Clarion Housing Association Limited (202003506)

REPORT

COMPLAINT 202003506

Clarion Housing Association Limited

22 January 2021 (Amended on review 24 June 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 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 concerns:
1. The condition of the property at the start of the tenancy and how the subsequent repairs were handled by the landlord.
2. The level of compensation offered by the landlord.

Background and summary of events

The resident is an assured tenant of the landlord. The property is a flat in a communal building. The resident took on the tenancy of the property on 17 April 2019. Both the resident and the resident’s mother corresponded with the landlord during the complaint process. For reasons of clarity, both parties have been referred to as ‘the resident’ in this report.
On 24 April 2019 the resident wrote to the landlord regarding outstanding repairs. The resident described issues in the kitchen and bathroom, including a damaged boiler door, used and damaged kitchen cabinets, used vinyl flooring, used and unhygienic toilet flush and shower rail, mismatched and badly filled bathroom tiles and cracked silicone sealant. The resident also described mould on the wooden frames of the windows and an overall smell of damp within the property The email stated, ‘when we came to the viewing, we have actually put across some of these questions already but have not received response yet’.
The landlord wrote to the resident on 3 May 2019 and informed him that its voids team would be in touch about completing repairs, including replacing the vinyl flooring. The landlord also noted some work highlighted by the resident (toilet flush handle, silicone seal, tiles in bathroom, shower rail, toilet roll holder and kitchen taps) were deemed safe and serviceable and no further works would be undertaken. The landlord also enquired if a boiler engineer had been in contact.
Also on 3 May the resident provided the landlord with photographs of the items complained of, including staining to the ceiling in the living/bedroom of the property. Notes in the subject line stated, ‘clear marks of patched up leakage but the damp already flaking through … can you please check the roof’. The resident has stated that this issue was also reported prior to the start of the tenancy and that they made numerous phonecalls after the tenancy began, noting that they were unable to proceed with redecoration until the leak was fixed. No documentary evidence has been provided in the form of call logs or records of what was discussed at the viewing or tenancy sign up meeting.
The resident emailed the landlord on 14 May 2019 and stated that the repairs team had located a leak and a different team would have to undertake the work to the window frames. There had been no communication from the boiler engineer. The landlord replied on the same day and notified the resident that the roof leak and window frames would require further investigation and that it would chase up the boiler engineer.
The resident wrote to the landlord on 3 June 2019 and noted that there was still work outstanding to resolve the roof leak and to repair the window frames, as well as the intercom telephone.
On 11 June 2019 the resident wrote to the landlord to confirm that an operative had inspected the roof and identified the likely source of the leak as faulty pointing. The operative undertook repairs but could not say for certain that the issue had been resolved until there was rainfall. The resident then informed the landlord that on the 10 June the gas boiler was reported as inoperative, an engineer had confirmed there was a gas leak and the boiler was shut down. The resident expressed dissatisfaction that the property was let with the boiler in such poor condition.
On 13 June 2019 the resident informed the landlord that there were cracks in the toilet bowl and requested for it to be replaced. The email went on to say that the resident would like the bowl replaced soon as possible as they were planning on moving into the property on 1 July.
The landlord informed the resident on 18 June 2019 that an appointment had been made for 20 June to remove moss. The resident acknowledged this on 19 June and informed the landlord that their own builders at the property had identified that the likely source of the leak as a blocked drain on the roof.
On 24 June 2019 the resident informed the landlord that an extractor fan had fallen out of a bathroom window and requested that the window be replaced with a solid glass panel as there is already another extraction fan in the bathroom.
On 9 July 2019 the landlord wrote to the resident to inform him that an operative attended the property on 28 June and observed that the toilet bowl had been removed and therefore the repair of the bowl was now the resident’s responsibility. The landlord confirmed on 23 July 2019 that a toilet bowl would not be replaced for a hairline crack. The resident disputes the landlord’s version of events and states that the toilet bowl was removed in the presence of the Estates Manager and Technical Officer to prevent leakage and allow for the installation of flooring.
On 6 August 2019 the landlord wrote to the resident and provided a list of upcoming appointments regarding the bathroom window, the toilet bowl, smoke detectors and work to two doors. The resident replied on 14 August and noted that none of the appointments listed by the landlord went ahead as either the operatives did not attend or the operatives attended when the resident’s own builder had already left the property for the day. The resident requested that the appointments were rescheduled, and they informed the landlord of the times their builder would be at the property, stating that they did not think that the property was ready for occupation.
On 8 November 2019 the resident wrote to the landlord as they had received a letter threatening them with legal action for non–payment of rent. The resident noted that due to the condition of the property, they were unable to move in and that all rent on the account should be voided from April 2019 until they actually moved into the property on 18 November 2019. The landlord replied on 16 December and informed the resident that their request had been passed on to its accounts team.
