Brent Council (202003531)

REPORT

COMPLAINT 202003531

Brent Council

27 April 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

The resident complains about the landlord’s response to the concerns he raised about various repair issues at his property.

Background

In November 2017 the resident raised concerns about excess cold and lack of insulation under the laminate flooring of his home. A surveyor attended and determined that there was no insulation under the laminate flooring, which was poorly fitted, resulting in drafts. As a goodwill gesture (as floor coverings were not in fact its responsibility) the landlord agreed to replace the laminate flooring, which would include insulation. The same surveyor attended to check on the works in February 2018 while they were taking place, and assured the resident that they were being carried out correctly. It was explained to the resident that the laminate would be his responsibility. Over the following months the resident raised a number of concerns and formal complaints as he felt that the property remained excessively cold, which was affecting his health. The landlord agreed to carry out some further works to try and address this, such as fitting draft excluders, although reported that at times it was unable to do so due to lack of access.
A surveyor carried out an inspection of the property on 2 November 2018 which identified a number of repairs required, and an order was raised for the remedial works to be carried out: This included installation of thermal wall boards, mould treatment, and re-tiling in the bathroom. These works took place in December 2018/January 2019. A heating contractor also attended on 6 November 2018 and tested all radiators throughout the property, which were found to be fully operational.

Following a leak at the property an inspection was carried out in April 2019. During the inspection, the resident raised a number of repair issues, which mostly related to the decoration. The landlord’s note from the time concluded that the matter would be discussed, and the repairs progressed through to completion.
The resident made a complaint to the landlord on 18 June 2019 about the works required following on from the leak. The landlord replied to this on 12 July 2019, stating that contractors were currently on site addressing these repairs, and acknowledged that there had been an unacceptable delay and failure to update the resident on these works following on from the April 2019 inspection, and apologised for this. It noted that the resident had requested that works be carried out to the picture rails and architraves but as he had previously been advised, these would not be renewed. The works order from July 2019 shows that decoration works were completed.

