Colchester City Council (202300696)

REPORT

COMPLAINT 202300696

Colchester City Council

27 January 2025

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 the landlord’s response to the resident’s:
1. Request for repairs.
2. Complaint about damage caused to her flooring.
3. Concerns regarding removal of asbestos.
4. Decision to fit laminate flooring.
The Ombudsman has also considered the landlord’s complaint handling.

Background

At the time of the complaint the resident was the secure tenant of the landlord which is a local authority. The tenancy commenced on 7 October 2019, by way of a mutual exchange, and ended on 3 March 2024.
The property is a 2 bedroom first floor flat. The landlord had mental health issues recorded as a vulnerability for the resident.
On 16 June 2022 the landlord wrote to the resident because she had removed a door and frame to a cupboard in the property which caused “substantial damage resulting in an unsafe situation”. It said work was undertaken without its authorisation. It said it would rectify the damage and make safe on the basis that it would invoice the resident for the associated costs.
It also requested that the resident remove the laminate flooring she had installed because this was not permitted in first or second floor flats. In an email to the landlord on 23 July 2022 the resident disputed its assertion that installation of the laminate flooring was not in line with its policy or the tenancy agreement.
On 9 September 2022 the resident emailed the landlord to raise concerns about the lack of insulation in her loft. She said she had been advised it would be rectified but that was not the case. She was also concerned about the landlord’s proposed method to install cavity wall insulation and reported that her flooring had been damaged during recent works at the property.
During a conversation with the landlord on 15 September 2022 the resident reported concerns that it had failed to detect asbestos which she had subsequently been exposed to. She also advised that she was not satisfied with the rectification works because some of the plastering had not been completed.
On 7 July 2022 the resident complained to the landlord about the cupboard she had removed and her laminate flooring. The landlord issued a stage 1 complaint response on 7 July and a stage 2 response on 12 August 2022 in which it did not uphold the complaint.
On 14 September 2022 the resident emailed the landlord to make a further formal complaint. During a telephone call with the landlord on 15 September she set out the details of her complaint, as follows:
1. The landlord failed to identify the presence of asbestos and that she had been exposed to it.
2. Rectification work was not completed to her expectations and some of the plastering had not been completed.
3. The contractors had not used adequate floor protection and her flooring had been damaged as a result.
4. In 2021 she had been told that the loft had no insulation and this had not been resolved.
The landlord issued its stage 1 complaint response on 27 September 2022, the main points being:
1. It carried out an asbestos survey which did not flag any concerns about the material surrounding the damaged cupboard area. Therefore, there was no need to take special precautions.
2. Surveys were required whenever intrusive works were undertaken in a property as a precaution. There was no risk to the resident from asbestos therefore it did not uphold that part of the complaint.
3. Its contractor had gone “above and beyond” with regards to rectification works. They were asked to plaster the immediate damaged area however, they did the whole wall.
4. It had asked its contractor to visit and clean the skirting boards and fill a “small” amount of damage to the corner of the cupboard space. However, the resident had declined to allow access unless that whole wall was plastered. It asked the resident to confirm if she wished works to go ahead as it had set out.
5. It did not uphold that part of the complaint. The work it carried out was to rectify damage caused by the resident the cost of which was to be recharged to her.
6. The resident complained that the asbestos survey contractor had damaged her laminate flooring. As the survey did not require any major tools or equipment it would not have damaged the floor. Having reviewed the original photographs of the lintel and bricks hanging from the cupboard the resident damaged it was likely this was the cause of the damage. It did not uphold this part of the complaint.
7. It wrote to the resident on 16 June 2022 to request that she remove the laminate flooring by 22 July. She had not done so and its housing management team had been asked to contact her.
8. Its insulation surveyor became unwell which delayed the planned insulation work. This was rectified in March when 2 new surveyors were taken on.
9. Its logs showed that between March to September it had made “numerous” attempts to contact the resident to arrange the insulation. The complaint was therefore not upheld.
10. It said it would request its surveyor to make contact again however, this may not be until October due to current planned works.
On 29 September 2022 the resident emailed the landlord to report her ongoing dissatisfaction, as follows:
1. She laid the new flooring after the cupboard was removed so it was not damaged by her. It was caused by the contractor who came to strip the plaster back to brick.
2. She said there was a wall that did not need to be touched but the contractor instructed that all 3 sections should be knocked back and freshly plastered.
3. She queried why the contractor did not fill the small gaps and clean the skirting on completion.
4. She said there was a large section of wall that paint would not stick to. She was surprised that the section of wall that had been left was the only section that needed plastering.
5. She said the landlord had left that area and carried on work elsewhere. This was when the floor was damaged by the asbestos contractor.
On 28 October 2022 the landlord issued its stage 2 complaint response, the main points being:
1. It upheld the resident’s complaint regarding filling of small gaps and cleaning the skirting board. It apologised for any inconvenience and said it was happy to arrange the works.
2. It felt the instruction given to its contractor was clear but apologised for any misunderstanding. It partially upheld the complaint for miscommunication although it was unable to evidence this.
3. It had been unable to inspect the flooring during its recent visit as it was blocked by the sofa. The resident had advised she did not want further action taken. It partially upheld the complaint because it did not dispute claims of damage and apologised for any inconvenience caused.
4. During the visit the resident raised a concern that the carpet on the stairs had not been installed with the correct nosing joint to the laminate flooring. The resident was advised that she may wish to explore options to rectify the fault herself.
5. It had identified that a leak was discharging into the cavity wall. The insulation could not be installed until this was rectified. It was in the process of arranging to inspect and repair the leak. It partially upheld the complaint because the leak could have been identified and rectified earlier.
6. Its asbestos survey established that the textured coating to the wall contained asbestos. The quantity of coating to the wall was low and was not “visually obvious.” In accordance with regulations it identified the material and managed the works it undertook accordingly. That type of asbestos containing material (ACM) had the lowest amount of asbestos of any material and the potential to release asbestos fibres into the air was low.
7. The coating was removed by a licensed asbestos company to ensure replastering works could be carried out safely. The complaint was partially upheld due to the miscommunication for which it apologised.
8. The works it had undertaken to put right the issues caused by the removal of the cupboard by the resident was something for which it would usually recharge. However, as a gesture of goodwill it had decided not to pursue the costs. It gave advice about seeking permission for future alterations.
The resident emailed this Service on 30 June 2023 to report that her stair carpet had become dangerous because the incorrect flooring bar had been used. She said she had to chase the landlord to ensure repairs were completed. She also remained dissatisfied with the landlord’s response to the damage caused to her flooring and to the rectification works. The complaint became one we could investigate on 1 May 2024.

