Lewes District Council (202110510)

REPORT

COMPLAINT 202110510

Lewes District Council

5 September 2022

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 complaint is about the landlord’s:
1. Handling of adaptations to the bathroom at the property and related repairs.
2. Complaint handling.

Background and summary of events

Background

The resident has a secure tenancy agreement with the landlord that started in 1999. The landlord is a local authority.
The tenants’ handbook says that the landlord can help if the resident or family member is struggling in the property and need equipment or adaptations to help manage a disability and maintain independence. Alterations can range from minor adaptations to larger works such as fitting a level access shower. It says that, for most adaptations, the landlord will need recommendations from an occupational therapist.
The landlord’s aid and adaptations procedure says that major adaptations will only be completed on receipt of recommendations from the resident’s occupational therapist. The procedures say that cases should be reviewed weekly. The landlord has one contractor that deals with all adaptations.
The complaints procedure says that the landlord will try and resolve the complaint informally in the first instance without having residents having to go through its formal procedure. It noted that, if that was not possible, the complaint would be investigated formally. The formal procedure had two stages; the landlord aimed to respond at stage one within ten working days and at twenty working days at stage two.
The landlord’s compensation policy says that it will pay compensation if there is a delay in completing repairs under the right to repair scheme. It says it will pay £10 compensation with a further £2 per day for every extra day the repair is not fixed, up to a maximum of £50.
The policy says that there may be cases where more serious issues were identified, and such cases needed to be considered on their merits but might require higher levels of compensation for distress, harm or inconvenience. Any remedy based on loss of habitable rooms is based on kitchens, living rooms and bedrooms only.
In July 2020 the Ombudsman introduced the Complaint Handling Code which says that the Ombudsman encourages the early and local resolution of issues between landlords and residents and recognises that there may be times appropriate action can be agreed immediately. Any decision to try and resolve a concern must be taken in agreement with the resident and a landlord’s audit trail/records should be able to demonstrate this.

