East Riding of Yorkshire Council (201904145)

REPORT

COMPLAINT 201904145

East Riding of Yorkshire Council

31 March 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 Complaint is about the landlord’s response to residents’ reports about:
1. The drainage at the property and standing water in the garden.
2. Works to the kitchen floor and doors and the fitting of radiators at the property.
3. The contractor attending the property without prior notification and breaching health and safety standards.
4. The landlord’s complaint handling.
5. Works performed to the light fittings, bathroom window and doors at the property
6. Death of the resident’s pet, pain and suffering and lost earnings.

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.
After carefully considering all the evidence, in accordance with paragraph 39 of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.

Works performed to the light fittings, bathroom window and doors at the property.

Paragraph 39 (e) of the Scheme says, “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”.
The complaint includes concerns about delayed repair works performed at the property to the bathroom window, light fittings and doors. The issues were addressed by the landlord in 2017 and 2018, the matters were not brought to the landlord’s attention as a formal complaint until October 2019, more than six months later. The matter is therefore not within the Ombudsman’s jurisdiction to determine in accordance with paragraph 39 (e) of the Scheme.

Death of the resident’s pet, pain and suffering and lost earnings.

Part of the complaint to the landlord and the Ombudsman includes a claim that the landlord is liable for the death of her pet dog, as well as the resulting pain and suffering and lost earnings, for which the complainant requests compensation.
Paragraph 39 (i) of the Scheme says that: “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
The Ombudsman does not have the authority to determine liability or award damages in the way that the courts can. If the complainant wishes to pursue this aspect of the complaint, she should seek independent legal advice.

Background and summary of events

Background

The resident is a secure tenant of the landlord at the property, a two-bedroom flat. The resident is subject to the terms and conditions contained in the tenancy agreement. The landlord is a local authority.
The landlord operates a two-stage complaints policy. The policy requires that complainants are kept updated throughout the complaints process. If the resident makes a complaint at the first stage, the landlord should acknowledge the complaint within three working days and formally respond within 10 working days. If the resident is dissatisfied with the response, the resident can request a formal review of the decision and this should be acknowledged within three working days and a response should be provided within 10 working days, however, for complex cases this can be extended to 20 working days.
The landlord has provided a copy of the assured non–shorthold tenancy agreement. Under Section 4 of the agreement the landlord is to ‘keep in repair the structure and exterior of your home including the roof, drains, gutters and outside pipes’. The landlord also has an obligation to repair ‘outside doors and windowsills and frames’.
Under Section 4.3 of the agreement the landlord agrees to ‘keep in repair and proper working order any installations provided or adopted by the landlord for space heating, water heating and sanitation and for the supply of water, gas and electricity, including water pipes, water heaters and heating installations’. This also includes basins, sinks, baths, WC’s wastepipes and showers.
Under Section 4.9 of the agreement if the landlord needs to carry out work at the property it will give the resident reasonable notice and the reason for the works.
Under Section 4.13 of the agreement if the landlord carries out major works at the property it will either make good the decorations or reimburse the resident the cost of materials.
The landlord’s repairs policy outlines the response times for different types of repairs, it aims to attend to ‘category B urgent repairs should be completed within 3 working days, non urgent category C repairs within 14 days and non-urgent category D repairs within 56 working days’.

