London Borough of Hackney (201715166)

REPORT

COMPLAINT 201715166

Hackney Council

05 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 resident’s complaint is about the landlord’s handling of repairs and his complaint.

Background and summary of events

The resident is disabled and has multiple medical conditions.
On 18 December 2017, the resident lodged a complaint about outstanding repairs since September 2016.
On 19 December 2017, the landlord responded noting that works were due to be carried out on 21 December 2017.
On 12 January 2018, the resident made a complaint on the telephone about outstanding works to his property.
On 24 January 2018, the landlord wrote to the resident with a complaint response. The landlord noted that there had been an inspection on the property and that specified works as set out in an attachment to the letter would be carried out. The landlord acknowledged that there had been a miscommunication which had led to a delay in the inspection and awarded the resident £250.00 as compensation.
On 12 February 2018, an appointment was scheduled to install windows but was cancelled as the resident was not able to view the design.
On 27 March 2018, the landlord offered an appointment for managers to meet at the property which the resident declined.
On 23 April 2018, the resident declined access to the property.
On 18 May 2018, a surveyor attended the property. There does not appear to be evidence of any further process until 9 November 2018, when the resident wrote to the landlord. He requested that instead of sending out surveyors the landlord undertake repairs
On 18 December 2018, the resident refused access to the property by a surveyor.
On 18 December 2018, the landlord wrote to the resident acknowledging receipt of his letter of 3 December 2018. It noted that repairs had been arranged but the resident had not permitted access. It noted that nevertheless repairs had been arranged for plaster in the bathroom, windows and replacing a door. It noted that it would not be carrying out any further works other than those specified.
On 20 December 2018, the resident wrote to the landlord. He stated that some surveyors had attended the property but not the one the landlord referred to. He was about to leave so did not let them into the property. He set out his concerns that the planned works were not adequate. He requested compensation for stress.
On 11 January 2019, a surveyor attended the property to inspect works that were to be carried out as set out in the landlord’s letter of 18 December 2018. The resident hand delivered a bundle of papers to the landlord and requested a review of the complaint. The resident stated that the landlord had referred to agree repairs works being done – plaster in the bathroom cupboard, windows and replacing a door – but asked about the other jobs that would remain outstanding. He requested compensation for stress. He stated that the landlord was in breach of its repair obligations and there were 25 repair jobs outstanding.
On 25 January 2019, the resident wrote to the landlord further to his letter of 20 December 2018. The resident stated that the landlord had failed to deal with his disrepair complaint made on 19 December 2017. He requested that his complaint be escalated to the next stage. He stated that he was suffering from significant distress. He stated that no works have been carried out since he first reported the repairs in September 2016. He stated that the property was now a health hazard.
On 1 February 2019, the resident wrote to the landlord noting that on 24 January 2018 the landlord had said that the works would be carried out, but they had not been. The resident requested that his complaint be given a final response at the review stage.
On 4 February 2019, an internal landlord communication noted that a contractor had attempted to visit the property on several occasions but been refused access. It noted that repairs requested by the resident had been raised as orders.
On 8 February 2019, the resident submitted a written complaint to the landlord. He stated that he had first made a housing disrepair complaint on 2 October 2017 regarding repairs first reported in September 2016. He stated that he rejected the landlords offer of £250.00 compensation that it made in its letter of 24 January 2018. He told the landlord in March 2018 that he had not accepted the compensation because the works had still not been done. He stated that at that time he thought that the complaint had been escalated to the review stated but it was only on 1 February 2019 that he was informed that it was still at the resolution stage.
On 11 February 2019, the landlord wrote to the resident acknowledging that the resident had asked for the complaint to be escalated to the review stage. It stated that it would not review the complaint as there was a live Mayor’s Enquiry open so a review would be a duplication. It stated that the resident should contact it again if he was dissatisfied following the Mayor’s response.
On 25 February 2019, a surveyor’s visit was booked. The resident sent photos of repair works that he wanted done and the landlord responded requesting to arrange a visit which was needed as the previous job specification was over a year old. A number of job tickets were raised for repairs.
On 26 February 2019, an internal report was made regarding the surveyor’s visit. It was noted that there were signs of mouse infestation. It noted that the resident had a black crow living in the property and recommended a visit from Environmental Health. It noted that Housing Management should be involved to discuss the living requirements.
