Camden Council (202002092)

REPORT

COMPLAINT 202002092

Camden Council

15 May 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The resident complains about:
1. The length of time scaffolding was erected at her property.
2. The landlord’s response to her concerns about this.
3. Having sustained an injury, which she attributes to the presence of the scaffolding.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
In her initial complaint to this Service the resident described an injury to her hip and an increase in her medication, which she attributes to the scaffolding in place at her property, and seeks compensation for these issues. However, this Service is unable to determine matters of causation and liability in terms of how a landlord’s actions or inaction might have impacted upon a resident’s health and well-being. Such issues would be better dealt with as a personal injury claim through the courts, or via an insurance claim, where appropriate professional medical evidence can be properly reviewed.
This is in accordance with paragraph 39(i) of the Scheme which states that the Ombudsman will not consider complaints which concern matters where this Service considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, or other tribunal or procedure.

Background

The landlord’s remedies policy and procedure states that at each stage of a complaint, the investigating officer will identify any faults and how these occurred, and consider any appropriate remedies, taking into account the amount of time the resident had spent trying to resolve the problem, the distress experienced, actual harm caused (with consideration given to whether an insurance claim is more appropriate on a case by case basis), and any other attempts to address the issue. The landlord would not consider remedies that could be settled by insurance claims.
The policy states that in cases of distress, payments of £100 – £300 (severe and prolonged up to £1,000) could be considered, amounts of £100 to £300 for time and trouble, and £20 per month for delay.

