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Newham Council (201907168)

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REPORT

COMPLAINT 201907168

Newham Council

22 February 2021

 

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:
    1. the landlord’s handling of rent arrears following the resident’s succession of the tenancy;
    2. the landlord’s handling of repairs to the resident’s property;
    3. the landlord’s complaints handling.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. Paragraph 39(e) of the Housing Ombudsman Scheme states that the Ombudsman will not investigate complaints that were not brought to the landlord’s attention as a formal complaint within a reasonable period, which will normally be within 6 months of the matters arising. This is because as the length of time since the matter occurred increases, it becomes more difficult for a landlord to effectively review its actions.
  3. The resident has raised concerns about the landlord’s handling of repairs to the property’s kitchen prior to 2017, and to his W.C in December 2017. No evidence has been provided to the Ombudsman to indicate that these matters were brought to the landlord’s attention as a formal complaint prior to the complaint being referred to this Service in 2019. These matters are therefore outside the Ombudsman’s jurisdiction, in accordance with paragraph 39(e) of the Scheme.
  4. The alleged disrepair to the kitchen and bathroom is, however, relevant to the resident’s complaint about the landlord’s handling of his rent arrears, and so the Ombudsman has considered how the landlord has taken this into account when responding to the resident’s formal complaint. Information about historic repairs is included below to provide context, but will not form part of the assessment. The Ombudsman has also considered the landlord’s response to the resident’s correspondence regarding a claim for disrepair, which was referred to the landlord in January 2020.
  5. Paragraph 39(i) states that the Ombudsman will not investigate complaints concerning 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.
  6. Part of the complaint referred to this Service is about the resident’s responsibility for the payment of rent for a period between 2 December 2013 and 8 June 2015. The resident paid the arrears that accrued over this period but has subsequently requested reimbursement of the rent for this period, as he states that the property was without a functioning kitchen and was therefore uninhabitable until works were completed in 2017. He has also stated that he was unable to live at the property as the landlord destroyed his furniture and belongings. The landlord continues to assert that the resident has been responsible for the payment of rent since he succeeded the tenancy on 2 December 2013.
  7. The Ombudsman considers that this aspect of the complaint is best pursued via an application to the court, which will be able to provide a binding determination in respect of the resident’s liability for rent over the contested period. This aspect of the complaint is therefore outside the Ombudsman’s jurisdiction, in accordance with paragraph 39(i).
  8. The Ombudsman will consider how the landlord has communicated with the resident about the rent arrears, including whether the actions taken to investigate and respond to his concerns were fair and reasonable in the circumstances. The Ombudsman will also consider the complaint about the landlord’s handling of repairs to the resident’s bathroom and associated pest issues, as this was raised in the formal complaint of February 2017. The Ombudsman will also consider the complaint about; works to address leaks at the property; the landlord’s response regarding a claim for disrepair and the landlord’s complaints handling as these were all responded to in the landlord’s final complaint response dated 17 December 2020.

 

 

Background and Summary of events

  1. The tenancy was originally granted to the resident’s mother in 1991. The resident occupied the property with his mother until her death in 2013. He then succeeded the tenancy on 2 December 2013.
  2. The succession of the tenancy was disputed by the landlord and an application was made for possession of the property. The resident was evicted from the property on 6 May 2014 but was later allowed to re-enter the property and to remain in occupation until the hearing. The resident states that he did not reside in the property in the period prior to the hearing, as the property was uninhabitable due to its condition and the landlord destroying the resident’s furniture and belongings. The resident’s succession of the tenancy was confirmed by a Court Order dated 8 June 2015. The landlord was also ordered to pay the resident £2,651.47, to be offset against rent arrears.
  3. Under the terms of the tenancy agreement the landlord is responsible for maintaining the ‘structure, outside and shared areas’ of the property, ‘including drains, gutters and outside pipes’. The landlord is also required to maintain installations for the supply of water, gas, electricity and sanitation. This reflects the landlord’s obligations under section 11 of the Landlord and Tenant Act 1985. The landlord’s Repairs Policy also states that it is responsible for repairs to kitchen cupboards and worktops.
  4. The resident emailed the landlord on 27 February 2020 stating that he wished to raise a claim for disrepair in relation to the kitchen, which he states was ‘condemned before 2013 & wasn’t repaired until 2017’. He also wished to raise a claim for disrepair to the boxing around his toilet. He stated this had caused leaks, a pest infestation, and related to damp in the living room, which was reported in 2017 and 2019, but was not repaired.
  5. The landlord has confirmed that the property is currently in good repair, free from damp, has sufficient natural light and ventilation. It states that the kitchen is in reasonable repair and with adequate facilities and that the property otherwise meets all required standards of repair. The resident has confirmed to the landlord that there are currently no internal defects at the property.