The resident next wrote to the landlord on 15 February 2020 asking for an update. On 24 February the resident wrote to the landlord again and requested to raise a formal complaint into the matter.
The resident noted that due to the poor condition of the property when they took on the tenancy, they were informed by the landlord’s neighbourhood officer during a site visit that they would not be liable for rent until they were able to move in. They then informed the landlord that they sent an email to the neighbourhood officer on 18 November 2019 confirming that they moved in on that day. They also expressed their unhappiness that they were still receiving letters regarding rent arrears and had not heard back from the landlord regarding the investigation into the matter following its email to them on 16 December.
The landlord called the resident to discuss the complaint on 27 February 2020. It wrote to the resident on 23 March to confirm that a formal complaint had been opened and on 14 April it sent a stage one complaint response.
The landlord first informed the resident that the staff members who conducted the viewing of the property and the signing on the tenancy were no longer with the organisation and therefore it could not confirm whether the resident was advised about what would be undertaken prior to moving in.
The landlord then informed the resident that it had interviewed the neighbourhood officer and she disputed that she had told the resident that the property should not have been let in its current condition.
The landlord addressed the outstanding repairs and whether they should have been undertaken during the void period. The landlord listed the repairs required in the kitchen and bathroom. It explained why these issues were not considered as part of the void service. It also informed the resident that windows were not replaced as part of the void standard.
The landlord noted that it had been informed by the resident that their electrician had informed them that the wiring in the property was “illegal and unsafe”; however, it was satisfied the electrics in the property were safe at the time it was let as it had an electric safety certificate dated 13 March 2019.
In reference to the boiler, the landlord explained that the gas supply was capped on 8 March 2019 as part of the voids process. The resident informed the landlord on 10 June of a fault with the boiler. An engineer attended on 11 June and capped the gas supply again after identifying a gas leak. Replacement parts were ordered, and the boiler was repaired on 26 June. The resident has highlighted that the boiler was not repaired on this date but that the meter was relocated in order to resolve the issue. The landlord also confirmed that all doors in the property were fire safety compliant.
The landlord concluded the response by addressing its response time to the repairs. It noted that its policy states that it aimed to complete non-emergency repairs within 28 calendar days. It noted that it failed to adhere to this target for two repairs: the roof leak (which was 29 days over the timescale) and the window repair (which was 10 days over the timescale). The landlord further noted that it had called the resident on 6 April 2020 to offer compensation for these delays; however, this was declined. The landlord informed the resident that if they disputed its response, they could request an escalation of the complaint to stage two.
On 28 April 2020 the resident wrote to the landlord and requested an escalation to stage two on the grounds that:
1. All repairs should have been completed during the void period, and that during the viewing of the property they were informed that this would happen. The staff member who conducted the viewing spoke to a manager at the time who had confirmed this.
2. The number of outstanding repairs had made it “impossible” for him to live in the property as it was a “building site”.
3. They disputed that the electrical safety certificate and gas safety certificate were valid and stated that they had documents to support this claim.
4. The roof leak on its own had made the property uninhabitable and the delays in resolving this issue were due to failed appointments by the landlord’s operatives and the length of time it took to locate the source of the leak. This resulted in the leak not being resolved until late August 2019.
As a resolution to the complaint the resident requested the rent from April 2019 to 18 November 2019 to be waived; £6,870 to cover the costs of their own builders, £1,800 for the time and trouble caused and £1,550 to cover the expenses the resident accrued while staying with family and friends.
The Landlord called the resident on 15 May 2020 to discuss the complaint and sent a stage two complaint response on 1 June.
The landlord informed the resident that following a further investigation of the complaint, it stood by its position as set out in its stage one response. It noted that the purpose of its void standard was not to resolve all outstanding repairs during the void period, but rather to ensure that the property was compliant with the Housing Health and Safety Rating System and the Fitness for Habitation Standard. The landlord also clarified that its records show that the roof leak was repaired on 10 July 2019 and that it did not find any errors in the information supplied in the stage one response.
The landlord then addressed compensation. It stated it was willing to reoffer the compensation awarded at stage one for the delays in repairs, which would be for a total of £78. The landlord also informed the resident that it could not be held liable for the costs of contractors that they had arranged privately. The resident states that this response contradicts what was agreed during the inspection meeting in June 2019 with the Estates Manager and Technical Officer.
The landlord concluded the response by informing the resident that they had now exhausted its internal complaints process and advised them on the steps to take their complaint to This Service should they remain dissatisfied.