Summary of events

The resident was sent a letter dated 22 October 2019 notifying her that scaffolding would be erected at her property in preparation for external communal works, which included replacing the windows. The scaffolding was erected on 28 October 2019.
On 27 March 2020 the resident’s daughter contacted a councillor explaining that scaffolding had been erected outside the property since October 2019 with very little work taking place. She explained that the scaffolding meant that the garden was getting no sun and the property was also dark. This was exacerbating the resident’s mental and physical health conditions, and although they had contacted the landlord and its contractor, this had been to ‘no avail.’
On 28 April 2020 the resident’s MP wrote to the landlord on the resident’s behalf, explaining that the windows had yet to be installed and the scaffolding remained in place. They said ‘My constituent has informed me that she suffers from dystonia and that the scaffolding has severely limited her access to the property’s garden. She has also told me that the scaffolding blocks natural light from entering her home and that foxes have been jumping on the scaffold at night, causing significant noise.’ The MP asked the landlord to look into the matter, in particular the possibility that part of the scaffold which blocked access to the garden being removed or altered.
The landlord responded in May 2020 explaining that the window installation was on hold due to health and safety concerns around COVID-19. It said ‘Currently, our stance is that we are only installing windows to properties which are uninhabited, as the contractors are not physically coming into contact with residents. We are currently working with all of our contractors to agree an approach to resume works taking into account Public Health England (PHE) guidance relating to COVID-19…Residents will be updated on next steps once we have an approved approach to working under these circumstances.’
The letter noted that the Contract Manager had spoken with the resident on 6 May 2020 and had found that she was having difficulties fully opening the rear kitchen and bedroom windows due to the scaffolding in place. The contractor would therefore be attending shortly to ‘…alter the scaffolding to enable [the resident] to open her windows more widely to allow sufficient ventilation.’
The resident made a formal complaint on 20 June 2020 about the length of time the scaffolding had been in place. She said that she had made at least ten phone calls and sent emails to the landlord’s ‘building service’ about the matter but had been ignored. She explained ‘I had to call the Samaritans on several occasions due to stress. As we were on lockdown I couldn’t go out as I have a disability. It was impossible to use my tiny garden [due to the scaffolding].’ She detailed her medical condition and explained that she had tripped over the scaffolding and injured her hip. She also said that a family of foxes climbed on the scaffolding every night and caused so much noise that she was unable to sleep. The resident acknowledged that the Covid-19 pandemic had affected the planned works but noted that this did not explain why no works had been carried out from October 2019 to March 2020.
The landlord provided its stage one response on 10 July 2020, noting that its surveyor had been in contact with the resident and had discussed the delays and advised that the windows would be installed soon. The landlord concluded ‘I have investigated your complaint, and I can confirm that you were not informed of work in progress which caused health concerns to you, and the messages you left for the contractors to contact you did not happen, and I apologise for this. Delays then occurred due to the Covid – 19 restrictions, which were put in place from 23rd March 2020 to present, and the job was then put on hold.’ It offered apologies for this.
The resident responded that same day, stating that she had received some telephone calls to inform her what happened next regarding the scaffolding, but that she was still ‘none the wiser.’ She said that she was frustrated that the landlord had not offered her compensation for her suffering, and referenced the injury to her hip and ongoing pain. She asked the landlord to take her injury seriously and offer her compensation for this and the stress the matter had caused her. She confirmed that the contractor had attended and removed some of the scaffolding poles, but she was unsure when she would get her garden back.
The landlord acknowledged this as a review request on 15 July 2020. On 11 August 2020 the resident emailed the landlord with pictures of the scaffolding outside her home, saying ‘To date I haven’t heard even a whisper from the council regarding the scaffold…I assumed someone would be in touch regarding the windows but to date nothing has been sent even as an update. This is really getting to me now so I do hope you can let me know what the plan is.’
On 19 August 2020 the landlord provided its review stage response. In this it stated that the scaffolding was initially installed in October 2019, and the windows were set to be installed from 23 March 2020, but this was put on hold due to the Covid-19 lockdown.
The letter went on to explain that the works to the property were major external refurbishments including roof works, external wall repairs and decorations, and window renewals. It said ‘This involves a lot of work and therefore will take some time to complete…As the windows are to be replaced, the windows had a lead in period for manufacturing.’ The landlord said that this had taken longer than expected and they arrived just before lockdown. The scaffolding had initially been planned to be in place until June 2020 but due to the pandemic it had been unable to install the windows (although it had been able to undertake some other works).
The landlord acknowledged the difficulties the resident had highlighted and said that it would prioritise her window works ahead of other blocks and properties. It concluded ‘While our Planned Works Team can sympathise with the inconvenience the scaffolding and delay to works have caused you, due to circumstances beyond our control, we cannot offer any compensation.’ It noted that the resident had not reported falling and tripping to staff members and so could not comment, stating ‘I am sorry to learn of your accident but understand that [the contractor] subsequently amend some of the scaffolding to eliminate any hazards.’ The letter explained that if the resident wanted to claim compensation for the fall and any distress she could make an insurance/Public Liability Claim, provided details on this, and signposted her to this Service.
The resident’s son responded on 25 August 2020, questioning the length of time the landlord had said that the works would take, or that these were ‘major’ or complicated works necessitating the eight months that had originally been planned for the scaffolding to be in place. He asked why there was a five-month lead time for the windows and why the scaffolding was erected knowing that the windows could not be installed for a long time. He asked whether the resident’s disabilities were taken into consideration, and said ‘Are we to assume that [the resident] was expected to not have use of her garden from 8-5 every weekday for 8 months, and not be entitled to compensation?’ He stated that the contractor had not been aware of the resident’s disability, and if it had ‘…the scaffold could easily have been erected differently...’
Works to install the windows commenced at the property on 21 September 2020. On 7 October 2020 the landlord provided another review stage response, apologising for the delay with this, explaining that there had been some staff changes. The letter said that the landlord hoped the resident had been able to progress her insurance claim and that it had partially upheld the complaint. The letter explained that the roof repair and window installations were part of a planned maintenance and improvement project and work at the resident’s property was complete by 24 September 2020. Currently the scaffolding was still in place and further post inspection might need to take place before it could be removed.
The landlord acknowledged how inconvenient it was for the resident not to have full use of the garden, particularly over the spring and summer months, and said ‘I agree that even the original 8-month timeframe is a long time.’ The letter stated that an insurance claim was the correct way to pursue compensation for negligence and any injury suffered, and that insurance matters were not something that could be looked at within the complaints process. The landlord noted that the resident had been advised how to progress her claim and signposted her to the Ombudsman.
Works to the roof of the building commenced on 12 October 2020, and the scaffolding was struck in November 2020.