Landlord’s response to concerns regarding rent arrears

  1. On 14 July 2016 the landlord notified the resident of rent arrears on his account in the sum of £7253.56, backdated to the date of succession. It informed him that it would serve a Notice of Seeking Possession, following which, if a substantial debt remained after 6 weeks it would apply to the court for a Possession Order.
  2. On 15 July 2016 the resident emailed the landlord to express concerns that the landlord would seek possession of the property after he had made an offer to contribute £200 per week towards alleged rent arrears. He disputed the accuracy of the account balance and also noted that compensation awarded for damage to his belongings had only just been credited to his rent account.  He believed that the landlord should pay interest on the compensation and asked it to look into the issues raised. The landlord confirmed that the account balance was accurate, that his account had now been credited in accordance with the court order and that interest on the compensation would not be payable as interest had not accrued on the arrears.
  3. The resident forwarded this exchange to the landlord’s corporate complaints department on 17 February 2017. The landlord provided a response at stage 1 of its complaints process on 24 April 2017, apologising for the delay. The landlord explained how the arrears had accrued and denied that the resident had been overcharged. The landlord noted that it had advised the resident to continue paying all rent and charges whilst his application to succeed the tenancy was considered. Compensation awarded by the court was credited to the resident’s rent account in July 2016. The landlord noted that repairs to the resident’s toilet had been completed on 28 February 2017 and identified 4 missed appointments for which the resident would be reimbursed. The response outlined how the resident could request a review of the landlord’s decision. No evidence has been provided to this investigation indicating that the resident made a request to the landlord to escalate this complaint. He did, however, respond requesting that the landlord ‘put the relevant ombudsman to appeal to’ in its response.
  4. On 26 July 2019 the resident’s MP wrote to the landlord requesting that the resident be refunded £7000 in respect of the rent demanded from him for the period during which his application for succession of the tenancy was being considered by the court. The MP noted that the resident had been unable to live at the property during this period as ‘the kitchen was deemed unsafe and, because his belongings were destroyed, he had no furniture’. The landlord noted that the resident had redecorated the property using his own funds.
  5. The landlord replied on 22 August 2019, confirming that it had responded to the resident’s complaint about his rent arrears on 24 April 2017 and explained how to escalate the complaint. The landlord was confident that it had acted in accordance with the court order when it backdated the rent to the date of succession. The landlord confirmed that no further compensation would be paid and that the rent account was now in credit.
  6. The resident’s MP wrote to the landlord again on 2 September 2019, repeating that the resident insisted that he was unable to live in his property during the period prior to the court’s determination, as ‘the kitchen was in serious disrepair, to a point where it was deemed unsafe’. The MP noted that he did not pay his rent or council tax during that period as he was not living there. The MP asked whether the landlord would be willing to refund the £7000 arrears.
  7. The landlord responded on 12 September 2019. It reiterated that the resident had previously raised the issue of the rent arrears via its complaints process and that if he remained dissatisfied with the landlord’s decision he should have taken this further at the time. The landlord confirmed that the resident was liable to pay the rent from 2 December 2013, in line with the order made by the court. The response noted ‘from my understanding of this enquiry … the refund [the resident] is requesting was as a result of the backdate of the tenancy  start date … and not the period that he is claiming he could not reside at the property due to disrepairs’. The landlord noted that the resident had raised a complaint about repairs in 2017, which had also been dealt with in the decision of 24 April 2017.

Kitchen Repairs

  1. The resident has informed this Service that in 2010 his kitchen was ‘condemned’ due to gas safety concerns, stating that the property was without a functioning kitchen until 2017. The property was inspected on 12 October 2015 and the landlord’s repairs records state that the property was ‘referred onto kitchen renewal scheme’, although the resident was advised that the scheme was currently on hold due to lack of resource.
  2. The resident reported disrepair to his kitchen to his landlord in 2016 and the landlord responded on 7 April 2016, explaining that the property had been added to the Decent Homes Programme but this had been discontinued in 2012. The landlord confirmed its current approach was to repair, where possible, noting that a number of units in the resident’s kitchen were in need of replacement. The landlord stated that it would contact the resident with ‘details of final proposals’ to complete these works in the coming week. The landlord has confirmed that works were completed to the resident’s kitchen in July 2016, September 2017 and October 2017. The works completed were described as ‘replacement of sink base and top, double wall unit, 2 single base units and worktops … all pipework alteration, making good, floor covering and decoration’. The landlord also capped off and replaced old lead pipework behind the dishwasher.
  3. The resident has advised this Service that he was informed in 2017 that the kitchen did not meet gas safety standards due to the location of the gas supply. No documentary evidence has been provided to this investigation indicating that the kitchen did not meet gas safety standards prior to 2017. There is also no evidence that the resident addressed his concerns about this to the landlord at that time. Gas servicing appointments are shown in the landlord’s repairs record for 7 July 2015, 1 July 2016, 23 May 2017. There are no records associated with these inspections to indicate that the gas supply was identified as unsafe or that further works were completed following each visit.
  4. No evidence has been provided to the Ombudsman that a formal complaint was made to the landlord regarding the condition of the kitchen prior to 2016 and following the landlord’s response of 7 April 2016, there is no evidence that the resident attempted to log a formal complaint. The condition of the kitchen at the property prior to 2017 was raised in the resident’s complaint to his MP, and so the landlord has addressed this issue as part of its final response in relation to the resident’s liability for rent arrears as noted above.