Summary of events

On the 26 November 2019 the resident made a formal complaint, stating that the extractor fan in the property was continuously running, and that there was mould in the hallway. On 28 November 2019 the Repair Manager attended the property to inspect. In an internal email dated 18 December 2019 he explained that he had done so due to unresolved issues around scope of works and repair responsibilities, and because previous visits by surveyors had been unable to completely resolve the conflict. The Repairs Manager noted that the property was extremely hot and that all windows and vents were closed when he arrived, and he explained the causes of condensation and the need for ventilation to the resident. In relation to the resident’s request for decorating, the Repairs Manager noted that there were some minor blemishes on some paintwork, which included some hairline plaster settlement cracks in the bathroom and lounge. There was some tiling in the bathroom which was aesthetically out of line in one corner, but otherwise functional. The resident was also asking for the laminate flooring to be re-laid.
The Repairs Manager noted that the resident was disappointed the landlord would not carry out further works to decorations and flooring, but he “…understood that we had gone over and above our repair obligations, in that we have laid laminate flooring, added tanking to walls and wholesale decorations throughout.” It was agreed with the resident that that the landlord would carry out “the remainder of the works that [the Repairs and Voids Manager] had authorised” and would address the hairline and minor decorative snagging. The Repairs Manager had asked the resident to work with the landlord to help reduce the levels of humidity in the property “…and allow us to draw a line under the continued requests for works that do not fall within the council’s repairs obligations.”
Following on from the 26 November 2019 inspection the landlord wrote to the resident on 11 December 2019 with an appointment for the agreed works to be carried out on 18 December 2019.
On 17 December 2019 the resident emailed the landlord complaining about “…unfinished and unacceptable completed job…during December 2018 and January 2019.” He said that since January 2019 he had complained many times about this. The resident went on to say that he explained to the Repairs Manager that he was unhappy with drafts and condensation on all of the windows. The resident said “Him decision is not suitable for me and after near year of complaints I take decision to inform you and ask to investigate the case. If possible with independent from Housing Association surveyor…The floor is not insulated at all. Have gap between floor boards and I feel the draught. Specially in living and bed rooms. I have to put boots on at home because my foot is cold. Windows insulation is too very poor and from that is increase condensation”.
On 18 December 2019 the contractor was unable to gain access. The note from this records that the contractors knocked on the door several times, waited outside for half an hour, and left “numerous messages” for the resident.
On 19 December 2019 the landlord provided a stage one response to the resident’s 26 November 2019 complaint. It was noted that the Repairs Manager had met with the resident to clarify the landlord’s position in relation to the scope of works and repairs responsibilities. Advice on the causes of condensation and how best to keep the property ventilated was provided, and it was agreed that the following works would be carried out: Completion of decorations in the hallway; refix boarding behind radiator in the bedroom, and; complete minor decorative imperfections in the lounge and bathroom. While the resident had appeared to accept this conclusion at the time, when contractors attended for the arranged 18 December 2019 appointment, they had been unable to gain access. In light of this the complaint was not upheld. The resident was advised of his right to escalate the complaint.
The resident responded on 19 January 2020 stating that he did not agree with the Repair Manager’s decision on what works were required, and said that he was complaining about “tiles in the bathroom, crack in the living room, small holes and scratches on the bedroom wall. Insulation boards in the bedroom is not stick to the wall, the picture bit is not fixed by level on the wall. The completed job is not meeting any regulation and why I have to pay again for something which housing association was already pays?” He set out his health issues and stated that when he raised questions about floor insulation, the Repair Manager had refused to discuss it. The resident also said that the fans in bathroom and kitchen were not triggering. The landlord does not appear to have responded to this email.
On 5 February 2020 the resident called the landlord to say he was unhappy with the outcome of his complaint, repairs had not been completed to a good standard, and he was given unsuitable times for the works to be done. The landlord provided a “review stage” complaint response on 16 March 2020. In this letter it noted that the resident had met with the investigation officer on 26 February 2020 to discuss the complaint. The letter went on to set out the history of the matter from 2017, and noted that shortcomings in the handling of the resident’s concerns had been acknowledged in responses to previous complaints in October 2018 and July 2019. The landlord would pay £250 compensation in recognition of the communication failures and related delays.
The landlord said that it had gone beyond its standard repairing obligations and attempted to address the resident’s concerns about coldness by replacing the laminate flooring and installing thermal boards. There had been occasions, such as on 18 December 2019, when operatives had not been able to access the property for scheduled appointments. As was discussed with the resident on 26 February 2020, the landlord had asked the occupational therapy (OT) service to provide an assessment within one month. It said “The decision on whether or not any adaptations in terms of heating are required, and if so what specific type of adaptation may be required, is a matter for the professional judgement of the occupational therapist who carries out the assessment.”