Events post internal complaints process.

In an email to the resident and her MP dated 13 December 2022 the landlord said it had offered compensation by way of writing off the recharges for the rectification works which amounted to £1890.

Assessment and findings

Landlord’s obligations, policies and procedures.

The landlord’s repairs and rechargeable repairs policy (repairs policy) says that where “wilful damage” of the property by a tenant results in it having to replace or repair items, the tenant will be charged the full cost of the repair.
Its building safety compliance policy says that it will act appropriately and in accordance with regulatory and legal requirements in gaining access to the premises to undertake necessary work to manage the risk presented by asbestos.
Its alterations policy says it will not provide written permission for laminate flooring in first and second floor flats.
The resident’s conditions of tenancy state that the resident must not alter her home (except for normal decorating), or fix anything to it, without first getting the landlord’s written permission.
Its complaints policy says it will respond to stage 1 complaints within 10 working days and to stage 2 complaints within 20 working days.
Its remedies policy says that where it does not meet the standard its residents can expect it aims to provide fair and proportionate remedies.

Scope of the investigation

In its response to this Service the landlord advised that following its stage 2 complaint response, the resident raised concerns regarding the quality of the original plaster repair. When it contacted the resident on 4 May 2023 to arrange works the resident advised they were no longer needed as she intended to resolve the issue herself.
Our approach as set out in the Housing Ombudsman Scheme says that we may not investigate complaints that have not exhausted the landlord’s internal complaints process. Therefore, this issue has not been considered as part of this determination.

The complaint is about the landlord’s response to the resident’s request for repairs.

Cupboard.

