Ashford Borough Council (202112658)

REPORT

COMPLAINT 202112658

Ashford Borough Council

27 July 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:
1. The landlord’s handling of repairs to the resident’s windows.
2. The landlord’s decision to issue the resident with a Notice Seeking Possession (NOSP) following a visit to his property by a contractor, on 5 February 2021.

Background and summary of events

The resident is a secure tenant of the landlord, which is a council. The property is a 2 bedroom, first floor, flat within a block of nine flats over three floors.
On 8 December 2020, the resident emailed the landlord asking it to inspect his property as he and his family were experiencing damp, mould and draughts as a result of disrepair to his windows.
On 9 January 2021, the resident made a formal complaint about a number of repairs including to his windows which he said were causing mould, damp and draughts in his property. The resident said that this issue had been going on for years and he had to continually wipe the windows and, whilst he had informed the landlord of this every year, there was never a budget to replace them.
On 12 January 2021, the contractor emailed the resident to arrange a joint visit with the landlord to the resident’s property.
On 27 January 2021, the landlord emailed the resident to advise that the complaint was taking longer and it would respond by 5 February 2021.
Following emails between the resident and the landlord on 29 January and 1 February 2021, the landlord emailed the resident on 2 February to confirm that orders had been raised for all the agreed jobs, including:
1. To take of the bathroom window board, clean off adhesive and then refit ensuring that it is fully sealed to prevent condensation. The order also stated that photos be taken of the underneath to see if the blocks were wet.
2. To supply new friction pivot hinges to the bedroom window.
3. External face of all window frames to be checked, raked out and resealed externally, to repair any pointing to sides of any windows frames (Haunches etc) to prevent any water ingress, and for photos to be taken including condition of pointing generally.
4. To replace internal trims to windows if required, with reference to apparent damp ingress underneath trims.
5. All windows would require new gaskets as most had perished and some had split.
6. New locking system was required to lounge fanlight as the screw to the handle had snapped in the window, noting that this will need two operatives.
7. That the window handles need to be looked at as they caught the frames on most of the windows.

The landlord also confirmed that it had asked its heating contractor to check the heating system.

