Lambeth Council (202106326)

REPORT

COMPLAINT 202106326

Lambeth Council

9 May 2022

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 the landlord’s handling of the resident’s reports of damage to kitchen flooring and cold draughts from the kitchen and the bedroom windows.

Background

2. The resident is a secure tenant of the landlord. The property is a flat in a block of flats. The resident suffers from physical health problems to his joints. He has stated that his condition is due to the cold and draughts caused by insulation concerns within his property.
3. In January 2021, the resident contacted the landlord to raise concerns that the kitchen in his property is ‘at a store room or cellar like temperature’, gets very cold and it is without a radiator. He also stated that the bedroom is humid at night which impacts the resident’s physical health and overall wellbeing. The resident had informed the landlord that the property remained cold and so he kept the central heating on for around ten hours a day which included a segment throughout the middle of the night.
4. The resident had mentioned that, as a result of heating issues within his property, his health condition had worsened, and he experienced sharp pains in his right shoulder, elbow and right hand. The pains were worse in the winter. To prevent further deterioration of his condition, the resident requested for insulation material to be installed on the window in the wall bedroom and for a radiator to be fitted in the kitchen.
5. In January 2021, the landlord raised a work order for a list of jobs to be carried out which included assessing the condition of all windows for repair as well as the fitting of a new radiator in the kitchen. There was no correspondence between the landlord and resident until March 2021, when landlord’s contractor attended to fit the new radiator.
6. On fitting a new radiator in the kitchen, the contractor had burnt the kitchen flooring, as they hung the radiator three inches higher than it normally would be, damaging the linoleum under the kitchen worktop in the process. The location of the damage was behind a kitchen door.
7. In April 2021, the landlord’s contractor contacted the resident to address the resident’s concerns regarding draughts coming from the windows. It informed the resident that following the visit in March 2021, the contractor had concluded that minor works were to be carried out but was of the view that eventually new windows needed to be fitted and scaffolding needed to be erected to facilitate this. The resident then informed the landlord that the contractor had caused damage to his kitchen flooring. The resident received a letter from the contractor’s liability insurer in April 2021 confirming that it refused to replace the linoleum but had agreed to offer £50 in compensation as a ‘goodwill gesture’ on the basis that the area of damage was behind the kitchen door and was not visible. The resident remained dissatisfied with this response and so in May 2021, the resident had raised a claim with the landlord’s own liability insurer for the flooring to be replaced.
8. There was no further correspondence from the landlord until June 2021 when the resident was informed the windows were to be replaced and works were to be arranged. The resident did not hear from the landlord until November 2021 when a contractor visited the property to carry out minor works which the resident confirmed did not resolve draught issues he had initially raised. There was also no further mention of replacing the windows.
9. The complaint was escalated, whereby the landlord issued its final response in July 2021. It explained that it had not been negligent in any way and could not be held liable for the negligent acts or omission of an independent contractor and that it would repudiate any claim made against its insurer. The landlord suggested that any claim to the landlord’s liability insurer would not be upheld. The landlord also stated that it had obtained the services of a reputable contractor which had its own insurance in place for any injury or damage its operatives may cause. It concluded its final response by suggesting that the only way for the resident to obtain ‘new’ kitchen flooring would be if the resident had contents insurance and claimed through his own insurer or to sought legal advice.
10. The resident referred the complaint to the Ombudsman as he said he wanted the draughts to windows to be remedied and for the kitchen flooring to be replaced by the landlord.

Assessment and findings

Scope of Investigation

11. The resident has referenced how the landlord’s failure to repair outstanding issues has impacted his health. Whilst we do not doubt the resident’s comments, it is outside the role of the Ombudsman to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more appropriately dealt with as a personal injury claim through the courts or the landlord’s liability insurer. Nonetheless, consideration has been given to the general distress and inconvenience which the situation affecting his property may have caused the resident. This is an accordance with paragraph 39(i) of the Housing Ombudsman Scheme which says the Ombudsman will not investigate complaints which 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.
12. The resident raised concerns to this Service that the contractor’s liability insurer had refused to replace the kitchen flooring. The Ombudsman is unable to comment on the outcome of an insurance claim as this Service can only consider the actions of the landlord. The Ombudsman has no jurisdiction over insurers and therefore, the Ombudsman cannot look at insurance concerns raised by the resident. However, we can look at the way in which the landlord handled the repairs and subsequent complaint.

Policies and Procedures

13. The landlord’s compensation policy says if the complaint is upheld, the primary aim will be to apologise, and make good to put the matter right. The landlord can do this by practically finding a solution or providing value for money.
14. The landlord’s remedies menu says that the landlord aims to ensure that the remedy puts the complainant back in the position that he or she would have been in but for the service failure.
15. The landlord’s repairs policy says the landlord aims to fix the issue reported within 28 working days.
16. The landlord’s repair service standards says our contractor must adhere to our service standards and apologise if things go wrong and to put it right quickly.