Assessment and findings

The resident has complained to this Service that it took the landlord over a year to install the windows after the scaffolding had been erected. She said that the landlord was aware that she had a disability but did not take this into account and explains that she made numerous calls and sent emails about the matter but did not receive responses. She states ‘I have been treated appallingly with no concern for my condition… My Summer was ruined due to the scaffold covering my garden. My house is so dark I have to have lights on all day. I can’t put my washing out to dry because they took my clothesline down.’
In response to the Ombudsman’s request for information on this case, the landlord has stated that the planned window installation ceased on 23 March 2020 and recommenced on the 20 July 2020. Its contractor then had to ‘…follow new guidelines, procedures and processes and carry out pilot properties.’ The landlord has said that once window installations were deemed acceptable further works were programmed accordingly, with works to the roof instructed on 27 August 2020, and to the fascia on 2 November 2020. It has stated ‘The weather and rainfall during the last months in 2020 were of high volume and caused delays to external and roof works of approximately 20 days.’
The landlord has stated that the scaffolding did not prevent the resident from accessing the garden at the property as it was placed to still allow this. It has provided a copy of a confirmation form dated May 2020 relating to adaptations that its contractor made to assist the resident with concerns that she had raised about the scaffolding ‘as a good will gesture.’
The landlord has also provided this Service with a number of letters that were sent to the resident over the 2019/2020 period relating to the various works that were carried out as part of the project, which demonstrate that some works were ongoing while the window installation was on hold.
It is important to note that this Service does not have the technical expertise to make any determination on whether the works that were planned at the property could reasonably have been expected to take eight months, or how long the scaffolding should have been up. Rather, it is the Ombudsman’s role to determine whether the landlord responded to the concerns that the resident raised about the issue in a fair and reasonable manner.
The resident has referenced contacts that she made with the landlord prior to her formal complaint in June 2020. It is also noted that her daughter’s March 2020 email to the Cllr referenced contacts made with the landlord. However, there are no other details or evidence of these contacts, so it is not possible for the Ombudsman to know when they were made or what concerns were raised. This Service also requested copies of all correspondence on the matter from the landlord, and the information that was provided did not contain evidence of concerns raised by the resident prior to the MP enquiry in April 2020.
The information available shows that following the MP enquiry the landlord swiftly took steps to address the issue with the scaffolding blocking the windows at the property, and it has provided evidence of the signed confirmation form showing that the contractor attended to make these changes. The response to the MP explained that the Covid-19 pandemic meant that the window replacement was on hold, and the Ombudsman considers this to have been a reasonable explanation. Many landlords were forced to cancel or postpone repairs and major works for this reason, and while understandably frustrating for residents, this does not represent a failing on the landlord’s part.
However, the landlord’s subsequent stage one response to the resident’s formal complaint did not provide any indication as to why the scaffolding was erected in October 2019, but no works to the windows (or roof) were carried out before the March 2020 Covid-19 lockdown. The letter stated, ‘I have investigated your complaint, and I can confirm that you were not informed of work in progress which caused health concerns to you.’ It is not clear to the Ombudsman what the landlord is referencing here, and it does not appear to address the complaint that was made about no works being carried out to the windows before March 2020. The letter referenced a surveyor having been in contact with the resident to discuss the delays, but the Ombudsman has seen no record of this or what was discussed.
The stage one letter also acknowledged that the messages the resident left were not responded to, but then failed to reassure the resident that the matter would be addressed with the relevant staff members/contractors. Neither did it address the resident’s concerns about the impact the scaffolding had on the use of her garden, or the injury she reported. Overall, the Ombudsman finds that the stage one response was inadequate, and there is little indication that the landlord investigated the matter.
The first review stage response was more thorough and explained that the works that were planned were comprehensive and would therefore take a long time, and that windows had a lead time for manufacture. It also explained that the scaffolding had originally been due to be struck in June 2020. While this goes some way to addressing the resident’s concerns it is still unclear to this Service why the scaffolding was erected in October 2019 when there was such a long lead time for the windows, even taking into account this being ‘longer than expected’.
However, the landlord did acknowledge the difficulties the resident had and said that it would prioritise her window works ahead of other blocks and properties. This demonstrates that it took the resident’s concerns seriously and was willing to ‘put things right’ by accelerating the planned works to her home, although declined to offer compensation, directing the resident to make an insurance/Public Liability Claim.
This was in line with the landlord’s remedies policy and procedure and the Ombudsman considers it was reasonable for the landlord to have directed the resident to make a claim. If a resident alleges that their health has been adversely affected by a landlord’s actions or inactions, only a court can make a legally binding decision as to whether the landlord is liable to pay damages. As such it is appropriate for a landlord to refer such a claim to its insurers (or to advise complainants to make a personal injury claim or seek independent legal advice).
The resident’s son responded to this on 25 August 2020, but it is unclear why the landlord provided another review stage response, given one had already been provided and the resident signposted to the Ombudsman. However, given that the landlord agreed to do so, this Service would expect it to have addressed the issues that the resident’s son raised. While it did acknowledge the inconvenience caused, and made reference to ‘…the original 8-month timeframe…’ none of the other matters raised in the 25 August 2020 email were referenced. The Ombudsman considers this to have been an inadequate response to the complaint, and a missed opportunity to resolve the matter before escalation to this Service.