On 3 February 2021, the resident emailed the landlord to thank it for its response and to report that even though the mould had been sprayed by its contractor the mould was back, spreading and smelling worse. The resident said that the mould in his bedroom was starting to damage the back of his chest of drawers, his clothes smelt, and it was becoming unbearable to sleep in his bedroom. In its response the following day, the landlord suggested that the resident reconsider allowing it to fit mechanical extraction at his property.
On 5 February 2021, the resident emailed the landlord to report that the window contractor attended at mid-day that day, that the windows were worse, were not fitted properly and that the seals were not done properly either. The resident said that:
1. The operatives:
  1. Did not finish the job.
  2. Had left dirty water all over his carpets.
  3. Had failed to tidy most of the rubbish.
  4. Had put their work stuff on his bed and had dented the sink in his kitchen.
2. A chemical bottle had leaked everywhere the operatives had put it.
3. He had had a moan at the operatives but then apologised, and that he wanted the works inspected and for another contractor to attend.
On 8 February 2021, the landlord emailed the resident to advise that it had forwarded his dissatisfaction with the works completed and the conduct of the operatives to its contractor. The resident replied repeating his request for another inspection to be carried out. The landlord responded confirming that it would attend with one of its contractor’s supervisors on 17 February 2021.
On 9 February 2021, the landlord issued its stage one response. The landlord said that there were various reasons for mould growth which it believed it was working with the resident on. The landlord advised that washing down, wiping over or treating surfaces with fungicide was not dangerous and should not have exposed him to any risk. With regards to the resident’s request for a property inspection, the landlord said that an inspection of the property had been completed by its Repairs Inspector and that it understood a survey of the heating system had been commissioned, which it hoped would satisfactorily resolve the issues.
The contractor provided the landlord with its response to the resident’s concerns about the works completed and the actions of its operatives on 10 February 2021. The contractor said that the resident had challenged its operatives, questioning what they were doing and asking them to redo all their work. The contractor also said that the resident was pulling out the gaskets with a knife and said that the operatives could not leave until the work was completed, whilst still holding the knife in his hand. The contractor said that its operatives felt intimidated and uncomfortable about this. The contractor confirmed on 12 February 2021 that the police were not called.
A further inspection of the resident’s property was carried out on 17 February 2021.
On 24 February 2021, the landlord issued the resident with a NOSP citing his and his partner’s alleged threatening behaviour towards the operatives that attended his property on 5 February 2021.
On 25 February 2021, the resident emailed the landlord asking that someone call him regarding a number of repair issues that remained outstanding at his property. The resident said that:
1. He had been reporting issues of damp and mould every winter since 2018, and it had got worse each year.
2. He had had operatives at his property making a mess and making things worse, and that the landlord had visited twice and suggested his heating be looked at, but there was nothing wrong with his heating.
3. He had had enough of the landlord’s Repairs Inspector’s attitude towards him and on her last visit to his property he asked her to leave after she was abrupt within him and asked if he was on medication.
On 26 February 2021, the resident emailed the landlord to say that he had not heard anything since its visit to his property on 17 February 2021 and that he wanted a date for when the works would be completed.
On 28 February 2021 the resident logged a formal complaint with the landlord about its decision to serve him with the NOSP on 24 February 2021. The resident denied the allegations made against him and said that neither he, nor his partner, had brandished a knife or stopped anyone leaving his property. Said this had caused him and his family a lot of distress, anxiety and worry and, whilst he had been informed that he was not being evicted, the NOSP would stay on his records for a year. The resident said that:
1. The landlord had failed to discuss the contractors counter allegations with him before issuing the NOSP, and that the contractor had only made the counter allegations following his complaint about its operatives work and conduct on 5 February 2021.
2. The landlord had visited his property, with the contractor, on 17 February 2021 and no mention was made about the allegations.
3. Due to the seriousness of this he did not feel safe allowing operatives into his property to finish the remaining works and asked that all works cease.
On 8 March 2021, the resident emailed the landlord saying that he had not had a response to his email of 25 February 2021 asking that someone call him to discuss the outstanding repairs.
On 15 March 2021, the landlord issued its stage one response to the resident’s complaint of 28 February 2021. The landlord acknowledged that it had been incorrect in serving a NOSP without supporting evidence or strong probability that he was guilty of the allegations and without him having a right to reply. The landlord said that it was sincerely sorry for this and would remove the NOSP from his file with immediate effect.
With regards to the resident asking that all repairs to his home be stopped, the landlord said that it had spoken to its repairs manager, and they had suggested that a senior officer from contractor attend the start of any future appointments so that the resident and operatives were clear as to what work was due to be completed. Alternatively, the landlord said that when covid restrictions permitted it would be happy for the resident’s housing officer to attend the start of the appointment if the resident would prefer that.
On 3 June 2021, the resident email the landlord stating that on 25 February and 8 March 2021 he had emailed the landlord to say that he was not satisfied with its stage one response of 9 February 2021 regarding the repairs to his windows. The resident also said that he was dissatisfied with the landlord’s stage one response of 15 March 2021 as it only addressed the NOSP and nothing else.
On 4 June 2021, the landlord emailed its contractor to confirm the works that had been agreed following a recent site visit. The works included a survey for defects to the windows throughout the property, that the contractor either complete or identify outstanding works from previous attendance and recommend follow on works if necessary. The landlord confirmed that this was to be an accompanied visit with its Neighbourhood Services Manager.
On 5 July 2021, the landlord issued its final response.
1. With regards to the outstanding repairs, the landlord said that:
  1. It acknowledged previous communication issues relating to the repairs and apologised for the resident’s frustration where it had been at fault.
  2. It was aware of the confusion in respect of some of the repair expectations, which may have fallen short of the resident’s expectations and again apologised for any part it had played in this.
  3. It was glad that there was a broad agreement with regard to the works that needed to be carried out.
  4. Its Neighbourhood Services Manager would attend the appointment for the works to be completed.
  5. Whilst it recognised that there may have been difficulties, for which it was sorry, overall it was satisfied that it had acted appropriately and responsibly regarding the repairs.
2. With regards to its decision to serve the resident with a NOSP. The landlord said that:

It had recognised in its stage one response that the NOSP had been served prematurely and in error, and that the resident should have been given the right to reply before any such action was taken.
It had apologised to the resident for this and, whilst there is a record of the NOSP being served on his housing file, this was superseded by this response and the subsequent notes confirming this on his house file.

Following the contractor’s survey for defects to the windows, and further emails between the resident and the landlord, the landlord emailed the resident on 8 July 2021 to confirm that it had approved the following works:
1. Living Room :1 double glazed unit (DGU) unit, re-trim internal window, break open window, replace Espag handle.
2. Kitchen: Re-trim internal window and overhaul both opening sashes.
3. WC: Overhaul opener and re-trim inside of window.
4. Bathroom: Renew window board, fill cavity under window and re-seal outside of window.
5. Main Bedroom: Replacement hinges, stick on gasket to replace broken factory fitted gasket, overhaul both openers, replace Espag mechanism to one opener.
6. Bedroom two: Replace mechanism, replace handle and overhaul 2 opening sashes.

Events following the landlord’s final response.

On 31 August 2021, the landlord emailed the resident to confirm that it had approved the replacement of the kitchen window and that this would be completed as soon as the window had been made.
Following a visit on 8 September, the landlord emailed the resident on 9 September 2021 to confirm what had been agreed, including the renewal of the kitchen window in its entirety and to renew the internal trims to the WC window (which the landlord said was an outstanding order).
The resident advised this service that the kitchen window was replaced in October 2021 and the front room window and both bedroom windows were also replaced. The resident noted some further concerns he had with these new windows.
The resident said that the dent in his sink had not been resolved despite several attempts, he also referred to the replacement of his kitchen units.

Assessment and findings

The Ombudsman’s role is to consider whether the landlord responded appropriately to the resident’s concerns by adhering to its policies, procedures, and any agreements with the resident, and that the landlord acted reasonably, taking account of what is fair in all the circumstances of the case.

The landlord’s handling of repairs to the resident’s windows.

Under Section 11 of the Landlord and Tenant Act 1985, the landlord is obliged to keep in repair the structure and exterior of the dwelling house, including windows. This obligation is confirmed in Section 3 of the tenancy terms and conditions.
The landlord’s Repairs Handbook states that the landlord has three categories of repair: Emergency, carried out within two to 24 hours; Urgent, within five working days and Non—urgent, up to 28 days.
Following the resident’s report of 8 December 2020, the landlord’s contractor contacted the resident on 12 January 2021 to arrange a joint visit with the landlord. Whilst there was delay in arranging this visit to the property, the landlord had confirmed by 2 February 2021 what works it would be carrying out. Those works then commenced on 5 February 2021.
Overall the time taken between the resident reporting his concerns and the works commencing was 43 days. Whilst it is noted that this period included the Christmas and New Year breaks and that an inspection was required, this exceeded the 28-day timescale given in the landlord’s Repair Handbook by 15 working days.
The resident was clearly not satisfied with the works that the operatives carried out on 5 February 2021, reporting his concerns on the same day and asking that the landlord carry out a further inspection. The resident’s concerns about the conduct of the operatives have been considered as part of the second complaint regarding the landlord issuing him with a NOSP.
The landlord carried out a second inspection on 17 February 2021, this was an appropriate step for the landlord to take given the resident’s concerns not only about what works had been carried out on 5 February 2021 but also the standard of those works.
However, despite the resident chasing the landlord for an update on 25 and 26 February and 8 March 2021, there is no evidence of the landlord providing the resident with the requested update until June 2021, when it wrote to the resident following a more recent visit to his property.
Four months was a long time for the resident to have to wait to be advised of what actions were going to be taken with regards to the repairs to his windows. It is noted that in his complaint regarding the NOSP on 28 February 2021 the resident had said that he wanted the works to cease, because he did not feel safe allowing operatives into his property to finish the remaining works. However, the landlord could have provided the resident with the requested updates.
In its final response, the landlord acknowledged that its previous communication may have fallen short of the resident’s expectations. The landlord referred to confusion in relation to some of the repairs but provided no specific examples. The landlord apologised to the resident for any frustration where it had been at fault. Whilst this went some way to address the delays, an apology alone did not provide the resident with sufficient redress, particularly in relation to the four-month delay in updating the resident following the second inspection of 17 February 2021.
Following the final response, the landlord took reasonable steps to complete the works it had agreed to in its response, and ultimately replaced all the windows in the resident’s property. This service understands that the resident currently has concerns about the new windows and his kitchen. A recommendation has therefore been made for the landlord in this regard.
It is also noted that in his email to the landlord on 25 February 2021, the resident complained about the attitude of its Repairs Inspector, saying that she was abrupt within him and asked if he was on medication.
When allegations are made about the conduct of members of a landlord’s staff, the landlord would be expected to investigate those allegations, to discuss them with the member of staff concerned and address the resident’s concerns in its complaint response. However, there is no evidence of the landlord carrying out any investigation and this matter was not addressed in its complaint response.

