Westminster City Council (202011847)

REPORT

COMPLAINT 202011847

Westminster City Council

30 July 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 the landlord’s response to the resident’s requests to repair or replace the communal carpet.

Background and summary of events

Background

2. The resident is a leaseholder of the landlord, a local authority. The property is a flat in a terraced house.
3. The lease agreement sets out the contract between the leaseholder and the landlord. The ninth schedule of the lease states the landlord covenants to keep in good and substantial repair and condition (and whenever necessary rebuild and reinstate and renew and replace all worn or damaged parts) the structure and fittings in relation to the property.
4. The landlord’s major works programme brief for the block confirms its responsibility to keep the structure and communal areas in “a good state of repair,” and that cyclical works were “generally” programmed on a 10-12 year cycle which last took place in 2005. It noted works were originally tendered in 2016 but a challenge to costs at the First Tier Tribunal delayed and impacted the subsequent approach to the works. The programme brief includes repair of communal flooring to ensure this is secure and free from trip hazards, or replacement where coverings are defective or past their serviceable life.
5. The landlord’s website advises that in April 2020, it suspended all major work as a result of Covid-19, following which projects that were onsite restarted in July 2020. The website also confirms that if it is believed the landlord has acted in a way that is negligent or breached its duty of care leading to injury, damage or loss, a Public Liability Insurance claim can be submitted.
6. The landlord operates a two stage complaints procedure and aims to respond at both stages within ten working days. The landlord’s complaints policy advises it does not consider complaints involving insurance claims or complaints that are over 12 months old.
7. The landlord’s compensation policy advises it awards £250 per year for time and trouble (although this can be higher in exceptional circumstances) and between £500 and £2,000 per year for repairs delays, based on the impact on the living conditions.
8. The Ombudsman’s remit in relation to complaints is limited by its Scheme. Paragraph 39(e) of the Scheme advises that the Ombudsman will not investigate complaints which, in its opinion, “were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.”
9. The resident complains about a timeframe of at least eight years and supplies correspondence from 2012. Whilst this information provides important background and context to the resident’s dissatisfaction with the landlord’s position on this matter, there is no evidence that he made a formal complaint prior to September 2020. In accordance with the Scheme as well as the landlord’s complaints policy, the Ombudsman is unable to consider complaints that go back eight years, as the longer time goes on, the more the ability to conduct an effective investigation may be impacted.
10. This investigation therefore focuses on events from September 2019, 12 months before the resident made a formal complaint in September 2020, up until the landlord’s final response on 18 December 2020. Events that pre–date the complaints procedure are referenced for contextual purposes only.