Summary of events

There have been a number of historic repairs that have taken place at the resident’s property between 2015 and 2017 that are outside of the Ombudsman’s jurisdiction to consider as highlighted above. There are also issues that were originally raised in that period that are still ongoing at the property which will be addressed in this report.
In July 2015, the landlord performed works to the resident’s roof in order to fix a leak at the property, this included installation of new guttering and the movement of a down pipe. In January 2017, the resident complained that after the works to the roof were complete there was standing water in back yard.
On 21 March 2017, a contractor attended the property to investigate the backyard drainage issue, it was established that a dig out team was required to fix the problem. On 24 April 2017, the landlord’s contractor attended the property and performed required works to address the issue.
On 13 July 2018, the resident wrote to the landlord and raised issues number of issues at the property between May 2015 and September 2017. The following issues were raised:
1. Radiators – two radiators were fitted incorrectly and caused a crack in the plaster, also that the radiator in the loungeroom was not correctly installed and parts heated up and caused burns to the resident’s clothes.
2. Roof – works were agreed to be performed at the property by appointment only. The contractor attended the property without prior notice and erected scaffolding and began works whist the resident was not home. The contractor also allowed children to play on the scaffolding which caused a health and safety issue.
3. Drainage – substandard drainage works lead to constant blockages and also water flooding parts of the garden. Since connecting to the mains there had been the smell of sewage coming through the pipes.
4. Kitchen floor – the kitchen floor had to be leveled 5 times causing distress and inconvenience. The landlord also removed the kitchen to ‘install a defective one’.
5. Front and back door – during the leveling of the kitchen the floor height was raised which meant the doors were no longer flush.
On 16 August 2018, the landlord responded to the resident and stated that all of the outstanding repairs should be reported to the repairs department. The resident stated that this was not good enough and would be making a formal complaint.
On 13 December 2018, the landlord’s contractor attended the property and ensured that the doors were flush and fixed a locking mechanism on the backdoor.
On 7 March 2019, the landlord’s contractor attended to unblock the drain at the property and investigate the standing water in the backyard.
On 18 April 2019 and 7 May 2019, the landlord attended the property to carry out repairs to the kitchen. This included further works to the floor and the reactive kitchen renewal.
Between 7 August 2019 and 3 September 2019, plumbers attended the property of three separate occasions to carry out unspecified works at the property.
On 25 September 2019, the landlord wrote to the resident and highlighted that the following works would to be carried out on 26 September 2019:
1. Check the wastepipe for leaks and odor and remove redundant wastepipe from the rear of property.
2. Carry out plasterworks to the kitchen behind the radiator and cupboard.
3. The resident was offered a replacement floor covering for the kitchen as well as £26 disturbance fee for the heater installation in 2015. It also offered £87.50 in decoration vouchers and £60 disturbance fee.
4. It highlighted that the level of the backyard was acceptable and no further works would be carried out and there would be no payment to the resident for loss of earnings.
On 28 September 2019, the resident complained to the landlord about the drainage issues at the property including smell coming from the pipes and that the backdoor would not close.
On 11 October 2019, the resident made a formal stage one complaint to the landlord about the issues that were previously raised in paragraph 18 above. The landlord informed the resident that they would provide a response within 10 working days.
On 22 October 2019, the landlord wrote to the resident and issued a stage one response to several issues that she had at the property. The landlord addressed the following:
1. It agreed to reimburse the resident for the replacement of linoleum in the kitchen plus a £55 disturbance payment and a £60 allowance for decoration. It also offered £110 for retrospective disturbance payments for works carried out at the property from 2015-2017. Additionally, it offered the resident £240 in vouchers for the redecoration of the property not including the £60 offered for kitchen redecoration.
2. Conduct of the roof contractor – it apologised for the ‘inexcusable’ behaviour and stated that the contractor should not have risked the health and safety of the children by allowing them to play on the scaffolding and should not have been working unsupervised or without permission or appointment. The contractor had also been subsequently dismissed.
3. Radiators – it agreed not to relocate the radiator in the kitchen and advised that the plastering repairs were completed on 26 September 2019. It addressed the radiator in the loungeroom not being level and stated that ‘it was installed this way by design’ and that they were incapable of heating to the temperature in which it can burn through clothes.
4. Drainage –it acknowledged works performed at the property in relation to the roofing, drainage including alteration of pipework. The landlord agreed to a joint site meeting with its contractors going forward in order to come to a satisfactory resolution of the drainage issues and wet areas in the garden. It advised that the ‘careless workmanship to the cladding and downpipe would be rectified at the contractors next visit’.
On 9 December 2019, the resident contacted the landlord and asked for the complaint to be escalated to stage two of the landlord complaints procedure.
On 31 January 2020, the landlord issued the resident with its final stage two response. It stated that the complaint by the resident was a duplicate of issues the resident raised and that it responded to on 22 October 2019. It informed the resident that as there was no change or addition to the original complaint and advised the resident to refer to the original complaint response dated 22 October 2019.
On 7 February 2020, the resident attempted to make a formal stage one complaint to the landlord regarding issues previously raised in paragraph 18 above. The landlord rejected the complaint and highlighted the residents escalation options to the Housing Ombudsman.
This service spoke with the resident who confirmed that there were still ongoing issues with the drainage at the property. The linoleum in the kitchen had not been replaced and she wanted a formal apology from the landlord regarding the contractor attending the property without prior notice.