Assessment and findings

Repairs and Void Period

The landlord has provided this Service with a copy of its current Void Standard, dated December 2019. This document sets out the minimum standard that a void property should reach before it is deemed ready to let. The landlord has not provided a copy of the Void Standard in use prior to the resident’s tenancy, at the time the property was let.
In correspondence during the time the repairs were being undertaken, the resident wrote several emails to highlight outstanding repairs. In its stage one response the landlord described why these issues were not attended to during the void period. It informed the resident that:
1. The boiler door was deemed serviceable and therefore not changed during the void period.
2. The kitchen units were also assessed and found serviceable, despite some chipping, and would not be changed until the kitchen is due for renewal via the planned investment team.
3. The vinyl flooring in the kitchen and bathroom was in a used condition but deemed serviceable and not changed.
4. Shower rails and the toilet handle would only be changed during the void period if they were broken. In this case they were in a used state.
5. Only broken and missing tiles are replaced during the void period.
6. Windows are not replaced during the void period.
The evidence supports the landlord’s conclusion that it took reasonable steps to ensure the property was in a suitable condition for re-letting, including inspecting the vacant property, producing a specification of works, obtaining photographic evidence of the completion of works and ensuring that the required safety certification was obtained from a competent professional. It also explained in detail in its stage one response how it came to the decision that there was no service failure in relation to each of the repairs, and how the repairs would be undertaken going forward. The landlord’s responses were reasonable and in line with its policies and procedures, as far as the information provided to this investigation indicates.
It is reasonable for the landlord to rely on the recommendations of appropriately qualified contractors, particularly where any items are considered serviceable. If an incoming tenant then disputes the condition of any item the landlord has an obligation to investigate; but this does not mean the item should have been repaired during the void period if it has already been flagged to the landlord as not needing repair or replacement.
The landlord has provided the void specification report to this Service, which described the work recommended to be undertaken during the void period. It has also provided photographs taken of the property during the void period both before and after works were completed.
It is noted that the void specification states the following in relation to the kitchen flooring, ‘Take up any covering, clear away, supply and lay Polysafe safety flooring’. This was evidently not completed as part of the void works. In its email response to the resident of 3 May 2019, the landlord stated that its voids team would be in contact to arrange replacement of the vinyl flooring. Subsequently, in its stage 1 complaint response, it stated that flooring would not be renewed if found to be ‘safe and serviceable’. No evidence has been provided, in the form of notes of inspections or other records, demonstrating why the landlord changed its position, either during the voids process or following the start of the resident’s tenancy.
The landlord’s current Void Standard states that non-slip floor coverings ‘can be retained where in sound and clean condition’ and that they will only be replaced ‘where damaged or has staining that cannot be removed’. It is not known whether this reflects the wording of the previous Void Standard. It may therefore have been reasonable, on subsequent inspection, for the landlord to conclude that the flooring did not require replacement. However, this is not reflected in its records. The resident was given contradictory information and the landlord has failed to evidence why it deemed the flooring to be ‘safe and serviceable’, when it had previously recommended replacement during the void period. The Ombudsman therefore considers that there was poor record keeping and poor communication with the resident in respect of this aspect of the complaint.
Page two of the void specification report recommended a temporary capping of the gas supply and that gas and electric safety checks are carried out. The resident disputes that the gas and fire safety certificates were valid and states that they were informed by their own electrician that wiring in the property was illegal.
It was reasonable for the landlord to rely on the certificates it received from appropriately qualified contractors to conclude that the gas and electrical supplies were safe and compliant before the property was re-let. Once the resident had reported concerns, the Ombudsman would expect the landlord to demonstrate that it acted promptly to investigate and to take any necessary action within a reasonable time.