The landlord’s decision to issue the resident with a Notice Seeking Possession (NOSP) following a visit to his property, by a contractor, on 5 February 2021.

Following the resident’s initial complaint about the behaviour of the operatives that attended his property on 5 February 2021, the landlord initially took appropriate steps to investigate his concerns. This is did by sharing his concerns with the contractor and asking it to provide a response.
However, having received the response from the contractor, which contained counter-allegations about the resident’s behaviour, the landlord failed to give the resident an opportunity to respond to the counter-allegations and, based solely on what it had been advised by the contractor, issued the resident with a NOSP.
In its stage one response, the landlord acknowledged that it had been incorrect in serving a NOSP without supporting evidence or a strong probability that he was guilty of the allegations and without him having a right to reply, for which it apologised. The landlord also said that it would remove the NOSP from his file with immediate effect.
In its final response the landlord again apologised for this error and explained that whilst it was unable to remove the NOSP from his file, this would be superseded by its final response and subsequent notes confirming this on his file.
Whilst the landlord quickly acknowledged its error and took steps to ensure that the resident’s file accurately reflected the position regarding the NOSP, this was not sufficient to remedy the upset and distress caused to the resident as a result of its error.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of handling of repairs to the resident’s windows.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its decision to issue the resident with a Notice Seeking Possession (NOSP) following a visit to his property, by a contractor, on 5 February 2021.

Reasons

The landlord acknowledged communication issues relating to the repairs, said that it was aware of the confusion in respect of some of the repairs and apologised for any frustration this may have caused the resident. However, an apology alone did not provide the resident with sufficient redress, particularly in relation to the four month delay in it updating the resident following the second inspection of 17 February 2021.
Whilst the landlord quickly acknowledged its error and took steps to ensure that the resident’s file accurately reflected the position regarding the NOSP, this was not sufficient to remedy the upset and distress caused to the resident as a result of its error

Orders and recommendations

Orders

That within 28 days of the date of this determination, the landlord is to:
1. Pay the resident £100 compensation for the communication failures identified in this report with regards to the repairs to the resident’s windows.
2. Apologise to the resident and pay him £50 compensation for its failure to investigate the concerns he had raised about the attitude of its Repairs Inspector.
3. Pay the resident £50 for the upset and distress caused by its acknowledged error in issuing him with a NOSP following a visit to his property, by a contractor, on 5 February 2021.
4. Confirm that it has complied with the above orders.

Recommendation

That within 28 days of the date of this determination, and if it has not done so already, the landlord is to contact the resident to provide him with an up to date position regarding both his concerns about the new windows and his kitchen.