The landlord’s repair logs show that on 1 June 2022 the resident advised she had removed a “cupboard door” and had been asked to send a photograph. The landlord’s stage 1 complaint response of 7 July confirmed that it inspected the property on 10 June. This investigation has not been provided with a file note or report of the inspection which is a record keeping failure.
On 16 June the landlord wrote to the resident to confirm she had carried out the alteration without its permission. It said it would rectify the damage and make the property safe. It appropriately said it would recharge the resident the cost of the works in line with its repairs policy.
In the resident’s email to the landlord of 24 June 2022 she acknowledged that she had removed the cupboard but said she had not known what the outcome would be. Therefore she felt she should not have to pay the cost of putting it right. Furthermore, she asserted she had been given verbal permission to remove the cupboard because it was “not fit for purpose” and she wanted to install shelving. While this Service does not doubt the resident’s account there is no independent evidence to corroborate events.
In its stage 1 complaint response of 7 July 2022 the landlord confirmed that it had inspected the property on 10 June and concluded the area was “unsafe.” It confirmed the resident would be recharged the cost of works to repair the damage caused. This was appropriate and in line with its repairs policy.
A works order was raised on 30 August 2022 to install a lintel above the lounge cupboard. There is no evidence that any works were undertaken to the area before that date. This is concerning given the landlord’s assessment of the situation carried out several months prior.
In its stage 2 complaint response of 12 August 2022 the landlord apologised for the lack of communication regarding rectification works and said it would write to set out next steps. However, there is no evidence that it did so.
A works order was raised on 5 September 2022 to remove the textured coating to the wall. However, when the resident spoke to the landlord on 15 September she expressed dissatisfaction with the quality of work. This was because some of the plastering had been missed and the new skirting which she had fitted needed wiping down.
In its stage 1 complaint response of 27 September 2022 the landlord set out the extent of the plastering works it had carried out. It explained why some of the work remained outstanding and asked her if she wished to go ahead. It appropriately reiterated that the resident would be recharged for the work in line with its repairs policy.
The landlord’s notes of its visit to the property on 20 October 2022 confirmed that the wall at the back of the removed cupboard had not been plastered. However, the resident had advised she did not want any further works to take place because it would cause too much stress. However, it failed to confirm this in writing as part of the stage 2 review which was inappropriate. This was because it did not have a written audit trail of its decision making in the case in the event of a future query.
In its stage 2 complaint response of 28 October 2022 the landlord confirmed that the resident was happy for it to arrange for the skirting to be cleaned and any small gaps filled.
It also advised that although it would normally recharge for works to put right issues caused by unauthorised alterations it would not pursue the costs as a goodwill gesture. While it is acknowledged that the landlord had the right to exercise its discretion its decision making was unclear. It may wish to consider how it will ensure that it applies its repairs policy fairly and consistently with regards to recharges for such work.

Insulation.

In an email to the landlord dated 9 September 2022 the resident complained that she had been advised she would need to leave 2 weeks between extracting and refilling the cavity wall insulation. She said it would be too cold and she could not afford additional heating. Furthermore, she had been told in October 2021 that there was no insulation in the loft. She had been “promised” it would be done but it had not.
On 14 September 2022 the resident emailed the landlord to say she had not heard from the insulation team despite her chasing. When she spoke to the landlord on 15 September she reiterated the same concerns she had raised in her email of 9 September.
The landlord’s stage 1 complaint response of 27 September 2022 noted it had made numerous attempts to contact the resident. While it is acknowledged that this was not disputed by the resident, this investigation has not been provided with evidence to that effect which is a record keeping failure.
A file note dated 28 September 2022 said it had called the resident and left a message regarding “cavity wall and leak found in the block.”
When the landlord visited the property on 20 October 2022 it advised the resident that a leak from the overflow pipe or soil stack was causing water on the outside wall preventing works from being done. Having carried out a visual inspection it agreed this needed to be followed up.
It said it would repair the leak and once the wall had dried out it would source a different contractor to carry out the insulation works because the resident raised concerns about the original contractor. It acknowledged that there had been a delay in proceeding with the works.
Its stage 2 complaint response of 28 October 2022 stated that it should have identified and rectified the leak sooner.

Floor bar.

During its visit to the resident on 20 October 2022 the landlord discussed her concerns about the nosing joint between the carpet and laminate flooring not fitting correctly. It had not installed the carpet however, it noted that it had been fitted correctly whereas the nosing joint to the laminate flooring had not. It stated this was the resident’s responsibility to resolve. In its stage 2 complaint response of 28 October the landlord reiterated the same. The landlord’s response was reasonable in the circumstances.
The Ombudsman would expect a landlord to keep a robust record of contacts and repairs, yet the evidence has not been comprehensive in this case. It is vital that landlords keep clear, accurate and easily accessible records to provide an audit trail. If we investigate a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures.
There is no evidence that the landlord responded in a timely manner to make safe the damage caused when the resident removed the cupboard. Furthermore, it acknowledged that it should have acted more quickly in respect of the cavity wall insulation and associated leak.
These failures amount to maladministration because they had an adverse effect on the resident. The landlord has been ordered to pay the resident £150 compensation which is in line with the Ombudsman’s remedies guidance where there was no permanent impact.