Summary of events

In 2019 an occupational therapist recommended a level access shower for the resident along with other bathroom adaptations including grab rails.
On 9 November 2020 work on the bathroom started. This Service understands that this work was delayed until this time at the resident’s request.
On 18 November 2020 an advice charity (the charity) complained to the landlord on behalf of the resident about the hallway in the property. They explained that the resident who lived alone was disabled with restricted mobility, used a walking aid and currently had a special boot. They explained that there was a gap with no carpet where the bathroom door used to be which had created a serious tripping hazard; the original tiles under the hall carpet were chipped and dangerous. They said that the resident was born with spina bifida and had multiple musculoskeletal problems that affected her physical strength, dexterity and mobility. They asked the landlord to provide safe hallway flooring for her.
On 3 December 2020 the landlord told the resident that it was closing her complaint as repairs had been scheduled.
On 7 December 2020 the resident contacted the landlord unhappy with the work ongoing at the property. She said she had had no bathroom facilities except for a toilet for three weeks and had “endured, mess, dust and disruption”.
On 8 December 2020 the landlord contacted the contractor’s operations manager (the contractor) about the works to the resident’s home. It said, going forward, there were issues to resolve including to investigate the new shower as it was intermittently cutting out mid-use; the shower tray was “rocking” and would need re-setting; hairline cracks to the toilet and sink; and to look at the concerns raised about the hallway flooring. The landlord expressed concerns about the subcontractor being used.
In response, the contractor said that they had been on site on 27 November 2020 and there were still items to be completed. They added the operation of the shower would be checked and they were at the property the next day and would go through all the issues with the resident.
On 15 December 2020 the contractor told the resident that they would like to visit the property later that week to rectify the issues with the bathroom and look also to repair the hallway floor. They added that, if the floor could not be repaired, it would be replaced.
On 16 December 2020, in response to an enquiry from the resident, the contractor told her that the silicon was necessary for the flooring to prevent water ingress when mopping the floor. It said that the latex was “not stoned” prior to fitting which had caused the uneven finish and bumps. It said the flooring company had been asked to try to rectify this.
On the following day the resident told the landlord she had had “another sleepless night worrying about the problems with the bathroom and hallway flooring”. She asked for information to enable her to make a formal complaint.
The repairs log noted that the level access shower installation was completed on 18 December 2020.
On 21 December 2020 the landlord told the resident about how the recall works would be progressed. This gave details of various matters including the cracks in the toilet and sink and the “rocking” shower tray. The landlord suggested that, if the resident was unhappy, she should make a formal complaint.
On 5 January 2021 the resident’s MP contacted the landlord with a complaint from the resident. The resident explained that repairs to the hallway floor and bathroom adaptations had “gone unbelievably wrong”. She said she had been living with the contents of the hall and bathroom in the living room and provided photos. She said that she had nowhere to eat and her son was unable to spend Christmas with her. The resident added that this had affected her health, that she could not sleep and she had burst into tears because of the stress it was causing. She explained that she had multiple health issues and this situation compounded them.
On 6 January 2021, following receipt of photos from the resident, the occupational therapist assistant told the landlord that it appeared that the shower unit was too close to the corner; the riser bar was too high and also was in an awkward position to use the riser bar as a grab rail. She explained this should be installed for use in a sitting position, so the shower can either be directed for use for overhead but can be lowered to be just directed for a body wash only if necessary.
On the following day the contractor assured the landlord that matters were in hand and the bathroom was being rectified the following week. The landlord responded to the MP with that information.
On 16 January 2021 the resident told the landlord that, despite raising all the problems with the bathroom and shower, she was “still stuck” with a shower that was not fit for purpose. She listed other problems including: the shower did not have enough pressure; the “turn” adjustment was difficult to tighten and untighten and she believed a timer shut down the shower. The resident added that these matters were “affecting her sleep and health enormously … I really have had enough”.
On 19 January 2021 an occupational therapist assistant at the local authority told the landlord that the resident was having difficulties with the controls on the riser bar for the shower and required a fitting whereby the shower head could easily glide up and down the rail. She gave details of a shower that would have this facility. She also highlighted other issues raised by the resident including flooring coming away from the wall in the hall; the shower was not draining properly; low water pressure from the shower; the shower unit cut out during use; and the flooring was slippery in the bathroom.
On the same day the resident made a complaint to the landlord that she had been left to live with dangerous flooring. She said the landlord and contractor was aware, but nothing had been done. She asked that it replace the hallway floor.
Also on that day, the senior surveyor asked the contractor to formulate a plan to resolve all the issues experienced by the resident “once and for all”.
