hazards and so it had no duty to make his landlord take any action.
- Mr X believes the conditions in the flat met the criteria for a Category 1 hazard and had an impact on his health and his family.
- The Council says the problems experienced by Mr X did not meet the criteria because there was not significant mould growth. It took action to abate the mould by addressing other category 2 hazards such as the need to replace the extractor fan and insert passive vents. In its view better ventilation by Mr X would reduce the damp air in the home and reduce condensation and the limited mould growth. In its correspondence with Mr X it has explained its reasons although it accepts it did not provide written advice and information to Mr X before it undertook the inspections to help him understand what to expect.
- Mr X’s landlord ended his tenancy. Mr X complained to the Council about its failure to take action and its collusion with his landlord in ending the tenancy.
Analysis – was there fault leading to an injustice?
- My role is to consider how the Council responded to concerns about damp and the possible presence of a Category 1 hazard. My role is not to take a view on whether such a hazard was present that is a matter of professional judgement.
- The Council responded each time Mr X complained about the problems in his flat by visiting and inspecting the rooms. Visual inspection is all the government guidance demands. This meant the officer could not test whether the walls were cavity walls or thermally insulated walls. Whatever the construction Officer Z says ventilation is recommended to reduce moisture that causes damp.
- The Council decided to leave the Tiny Tag at Mr X’s home to gather any evidence of excessive moisture. Mr X understandably wanted that left in the room which caused him most concern. The Council left it where in the officer’s professional opinion it would gather evidence of the highest levels of moisture giving the Council good data on which to base a decision. Mr X may have found it easier to accept the Council’s decision on the Category 1 hazard had it left the Tiny Tag where he had suggested.
- I do not know if anyone in the household moved the Tiny Tag. It provided data showing spikes of high moisture the Council attributed to showering. The Council explained why the readings did not show a Category 1 hazard.
- In the officer’s professional opinion what he saw and what the Tiny Tag showed was a problem with damp and moisture in the flat. Better ventilation by the occupiers could in his view reduce that. In any event he did not find significant mould growth to meet the Category 1 hazard. That is a professional opinion based on inspections of the property. The merits of an opinion based on visits to the property and subject to professional consideration I cannot challenge.
- The Council did ensure some improvements to the ventilation and heating system took place exercising its discretionary power to act on Category 2 hazards.
- Unfortunately the landlord decided to end the tenancy. Had the Council taken further action on Category 1 hazards which because they are significant may need structural repairs etc the landlord may have decided to take back the property anyway. The Council must liaise with landlords or their agents to persuade them to undertake work the Council believes is necessary to protect the occupants. I cannot therefore criticise the Council for that liaison. I find no evidence of any collaboration aimed at ending the tenancy rather the Council took action to improve conditions by removing what it judged to be category 2 hazards.
- This Ombudsman’s investigation remedies any failing in the complaints procedure adopted by the Council by reviewing how the Council decided on whether Category 1 or Category 2 hazards existed.
- The Council acted without fault in its investigation of damp and mould in Mr X’s home and therefore I cannot challenge the merits of its decision or uphold the complaint.
Investigator's decision on behalf of the Ombudsman