Lambeth Council (202205445)

REPORT

COMPLAINT 202205445

Lambeth Council

29 May 2024

(Updated following review on 4 October 2024)

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 resident’s complaint is about the landlord’s handling of:
1. Leaks, damp and mould in his property.
2. His reports of subletting and antisocial behaviour (ASB) in the flat above.
The Ombudsman has also assessed the landlord’s complaint handling.

Background

The property is a 1 bedroom ground floor flat within a converted two storey house. The resident is the leaseholder of the property. The flat upstairs is let to a tenant of the landlord. The 2 flats share a communal entrance and hallway.
The resident says that he had reported leaks from an overflow pipe in the upstairs flat since 2017. In January 2020, the resident arranged a damp survey of his property. He says this highlighted “areas of concern” with the structure and exterior, which he shared with the landlord. The landlord sent its own contractor to conduct a survey in March 2021. This was significantly delayed due to the COVID-19 pandemic.
In June 2021, the tenant of the flat upstairs moved into a care home for an undetermined period. Her tenancy at her flat remained ‘live’. On 16 August 2021, the resident emailed the landlord to raise concerns about people trying to access the flat upstairs. On 4 October 2021, the resident informed the police that he believed a relative of the tenant may be subletting the flat. The police passed these concerns on to the landlord to investigate.
The resident made his complaint to the landlord on 6 February 2022. He expressed dissatisfaction that the landlord had not addressed the recurring leaks or the “significant structural damage” he said they had caused. The resident also said he was experiencing noise nuisance and harassment from the occupants of the flat upstairs. He asked the landlord to arrange a survey of the entire building and produce a report and schedule of works by April 2022.
The landlord provided its stage 1 complaint response on 7 November 2022. It said that it had traced and repaired the leak in April 2022. The landlord said it was currently reviewing a second damp survey conducted by its contractor. It told the resident it would arrange any works identified by this. The landlord said that it was investigating the issues with the upstairs flat. It asked the resident to continue recording incidents on diary sheets but said that “when living near others a certain level of noise is to be expected”. The landlord offered the resident compensation of £700 for “delays and inconvenience” in the repairs.
The resident asked to escalate his complaint on 2 January 2023. He said he felt the compensation offered did not reflect the time and trouble he had taken pursuing matters, or the landlord’s poor communication and lack of action. He accused the landlord of not dealing with the multiple “unregistered, unvetted occupants” of the flat above for over a year. He said it had ignored his concerns about his “safety and security”.
The landlord provided its stage 2 complaint response on 7 February 2023. It acknowledged that the resident had made several previous complaints and expended considerable time and effort trying to resolve matters. The landlord advised that it had raised a works order based upon its contractor’s damp survey, but that this was on hold whilst it followed the section 20 process. It said it had made “continuous efforts” to address the issues with the upstairs flat, but the case was complex and taking time. It increased its offer of compensation to a total of £1,050.
On 12 June 2023, the resident asked the Ombudsman to investigate his complaint. He said “unauthorised occupants” continued to access the flat above. He requested additional compensation for the impact of the landlord’s failure to address this. The resident also said that the landlord had still not completed repairs to address the damp or provided him with a schedule of works.
On 5 April 2024, the landlord told the Ombudsman that it had now approved the damp works recommended by its contractor’s survey. It said that due to a delay in it issuing the section 20 notice, it had “waived the section 20 requirement”.

Assessment and findings

Scope of the investigation

The resident made 4 complaints to the landlord across 2021 and 2022. Although the events subject to these complaints often overlapped, they were each addressed separately by the landlord. This investigation concerns the complaint outlined in the background above. Accordingly, only matters raised as a part of that complaint will be considered here.
The landlord’s complaints policy says that it will only accept complaints made within 12 months of an incident or circumstance occurring. It explains this is to ensure the complaint can be “properly investigated”. This is in keeping with the Ombudsman’s complaint handling code (the Code) which, at the time of the resident’s complaint, suggested a 6 month exclusion period.
This investigation will, therefore, assess only events in the 12 months leading up to the resident’s complaint. Although events prior to this may be referred for context.