On 25 January 2021 the resident told the landlord that the work on the bathroom was still unfinished and there was a problem with a gap between the wall and the marine ply as it let freezing cold air into the bathroom from the loft. The resident added that she could feel the cold coming from the space which was along the entire wall and meant the bathroom was permanently cold.
On the following day, the resident provided photos to the landlord of the state of how the bathroom had been left since 9 November 2020. She added she had multiple health issues, used crutches and was having to wear an air boot at that time. She said she had had “quite a few close calls in tripping up because of the situation”. She added she had had to wait a year for the bathroom to start and had had three months “of hell” since. The resident also said that her emails were going unanswered and the issue with the hall floor was still not right.
Following further contact from the MP on 27 January 2021 the landlord responded saying that the resident’s concerns were being dealt with as a formal complaint.
A work ticket for 5 February 2021 gave the job description that loft insulation should be re-laid. This work ticket was not signed by the resident or the contractor to evidence the work had been completed.
On 12 February 2021 the resident contacted the contractor about the draught and cold in the bathroom and said she would like it remedied as soon as possible. In response the contractor asked if the resident had heard from the landlord (to which she responded that she had not) and he offered to come out to inspect the bathroom.
On 17 February 2021 in an internal email the landlord noted that the fitting of the level access shower “did not go well”. It accepted the resident’s concerns that the flooring was now unsafe as the carpet had “ricked up” where it joined the new bathroom and would replace at its own cost which it noted was “considerable”. The landlord noted it had visited the site and had an “exhaustive snag list” and had ordered the contractor to remove the subcontractor from any future works on its housing stock. It noted further that a new shower had been added to the snagging list on the advice of the occupational therapist.
On 22 February 2021 the repairs manager noted in an internal email that, apart from the snagging items that the contractor had picked up, the bumps and undulations in the hallway were “very noticeable”. He noted that it looked like the latex screed might have picked up debris that was not checked and/or made smooth prior to putting the vinyl flooring down. He noted the contractor had agreed to do the floor at no additional cost and would find a different subcontractor to do so.
The evidence suggests that sometime in early February 2021 a new bathroom (shower, toilet and sink) was installed.
On 4 March 2021 the landlord told the resident that the contractor would arrange for a different sub-contractor to re-do the floor.
On the same day, the resident provided photos to the landlord and said that it was “not just lumps and bumps” in the floor and it was dangerous. She also said that the bathroom was still an issue with the cold coming through under the gap in the wall which the contractor was aware of and the sink was still leaking despite a plumber attending the previous week. She added the plug did not ft properly and did not keep water in the sink. In a further email the resident said that she was still awaiting a resolution to the bathroom work and that she could not bring a foster child into this “chaotic, dangerous environment”.
On 5 March 2021 the contractor told the landlord that it had a site visit planned to the property the following week and would look at the flooring then.
On 15 March 2021 the resident told the landlord that she would be seeking compensation for the impact on her as a result of the works on the property. She said that the work on the bathroom had started on 9 November 2020 and was unfinished. She said she had to “continually ring, chase up, beg, plead and everything in-between whilst having to live in absolute chaos with people coming and going throughout a lockdown. No one seems to be accountable”. She described the stress this had caused and said she was “disgusted and exhausted by the situation”.
On 23 March 2021 in an internal email the landlord sought to confirm that all the snagging issues from the works had been addressed.
On the following day the landlord noted that all the works to the bathroom had been completed to the resident’s satisfaction and that the hallway flooring was booked in for later that week; once completed then “everything would be done”.
On 25 March 2021 the landlord responded to the resident at stage one of its formal complaints procedure. The main points were:
1. Upon receipt of this complaint, it became clear that works completed by the subcontractor were not to the standard that was expected. It had secured a different contractor to complete remedial works which resulted in further delays whilst resolving the poor workmanship. No further work would be carried out by that subcontractor on any of the landlord’s other properties.
2. It had agreed to replace the hallway flooring on 24 to 26 March 2021.
3. A new shower was fitted on 5 February 2021 and it noted the resident was satisfied with the replacement.
4. It noted that the original snag list from December 2020 had now been addressed to the resident’s satisfaction.
The landlord upheld the complaint and apologised for the delays in resolving the resident’s concerns. It offered compensation of £480.45 which was made up of 25% of the weekly rent for a 12-week period plus an additional £180 for delays in excess of her right to repair. It said this payment acknowledged the inconvenience or distress the resident might have suffered. It noted the resident was seeking compensation for loss of earnings as a foster carer and it asked for documentation to support that claim. The landlord explained how the resident could escalate the complaint.