On 5 March 2019 contractors were unable to access the property.
On 7 March 2019, the resident’s MP contacted the landlord forwarding images from the resident and stating that the resident had advised there were a number of urgent repair works required.
On 11 March 2019, the resident refused access to contractors. The landlord note that it had sent a letter to the resident listing the appointments for the jobs that needed doing.
On 12, 13 March, 14 and 17 March 2019 contractors were unable to access the property
On 14 March 2019, the resident contacted the landlord to cancel all the job tickets that had been raised on 25 February 2019.
On 3 April 2019, the resident met with the Mayor’s Office who requested that all the job tickets be reraised and a new appointment set up with the resident.
On 17 April 2019, the landlord advised the resident’s MP that it had been unable to access the property on a number of occasions. It noted that it had emailed and written to the tenant to request access, the telephone number for the tenant was not connecting. It stated that it was unable to undertake repairs unless it could access the property.
On 26 April 2019, the landlord contacted the resident about an appointment for a fire risk assessment on the kitchen door.
On 7 May 2019, the landlord contacted the resident about a glazing appointment for the kitchen door, but the resident didn’t respond.
On 6 June 2019, an appointment was arranged for pest control regarding the mice infestation.
On 27 June 2019, the landlord visited the property.
On 5 July 2019, the landlord wrote to the resident setting out a substantial list of repairs that it had identified. It also listed a number of issues that it would not be working on.
In September, November, and December 2020 a surveyor attended the property.
On 19 November 2020, the resident emailed the landlord. He stated that he did not want a named surveyor in his property as after his last visit he had reported that the resident had a crow in the property, which the landlord subsequently told the resident to remove. He stated that surveyors had already attended the property so did not need to again.
On 3 December 2020, the landlord replied to the resident and stated that a different staff member could be requested. It also stated that another visit was required to review the work required.
On 9 December 2020, the resident emailed the landlord requesting for his complaint to be escalated to stage two. The resident stated that he had tried to escalate his complaint in February 2019 but had been told that he couldn’t because the mayor was involved. He stated that he tried to escalate it in December 2020 but was refused again because of the Mayor’s involvement. He stated that he had been requesting repairs since 2019 but no works have been carried out. He stated that he wouldn’t allow any works until those agreed in June 2019 were carried out as he would not allow any further visits from surveyors.
On 21 December 2020, the resident submitted a legal claim for disrepair.
On 6 April 2021, the landlord wrote to the resident’s MP responding to their follow up of the resident’s concerns. The landlord forwarded the response it sent to the Mayor’s Office in December 2020 and noted that it had asked the resident to contact the surveying team to progress the repairs, but he not made contact yet.
On 10 April 2021, the resident communicated a complaint to the Mayor about delays in his complaint being escalated to stage 2 and stating that there were outstanding repairs due to the property. He stated that surveyors had attended but no works had been done. He stated that he would not allow further visits until the works agreed in June 2019 were done.
On 26 April 2021, an Asbestos Assessment was undertaken at the property.
On 14 July 2021, the landlord wrote to the resident setting out the results of an independent review of his complaint. This appears to be the landlord’s final response. The review confirmed that the complaint is a “legal disrepair issue which takes precedence over the complaints procedure”. It noted that the resident had a solicitor who was acting for him, and it was expected that the legal representative would contact the landlord’s Legal Disrepair Team. The landlord noted that although the resident was complaining about the delay in repairs there was a high volume of no access appointments, and the resident cancelled all appointments. It found that there was no fault by the landlord with respect to the delays in repairs given the high volume of no access appointments and the landlord’s difficulty in contacting the resident.
On 15 July 2021 there was an internal landlord meeting which discussed wet room adaptions being progressed and an assessment of the kitchen space being undertaken.
On 26 July 2021, the resident cancelled an appointment for a visit at the property because of medical concerns. A number of carpentry, plumbing and electrical repairs have been undertaken on the property since that time.
On 7 March 2022, a surveyor attended the property, but the resident declined access. It appears that this was because the resident is in hospital. The resident advised the surveyor that he would contact the surveyor when access can be provided.
On 4 August 2022, the landlord wrote to the resident’s representative noting that the surveyor had not been able to access the property and asking that the representative encourage the resident to arrange access.