Leaks, damp and mould

Under the terms of the resident’s lease, the landlord is responsible for maintaining the structure and exterior of the property. This includes the drainpipes, guttering and subfloor. The landlord is entitled to collect the costs of this maintenance from the resident through his service charge. Under section 20 of the Landlord and Tenant Act, the landlord must undertake a consultation with the resident for any works which require him to contribute over £250.
The landlord sent its contractor to conduct a damp survey of the property on 30 March 2021. This was in response to concerns raised in the resident’s own survey, carried out in January 2020. This Service has not seen a copy of either of these surveys.
On 9 August 2021, the resident emailed the landlord. He said that he had repeatedly been chasing it to complete repairs to the fabric of the building identified in the surveys. He said that his insurers were unable to arrange repairs to the inside of the property (required due to leaks and floods that occurred in 2019) until the landlord had completed these repairs. The resident says that the landlord did not respond to this email. The landlord has provided no evidence to dispute this.
The resident made his complaint on 6 February 2022. He expressed dissatisfaction that the landlord had made no progress in the 2 years since he provided his damp survey. He asked for the landlord to appoint a single point of contact to manage the repairs, carry out a full survey of the building, and provide a full report and schedule of works.
On 19 October 2022 the landlord sent a contractor to carry out a second damp survey. In its stage 1 complaint response, the landlord explained that it had raised a repairs order to its previous repairs contractor following the survey of 30 March 2021. However, their contract had then ended, and the work had to be re-raised to its replacement contractor.
The landlord’s current repairs contractor’s website states that their contract with the landlord began on 21 July 2021. The Ombudsman appreciates the complexities a change of contractor on this scale presents, and the inevitable knock on effect on the landlord’s repair services. However, a delay of over a year for the new contractor to conduct a damp survey is unreasonable under any circumstances. It is also unclear why the landlord arranged a further damp survey, rather than just re-raising the repairs the previous survey had identified.
The second damp survey found that the property was suffering from rising damp, high levels of condensation and mould. It recommended remedial works to the walls and sub floor to address this. The contractor also identified blocked guttering and a leaking overflow pipe which were causing “lateral moisture penetration” of the walls.
On 8 November 2022, the landlord raised an order to its contractor to carry out the works recommended by its survey report. However, it then put this order on hold so that it could follow the section 20 process – which would enable it to reclaim the costs of the work from the resident under the terms of his lease.
The landlord explained this to the resident in its stage 2 complaint response of 7 February 2023. However, at this point it had still not sent a section 20 notice (the first step of the process) to the resident.
Over a year later, on 5 April 2024, the landlord informed this Service that it had now waived the section 20 requirement and approved the works. This was an unreasonable delay which the landlord has not explained. It left the resident not only living with damp and mould in the property during this time, but also unable to arrange internal insurance repairs for the historical leaks.
There was a total delay of over 3 years between the resident providing the landlord with a copy of his damp survey and it approving works to remedy the issues identified. Although the Ombudsman acknowledges that delay was in part due to the impact of the COVID-19 pandemic on the landlord’s repair services.
The landlord’s final compensation offer of £1,050 cannot be said to provide reasonable redress for such extensive delays and the impact on the resident. Particularly considering the time and trouble he took in continually pursuing the landlord about the matter over the 3 year period.
However, the landlord’s decision to waive the section 20 process means that it is only able to recharge the resident a maximum of £250 for the repairs carried out. The contractor’s survey report quoted the total cost of works at £7,451.15 plus VAT. Assuming the resident would have been required to contribute 50% of this (as 1 of 2 properties in the building), the landlord has in effect waived charges of approximately £5,500.
Although this would represent reasonable redress on the matter, the landlord did not decide to waive these charges until after the resident had brought his complaint to the Ombudsman. As a result, a finding of reasonable redress is not appropriate. Therefore, a finding of maladministration has been reached but no further compensation awarded.