Assessment and findings

The drainage at the property and standing water in the garden.

The resident raised historic issues of damage to the roof and guttering at the property which had led to the moving of a downpipe and standing water in the garden and a bad smell emitting from the pipes. The landlord has an obligation under the tenancy agreement to make the appropriate repairs. It is clear from the evidence provided that there was a significant delay in rectifying the issue at the property.
Evidence provided suggests there were repairs to the roof and the repositioning of the drainage pipe that were carried out in July 2015. The resident advised the landlord in January 2017 that this repositioning caused water to pool in her backyard. The landlord investigated the issue and had contractors attend in March and April 2017. The resident raised continued problems with the drainage in July 2018 but there was a significant unexplained delay by the landlord in responding to further complaints and further works were not carried out until 26 September 2019. The landlord failed to take a resolution focused approach in completing the repairs at the property within the required 56 working days as required by its repairs policy. Its actions were not in line with tenancy agreement or repairs policy.
The landlord did appropriately offer the resident £110 as a retrospective disturbance allowance for works caried out from 2016-2017 however the landlord failed to offer further compensation going forward for the delay in addressing the issue from 2018-2019. The landlord advised in its stage two response that it would conduct a joint site meeting with its contractors in order to satisfactorily resolve the drainage issues and wet areas in the garden. There is no evidence to suggest that this ever occurred and the resident was still experiencing issue with standing water at the property at the time the resident made a complaint to this service. Accordingly, the landlord failed to take the approprate steps to address the ongoing drainage issues at the property which caused the resident further distress and inconvenience.

Works to the kitchen floor and the fitting of the radiators at the property

There were ongoing historic issues with the kitchen at the property which required contractors to attend on several occasions. The evidence suggests that the installation of a new kitchen damaged the flooring and meant that radiators needed to be refitted.
Both parties accept that there was historic damage to the kitchen floor at the property, the landlord performed the required works in 2016 however it failed to replace the damaged lino flooring. The resident raised the issue in a complaint on 13 July 2018 and the landlord responded even though the complaint was raised more than six months after the works were performed. The landlord took a resolution focused approach and offered to reimburse the resident for the replacement lino flooring and a £60 disturbance payment for the distress and inconvenience caused. The landlord also offered a further decoration allowance and vouchers to the value of £240 to redecorate the property in line with its tenancy agreement. The landlord’s offer of compensation and decoration allowance was reasonable and sufficient to put right the distress and inconvenience caused to the resident.
The resident complained that there were issues with the fitting of two radiators at the property as a direct result of the works to the kitchen. The resident raised that she did not want the radiators moved and that they were not level and caused cracks in the plaster. The landlord took a resolution focused approach and agreed not to relocate the radiators and sent a technician out to assess the level and fix the damage to the plaster. The landlord also appropriately included these works in the £110 disturbance payment as mentioned in paragraph 27 above. Although there was some delay, the works that needed to be performed were minor in nature and did not have a major adverse effect on the resident. Therefore, the compensation amount of £110 that was awarded was in line with the tenancy agreement and sufficient to put right the distress and inconvenience caused to the resident.

Contractors attending the property without prior notification and breached health and safety standards.

The resident raised that a contractor attended the property without prior notification and started performing works causing great distress to her pet dog. Under section 4.9 of the tenancy agreement ‘if the landlord needs to carry out work at the property it will give the resident reasonable notice’. The landlord did not deny that it’s contractor attended the resident’s property and highlighted that ‘had it known it never would have been approved’. The landlord failed to act in accordance with its obligations set out in the tenancy agreement by failing to give notice to attend the property. The landlord did investigate the matter and the individual at fault was subsequently dismissed. It assured that going forward the resident would be contracted before any future visits and apologised for any distress or inconvenience caused. The landlord however failed of offer compensation for the acknowledged failure and for the distress that it caused to the resident.
The resident also highlighted that the contractor allowed children to play on the scaffolding which is a direct breach of the health and safety standards. The landlord appropriately undertook a review of the matter and found the behavior ‘inexcusable’ and the contractor was subsequently dismissed. This was communicated to the resident in the landlord’s stage one response in line with its complaints policy. The landlord appropriately apologised to the resident and reassured her that an appointment process would be followed by all contractors attending the property going forward. Accordingly, the landlord took reasonable steps to deal with the reports of the health and safety standards.