When the resident reported a suspected gas leak, the landlord attended within 24 hours to cap the gas supply, and the issue was subsequently resolved by works completed on 26 June 2019. It is not clear from the information provided when the electrical safety issues were reported, however, the evidence suggests that the resident’s contractor remedied the issue without the prior written consent of the landlord. As the landlord did not have an opportunity to put things right, and the works were completed without their permission, it would not be fair to find maladministration for failure to complete the repair or to order reimbursement for the cost of the works.
In relation to the roof repairs, the landlord has provided this Service with the repair logs for the period of the complaint. These logs show that a repair was first raised to ‘trace and repair hole in roof’ on 14 May 2019. The documentary evidence provided to this service suggests that the leak was first reported on 3 May 2019, which was after the tenancy had begun. It is acknowledged that the resident disputes this and notes that they raised concerns about the leak prior to the start of the tenancy, however, the Ombudsman must reach its findings on the basis of the evidence provided.
The landlord’s repairs obligations arise when it first becomes aware of an issue. Photographs provided by the landlord showing the property’s condition prior to the void works clearly show staining to the property’s ceiling, although there is no evidence of a live leak. The landlord’s void specification shows that a treatment and stain blocker were applied to the walls and ceilings during the void works.
Following the resident’s email of 3 May 2019, the email correspondence between the parties suggests that an operative attended to inspect the leak. This is only evident from an email sent by the resident on 14 May 2019, stating that the repairs team had located a leak. The records provided by the landlord do not refer to this inspection or record what we observed by its operative at that time. The resident has stated that the initial repairs were of a poor standard and ultimately ineffective, and considers that it took an unreasonable length of time to identify the source of the leak and to permanently resolve it. An operative attended again on 19 May in relation to the leak and works were subsequently completed to address the issue. A further report was made on 4 July as the leak had returned. Further repairs were undertaken on 10 July; however, on 6 August the resident reported that the leak had returned again. An appointment was made for 23 August and repairs were undertaken that resolved the issue.
The Ombudsman’s approach to investigating repairs is to establish when the landlord first became aware of the issue, and to consider whether it took appropriate action. We do not have the technical expertise to assess disrepair, or comment on whether the remedial action was suitable. Instead, we look for evidence that the landlord inspected the property, carried out any recommended remedial works and followed up to ensure the issues were resolved within a reasonable time. What constitutes ‘reasonable’ will depend on the circumstances of the case, as some repairs are more difficult to resolve than others and may require repeat visits.
It is not possible to establish whether the leak was ‘live’ prior to the start of the tenancy. It would be reasonable to expect the landlord to investigate and repair a substantial, ongoing leak that was present before the property was handed over, however, it is accepted that it can be difficult to establish whether water penetration is ongoing until a period of heavy rainfall. As stated above, the earliest evidenced report of a live leak was 3 May 2019, which the landlord inspected some time prior to 14 May 2019.
Whilst the resident’s frustration is acknowledged, it is reasonable for the landlord to follow the recommendations of its appropriately qualified contractors when arranging for repairs to be completed. The landlord has evidenced that it inspected and carried out repairs to attempt to resolve the issue. There is no indication that the leaks were specifically the result of service failure or inaction by the landlord, however, it has acknowledged delays in achieving a permanent solution.
The landlord has not provided contemporaneous records of the inspections of the roof and notes of the works completed. This has limited this Service’s ability to determine whether the action it took was appropriate and whether it managed its contractor effectively. Similarly, the landlord has not provided records of any pre-tenancy visits, any issues raised at the tenancy signing, or any notes of meetings or calls with the resident discussing the repairs. The Ombudsman therefore considers that there was service failure in the landlord’s handling of the repairs due to its poor record keeping.
There were also delays in the landlord’s handling of the repairs, as acknowledged in its complaint responses, and these had been considered in terms of the compensation offered in the section below.