Summary of events

11. From 2012, the resident contacted the landlord about the condition and replacement of the communal carpet, which he described as “disgusting” and later reported posed an health and safety risk. In 2016, the landlord explained that flooring formed part of planned major works, although start date and resident consultation were not finalised. Later that year, the resident reported his wife tripped on the staircase. In 2017, following correspondence about major works, the resident raised concern about costs, and the carpet not being addressed immediately since it was “extremely dangerous.” In 2018, the resident submitted further reports of the staircase carpet being a trip hazard, after which the landlord confirmed contractors had been instructed to attend and remove a section of carpet that was worn and causing a trip hazard.
12. In September 2019, the resident reported that the carpet condition had affected his ability to get a tenant, as well as diminished the rent he had been able to get over the years, and asked the landlord to replace it as a priority. On 24 September 2019, the landlord confirmed that solutions were being explored and on 25 September 2019, it carried out an inspection where it was noted the carpet was generally “a bit grotty” and coming away in places, but there was probably two years’ wear left in it. It was noted that loose carpet could be resecured and a missing section renewed, pending full replacement within 18 months under the major works programme.
13. On 24 October 2019, the landlord’s records advise it carried out a further inspection with its contractor and a carpet fitter, and the same day, it confirmed to the resident that it would carry out a full carpet renewal and obtain quotations for this. Following this, the landlord’s records advise its contractor received quotes for the works between October 2019 and January 2020. On 4 February 2020, the landlord updated that three quotations were currently being reviewed, then on 13 February 2020 it confirmed it had instructed its contractor to proceed with the works and after a timetable and programme had been finalised, residents would be written to. The Ombudsman understands progress on the works then became suspended due to the Covid-19 pandemic.
14. In July and August 2020, the resident reported that the condition of the communal area was impacting the market rent of the property, and he supplied correspondence from an estate agent who described the communal area as one of the worst they “have ever seen” which would affect rent. He asked the landlord to compensate a shortfall of £175 per month in rent as he contended this was a direct result of its neglect he had raised over a considerable length of time. The landlord confirmed to the resident that it was looking at a full replacement of the carpet, and its records advise it was seeking to progress the works with contractors before addressing other issues raised by the resident.
15. On 25 September 2020, the resident complained to the landlord, which he stated was in breach of the lease due to neglect of the common parts since 2006. He was unhappy that he had requested replacement of the carpet since 2012, and that no action had been taken to replace the carpet, including after he reported his wife tripped down the stairs in 2016. He was unhappy that a lack of renovation of the property under the terms of the lease had impacted the rental income and market value of the property. He was unhappy with lack of receipt of Section 20 Notices and lack of progress in works since replacement was agreed after enquiries in September 2019. He requested compensation which took into account the deterioration in rental and sale value of the property.
16. On 12 October 2020, the landlord issued its stage one response.
    1. It explained that it could only consider complaints within 12 months under its complaints policy.
    2. It advised that works were delayed due to the pandemic, that Section 20 Notices would be sent out, and that once the consultation for these ended it expected works to be completed in December 2020.
    3. It explained it did not compensate for loss of rental income or for personal injury claims, and provided information on how to make a claim for these under separate claims procedures.
    4. It apologised for the delays in carrying out the works and the time and trouble pursuing the matter, and offered £250 compensation.
17. On 13 October 2020, the resident requested escalation of his complaint. He was unhappy the compensation only reflected the previous 12 months, as he had contacted the landlord about the carpet over several years. He was unhappy with explanation that delays were due to Covid-19, as five months passed between the decision to replace the carpet in October 2019 and lockdown, and there had been lack of progress after lockdown. He restated contentions that the landlord was in breach of its lease obligation to upkeep the common parts, and restated a request for it to compensate for losses incurred.
18. On 18 December 2020, the landlord issued its final response, after prior correspondence to the resident in November and December 2020 to advise of delays.
    1. It explained it had taken steps to comply with its lease obligations through a major works project planned for January 2019, and concerns were raised about the proposals after resident consultation. It explained that in November 2018, a First Tier Tribunal decision that the scope of works should be reduced and costs reviewed led to a complete revision of the major works project. It noted it was agreed in October 2019 for carpet works to be completed outside the major works programme after the carpet was identified to be in a worse condition than other properties. It explained this was not usual and so could not be implemented as quickly as it would have liked. It noted carpet replacement works commenced on 7 December 2020 and had been signed off.
    2. It advised it did not consider it was in breach of the lease as it had accepted works were required, was undertaking replacement of the carpet, and had agreed to comply with the obligations in the ninth schedule of the lease.
    3. It explained delays before lockdown restrictions related to obtaining quotes for the works. It explained that Section Notices were not sent out due to uncertainty about when restrictions would lift, and then when restrictions lifted, its contractor had to prioritise ongoing projects prior to planning further works. It offered an additional £360 for delays before and after Covid-19 restrictions were in place, which it explained was in accordance with its compensation policy and acknowledged should have been awarded in its previous response.
    4. It restated previous positions on investigation of complaints going back several years and the recourse for loss of rental income and claims of personal injury or negligence.
19. The resident brought the complaint to this Service. He is unhappy about the length of time the landlord did not address the problem, despite requests to do so for ten years, which he states impacted the property’s rental and sale value considerably and was in breach of the leasehold contract. He is unhappy with the landlord’s decision not to consider complaints beyond 12 months, when he had communicated with it for eight years without it taking action or mentioning formal process. He states that the landlord’s compensation of £360 for 37 weeks should be amended to £4,000 for eight years to reflect the losses incurred as a result of the neglect and breach of the lease.

