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Havering Council (202112338)

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REPORT

COMPLAINT 202112338

Havering Council

25 July 2023

 

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

  1. The complaint is about:
    1. The landlord’s handling of the refurbishment of the balcony at the property.
    2. The landlord’s complaint handling.

Background and summary of events

  1. The resident is a leaseholder of the landlord at the property, which is a 1-bedroom ground floor flat. She commenced the Right to Buy lease in 5 February 2018.
  2. The complaint arose during planned regeneration works undertaken by the landlord to a number of its properties and their communal areas, which began in April 2021. The landlord employed a contractor to undertake these works on its behalf.
  3. The stage one complaint was made on 9 August 2021. The resident was unhappy about the state of the balcony, which had previously suffered water damage. She was concerned that the proposed works would not address this as she understood the intention was simply to paint and not repair. She referenced a previous occasion where repointing work undertaken on the balcony was of a poor standard.  She also raised concerns about contractor behaviour on site, describing it as “rude”. The landlord responded on 23 August 2021 and the complaint was not upheld. The landlord stated that the works on the balcony had not commenced and therefore the standard of work could not be judged at this point. It further found that there had been no inspection of the balcony so it could not assess whether the wider works the resident was requesting were justified. It went on to explain that the quality of the repointing of the brickwork was completed over a year ago and therefore could not now be investigated. The landlord also concluded that there was insufficient evidence of poor contractor behaviour to investigate.
  4. The resident responded to the findings at stage one by requesting an escalation to stage two on 27 August 2021. While she accepted that the works had not yet started, she had enduring concerns about the proposed works, which seemed to her to focus on temporary redecoration rather than necessary repair of the structure. She raised further concerns about the behaviour of the contractors who she said had broken down her garden fence to access her garden, instead of using the scaffold as previously agreed. This had left her garden unsecured. She was also unhappy about the fact that the cover of her bathroom extractor had been broken and left in the drain. Despite the escalation request, the landlord treated this complaint as a separate stage one complaint and responded on 5 January 2022. This complaint was partly upheld in relation to the delay in complaint handling and the upset caused by the contractors. The landlord offered the resident £50 as a good will gesture. The other aspects of the complaint in relation to the quality of completed works were not addressed, with the landlord restating that access was required in order to complete the works on the property.
  5. The resident once again requested escalation to stage two, and restated her dissatisfaction with the behaviour of the contractors. She was also unhappy that the landlord had not arranged for an inspection of the balcony. She further raised concern about the fact that her initial request to escalate to stage two had not been actioned, with another stage one complaint being opened instead. The landlord responded on 12 August 2022 and the complaint was not upheld in any respect. The landlord maintained that the decision in January 2022 to open a new stage one complaint was correct. It concluded that the issue was a breakdown in the relationship between the contractor and the resident and that, as the landlord, it had taken appropriate steps to mediate between both parties. It considered that there was evidence that the resident’s behaviour had been “unreasonable”. It found that no judgement on the quality of the works could be made as these works were not yet complete and considered that it was the resident’s refusal to allow access to her garden that had caused the delay. The landlord requested unrestricted access in order to complete a full risk assessment prior to restarting works.
  6. The landlord indicated that it was preparing to initiate legal proceedings against the resident in a letter dated 22 April 2022. However, these have not progressed and there is no ongoing legal action in relation to access to the property.

Assessment and findings

Scope of investigation

  1. In assessing this case, the Ombudsman notes the significant dissatisfaction expressed by the resident in relation to the wider regeneration program undertaken by the landlord, which encompassed works on a number of properties and improvements to communal areas. This investigation will confine itself to the complaints that the resident made in relation to her own residential property.
  2. The resident also raised concerns about the repointing of brickwork that was completed at the property some time before the regeneration program started. This investigation has primarily focussed on the landlord’s handling of the refurbishment of the balcony from April 2021 onwards and not historic issues. This is because residents are expected to raised complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues whilst they are still “live”, and while the evidence is still available to reach an informed conclusion on the events that occurred. However, the Ombudsman will assess the appropriateness of the landlord’s response to these concerns where they are relevant to the current complaint about the handling of the balcony refurbishment. If the resident considers that there are specific and current issues with the repointing of the brickwork and how it was carried out in the first instance, she could report these to the landlord, raising it as a repair, and then make a formal complaint if she was not satisfied with the response.