Determination (decision)

In accordance with section 54 of the Scheme, there was service failure by the landlord regarding:
1. The length of time scaffolding was erected at the property.
2. The landlord’s response to the resident’s concerns about this.

Reasons

It is understandable that the resident was upset at the impact the scaffolding had on the use of her garden and the length of time it was in place. The fact that scaffolding was erected so that the landlord could carry out its repair responsibilities does not in itself represent a failing on the part of the landlord. As set out above, the Ombudsman is unable to determine whether the planned works could reasonably have been expected to take eight months, or how long the scaffolding should have been up. Further, the Covid-19 pandemic had a significant impact on the landlord’s ability to carry out the planned works. The landlord acted quickly when it received the MP enquiry and attended to make some changes to the scaffolding. It also agreed to prioritise the window replacement at the resident’s property in light of her difficulties.
However, despite both the resident and her son querying this, the landlord has provided no explanation as to why the scaffolding was erected five months before the planned window installation. In lieu of any explanation to justify this, the Ombudsman finds that this was an unreasonable timeframe.
In addition, the resident’s initial contacts were not responded to, as recognised in the stage one complaint response, and the stage one response itself was inadequate, as was the second review stage response which did not address the issues and questions raised in the 25 August 2020 email.
In light of the above, a financial remedy is appropriate with reference to both the Ombudsman’s own remedies guidance, as well as the landlord’s.

Orders

Within one month of the date of this report, the Ombudsman orders the landlord to pay the resident:
1. £175 for the distress and inconvenience caused by the prolonged period that the scaffolding was in place.
2. £100 for the time and trouble taken in pursuing her concerns about the matter.

Recommendations

The landlord has recently informed this Service that it does not have any vulnerabilities recorded on its systems for the resident. The Ombudsman is not aware of the landlord’s criteria for doing so, but it may want to consider the resident’s own reports of disability during her complaint, and the information on her health conditions as set out in her son’s 25 August 2020 email.
It took several requests by this Service to obtain sufficient documentation relating to the formal complaint from the landlord. It should consider its record keeping practices to ensure that its complaint files are complete and contain all necessary correspondence, not only so that this information can easily be provided to the Ombudsman, but for its own records and complaint tracking.