The complaint is about the landlord’s response to the resident’s request to rectify damage caused to her flooring.

On 9 September 2022 the resident emailed the landlord to report that her flooring had been damaged during works at the property. She had requested a hard sheeting be used to protect the floor. However, a plastic sheet was used resulting in “chunks” being taken out of it when the walls were stripped back to brick. When the landlord spoke to the resident on 15 September she said that “they” did not use appropriate floor protection as had been previously agreed.
It is therefore unclear why the landlord’s stage 1 complaint response of 27 September 2022 referred to the resident believing the flooring had been damaged by the asbestos surveyor and not the contractor carrying out works to the walls. The landlord communicated in a defensive manner advising that the damage was most likely caused by the resident rather than the asbestos surveyor. It also meant that the resident’s complaint was investigated correctly and based on the information she had provided.
The resident emailed the landlord on 29 September 2022 to say the flooring was laid after she removed the cupboard so she did not cause the damage. She said the flooring was damaged by the contractor who stripped the walls back to brick. However, later in the same email she said the damage was not caused by the plasterer but by the asbestos removal contractor. It is therefore unclear who she believed damaged the flooring.
As part of its stage 2 complaint investigation the landlord visited the property on 20 October 2022. During the visit the resident confirmed the floor was damaged when the contractor carried out plastering works.
In its stage 2 complaint response dated 28 October 2022 the landlord said it had been unable to inspect the damage during its visit. It also said that the resident had stated she did not want further action to be taken. However, in her email to the landlord of 1 November the resident disputed its account of events.
There is no evidence that the landlord provided a response which was inappropriate, amounting to service failure. The landlord has been ordered to pay the resident £50 compensation.

The complaint is about the landlord’s response to the resident’s concerns regarding removal of asbestos.

An entry on the landlord’s repairs log dated 5 September 2022 refers to a works order to “remove textured coating to wall.”
During her conversation with the landlord on 15 September 2022 the resident raised concerns that the presence of asbestos had been missed on 3 occasions. She was concerned she had been exposed to asbestos. This Service does not doubt the resident’s account. However, there is no independent evidence to corroborate events. Therefore, it is not possible for this investigation to make a determination on this point.
The landlord’s stage 1 complaint response of 27 September 2022 advised an asbestos survey, not seen by this investigation, had been carried out as standard prior to works commencing. The survey had not identified any risks.
During the landlord’s visit to the resident on 20 October 2022 the resident expressed dissatisfaction that from the moment she removed the door and frame it took the landlord 3 months to carry out the asbestos survey. This investigation has not been provided evidence of when the survey was carried out which is a record keeping failure. The resident also disputed the landlord’s assertion that there was no asbestos present.
The landlord’s stage 2 complaint response of 28 October 2022 confirmed that ACM was present in the textured wall coating but that it had taken appropriate precautions when carrying out works in the property. It reassured the resident that this presented a low level of risk to her. However, it apologised for the miscommunication.
The landlord carried out a survey and undertook works in accordance with its building safety compliance policy. However, it failed to communicate the process to the resident and therefore failed to manage her expectations around the presence of ACM.
The failure amounts to service failure because it was of short duration and may not have affected the overall outcome for the resident. The landlord has been ordered to pay the resident £75 compensation.

The complaint is about the landlord’s response to the resident’s decision to fit laminate flooring.