The landlord said that the resident had also listed a range of works he believed were required at the property as follows:
1. Possible replacement of the laminate flooring due to a lack of insulation underneath it.
2. Refitting of laminate floor beading.
3. Removal of trip hazards including nails protruding from the laminate flooring and a metal strip not being securely screwed into it.
4. Filling of gaps around some windows to improve insulation.
5. Repair of a window lock.
6. Treatment of mould.
7. Repair or replacement of extractor fans in the kitchen and bathroom.
8. Repair of the toilet waste pipe.
9. Replacement of tiling in the bathroom which was out of line.
10. Repair or replacement of kitchen linoleum which has a gap in it.
11. Other items of redecoration throughout the flat.
12. The thermal boards had not been fitted securely
The landlord said that in light of the resident’s dissatisfaction with the findings of the 28 November 2019 inspection, once the OT assessment had been done a more senior manager would conduct one final inspection to address all of the outstanding concerns and decide which items fell within the landlord’s repairing obligations. It would then write to the explaining for each request what work will or will not be carried out, and the reasons for these decisions.
On 7 April 2020, the OT assessment was carried out. The outcome of this was that the resident’s concerns about excess cold, mould and lack of floor insulation would be referred to Housing Management to review.
On 11 May 2020 the landlord carried out the inspection of the property, and on 12 May 2020 sent a final response to the resident detailing the outcome of the inspection. Issues that had been identified for works were:
1. The radiator located within the hallway did not get hot and/or worked intermittently, and the resident wanted to be able to control all radiators independently.
2. A system bypass would be fitted so that all the radiators within the property could be independently controlled.
3. The existing boiler would be replaced at the same time.
4. The central heating system would be commissioned, tested, and left in working order.
5. The threshold bar between kitchen and the rear hallway was not fitted correctly presenting a trip hazard, and so would be refixed.
6. The wall behind the radiator at rear of living room required attention.
7. Gaps around the living room window would be filled, which had occurred where new boarding was not finished correctly.
8. Humidistat fans in the kitchen were not responding to moisture and the boost functions were not working, so would be checked to determine whether they were fitted and configured correctly.
9. A small amount of mould in the kitchen would be treated (and this issue would be remedied once the humidistat fans were operational).
10. A joint in the vinyl sheet covering in the kitchen presented a trip hazard, and so would be secured.
11. The flexi–waste on the toilet was damaged, and would be replaced.
12. The broken lock on the bedroom window would be replaced.
13. Boarding that had become loose behind the bedroom radiator would be removed and refitted, with the radiator rehung following this.
The landlord said that it would arrange for these works to be caried out and stated “work being complete is dependent on access being granted to our contractor on agreed dates.” Once the works were done, it would post inspect to ensure it had been completed to an appropriate standard. All other issues raised by the resident the inspection had found to be minor and/or purely cosmetic, requiring no action by the landlord. These were:
1. Vertical cracks on the walls in the living room, imperfections in wall and ceiling finishes.
2. Gap between floor and wall insulation under bath
3. Sealant to floor tiles/skirting
4. Wall tiles to bath/shower splashback are out of alignment
5. Cracks around door frame (bathroom side)
6. Crack in floor tile
7. Leak damage in hallway
8. Imperfections in bedroom walls
9. Debris to side of wardrobe
10. Beading to laminate
11. Picture rail between wardrobes not level
In relation to the resident’s concern that only part of the kitchen wall had been insulated with thermal boarding, the landlord explained that this was due to the location of the boiler. It said “As this is work that is an improvement and not a repair, we will take no further action in relation to this matter.” Finally, in relation to the resident’s complaint that the flooring did not have insulation and that he felt cold, the inspection had found that there was underlay in place, of the standard type for the laminate installed. The landlord stated that the laminate was replaced as a goodwill gesture because when the resident signed his tenancy, it was not explained that the existing laminate was gifted to him. The landlord noted that this was over and above its obligations as the provision of replacement flooring is the tenant’s responsibility. No promise had been made that specific insulation would be fitted, and the purpose of any underlay was to provide levelling, sound insulation and thermal insulation properties. It was explained to the resident at the time that once the new laminate was installed it would become his responsibility.
Repairs to the heating system were carried out on 20 May 2020 and post inspected on 10 June 2020 to ensure the work had been completed satisfactorily (although the Ombudsman has not seen details of this). Around this time the resident informed the landlord that he was shielding and so did not want the landlord to undertake the remaining repair works. The landlord set this information out in response to a councillor enquiry made on behalf of the resident in June 2020, and stated “[The resident] should therefore contact the Housing Management Service again when he is ready for the remaining work to proceed.