Assessment and findings

20. In this case the Ombudsman notes that the landlord has acknowledged service failures in this case and offered £610 compensation. The Ombudsman will not make a finding of maladministration where a landlord has offered suitable redress to resolve a complaint. This further assessment therefore considers whether the landlord has offered reasonable redress for its acknowledged failings.
21. The Ombudsman’s Dispute Resolution Principles are:
    1. Be fair – treat people fairly and follow fair processes
    2. Put things right
    3. Learn from outcomes
22. This Service notes the resident’s general dissatisfaction and understandable desire for the carpet to be replaced. This Service also notes that the resident had first raised concerns in 2012. It is not however within the Ombudsman’s authority or expertise to fully determine at what point cyclical works should be carried out. This Service’s main consideration is whether this aspect has been handled appropriately in the timeframe of the complaint, the assessment of which may be informed by past events even if not considering these fully.
23. The landlord has not disputed maintenance obligations for the communal carpet and the information provided advises that works were due to be programmed from around 2017, since works last took place in 2005 and cyclical works were “generally” programmed every ten to 12 years. The information provided advises that around this time, steps were being taken to programme cyclical works for these to commence in 2019, before a First Tier Tribunal decision. This demonstrates the landlord was seeking to take steps to carry out its maintenance obligations, before the First Tier Tribunal decision which it has stated required it to completely revise its approach.
24. In September and October 2019, the landlord carried out inspections and took steps to commence the process required to replace the carpet, however there were clearly delays in progress between October 2019 and March 2020 (when lockdown restrictions commenced) and between July 2020 (when lockdown restrictions lifted) and October 2020 (when the landlord took effective steps to result in completion of the works). This demonstrates that although the landlord took appropriate steps to review the resident’s concerns, sympathetically consider all of the circumstances, and sought to expedite the works based on first hand inspection of the condition of the carpet, there were unreasonable delays within the 12 month timeframe of the formal complaint submitted by the resident.
25. Following the resident’s complaint, the landlord initially responded in accordance with its complaints procedure; explained it could not investigate historic complaints; explained works were expected to be completed in December 2020; provided information on how to submit claims; and apologised and offered £250 compensation for the delays and the resident’s time and trouble. When the resident escalated his complaint, the landlord’s final response was delayed, however it communicated during the period of delays; provided further explanation; confirmed works were completed; acknowledged and compensated for further delays; and disputed it was in breach of the lease.
26. As previously explained, the Ombudsman’s remit in relation to complaints is limited by its Scheme, and the landlord was reasonable not to investigate historic issues (as the longer time goes on, the more the ability to conduct an effective investigation may be impacted) and this is in accordance with the landlord’s complaints policy and the Ombudsman’s own Scheme, as set out at Paragraphs 8 and 9 of this report.
27. Paragraph 39(i) of the Scheme also states that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion “concern 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.”
28. This means that it is not within the Ombudsman’s authority or expertise to decide on matters such as lease breach or compensation claims in the same way as the courts, but it can assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case. While the Ombudsman can take a view on the position by reference to law and the lease agreement, if this is disputed, only a court or tribunal can offer a definitive and legally binding decision.
29. In the Ombudsman’s opinion, the landlord’s response to the resident’s claims related to compensation and personal injury were reasonable. It is not in this Service’s jurisdiction or expertise to assess such claims, and the landlord’s response was reasonable to provide guidance on how to pursue such claims via the appropriate procedure.
30. In the Ombudsman’s opinion, the landlord’s response to the resident’s claimed breach of lease was also reasonable. It is not within the Ombudsman’s authority or expertise to decide on matters such as lease breach in the same way as the courts, particularly if this is disputed between the parties involved, and the landlord’s response was reasonable to acknowledge maintenance obligations, explain steps taken to programme works, explain reasons for delays, and to set out its position that it disputes a claimed breach of the lease.