Rent and Compensation

Paragraph 2.2a of the tenancy agreement concerns the payment of rent and states as follows:

“You agree to pay the rent (including the service charge (if any) and all other charges) for your home every week in advance on the Monday of each week. If you do not pay the rent on time we may apply to a court and ask for you to be evicted from your home. We will charge you for the cost of taking you to court”

The resident signed the tenancy agreement on 17 April 2019 and confirmed that they had been “given an adequate opportunity to read and understand this agreement and the Terms and Conditions of Tenancy and that I/we agree to keep to all the terms and conditions”.
As part of their compensation request, the resident had requested that the landlord waive rent payments from 17 April 2019 to 18 November 2019. They described the reasons for the request as the property was uninhabitable until all the repairs had been completed. The resident also stated that this position was supported by landlord’s neighbourhood officer who had visited the property when they took on the tenancy as well as staff members who were present during the initial viewing of the property. The resident also requested to be refunded their costs while they were unable to stay at the property, which they calculated as £50 per week for 31 weeks (a total of £1,550).
The landlord has provided this Service with the internal correspondence from the stage one complaint investigation. The neighbourhood officer quoted by the resident was interviewed as part of the investigation. The neighbourhood officer informed the complaint-handler that she ‘categorically’ denied that she or any other staff member had stated that the property was uninhabitable or that the resident should not be charged rent. She went on to say that when she visited the property the resident and their own contractors were present and that she advised the resident to raise a complaint if they did not believe that all the required repairs were undertaken during the void period.
While there were clearly outstanding repairs when the resident took on the tenancy, the landlord does not accept that the property was uninhabitable during this period. Moreover, the repair records provided by the landlord do not show that any of the operatives who attended the property described it as being uninhabitable.
If a tenant decides to take action on the basis of a property being uninhabitable (whether that be to incur their own repair costs or costs arranging alternative accommodation) this must be based on written confirmation that the landlord agrees, otherwise they cannot rely on the landlord refunding any of these costs. Regardless of the feedback received from a Housing Officer during a visit, this would not be sufficient evidence on which to base such significant costs.
Given the lack of evidence and the reports from its staff members and contractors, it was reasonable for the landlord not to consider waiving rent payments for the period when the repairs remained outstanding.
The resident requested an additional £6,870 compensation to cover the costs of their own contractors as the work they had completed was required due to the ‘negligence’ of the landlord. This Service does not have the authority to determine allegations of negligence, or to award damages in the way that a court might. Should the resident wish to pursue this aspect of their complaint, they may wish to seek independent legal advice.
The resident has provided an invoice from their contractor and a breakdown of the completed works, dated 30 August 2020. They have also provided a statement from the contractor, dated 3 March 2020, describing the pre-existing issues identified that prevented the completion of redecoration works at the start of the tenancy.
It does not appear that the invoice and breakdown of costs were provided to the landlord during the complaints process. Additionally, there appears to be confusion as to whether the resident sought permission from the landlord to undertake work at the property, and no evidence that written permission was obtained. Under paragraph 9a of the resident’s Tenancy Agreement, a resident must ‘agree not to alter the structure of your home or any fixtures and fittings without first getting our written permission’. This applies even where repairs are outstanding that are the landlord’s responsibility. There are very limited circumstances in which a resident has the right to recover costs for repairs completed without the landlord’s prior consent.