Following its visit to the property on 10 June 2022, the landlord wrote to the resident on 16 June to request that she remove her laminate flooring by 22 July. It appropriately set out its reason for the request. In her email to the landlord on 24 June the resident said she had installed laminate flooring to prevent allergies and declined to remove it.
In a further email to the landlord on 7 July 2022 the resident asked what section of her tenancy agreement said she could not install laminate flooring. In the landlord’s email to the resident of 22 July it appropriately provided its policy which explained that laminate flooring was not permitted in first floor flats. On 23 July the resident emailed the landlord to say the policy did not refer to laminate flooring therefore she would not remove it. In a further email to the resident on 12 August the landlord appropriately directed her to the relevant section of the tenancy agreement.
The landlord’s stage 1 complaint response dated 27 September 2022 reiterated the landlord’s request that the flooring be removed by 22 July. This was a reasonable request which was in line with its policy and terms of the tenancy.
The notes from the landlord’s visit to the resident on 20 October 2022 confirmed that it had decided not to pursue removal of the laminate flooring. However, it said it would review the situation should it receive a complaint about noise.
The landlord’s response to the resident’s alteration was appropriate and in line with the tenancy agreement and its alterations policy. However, it decided not to enforce its request in this case.
While it is acknowledged that the landlord has the right to exercise its discretion its decision making was unclear. It may wish to consider how it will ensure it applies its alterations policy fairly and consistently to all its residents.

The Ombudsman has also considered the landlord’s complaint handling.

The resident made a stage 1 complaint on 14 September 2022. The landlord provided its response on 27 September which was appropriately within time.
The resident made a stage 2 complaint on 29 September 2022. The landlord issued its complaint response on 28 October 2022 which was issued within 21 days. This was one day out of time but it is acknowledged that the detriment to the resident was low.
Some of the language used in the landlord’s stage 1 complaint response was combative, suggested that an objective investigation had not taken place. Furthermore, its response in relation to asbestos was not accurate which was evidence it had not thoroughly investigated the complaint. This caused distress to the resident, although it is acknowledged this was corrected via its stage 2 complaint response.
The landlord’s general complaint handling lacked clarity. The Housing Ombudsman’s complaint handling code (the Code) says that landlords should know the difference between a service request and a complaint. It also says that where a complaint is raised after a stage 1 complaint response has been issued the complaint should be logged as a new complaint.
The landlord’s stage 2 complaint response addressed issues that had not been raised previously at stage 1. For example the issue of the floor bar should have either been addressed as a service request if it were an initial enquiry or, if it was an expression of dissatisfaction about something it should have done, it should have opened a fresh stage 1 complaint.
The Code also requires landlords to address all points raised in the complaint. In her stage 1 complaint the resident reported that she had been told her loft was not insulated and that works had not progressed. The landlord provided a response regarding cavity wall insulation however, it did not provide a response on the loft issue which was inappropriate.
The Code sets out that complaint responses must confirm in clear, plain language the reasons for any decisions made and details of any remedy offered to put things right.
The landlord’s stage 2 response partially upheld elements of the resident’s complaint. However, it failed to clearly set out its decision making in respect of the outcome of the complaint. Furthermore, it failed to consider providing financial redress to put things right in line with its remedies policy which was inappropriate.
In its email to the resident dated 13 December 2022, after it had issued its final response, the landlord said that by writing off the recharges for the rectification works it had provided compensation totalling £1890. However, it failed to make this clear to the resident as part of the complaints process and there is no indication how much compensation it apportioned to what failure. Therefore, while this investigation has had regard to the landlord’s response, it has not been able to fully take this into account when considering compensation for the failures identified in this report.
There was maladministration in the landlord’s complaint handling because the failures had an adverse effect on the resident. The landlord has been ordered to pay the resident £100 compensation which is in line with the Ombudsman’s remedies guidance where there was no permanent impact.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s request for repairs.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s response to the resident’s complaint about damage caused to her flooring.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s response to the resident’s concerns regarding removal of asbestos.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration in the landlord’s response to the resident’s decision to fit laminate flooring.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of the determination the landlord is ordered to:
1. Write to the resident to apologise for the failures identified in this report.
2. Pay the resident £375 compensation, comprised of:
  1. £150 for the distress and inconvenience caused by its failures in its response to the resident’s request for repairs.
  2. £50 for the distress and inconvenience caused by its failure in its response to the resident’s complaint about damage caused to her flooring.
  3. £75 for distress and inconvenience caused by its failures in its response to the resident’s concerns regarding the removal of asbestos.
  4. £100 for distress caused by its complaint handling failures.
Evidence of compliance with the orders above should be provided to the Ombudsman, also within 4 weeks.
Within 8 weeks of the determination the landlord should:
1. Review the complaint handling failures to identify what went wrong and what it will do differently.
2. Arrange for relevant staff members to complete the Ombudsman’s Complaint Handling Code e-learning module on the learning hub in the Ombudsman’s Centre for learning.
3. Evidence of compliance should be provided to the Ombudsman, also within 8 weeks.