Housing Ombudsman warns of “misinterpretation” and “lack of clarity” among some social landlords over relationship between complaints process and legal proceedings

While social landlords should use the complaints procedure until legal proceedings have been issued, there continues to be misinterpretation and a lack of clarity around what is meant by “legal proceedings”, the Housing Ombudsman has suggested.

The Ombudsman added: “Some complaints policies exclude matters subject to legal proceedings but are not clear that this does not cover the pre-action protocol. Other policies incorrectly state that legal proceedings means instructing a solicitor and/or issuing a letter before claim.”

The comments came as the Ombudsman issued an updated damp and mould report, alongside an evaluation of how landlords have responded to the recommendations made in its Spotlight report, one year on.

The latest report reflects the “renewed focus on damp and mould” after the inquest into the death of two-year-old Awaab Ishak, and the “continued influx” of damp and mould cases.

The Ombudsman said it recorded a 77% increase (3,530) in the number of enquiries and complaints and damp, mould and leaks from 2020-21 to 2021-22.

So far this year (2022-23) there have already been 3,969 enquiries and complaints.

Building on its Spotlight report from October 2021, the Ombudsman has identified ten key tests for governing bodies to “evaluate its organisation’s response to damp and mould”, and highlighted areas that need “continued focus”: legal proceedings, fairness, good governance and continued learning.

The 10 ‘key tests’ are as follows:

• Find your silence – who’s not using your complaints system and why? Some landlords see high complaints as a bad thing, but high complaints about damp and mould can be a sign that you are open and transparent, and people feel they can complain
• Proactive communications strategy – Damp and mould cases are out there, and you need to engage with that. But our call for evidence also highlighted that landlords are often doing quite a lot in this space and their residents have no idea. Don’t patronise, don’t be obscure and make sure you use everyday terms – the advice needs to be helpful and understandable
• Treat residents fairly – It isn’t their fault they are in a home unsuitable for living or currently in a property that is marked for regeneration/demolition
• Improve record keeping – How can you adopt an intelligence-based front foot if you have no data on what you’re dealing with? How can you ensure that the left hand knows what the right hand is doing if nothing is recorded? We’ll soon be releasing a Spotlight report on this issue for you to engage with
• Know your residents – Occupancy factors may include overcrowding and the availability and use of heating and ventilation systems. They also include individual circumstances such as disability, financial hardship, and health conditions
• Check net zero plans – Electric heating costs more than gas. If your net zero strategy is pushing people into hardship, need to make sure you’re making mitigations
• Know your homes – Structural factors include property age, design, and modifications. For example, certain types of properties such as converted street properties, buildings of concrete construction or traditional solid type construction are more susceptible to damp and mould than others
• Dedicated damp and mould strategy – Create one by looking wider than the individual cases. Use your void periods and mutual exchanges too
• Empower staff – if they’re in a property for something else, help them clock the signs. We encourage landlords to consider the Chartered Institute of Housing’s Professional Standards if they have not already done so
• Use the complaints system to learn – Be robust in using the complaints process until such time as proceedings are filed.

The Housing Ombudsman said that after analysing the responses from various landlords from across the country, following the Spotlight report, “35% of them now have a specific damp and mould policy with streamlined processes for identifying and responding to damp and mould reports”.

A further 12% said they were in the process of implementing one.

The Ombudsman said: “There was also plenty of good practice detailed, including installing sensors, carrying out property MOTs, and undertaking root cause analysis modelling and staff training”.

However, the report found there were still areas of concern including in relation to approaches to legal proceedings. Also, “some landlords had removed words such as ‘lifestyle’ from their policies but replaced them with euphemisms such as ‘internal environmental factors’.”

Richard Blakeway, Housing Ombudsman, said: “The inquest into the death of Awaab Ishak has focused the minds of the sector. But we are continually finding in our casework that landlords have not responded to this issue with sufficient urgency.

“I welcome the work that many landlords are doing to strengthen their approach following the coroner’s report. Our Spotlight report and this evaluation are invaluable tools to support that.

“Landlords need to have a sustained focus on culture and behaviours to ensure issues are not dismissed. The human impact and consequence of the creeping normalisation of poor culture was highlighted by the death of Awaab Ishak.”

Blakeway added: “It is disappointing when we conducted our review how few landlords had acted to implement a dedicated damp and mould policy, despite there being a clear and driving need to have a bespoke response for these reports given the shortcomings identified in our casework.

“The ‘golden thread’ running throughout the Spotlight report recommendations was good governance and continued learning, as it affects both policy and process, as well as front-line delivery.

“I would encourage governing bodies to consider our ten ‘key tests’ when reviewing plans, and for landlords where this is not happening, for them to create an action plan to support a proactive response.

“I know this is now a priority for many landlords, but I would urge senior leaders to go faster and further in their efforts to do what is right by their residents.”

The Housing Law Practitioners Association (HLPA) recently issued an open letter to the Secretary of State for Levelling Up, Housing and Communities, Michael Gove, amid concern over proposals it claims seek to “exclude the majority of people of modest or lesser means from the courts”.

The association’s co-chair, Spike Mullings, claimed that a variety of government and non-government institutions had put forward and continued to develop “proposals that seek to divert disputants whose claims are deemed to be of lower value away from a determination by the courts and rule of law”.

In a letter issued in late December in which he shamed three more failing social landlords, Gove had urged solicitors “to tell social housing tenants that the Ombudsman should be the first route for reporting complaints with their landlord – and that it is unacceptable for landlords to let legal proceedings get in the way of repairs”.

The Ombudsman’s report also came as the Regulator of Social Housing (RSH) published its initial findings on damp and mould in England’s social housing, after obtaining evidence from social landlords on the extent of the issue and their approaches to tackling it.

The Regulator found that the strongest responses from landlords demonstrated “robust data on the condition of tenants’ homes”, as well as “processes for investigating and remedying the root causes of damp and mould”, and “robust oversight from boards and councillors”.

By contrast, poorer responses relied more heavily on “reactive approaches rather than proactively looking for evidence of damp and mould”, and had “weaker data and evidence about the condition of tenants’ homes”, the report said.

The Ombudsman’s report also stressed the importance of moving from a “reactive to proactive” approach.

The Social Housing Regulation Bill, which is currently in Parliament, will give the Regulator of Social Housing new and stronger powers to proactively assess social landlords against the consumer standards.

RSH said in its report that tenants who are unhappy with their landlord’s response to complaints can contact the Housing Ombudsman, who can help resolve complaints.

Lottie Winson