31. While this Service has not investigated historic events, it is good practice to assess reports that elements are at the end of their life and consider if these merit being expedited under major works or routine repairs, so a recommendation has been made in relation to this. It is also noted that information on how to complain or claim for negligence or loss is publicly available on the landlord’s website, however it may have been good practice for the resident to have been made aware of these on earlier occasions he referred to financial loss, and so a further recommendation has been made in relation to this aspect.
32. Moving on to the landlord’s offer of £610, the landlord has acknowledged service delays and time and trouble experienced by the resident for a period of 37 weeks over the 12 month timeframe of the complaint, which reflects periods of delay set out at Paragraph 24 of this report.
33. The landlord has explained that this comprises £360 for repairs delay and £250 for time and trouble and explained that this is in accordance with its compensation policy. The landlord’s compensation policy advises it awards £250 per year for time and trouble (although this can be higher in exceptional circumstances) and between £500 and £2,000 per year for repairs delays, based on the impact on the living conditions.
34. The landlord’s approach appears consistent with its policy as it has awarded its maximum amount of £250 for time and trouble, and a pro-rata amount of £360 for the 37 week affected period which equates to an amount of £500 per year set out in its policy for delays in minor repairs.  In the Ombudsman’s opinion this appears reasonable as the higher compensation rates reflect delays to more significant repairs and the impact of living conditions on a tenant, while losses in relation to rental income is not something this Service would normally order, as it would be expected for these to be submitted via the landlord’s claims procedures.
35. In its own Remedies Guidance, the Housing Ombudsman Service also sets out three compensation ranges which this Service takes into account when determining cases. The financial remedy provided by the landlord falls in the second highest range, where there has been considerable service failure or maladministration, but there may be no permanent impact on the complainant, including failure over a considerable period of time to address repairs.
36. Accordingly, the financial remedy of £610 offered by the landlord is in accordance with this Service’s Remedies Guidance and, considering all of the circumstances of the case, in the Ombudsman’s opinion appears suitable financial redress for the service issues and delays identified.
37. The above demonstrates the landlord appropriately carried out investigations of the complaint, acknowledged service failings and took action within the timeframes of the complaint to complete the outstanding works. The landlord was resolution focused and sought to make redress to the resident in recognition of delays and time and trouble.
38. Overall, the landlord’s responses evidences it appropriately put things right, in line with this Service’s Dispute Resolution Principles.

Determination (decision)

39. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme the landlord has made reasonable redress for the service failures identified in its response to the resident’s requests to repair or replace the communal carpet.

Reasons

40. While delayed, the landlord took appropriate action within the timeframes of the complaint to progress and complete the works, appropriately respond to the complaint and acknowledge service issues.
41. The landlord was resolution focused in seeking to make redress to the resident in recognition of delays and time and trouble, which in the Ombudsman’s opinion appears suitable financial redress for the service issues and delays identified.
42. The landlord has provided guidance to the resident on how to pursue further compensation claims via the most appropriate procedures, and set out its position in response to his contention of there being a breach of the lease.

Orders and recommendations

Recommendations

43. The landlord to re-offer the compensation of £610, if this has not been paid.
44. The landlord to review staff training needs in relation to signposting residents to complaints and claims procedures where applicable.
45. The landlord to ensure proper arrangements are in place to assess and expedite elements at the end of their life under major works or routine repairs programmes, in a timely manner which reflects the urgency of the work in the opinion of the landlord.