Assessment and findings

Repairs

Sections 5.6 section 6.7 of the tenancy agreement confirm the landlord’s responsibility to maintain and repair the structure and exterior of the property, reflecting its obligations under the Landlord and Tenant Act 1985. As a general principle, the Ombudsman would expect the landlord to make a reasonable effort to undertake reported repairs within a reasonable timeframe.
The Ombudsman notes that there is reference in the evidence to the resident making a legal claim for disrepair. The resident has stated that he has not progressed court proceedings. In July 2021, his update to this Service was that he did not have a letter of claim. Paragraph 39(h) of the Housing Ombudsman Scheme advises that the Ombudsman will not investigate complaints which, in its opinion, “concern matters that are, or have been, the subject of legal proceedings and where a complainant has or had the opportunity to raise the subject matter of the complaint as part of those proceedings.” This can mean that this Service may not investigate complaints which involve legal disrepair claims. The Ombudsman’s view is that a matter does not become ‘legal’ until details of the claim, such as the Claim Form and Particulars of Claim, have been filed at court. The submissions indicate that this has not happened in this case. The Ombudsman is therefore satisfied that it is appropriate to consider the repairs issues raised by the resident.
The landlord does not dispute that there have been repair issues with the property. The evidence indicates that the landlord agreed to and took steps to undertake some of the repairs reported by the resident. The resident’s position is that the repairs the landlord said it would do were not sufficient. The Ombudsman notes that a number of repairs have been undertaken since the resident last communicated with this service. A review of the records for these suggests that not all the issues the resident had previously raised may have been addressed, although it is unclear what specific repairs the resident remains concerned about.
The Ombudsman appreciates that the resident has been distressed by the condition of his property. The Ombudsman is satisfied that the evidence indicates that clearly some repairs were needed. The crux of the issue in dispute is whether the landlord has undertaken all the repairs that could reasonably be expected of it.
The landlord acknowledged in its complaint response dated 24 January 2018 that there were some delays in the inspection of the property in 2017. It appears that the delay was for a period of several months and was caused by miscommunications between the landlord’s contractors. The landlord offered the resident £200 compensation for this, which he rejected. The Ombudsman finds that there was a service failing by the landlord with respect to its initial attempts to undertake the repairs reported by the resident in 2017. However, the Ombudsman is satisfied that the landlord has made an offer of reasonable redress.
From January 2018 onwards, the Ombudsman is satisfied that the landlord took reasonable steps to undertake repairs, however it was compromised in its ability to do so by the actions of the resident. The evidence indicates that the landlord attended the property to undertake repairs on a number of occasions but was denied access. The evidence indicates that the landlord took reasonable steps to give the resident notice of these visits. The evidence also indicates that the resident declined some visits by a surveyor. It was reasonable for the landlord to require that a surveyor attend to assess the repairs needed, particularly given the time that passed between attempts by the landlord to undertake repairs. The tenant has an obligation to allow reasonable access to undertake repairs. The Ombudsman cannot find a service failing by the landlord where it has not been able to undertake repairs where the resident has denied reasonable requests for access.
The Ombudsman is satisfied that, after the initial service failing, the landlord has acted in accordance with its repair obligations in its attempts to inspect, identify repairs and then complete them. It is expected that tenants will play their part in enabling landlord to comply with these obligations. However, it is evident in this case that the landlord has not been able to access the property to survey and identify the repairs needed. Therefore, despite the possibility that there may be repairs outstanding which the landlord is liable to repair, there has not been any further service failings by the landlord regarding repairs.
Nevertheless, in the circumstances, if the resident remains unhappy that there are outstanding repairs, the Ombudsman recommends that the landlord undertake a survey of the property to assess any repairs the resident still wishes to be attended to and take reasonable steps to undertake any repairs identified.
The Ombudsman does not consider any further compensation is appropriate regarding the initial service failing as the landlord has already offered a suitable remedy at an early stage.