The councillor referred the matter to the Ombudsman in July 2020, with a copy of an email from the resident in which he said “I am totally unhappy from the final decision of the Housing association manager.”

Assessment and findings

The resident has informed the Ombudsman that he is unhappy with the entirety of the landlord’s response to his complaint and suggests that the landlord has made no attempt to carry out the repair works detailed in its 12 May 2020 letter, stating that it had not tried to arrange an appointment for these works. He is unhappy that the landlord will not carry out works to level the picture rail in the bedroom, or address the cracks on the walls and the sealing in the living room. He also complains that it has not agreed to insulate the kitchen wall (which he says now has a huge amount of mould) and asks the Ombudsman to assess the landlord’s 12 May 2020 explanation that only part of the kitchen wall had been insulated with thermal boarding due to the location of the boiler, and as this was an improvement and not a repair it was not taking further action.
He says that the window frames are not insulated from the wall which makes the frame cold, and this creates a huge amount of condensation, and there is also a draft. The resident explains that the insulation boards that have been fitted are not properly fixed and move when pressed, and there is a “missing insulation part from board” in the bathroom. The resident concludes “About unperfect finish job my point is: Housing association is was paid unfinished job with money of the taxpayer and they are push me I finish that what they are does not. I refuse to accept myself as a second hand person, and for that reason I cannot accept [the landlord’s] decisions and explanations.” The resident is also concerned that the same staff member provided the final decision on his complaint that had been involved previously.
The resident is unhappy with the decision made about the flooring at the property, and states “There where have not insulation on or under suspended floor. Yes, have laminate and underlay. All together is 15mm thick. Suspended floor timbers is fixing with gap between them. That is possibility the drought to pass in the room and get cold.”
The resident has provided a large number of photographs in support of his complaint about repairs he feels are required at his property. He has also submitted medical evidence in relation to his health conditions. It is important to set out from the start that this Service is not able to determine what repairs may or may not be required at a property – it does not have the technical expertise to do so. Neither does it have the medical expertise to determine casual links between repairs and health issues. Rather, the role of the Ombudsman is to determine whether the landlord acted reasonably and fairly in response to the concerns raised by the resident about repair issues, and fulfilled its obligations to him as a landlord. Neither is this Service able to determine causal links between repair issues and the impact these may or may not have on a resident’s health.
Section 11 of the Landlord and Tenant Act 1985 implies an absolute obligation upon landlords to carry out basic repairs. It sets out that a landlord must keep in repair the structure and exterior of the dwelling house and keep in repair and proper working order the installations in the dwelling house for the supply of water, gas, electricity, sanitation, space heating, and heating water.
This Service notes that the resident’s formal complaint of November 2019 was about the extractor fan continuously running and mould in the hallway. In line with its repair responsibilities under Section 11, the landlord had an obligation to address these. It did so, with the Repairs Manager attending two days later to inspect. The Ombudsman considers this an appropriate and quick response to the issues that the resident had raised.
The Repairs Manager explained to the resident the need for ventilation and sought the resident’s cooperation in reducing the humidity in the property, and explained that the decorative works that the resident was asking for would not be carried out. The landlord then contacted the resident with an appointment for the works that had been agreed (completion of decorations in the hallway; refix boarding behind radiator in the bedroom, and; complete minor decorative imperfections in the lounge and bathroom). The Ombudsman finds that the landlord acted appropriately here to try and address the resident’s complaint, and set out what repairs it was responsible for. It is noted that the resident did not provide access of 18 December 2019 when the landlord attended to carry out the agreed works.
The resident expressed in his 17 December 2019 email his dissatisfaction with the works that had been agreed, and said he felt drafts in the property from the windows and the floor was not insulated. There is no indication that the landlord responded to this. However, it did send its stage one response on 19 December 2019, setting out the outcome of the Repairs Manager’s visit on 28 November 2019. While this was a reasonable reply to the original 26 November 2019 complaint from the resident, it would have been improved by referencing the more recent concerns raised about drafts/cold.
Neither does the landlord seem to have replied to the resident’s 19 January 2020 email, in which he referenced the decorative issues he had previously raised, as well as the boarding in the bedroom. The Ombudsman notes that these were issues that the landlord had already looked into and it had advised the resident on what it would and would not do, and had attempted to attend on 18 December 2019 to complete the repairs agreed, such as the boarding in the bedroom. Therefore, these issues had already been addressed and a remedy provided: nevertheless, the landlord should reasonably have responded to this communication.
The resident also complained about cold and drafts from the windows and floors in this email, and said that the fans in bathroom and kitchen were not triggering. The Ombudsman notes that this seems to have been a new issue not previously raised. The landlord should have responded to this in order to set out its position to the resident.