The landlord complaints handling

There has been confusion in regards to this matter as the resident made an identical complaint to the landlord on 13 July 2018 however she did not raise it as a formal complaint until 11 October 2019.
The landlord operates a two-stage complaints policy, if the resident made a complaint at the first stage the landlord should formally respond within 10 working days. The documentation provided shows the initial complaint by the resident was made on 11 October 2019 and the landlord supplying a formal response on 22 October 2020, in line with its complaints procedure. The resident asked for a review of the decision on the 9 December 2019.
The landlord progressed the complaint and provided its stage two review on 31 January 2021. This represents a 14-working day delay in the landlord providing the resident with its stage two response. It failed to provide any explanation for the delay in providing the response and the length of time that passed was not appropriate or in line with the landlord’s policies and caused distress and inconvenience to the resident. The resident attempted to raise the same complaints with the landlord at stage one on a further occasion, the landlord appropriately advised the resident that it had investigated the complaint previously and would not investigate the same complaint again in line with its complaints policy.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect to the complaint about the landlord’s response to the resident’s reports about the drainage at the property and standing water in the garden.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme the landlord made an offer of reasonable redress to the resident in relation to the amount of compensation offered for works to the kitchen floor and doors and the fitting of the radiators at the property.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect of the complaint about the contractor attending the property without prior notification and breached health and safety standards.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect of the complaint about the landlord’s complaint handling.

Reasons

The landlord had an obligation to repair the drainage at the property and to ensure that there was no standing water in the back yard. It was made aware of the issues by the resident and failed to have it properly rectified within a reasonable timeframe as per its repairs policy. The landlord’s offer of redress was not sufficient to put right the distress and inconvenience caused to the resident for this part of the complaint.
The landlord was obligated to perform the works to the kitchen at the property and in doing so caused damage to the linoleum and required the radiators to be refit. The landlord appropriately agreed to replace the linoleum plus £55 disturbance payment and a total of £300 in vouchers to redecorate the property. The landlord also offered a £110 disturbance payment for the inconvenience relating to the refitting of the two radiators. The landlord’s offer of compensation and decoration allowance was reasonable and sufficient to put right the distress and inconvenience caused to the resident.
It was accepted by both parties that there was a failure on the landlord’s behalf in not notifying the resident that a contractor was coming to perform works. The landlord appropriately apologised and has taken steps to ensure that this failure does not occur again however it failed to provide the resident with any compensation for the distress that she experienced. The landlord dealt with the breach of the safety standards in a reasonable manner.
The complaints handling by the landlord was not in line with its internal policies. The landlord failed to complete the stage two of the complaints procedure within the correct 15-day time frame and failed to adequately communicate with the resident about the delay.

Orders and recommendations

The Ombudsman orders the landlord to pay the resident compensation of £250 comprising:
1. £100 in respect of the distress and inconvenience experienced by the resident in relation to the complaint about the drainage at the property and standing water in the garden.
2. £100 in respect of the distress and inconvenience experienced by the resident in relation to the contractor attending the property without prior notification and breached health and safety standards.
3. £50 in respect of the distress and inconvenience experienced by the resident as a result of the highlighted complaint handling delay.
The landlord is to inspect the drainage and standing water at the property within 28 days if it has not already done so and perform the required repairs in line with its repairs and maintenance policy.
The landlord is to make this payment to the resident within four weeks and to update this service when payment has been made and any repairs completed.

Recommendations

The landlord reoffers the resident the £165 disturbance allowance and £300 vouchers for the decoration of the property.
The landlord to replace the linoleum in the property or the resident to provide the landlord with a receipt for reimbursement.
The landlord to make a formal apology to the resident for the distress caused regarding the contractor attending the property without prior notice.
The landlord to take steps to ensure that its repair staff and contractors give appropriate notice to residents when attending their property to perform works.