Complaint handling

The resident is also dissatisfied with the landlord’s handling of his complaint, and in particular he claims that it failed to escalate his complaint when he requested.
The Ombudsman finds that there have been some complaints handling failings by the landlord.
On 25 January 2019 and 1 February 2019, the resident clearly expressed to the landlord that he wished his complaint to be escalated to the next level of review. The landlord initially did not acknowledge the request for escalation and simply referred the resident to the procedure to make a complaint. The landlord then, in its communication of 11 February 2019 advised the resident that his complaint could not be escalated as because there was a “live Mayor’s Enquiry” about the same issue. The landlord stated that it would therefore not review his case but if he was dissatisfied following the Mayor’s response, he should contact it again.
There is no reference in the landlord’s Complaints Procedure to the progression of complaints being subject to a different “Mayor’s” complaint procedure. The Ombudsman would, in any case, not consider it appropriate for a complaint made in accordance with the landlord’s complaints procedure being made subject to another complaints process. The Ombudsman finds that it was a failing by the landlord that it did not escalate the resident’s complaint when he requested that it did. The Ombudsman also finds it a failing that the landlord did not clearly explain the interaction of the “Mayor’s complaint procedure” with the landlord’s procedure and appears to take the position that the Mayor’s complaint procedure takes precedence over its normal complaints procedure.
When the landlord did send a second stage response to the resident on 14 July 2021 it stated that as the resident had referred a legal disrepair complaint this “took precedence over the complaints procedure”. Whilst stating that the legal disrepair issue “took precedence” over the complaint, the landlord did investigate the resident’s complaint and took the position that there had not been a failing by the landlord. This was a confusing position for the landlord to take. Where the resident has taken steps to progress a legal disrepair claim, the Ombudsman would expect the landlord to be clear about whether it is handling the matter according to its complaints handling procedure or according to the disrepairs protocol. The fact that the resident has begun the legal disrepairs process does not constitute legal proceedings and the resident can continue to seek to resolve the dispute through Alternative Dispute Resolution at any stage of the legal disrepairs protocol. The landlord’s approach, as well as confusing, could discourage a resident to pursue a matter through the complaints procedure when that may be the most effective and helpful way to progress a matter.
The Ombudsman is persuaded that these complaints handling failures have caused the resident distress and inconvenience which the landlord should compensate the resident for.
In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident.
In this case it is important to distinguish between the distress and inconvenience experienced in relation to the repair issues and those caused by the complaints handling failings. The complaints handling failings happened over a relatively lengthy period of time – the resident first asked the landlord to escalate his complaint on 25 January 2019 and a second stage response was not provided until 14 July 2021. The resident was understandably frustrated by this. In the circumstances, the Ombudsman considers it appropriate to require the landlord to pay the resident £300 compensation for distress and inconvenience.
The Ombudsman also requires the landlord to review its approach to complaints handling and in particular (i) the interaction between its standard complaints handling procedure and the Mayor’s Office complaints process and (ii) its approach to handling complaints where the resident has also begun the legal disrepairs claim process. In doing so, the landlord should refer to the Housing Ombudsman Complaint Handling Code.

Determination (decision)

In accordance with section 54 of the Housing Ombudsman Scheme the landlord has made an offer of reasonable redress with respect to the resident’s complaint about its handling of repairs.
In accordance with section 54 of the Housing Ombudsman Scheme there has been a service failing by the landlord with respect to its handling of the resident’s complaint.

Reasons

The landlord has acknowledged that there were delays in investigating the repairs in 2017 and offered the resident £250 compensation. This was a reasonable amount. From January 2018 onwards, the Ombudsman is satisfied that the landlord took reasonable steps to undertake some repairs, however it was compromised in its ability to do so by the actions of the resident.
The landlord did not escalate the resident’s complaint when he requested. The landlord did not clearly explain the interaction of the “Mayor’s complaint procedure” with the landlord’s procedure and appears to take the position that the Mayor’s complaint procedure takes precedence over its normal complaints procedure. The landlord’s approach to the interaction between the resident’s disrepair claim and its complaint procedure was confusing and inappropriately discouraged the resident from pursuing alternative dispute resolution.

Orders and recommendations

The landlord must pay the resident pay the resident £300 compensation for distress and inconvenience within four weeks of the date of this Determination.
The landlord must review its approach to complaints handling and in particular (i) the interaction between its standard complaints handling procedure and the Mayor’s Office complaints process and (ii) its approach to handling complaints where the resident has also begun the legal disrepairs claim process. The landlord should notify the Ombudsman with the results of this review within twelve weeks of the date of this Determination.
The Ombudsman recommends that, if the resident remains unhappy that there are outstanding repairs, the landlord undertake a survey of the property to assess any repairs the resident still wishes to be attended to and take reasonable steps to undertake any repairs identified. The Ombudsman notes that the landlord’s ability to do so is dependent upon the resident giving reasonable access.