Bathroom Repairs

  1. An inspection of the resident’s bathroom was completed on 7 March 2016, which identified that ducting in the bathroom had been removed and not replaced. An order was raised to reinstate/refix the removeable boxing around the W.C. pipework. Again, it is not clear whether these works were completed. Following reports of a pest infestation at the property in January 2017, the landlord arranged an inspection, which concluded that pests were entering the property via the resident’s bathroom due to an unused drain chamber on the ground level. It was recommended that the drain chamber be blocked off or covered and that proofing was required to the exposed pipework in the bathroom. The resident referred his concerns about the handling of these works to the landlord’s corporate complaints team, however, a copy of the formal complaint has not been provided to this service.
  2. The landlord’s stage 1 complaint response of 24 April 2017 confirmed that repairs were completed to the boxing around the resident’s toilet on 28 February 2017. The landlord identified 6 cancelled appointments relating to leaks between 7 December 2015 and 11 March 2017. It apologised that the resident had not been notified and stated that he would be ‘reimbursed accordingly and in line with the Council’s procedure’.
  3. The resident contacted the landlord regarding a leak in his bathroom and other disrepair at the property in December 2017. In an email from the landlord dated 13 December 2017 it requested confirmation of the alleged disrepair and stated that a plumber would attend on 15 December 2017 to assess the leak. The plumber attended and identified a hairline crack in the cistern of the toilet. Following this visit, the landlord emailed the resident to confirm that the cistern needed replacement and that this work would be completed on 20 December 2017.
  4. The landlord emailed the resident again on 21 December 2017 to apologise that it had not attended the previous day as the replacement cistern had not arrived. The landlord confirmed that the resident had declined an appointment for that afternoon to fit a different part. A new appointment had been scheduled for 2 January 2018. The landlord noted that its operatives had stated that the resident had removed the existing cistern and thrown it away due to improvement works he was completing at the property. The landlord cautioned the tenant that unauthorised improvement works could breach his tenancy agreement and noted that the replacement of the cistern may be rechargeable as a result of his actions.
  5. In response to the resident’s email to the landlord on 27 February 2020 regarding a claim for disrepair, the landlord’s legal team has advised that ‘the [landlord] is not liable for disrepair, arising from alterations undertaken without the [landlord’s] written permission’ and noted that the cistern was replaced on 2 January 2018. The resident disputes this and states that the cistern was disconnected and removed by the plumber at his visit on 15 December 2017.

Leak Repairs

  1. Damp was first reported in the bedroom at the property in January 2016 and in the living room in March 2016. The resident also reported defective sealants around the windows in the living room and that the damp had damaged his wallpaper. Inspections were carried out in January 2016, March 2016 and November 2019. The landlord has reported that works to the render, to remove a ducting cover in the bathroom to locate the source of the bedroom damp and to apply a mould treatment were ordered following the inspection in January 2016 but has been unable to confirm whether these were carried out. Following the inspection in March 2016 works were ordered to repoint and replace the window sealant and this was completed on 11 April 2016.
  2. The landlord states that there were no further reports of damp until November 2019 when a further inspection was completed, which identified a defective downpipe to the balcony of the flat above the property.
  3. On 8 January 2020 the resident submitted an insurance claim form to the landlord for damage to his property as a result of the leaks, which was referred to the landlord’s legal team. On 27 February 2020 the resident wrote to the landlord stating that he would like to make a claim for disrepair to the property, including to the kitchen, bathroom and as a result of the external leaks. The landlord has stated that it is still considering its position with regard to compensation and that it will be in touch with the resident to discuss this.
  4. The landlord has accepted that there was then a delay in ordering works until 11 February 2020. These works were not completed and after that date, some works were re-raised with an external contractor on 5 May 2020. The landlord has stated that the works were further delayed due to the impact of the pandemic on its services.
  5. The resident was contacted in September 2020 to arrange a time to complete repairs to the downpipe on the balcony above his flat, which was the suspected cause of the damp in his property. This work was completed on 28 October 2020 and, to the landlord’s knowledge, has successfully resolved the issue. The landlord identified some additional repairs on 15 December 2020 and it was agreed with the resident that these would be completed by 18 December 2020. These repairs were to paint communal doors, repair communal paving, repoint an area above the kitchen window, repaint the living room balcony and prune the garden.