On 26 March 2021 the resident asked the landlord to escalate the complaint. She said she believed the level of compensation offered was insufficient for the issues she had experienced over a period of five months; and she was unhappy that the complaints team had failed to act and highlighted that she was still waiting for further works. The resident gave details of the ongoing repair problems that she was experiencing.
On 25 April 2021 the resident chased up the contractor about the cold, draughty bathroom.
On 27 April 2021 the landlord clarified the stage two escalation request and said that its timescale to respond might be affected by staff shortages.
A work ticket for 5 May 2021 gave the job description that new insulation was required above the bathroom. It noted that there was insulation that ran over the joists but the insulation between the joists was missing. This work ticket was not signed by the resident or the contractor to evidence the work had been completed.
On 14 May 2021 the landlord issued its final complaint response to the resident. The main points were:
1. It apologised again for the failings identified in the stage one complaint response. It said it was clear that its services had fallen well below its expected standards. The landlord agreed that the compensation offered was appropriate because it was in line with its compensation policy.
2. It said the compensation along with its instruction to the named contractor (the contractor) to remove the sub-contractor from any future works to its properties demonstrated its commitment to addressing the issues the resident had raised.
3. It gave an update on draught in the bathroom saying works had been booked in for 5 May 2021 and had been completed.
The landlord upheld the complaint and reiterated the offer of compensation of £480.45. It signposted the resident to the Ombudsman.
On 25 May 2021, following contact from the resident explaining the additional insulation in the loft had not remedied the draught, the contractor told the resident that they were disappointed that this had not worked and they were at a bit of a loss as to where the draught was coming from. They suggested a surveyor from the landlord attended the property for an inspection.
On 21 July 2021 the resident asked the landlord for a completion date for the bathroom works.
On 5 August 2021 the resident told the contractor that she could “no longer deal with continually chasing up about this bathroom. She said it was causing her “so much stress I am writing this in tears because of the frustration and anger over something that was supposed to help me but has just been a continual ten-month nightmare”. The resident copied her MP into that email.
On 6 August 2021 the resident told the contractor that the bathroom still required a shower screen, which she was going to install (as she had been unhappy with the occupational therapist’s recommendation of a bi-fold shower screen). She explained the shower curtain had been a temporary measure and it “soaked the whole floor”. The resident added that “the bathroom was supposed to help me and it’s the worst thing I have ever had done. It’s making my life hell”.
On 21 August 2021 after contact from the resident, the landlord told her it was sorry to hear that the works remained unfinished and said it would look into why they had not been completed.
On 24 August 2021 the resident told the landlord that plumbers she had tried to employ would not install the shower screen because of the way the bathroom had been redone.
On the same day the landlord told the resident that the issues she had raised had previously been addressed in its complaint responses and that the next point of escalation would be to the Ombudsman. It asked what she felt was unresolved.
On the same day the resident responded. In brief, she said there was still a draught and the shower screen leaked and the whole bathroom floor became “soaked”.
On 24 September 2021 the contractor told the resident that, hopefully, it could arrange to put some monitoring equipment in the bathroom that would pick up both temperature and any draughts. They added it “looks like we are going to get this finally resolved”.
On 29 September 2021 the contractor said they had contacted the landlord to see if they were happy to install the shower screen that the resident wanted.
On 30 September 2021 the resident contacted the landlord about the unfinished bathroom works. She said she had not heard anything further since their meeting two weeks previously.
In an email between the landlord and contractor dated 1 October 2021, the contractor asked if it was happy for him to order an oversized shower screen rather than bi-fold doors as per the occupational therapist recommendations.
When the resident approached the Ombudsman she said that things had been “mucked up from the word go” and stemmed from the initial work that had been done badly. The draught in the bathroom was rectified in about April or May 2022 when it was found that the contractor had not boarded the ceiling properly which had resulted in a five-inch gap which meant the draught funnelled down the wall. She said they had re-done the ceiling and she believes this had resolved it (although the weather has been warm since).
The resident said, while a shower door had replaced the curtain, the matter was unresolved as it still leaked. She added she now fosters a child (since May 2021) and has to clean/mop up the floor whenever anyone had a shower and this was not viable given her health and disabilities. She said the point of the new bathroom was to make things easier for her and “it has not achieved that”.
The resident said adaptations had been “a nightmare” and, if she could go back in time, she would not have it done. She said she had had to “battle” to get matters progressed. The resident described the stress she had been under had meant she was unable to sleep. She said she “was tough” but these events had made her “angry and miserable all the time for months on end”. She said she had felt defeated by it and it had been an ongoing slog to keep going. She added the compensation offered by the landlord was not proportionate.