Damage to the kitchen flooring

17. The landlord’s complaints policy, as set out above, refers to the landlord aiming to put things right for the resident. The landlord did not provide a resolution for the resident, instead it suggested the resident communicate directly with the contractor’s liability insurer to seek his desired outcome for the flooring to be replaced or for an increase in compensation. This Service would have expected the landlord to offer to replace the damage caused to flooring by its contractor or to have referred the matter to its own liability insurer when the contractor’s insurer declined the claim. Further to this, the landlord’s repairs policy refers to it fixing an issue reported within 28 days. The landlord’s final response to the complaint was issued two months following the resident reports of damage to the flooring. This response did not fall within the landlord’s repair policy timescales in addressing the issue within 28 days.
18. The landlord had therefore failed to adhere to its obligations as set out in both its repairs and complaints policy. The landlord said it was not responsible for the actions of its contractor. This is not in line with the Ombudsman’s established view and industry best practice which is that landlords are responsible for the actions of contractors they employ in the same way that the landlord would be responsible for its own staff. The contractor in this case was not acting independently, it was acting under instruction from the landlord. As the landlord was responsible for the contractor’s actions it was responsible for putting right any damage caused by the contractor. The landlord would be entitled to refer a claim for damages to its liability insurer rather than settling the claim itself. Landlords are entitled to use liability insurance as a means of managing such costs.

It was reasonable for the landlord to refer a claim to the contractor’s liability insurer in the first instance as the contractor had caused the damage. However, once the contactor’s insurer had declined the claim, the landlord should have either paid for the damaged flooring itself or referred the claim to its own liability insurer. It was not appropriate for the landlord to tell the resident that its insurer would decline any claim. The decision on the claim should be left to the insurer to make and it was unreasonable for the landlord to pre-empt this decision. This has been considered by the Ombudsman when assessing compensation, as detailed further below.

Draughts from kitchen and bedroom window        

19. The landlord’s repairs policy provides for a 28-day timescale for routine repairs to be carried out. In January 2021, the resident asked for thermos board insulation to be installed in the bedroom window walls to prevent draughts from coming into the property and causing further damage to his health. It was not until April 2021 when the landlord contacted the resident to arrange for its contractor to carry out repairs to the window. Works were not started until November 2021.
20. There was a significant ten-month delay in the contractor attending to carry out the window works and it is not clear whether the works carried out have resolved draughts from the windows. The landlord has not provided an adequate explanation for the ten-month delay in completing the work and therefore the Ombudsman can only conclude that this delay was unreasonable. The resident has mentioned that the thermos board installation is an outstanding issue as the landlord had made no mention in its complaint responses of whether this was to be fitted. The landlord should therefore correspond with the resident to either arrange for the insulation to be fitted now or provide an explanation as to why it cannot be fitted.
21. The available evidence suggests that the landlord did not keep the resident updated concerning the progress of the repairs. The landlord should have considered prioritising the insulation work in view of the resident’s medical issues and the effect of cold on this. However, there is no evidence the landlord considered this.
22. From correspondence between the landlord and resident, it appears the resident was waiting for a surveyor’s inspection which this Service cannot determine has been carried out. Once the survey is completed (if it has not already been carried out) the landlord should arrange for the windows to be repaired or replaced in line with the surveyor’s findings. Although it is reasonable to attempt repairs rather than arranging for a replacement of windows in the first instance, the landlord should note that the repair needs to be of good standard and should be a lasting repair. If the repair needs to be redone after a few weeks or months, then replacement windows should be considered as the windows cannot be successfully repaired. It would be unreasonable to attempt multiple repairs over a short space of time as this would cause excessive inconvenience to the resident.
23. It would be appropriate for the landlord to provide compensation to the resident in the range of £400 for the distress and inconvenience caused by its handling of the damage to the kitchen flooring and delays and poor communication concerning the window repairs. This is in line with the Service’s remedies guidance (published on our website), as well as the landlord’s own compensation policy which suggests compensation of up to £500 as a remedy where there has been an adverse effect on the resident due to the landlord’s failure.
24. The Ombudsman’s remedies guidance suggests awards of between £250-£700 where there has been service failure by the landlord which had an impact on the complainant and may have significantly affected the overall outcome for the complainant. Examples include: failure to address all relevant aspects of the complaint, leading to considerable delays in resolving the complaint and significant failures to follow complaint procedures. In this case, the delay in completing repairs to the resident’s windows as well as the failures in refusing to acknowledge the damaged kitchen flooring, in addition to, poor communication and lack of accountability taken by the landlord were unreasonable and would have caused significant distress and inconvenience to the resident as he had to chase the landlord for updates on multiple occasions.

Determination

25. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord its handling of the resident’s reports of damage to the kitchen flooring and cold draughts from the kitchen and bedroom windows.

Orders

26. The landlord is ordered to carry out the following actions within four weeks from the date of this decision:

a. Pay the resident a total of £400 compensation. This is not inclusive of the contractor’s insurers offer to pay the resident £50 as a ‘goodwill gesture’ for damage caused to the kitchen flooring as this is a separate payment offered by the contractor’s insurer.

b. Arrange for a surveyor to inspect the condition of all windows (unless such an inspection has already taken place). The landlord should share the findings of the inspection with the resident and this service. The landlord should carry out any repairs/replacement of the windows identified as necessary following the inspection in line with the timescales in the landlord’s repairs policy.

c. Pay appropriate compensation for the damage to the resident’s kitchen flooring or to submit a claim to its own liability insurer for this damage.