Complaint Handling

  1. Since 2016, the resident has on several occasions raised concerns regarding disrepair at the property and the arrears on his rent account. However, the only complaint response that this service has been provided with is the stage 1 complaint response of 24 April 2017 regarding the arrears on the resident’s rent account and the handling of repairs to his bathroom. The complaint response contained information about how to escalate the complaint but the landlord states that it received no such request from the resident.
  2. Following an enquiry from the resident forwarding the response of his MP, the landlord was informed on 21 February 2020 that the resident had contacted this Service regarding its handling of rent arrears, repairs to his kitchen and leaks, pest control and its handling of his complaints. The landlord responded on 28 February 2020 stating that although some of the issues dated back to 2017, it would make enquiries and respond. On 2 July 2020, this Service informed the landlord that the resident had requested escalation of the complaint responded to at stage 1 on 24 April 2017. The landlord stated on 3 July 2020 that it would be ‘undertaking a complaint review investigation into the concerns raised’. The response was anticipated to take 15 working days, in line with the landlord’s complaints process.
  3. No response was provided and on 11 August 2020 the landlord informed this Service that the resident had declined a survey of his property. The landlord was asked to provide a final response to the complaint by 18 August 2020. The landlord stated that the complaint had been closed as the resident had declined the inspection, however, this Service advised on 28 October 2020 that the landlord was required to answer the complaint in writing within 5 working days. No response was received and so this Service issued a Complaint Handling Failure Order to the landlord on 3 December 2020. The landlord then set out its final response on 17 December 2020 and provided evidence to this Service to complete our investigation.

Assessment and findings

Scope of the Investigation

  1. The Ombudsman has considered the landlord’s response to the complaint raised in February 2017, which it agreed to review following contact from this Service in February 2020. The Ombudsman has also investigated the landlord’s response to the resident’s reports of leaks and to his correspondence of January and February 2020 regarding historic disrepair, as these issues have been addressed in the landlord’s final response.
  2. In its final response, the landlord has outlined the works undertaken to the resident’s kitchen and bathroom since his succession of the tenancy, and the resident confirmed in December 2020 that there were no outstanding internal defects. As stated in the jurisdiction section above, the Ombudsman is unable to investigate the resident’s allegations of historic disrepair to the kitchen and bathroom, as these issues were not raised with the landlord as a formal complaint within a reasonable time.

Disrepair

  1. When the issue of historic disrepair was introduced in the complaint referred by the resident’s MP in 2019, it was reasonable for the landlord to respond confirming that it understood that the enquiry was about the backdating of the rent to the period prior to confirmation of his succession of the tenancy, and not the period he was claiming he was unable to reside at the property due to repairs. The resident did not provide further clarification on this point.
  2. The landlord used its discretion to escalate the complaint made in February 2017, following contact from this Service, however, the Ombudsman is mindful that its investigation into the bathroom repairs completed in 2017 may now be limited due to the passage of time. The landlord has taken a reasonable and proportionate approach by describing the information held on its records and confirming that the repairs recommended in the pest control report of 30 January 2017 were completed on 3 February 2017 and 8 March 2017. The Ombudsman is satisfied that the response of 24 April 2017 adequately dealt with the complaint about repairs to the bathroom prior to that date and offered a reasonable level of compensation for the failings identified. If the resident continues to experience issues with pests at the property, this should be reported to the landlord so that further measures can be considered.
  3. The resident has since complained about the landlord’s response to external leaks at the property. It is not clear whether a formal complaint was made to the landlord regarding these issues prior to the intervention of this Service but this has been addressed in the landlord’s final response of 17 December 2020 and so is included in this investigation. The landlord has confirmed that it failed to progress works when damp was reported in November 2019 and a works order was not raised until February 2020. The repairs policy provided for this investigation does not give timescales for the completion of routine repairs, however, the Ombudsman would expect repairs to be completed within a reasonable time. The landlord has cited the impact of the pandemic as the reason that works were further delayed, however, there was service failure as the landlord failed to raise the works following the initial inspection and to progress the works between February and March 2020, causing inconvenience to the resident.
  4. The landlord passed the resident’s claim for disrepair to its legal team to respond at the beginning of 2020. This included a claim in relation to the damage caused by the external leak, in addition to the historic disrepair to the bathroom and kitchen. The legal team has liaised with the resident to set out its position and has been clear that it considers that there was no failure to meet its repairs obligations in relation to the works to the resident’s toilet and kitchen, which were completed in 2017. The Ombudsman considers that the landlord’s position is reasonably held, based on the information provided to this Service, although it is acknowledged that the resident disputes the landlord’s version of events. The resident is advised to seek independent legal advice if he wishes to challenge the landlord’s position.
  5. As the resident indicated that he may wish to issue legal proceedings in relation to the disrepair, it was appropriate for the landlord to refer the matter to its legal team to respond. No evidence has been provided for this investigation that the landlord updated the resident on its position with regard to compensation by 24 March 2020, as promised in an email from the landlord’s legal team dated 16 March 2020. There is also no indication that the resident has received a response since that date. The Ombudsman therefore considers that there was service failure by the landlord in respect of its communication with the resident about the disrepair.