Assessment and findings

While the final complaint response was issued on 14 May 2021, it is clear that problems with the bathroom continued after that date. Given the landlord’s decision in August 2021 not to raise a new complaint for events after that date, this report has considered matters up to the present time.

The landlord’s handling of various repairs at the property

The landlord’s handling of the installation of the level access shower was not appropriate. The first bathroom was installed in November 2020 and, as the landlord acknowledged, “did not go well”. This led to concerns about the subcontractor, which it decided not to use again. Various problems were identified by the resident and, following further contact from the occupational therapist in January 2021, the landlord took the decision to completely redo the bathroom. In the circumstances that was a reasonable decision to take. There was no evidence provided of a weekly review of this work in line with the adaptations procedure.
The poor initial installation meant that the resident had use of a bathroom which was substandard (rocking shower tray, and cracked toilet and sink) and, more seriously, unsuitable for her needs as set out in the emails from the occupational therapist. While the landlord took swift action following contact from the occupational therapist, it meant the resident did not have a fully working bathroom for a period from early November 2020 (when the work began) until February 2021.
In its complaint handling, the landlord offered compensation for this 12-week period amounting to £480.45 (made up of partly a weekly rent rebate and partly compensation under the right to repair scheme).
In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies. The compensation offered adequately reflects the impact on the resident for the delays to the adaptations in the bathroom up to the date compensation was calculated in March 2021.
The second installation of the bathroom did not resolve matters fully for the resident as problems remained with the hallway flooring, a draught in the bathroom and the shower curtain/screen and leaking water from the shower. I will deal with these in turn.
A representative for the resident first raised concerns about the flooring soon after work started on the bathroom in November 2020. They highlighted the resident’s mobility problems, said there was a “serious tripping hazard” and asked for it to be made safe. There is no evidence that the landlord took any steps to mitigate the risk to the resident at this time. The hall flooring was raised with the contractor and an explanation given for the “bumps and lumps”; the decision was taken to repair rather than replace it. However, on inspection in February 2021 the contractor noted that the undulations were “very noticeable” and a decision was taken to replace it. That decision was appropriate; however, given the resident’s mobility problems this matter should have been prioritised and a decision taken much sooner.
This delay meant that the resident lived with a serious trip hazard from at least mid‑November 2020 to the end of March 2021. The resident told the landlord during that time that she had had “quite a few close calls in tripping up”. It is evident from the information given to the landlord during that time that the hallway flooring caused the resident significant inconvenience and distress for which financial compensation is appropriate. The sum of £300 is appropriate for the impact of living with the worry of falling for someone who has disabilities and mobility problems for that significant amount of time before matters were resolved satisfactorily.
The resident raised the draught in the bathroom with the contractor in January 2021 after the first bathroom had been installed. The landlord took action to try to resolve this by relaying insulation in the attic above. While that step was appropriate to try to resolve the issue, the time taken was not as it took over three months to do so.
The resident flagged with the landlord soon after that this action had not resolved the problem. The evidence is unclear what, if any action, the landlord took while the resident continued to raise this matter with it. The matter was eventually seemingly resolved in about April or May 2022 after a more in-depth investigation of the issue identified the problem.
The landlord’s handling of the reports of the draught was not appropriate. Once its initial action was not successful it should have taken action much more quickly to investigate and remedy it. Its delay in doing so meant that the resident lived with a cold and draughty bathroom from January 2021 until it was resolved at least fifteen months later.
Financial compensation of £250 is appropriate here for the impact on the resident from living in a property with a cold bathroom over two winters and for the frustration of having to chase this matter up until it was resolved.
The evidence suggests that the resident was to install a shower screen herself as she wanted a different one from the recommendation made by the occupational therapist. There is contradictory evidence from the landlord – in the stage one response it said that a shower screen had been installed in February 2021, which the resident was happy with; however, later that year the resident was still referring to the shower curtain as a temporary measure. It is reasonable to presume that the information in the stage one response was incorrect, given that the contractor referred to the purchase of a new shower screen in October 2021.
The landlord’s handling of this matter was not appropriate. It took at least eight months after the second installation of the bathroom to properly identify that a shower screen was still required, despite contact from the resident. An order has been made, below, for the landlord to investigate and remedy the ongoing problems that the resident is experiencing.
Financial compensation of £200 is appropriate here for the impact on the resident; specifically, that she has had to mop up water after every shower taken by members of the household since the installation of the bathroom in February 2021 as both the shower curtain and the shower door have leaked. Given her limited mobility and health problems this had a greater impact than it would have had on a person without mobility problems.
Mention should be made of the contractor’s operations manager who was the person the resident had the majority of contact with about the repairs. He responded to the understandably large volume of emails from the resident promptly and courteously and, in the main, was proactive in progressing matters.