The correspondence provided to this Service from both parties show that the landlord was aware that the resident’s contractors were undertaking decoration at the property and the landlord had provided the resident with a decorating voucher. However, no evidence has been provided to show that the resident had sought written permission from the landlord to undertake additional work, or to complete repairs that were the landlord’s responsibility. Therefore, it was reasonable for the landlord not to consider reimbursing the resident’s costs.
The landlord offered the resident £78 compensation in recognition of the delays in completing repairs to the roof and windows. This is line with paragraph 5.6.1 of its Compensation Policy, which states that when a repair goes over target it will award compensation of £10 for the first day and then £2 for each additional day to a maximum of £50. It should be noted that although the landlord incorrectly stated that the roof was fully repaired on 10 July 2019, when the records show that the final repair was completed on 23 August, this would not have changed its compensation award due to the £50 cap.
The level of compensation awarded was disproportionately low for the length of time it took for all repairs to be completed (April to August 2019). Accordingly, while the landlord’s handling of the resident’s complaint was good overall, the omission of a fair and reasonable consideration of compensation was a service failure.
Paragraph 4.2 of the landlord’s compensation policy describes the circumstances when it will consider a discretionary payment to a tenant. It would have been appropriate for the landlord to award a discretionary payment that recognised the time and inconvenience caused to the resident during the period from when the tenancy started until all the outstanding repairs had been completed.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of how the repairs were handled, due to its poor record keeping and communication.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of the level of compensation offered.

Reasons

The landlord has provided evidence that it followed its voids process to ensure that the property was suitable for re-letting. This included inspecting the vacant property, producing a specification of works, obtaining photographic evidence of the completion of works and ensuring that the required safety certification was obtained from a competent professional.
The resident has been unable to evidence that the landlord agreed to waive rent for the disputed period or to cover their contractor’s costs. In the absence of such evidence, and due to the fact that the landlord reasonably disputes that the property was uninhabitable between the start of the tenancy and 18 November 2019, the Ombudsman is unable to consider awarding compensation for these costs. However, the level of compensation awarded to the resident did not sufficiently recognise the time it took for all the repairs to be resolved and the inconvenience this caused.
The landlord has failed to provide adequate records of its repairs history for the property, including any inspections and surveys carried out following the resident’s reports of repairs. It has also failed to provide contemporaneous notes of meetings with the resident prior to the start of the tenancy, at the time of signing and during the period where repairs were ongoing.

Orders

For the service failure and reasons set out above, the landlord is ordered to pay to the resident £400. This is based on £200 each for the delays in the window and roof repairs. This payment should be made within four weeks of the date of this report. The landlord should update this Service when payment has been made.
The landlord is ordered to pay the resident £100 compensation in recognition of its poor record keeping and communication about the repairs.
The above amounts are in addition to the £78 compensation already offered by the landlord in its complaints process. Therefore the landlord should also re-offer this compensation to the resident.

Recommendation

It is recommended that the landlord review its record keeping processes to ensure that adequate records of contact with residents and notes from meetings, inspections and repairs appointments are logged on its systems.