Rent arrears

  1. The landlord has explained its position regarding the historic rent arrears and that it considers that it was lawfully entitled to demand rent from the date of succession, as determined by the court. However, in its final complaint response, the landlord has not addressed the resident’s request that he be reimbursed for the rent arrears due to the condition of the property prior to the court order of 8 June 2016.
  2. In the absence of a copy of the formal complaint made to the landlord in February 2017, it is not possible to determine whether this issue was raised at that time, however, this was raised by the resident’s MP on his behalf in 2019. The landlord’s response in respect of the arrears has focussed on its entitlement to charge rent during the disputed period in accordance with the court order of 8 June 2015 but it has not commented on the allegation that the condition of the property at that time was such that the property was uninhabitable.
  3. As the resident had the opportunity to raise the issue of disrepair during the legal proceedings relating to his succession of the property, the Ombudsman will not make a determination on this aspect of the complaint. It is recommended, however, that the landlord respond to this aspect of the resident’s complaint in writing, to allow the resident to obtain independent legal advice on the prospect of further legal proceedings.

Complaints Handling

  1. The resident has complained to this Service that the landlord has historically failed to provide information about how to log and escalate a formal complaint when he contacted it regarding his dissatisfaction with its services. The resident did make a request to refer his complaint about rent and the bathroom repairs to the corporate complaints team in 2017, indicating that he was aware of the landlord’s internal complaints process. He was also advised of how to escalate his complaint in the complaint response of 24 April 2017, although there is no evidence that he did so.
  2. This Service has issued a Complaint Handling Failure Order to the landlord, as it failed to progress the complaint within a reasonable timescale following contact from this Service. This failure resulted in unnecessary delay and inconvenience to the resident, and increased the time and trouble he had to take to pursue the complaint. The significant delay of over 9 months to issue a final response prevented the resident from escalating his complaint to this Service for investigation. There was therefore maladministration in the landlord’s complaints handling.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
    1. no maladministration in the landlord’s response to the resident’s complaint about the handling of rent arrears following his succession of the tenancy;
    2. service failure in the landlord’s handling of repairs at the property; and
    3. service failure in the landlord’s complaints handling.

Reasons

  1. There was no maladministration in the landlord’s response to the resident’s complaint about rent arrears. The landlord has provided a detailed response clearly outlining the reason it believes it was entitled to recover rent for the disputed period. The Ombudsman does, however, advise that the landlord address the resident’s complaint about whether rent was payable for that period due to historic disrepair.
  2. There was service failure in the landlord’s handling of repairs at the property as there were delays in completing the works to remedy the external leak and in communicating with the resident about his claim for disrepair.
  3. There was service failure in the landlord’s complaints handling as it failed to progress the complaint within a reasonable timeframe following contact from this Service.

Orders

  1. Within 28 days of the date of this report the landlord is ordered to:
    1. Pay the resident £100 compensation in recognition of the inconvenience caused due to the delay in completing repairs to remedy an external leak at the property;
    2. Pay the resident £50 in recognition of its failure to provide a further response to the resident about the claim for disrepair by the date specified;
    3. Pay the resident £100 compensation in recognition of its poor complaints handling; and
    4. It if has not already done so, write to the resident setting out its position with regard to compensation for disrepair, as promised in the landlord’s email of 16 March 2020.

Recommendation

  1. It is recommended that:
    1. The landlord write to the resident setting out its position on liability for rent during the disputed period, with reference to the condition of the property during that period and the allegations of disrepair.