Complaint handling

The landlord’s complaint handling was not appropriate. When the resident first raised a complaint in November 2020 the landlord closed it as repairs had been scheduled. It would have been good customer service to have checked with the resident that this resolved matters for her before closing the complaint.
The landlord raised a new complaint in January 2021; the landlord issued its stage one response on 25 March 2021 almost two months later, which was outside the timescales given in its complaints procedure. The stage two response was also subject to delay although the landlord had acknowledged that this might happen due to staff shortages.
In August 2021 the landlord refused a new complaint from the resident on the grounds that the issues she had raised had been addressed previously. It did not recognise that, as problems with the bathroom were still ongoing, it could look into what had happened following the stage two response of March 2020. This meant that the resident had to bring her complaint to the Ombudsman in an effort to resolve matters. It also meant that the landlord missed opportunities to resolve matters at the earliest opportunity and improve the landlord/resident relationship.
Financial compensation of £200 is appropriate here for the time and trouble taken by the resident in resolving matters.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its:
1. Handling of adaptations to the bathroom at the property and related repairs.
2. Complaint handling.

Reasons

The landlord acknowledged that the installation of the first bathroom to accommodate adaptations for the resident did not go well and offered appropriate compensation. However, there were further failings related to the outstanding issues following the second bathroom installation.
There were some delays in the landlord’s complaint handling. However, the main failing was that it failed to accept a new complaint from the resident which meant it did not look into events following the stage two response of March 2021. This meant it missed an opportunity to put matters right and meant the resident had to approach the Ombudsman to resolve maters.

Orders

The landlord shall take the following action within four weeks of the date of this report and provide evidence to the Ombudsman of compliance with these orders:
1. Apologise to the resident for the failings identified in this report.
2. Pay the resident the sum of £1,430.45 (minus any sums already paid) made up of:
  1. £480.45 which the landlord offered in its stage one complaint response.
  2. £300 for the impact of living with unsafe hallway flooring.
  3. £250 for the impact of living with a cold bathroom over two winters.
  4. £200 for the impact of living with a shower that leaked.
  5. £200 for the impact of the complaint handling failures.
3. Investigate and take steps to resolve the leaking shower.
4. Ensure that staff who handle complaints are aware that complaints about a previously investigated issue can be accepted where the matters are unresolved.
5. Review the case with its adaptations contactor with a focus on satisfying itself that:
  1. There are sufficiently robust procedures in place around the appointment of appropriate sub-contractors that are sufficiently skilled and experienced in adaptations.
  1. It has sufficient regular oversight of adaptation works and quality checking procedures in place to prevent something like this happening again.

Recommendations

It is recommended that the landlord contact the resident to find out if she would like to make a claim for compensation for lost earnings and give details of the information she would need to provide to facilitate that.