The resident contacted the landlord again on 5 February 2020 to explain that he was unhappy with the response to the complaint, then met with the investigation officer on 26 February 2020 to discuss the issues. A response was provided on 16 March 2020 which set out that an OT assessment would be carried out, and once this was done a more senior manager would conduct one final inspection to address all outstanding concerns and decide which items fall within the landlord’s repairing obligations. The Ombudsman considers this to have been a reasonable response from the landlord that demonstrated that it was continuing to take the resident’s concerns seriously and was willing to take action to try and resolve them.
This Service notes that the OT assessment did not make any specific recommendations. The landlord’s inspection went ahead in May 2020: The repair issues that were agreed as part of this inspection (as listed at paragraph 18, above) mostly appear to have been new issues that had not previously been raised in the resident’s complaints. The inspection found that the laminate was fitted with underlay which provide thermal insulation, and that “Additional floor insulation is not work that Brent Council would undertake; this is not repair work, it is an improvement. This request is specific to your personal needs and as such, we would only act if the occupational therapist specifically advised the need for insulation. As such, we will take no further action in relation to this matter.”
As stated above, it is not the role of this Service to decide what repair works were and were not required at the property. What this investigation can conclude is that the landlord took the appropriate steps to investigate the issues raised, arranged an OT assessment to assist with this, and determined what works were required that were its responsibility to complete. It then clearly set this out in the 12 May 2020 letter to the resident confirming what it would and would not do.
While this Service appreciates the resident’s desire for the imperfections in the decorating to be addressed, Section 11 of the Landlord and Tenant Act does not infer an obligation for a property to be put into a perfect state: It should be repaired to a standard that would make it fit for occupation. In light of this, the landlord’s 12 May 2020 response regarding issues that it had found to be minor and/or purely cosmetic (for example, wall tiles out of alignment), was reasonable, as the landlord had no obligation to carry out the works that the resident had requested. Further, this Service notes that the resident’s tenancy agreement states “You must decorate the inside of your home and maintain it to a reasonable standard….You are responsible for decorating the inside of your home. This includes repairing minor cracks in plasterwork and preparing surfaces properly before you paint or paper them.”
In relation to his request for floor insulation, the landlord’s explanation that the underlay that was in place provided insulation was reasonable. There is no evidence that suggests that the landlord was in breach of its repair obligations on this matter. The landlord was not obligated to provide additional insulation, as this would be an “improvement” rather than a repair.
The landlord carried out the works to the heating system shortly after the inspection, but was unable to complete the additional works as the resident was shielding. In response to enquiries made by this Service late in 2020, the landlord said that it had attempted to contact the resident to determine whether he was ready for the remainder of the work outlined in the 12 May 2020 letter to progress. Attempts had been made by telephone, but when this was unproductive it had attempted to visit the resident to discuss the matter, but the resident had declined to allow access because he was still shielding. The landlord stated that it was ready to recommence the work whenever the resident felt it safe to do so.
Regarding the resident’s concerns about the final response being provided by the same person that had been involved previously, the Ombudsman has seen that the landlord’s complaint policy does stipulate that the stage two response will come from the Chief Executive’s Department. In this case, the stage two response was the letter dated 16 March 2020, which was from the Chief Executive’s office, and therefore was in line with this policy. The letter dated 12 May 2020 was a follow on from the inspection carried out by the repair department setting out its findings, and therefore the Ombudsman does not consider it inappropriate that this came from that team: Ultimately, it was the repairs department that was best placed for determining what repairs were required.

Determination (decision)

In accordance with section 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the concerns he raised about various repair issues at his property.

Reasons

The landlord has attended the property more than once to inspect and identify those repairs for which it was responsible, and the evidence indicates that it has attempted to carry these out. While the resident disagrees with the outcome of these inspections, the Ombudsman has seen no indication that the landlord has neglected its obligation to keep the property in reasonable repair. The landlord has set out in clear detail the reasons for its decision on each repair.
The landlord omitted to respond to some of the resident’s emails but, taken in the wider context of the case, this was not so serious a failing as to warrant a finding of maladministration.

Recommendations

Given the outstanding repair works, the issues with contacting the resident, and the previous “no access” attendances, the Ombudsman suggests that the landlord write to the resident’s home address with a provisional date for these works to be undertaken, asking him to first make contact to confirm that he will provide access for this appointment before it is confirmed, or alternatively make contact to arrange a more suitable date.