Handling of the refurbishment of the balcony at the property

  1. The contractor wrote to the resident to inform her of the works on 15 April 2021. It explained that there would be scaffolding erected in the garden on 15 and 16 April 2021 and works on soffits, facias and rainwater goods would commence on 26 April 2021. This was followed by a further update on 7 May 2021 that informed the resident that work would start on the external brickwork. It was anticipated that this would take 4 weeks.
  2. On 3 June 2021, the resident telephoned the landlord to complain about the standard of work carried out by the contractor. The resident had studied the refurbishment of the balcony of the property above her own. She raised a concern that faults in the brickwork and previous damage from water ingress were simply being painted over instead of being repaired first. As she later explained, “My balcony has had extensive water damage caused by an ill-fitting rain water down pipe which took many years for the council to acknowledge and do something about. My balcony is in a very bad state of disrepair…. so like the balcony upstairs, someone is just going to slap lots and lots of paint over it to hide the damage which can still be seen from the path!!!!!”. There was a record made by the landlord that indicated that the resident would be contacted to discuss the matter further but no further detail is provided in the correspondence bundle provided by the landlord. The resident followed this initial verbal complaint up with an email on 9 June 2021 that restated her concerns.
  3. On the same day (9 June), the landlord wrote to the resident and referenced a “heated discussion” on site between the resident and two members of contractor staff. The landlord informed the resident that “this is not acceptable behaviour and is in breach of your lease obligations”. The landlord gave the resident a weblink to an online complaint form to complete if she had concerns about the works being undertaken.
  4. The landlord missed an opportunity at this point to visit the property and establish with the resident the exact nature of her concern. By issuing a formal letter at this early stage, the resident felt that her concerns were not acknowledged and it had the effect of funnelling much of the subsequent discussion into a disagreement about access.
  5. The Ombudsman further considers that the landlord’s approach to the concerns raised by the resident centred on telling her that she couldn’t complain about the works before they had been completed. This just served to increase the resident’s frustration.  The landlord did not take sufficient proactive steps to work with the resident, visit the property and establish the basis for her concerns. At one stage the contractor suggested that the resident was trying to avoid paying for the work but there is nothing in her correspondence that would support that view.
  6. On 8 September 2021, the contractors accessed the resident’s property when she was away on holiday. She was able to view the works they undertook by rewatching footage from her security camera. The resident considered that her fears in relation to the quality of the works had been realised and stated: “roughly 30/40 minutes have been spent on my balcony painting over the damage and digging out a small bit of repointing”. She considered this work to be substandard and inadequate.
  7. The resident raised a further concern on 8 September 2021 about a contractor urinating in the garden and making offensive comments about her property, which she said were captured on the video footage.
  8. In addition to this incident, there were other altercations on site between the resident and the contractors, which resulted in them refusing to complete further work at the property. The resident was particularly upset with one interaction that she detailed in a complaint on 14 September 2021. She alleged that a member of the contractor’s staff told her that the garden didn’t belong to her, spat on the floor and “was “extremely rude and forceful towards me, as if trying to humiliate me!”
  9. The landlord in its first stage one response on 23 August 2021 stated that it couldn’t draw a conclusion about contractor behaviour and asked the resident for more information. There is no further documented action on this recorded in the file. However, in the second Stage 1 response on 5 January 2022, the landlord apologised for “the upset caused by our contractors” and at Stage 2 “acknowledged there had been some unacceptable behaviour”. It seems that the landlord accepted that contractors did behave poorly at times however it is the Ombudsman’s view that the focus very much remained on how “difficult” the resident was perceived to be, preferring to place the blame for the breakdown in the relationship on her, rather than working to address the situation with the contractor.
  10. In relation to the question of access to the property, the landlord had the right to agree a programme of works and to complete the refurbishment of the balcony. This was detailed in the lease which stated that the landlord could carry out “such works to the Building and the Estate as the Lessor may consider necessary or expedient.” Further, the lease confirmed the rights of the landlord to access to the property, with 7 days written notice: “….for the purposes of…”inspecting, repairing, replacing, improving, maintaining, decorating or renewing any part of the building…”
  11. Such access was necessary as the landlord was completing a programme of refurbishment works at the property, which included works on the balcony.
  12. However, a difficulty arose in relation to the access to the property in June 2021. The property was a ground floor flat and there was no gated access to the garden and balcony. The resident herself was only able to access the garden through her flat. The resident remained adamant throughout the course of this complaint that she had agreed verbally with the contractor that access would, by necessity, be via the scaffold erected around the whole block of flats. A gate was installed in the scaffold for this purpose in early September 2021.
  13. However, there seems to have been a breakdown in communication between different staff and contractors at one point took down the resident’s garden fence in order to access the property, leaving the garden unsecured. The resident was very distressed by this as she felt vulnerable after a previous burglary and was very upset that the fence was removed without discussion or consent. The landlord has consistently maintained that the resident “refused” access to the property, however it is the view of the Ombudsman that this was not evident in her written correspondence. She repeatedly emphasised that she was very unhappy about how the access to her property was achieved but there did not appear to be a point-blank refusal to allow access at the outset. On 9 August 2021 the resident wrote to the landlord via email and stated “I have just spoken to (the contractor) who informed me earlier that they will be putting a ladder from the scaffolding into my garden, which is fine.” The Ombudsman considers that this demonstrates that the resident was willing to work with the contractor to achieve access to her garden and balcony before the relationship with the contractor broke down.
  14. The landlord’s communication with the resident was unreasonable as it did not address her concerns about the proposed balcony works. It was also unreasonable that the landlord did not install the gate in the scaffold earlier. The fact that it was not installed until September, three months after initial access was sought meant that tensions were heightened and this impacted on the relationship between the resident and the contractor.
  15. Overall, the Ombudsman considers that the failure of the landlord to mediate effectively between its contractor and the resident led to conflict and the breakdown of trust. Its subsequent failure to identify its responsibility to facilitate this relationship and its lack of full apology in this regard means that this amounts to maladministration.

Complaint Handling

  1. There were significant delays in the complaint handling process. These delays meant the resident’s frustration grew and the situation escalated to the point where the contractors refused to attend the property.
  2. The landlord’s complaint policy stated that stage one complaints must be acknowledged in three days and responded to within 10 days. The resident first raised a formal complaint on 9 August 2021. The landlord responded on 23 August 2021 and did not uphold the complaint. This was 11 working days after the complaint was raised, one day outside the expected timeframe.
  3. Once the resident requested to escalate the complaint to stage 2, the landlord did not follow its Complaints Policy. This states that “If the customer is dissatisfied with the outcome of the Stage 1 investigation, there is opportunity to request the complaint be reviewed by the Chief Executive, which is Stage 2 of the Complaints Policy and Procedure…… The request should be acknowledged within three working days and a full written reply sent within 25 working days.”
  4. The resident made a request to escalate the stage one complaint on 27 August 2021. She stated in her email to the landlord: “I would like to escalate to a stage two complaint please. As I do not believe the standard of works that have been carried out so far are of a standard that says regeneration, especially when these works are going to have to last for many years and we all have to live with it.” Whilst the resident did introduce some additional issues, such as the damage to the bathroom extractor fan, the request was clearly to escalate the existing complaint. The resident went onto repeat the request to escalate on 3 September 2021 and 14 September 2021
  5. The landlord responded on 14 September 2021 but instead of escalating the complaint to stage two, it instead opened a new stage one complaint. Its reasoning for this, detailed in the eventual response to this complaint on 5 January 2022, was that the substance of the complaint made on 14 September 2021 was sufficiently distinct from that made on 9 August 2021. The Ombudsman does not agree with this assessment as this second complaint centred on the same issues identified in the first complaint. These were the quality of the work being completed and the behaviour of the contractor on site. Whilst the work had now started on the resident’s property, the nature of the complaint was not so substantially different as to merit restarting the complaint at stage one.
  6. According to the landlord’s Complaint policy, a stage one complaint should have a response in 10 days and a stage two complaint should have a response in 25 days. The complaint made by the resident on 14 September 2021 was not responded to until 5 January 2022, 79 working days later and well outside the expected timeframes. The landlord accepted that there had been delays in the complaint handling process alongside upset caused by the contractors on site. It offered compensation of £50 in this respect alongside an apology. However, this is not, in the Ombudsman’s view, sufficient, given that the mishandling of the complaint resulted in such significant delay and caused the resident to incur further time and trouble.
  7. This delay persisted as the resident went on to again request to escalate the complaint to stage 2. This request was made on 5 January 2022 but the resident did not receive a response until 12 August 2022. This was 153 working days later. The landlord did not provide any updates to the resident on the progress of the complaint during this time.
  8. There was therefore maladministration by the landlord in its complaint handling. Ombudsman considers that the significant delays in the complaint handling process compounded the frustration of the resident and contributed to the tension between her and the contractor and landlord. Had the complaint been handled in line with policy, this escalation could have been avoided.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s handling of the refurbishment of the balcony at the property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s complaint handling.

 

 

Orders and recommendations

Orders

  1. The landlord to pay a total of £450 in compensation within 4 weeks of the date of this report. This is in recognition of the failures relating to the case, broken down as follows:
    1. £300 for the distress and inconvenience incurred by the resident as a result of the landlord’s handling of the refurbishment of the balcony.
    2. £150 for the time and trouble incurred by the resident as a result of the landlord’s complainthandling.
  2. Within 4 weeks of the date of this report the landlord to write to the resident to apologise for the mishandling of the refurbishment of her balcony and the delays in the complaint handling process.
  3. The landlord, within 4 weeks of this determination, to arrange for an inspection of the condition of the balcony and agree any necessary works with the resident. Any agreement must address the issue of access to the garden.

Recommendations

  1. The landlord to conduct a full review of its complaint handling policy and process, with particular attention to the criteria for escalation between different stages.