Reports of ASB

The resident first contacted the landlord about the upstairs flat on 16 August 2021. He reported that several different people had accessed the communal front door and tried to get into the upstairs flat. He asked the landlord who should have keys to the communal front door and whether the upstairs flat was “presently in use”. The resident says that the landlord responded to his email providing details on “how to report antisocial behaviour” but did not comment on any of his concerns.
On 10 September 2021, the resident contacted the local policing team. He reported further concerns about the upstairs flat and asked if the police could help him find out “what the situation is” with the flat. The police said they had passed his email to the landlord to investigate. The landlord has not provided any evidence that it responded.
On 4 October 2021, the resident informed the police of his belief that the upstairs flat may have been sublet. He described seeing a relative of the tenant visiting the upstairs flat with 2 other people and hearing noise from the flat the following day. The police passed the resident’s email on to the landlord again. The landlord contacted the resident the next day. It said it was investigating and would update him with its findings.
An internal landlord email of 5 October 2021 stated that it had referred the case “to the fraud team for investigation”. The fraud team is not part of the council’s housing directorate and so this Service cannot assess its actions. However, the landlord has failed to provide any evidence that it appropriately followed up this referral or sought updates from the fraud team at any point.
An email from the resident indicates that the landlord phoned him on 6 October 2021. During this call, it explained that the tenant’s relative had “legal access” to the flat above.
On 3 November 2021, the resident told the landlord that he had reported a late night party in the upstairs flat to the police on 24 October 2021. He said there had been regular comings and goings from the upstairs flat over the past few days. He also expressed concern that he had not been receiving his mail, and believed this may be being taken. On 8 November 2021, the resident emailed again. He said that since his last email there had been someone in the upstairs flat “day and night”. He described seeing several people coming and going, none of whom were the tenant’s relative.
The resident informed the landlord that the police had arrested a male in the upstairs flat on 23 November 2021. On 24 November 2021, another local resident contacted the landlord to report concerns about subletting of the upstairs flat.
The resident contacted the landlord on 5 January and 10 January 2022. He said there were now “3 or 4 people” sleeping in the upstairs flat and expressed concern that they had “taken over” the flat. He said he did not “feel at ease” in his home and was being disturbed in the night by noise from above.
The resident made his complaint on 6 February 2022. By this time, he had contacted the landlord at least 10 times to report concerns about subletting and noise from the upstairs flat. He said the noise was “disrupting my sleep affecting my work due to exhaustion”.
On 17 February 2022, the resident’s housing officer sent an internal email seeking advice on the case. They wrote that “I do not know what I am supposed to do. I was given this in November 2021 and should have dealt with this earlier”.
It is clear from this that, despite the detailed information provided by the resident in his reports, the landlord failed had failed to act upon these. That this inaction went undetected shows a concerning lack of oversight and supervision in the landlord’s management of ASB. ASB cases can carry substantial risk and urgent in nature and the landlord should manage them accordingly. This includes having robust processes in place to ensure it appropriately records and regularly reviews cases until the point of closure.
On the same date as their email, the housing officer called the resident to discuss the case. The landlord has not supplied any record of this conversation. The resident says he was told that the landlord was “aware of the situation” and “actions were being taken behind the scenes”. The landlord has provided no evidence which indicates what these actions were.
The resident contacted the landlord again on 19 April 2022 to ask for an update on the upstairs flat. He said he was still experiencing noise issues and that the police had made another arrest there on 20 March 2022.
On 19 July 2022, the landlord wrote to the tenant of the upstairs flat saying it had received noise complaints. It sent this letter to the flat, despite the fact the landlord was aware that the tenant had not been staying there for over a year.
On 8 August 2022, the resident told the landlord that police had made a third arrest in the upstairs flat. He said it was “obvious” the property was being sublet and urged the landlord to act.
In its stage 1 response of 7 November 2022, the landlord provided a timeline of action it had taken in response to the ASB. This covered only the period from 29 June 2022 to 22 August 2022. The letter of 19 July 2022 was the only intervention listed.
The stage 1 response also referred only to noise nuisance and did not mention the alleged subletting. Whilst the resident’s complaint had not specifically mentioned subletting (referring to “current tenants’ behaviours”), the fact that the landlord did not link the 2 matters indicates that its complaint investigation was insufficient and did not seek an appropriate understanding of the issues raised.
In its stage 2 complaint response the landlord said that it had met with the resident on 23 January 2023 to discuss his “concerns about the ASB and the unauthorised occupants” and create an action plan. It said it had also arranged to visit the upstairs flat “with professional partners” to check who was living there. Internal landlord emails show that it carried out such a visit on 27 January 2023, but did not gain access to the property.
The landlord also said that the case had been referred to the fraud team to conduct “an extensive investigation”. Despite it claiming to have already done this in October 2021. On this occasion the fraud team completed an investigation and concluded that the property was being sublet. Its report of 31 October 2023 recommended that the landlord serve notice on the tenant of the upstairs flat and seek legal advice on next steps.
Whilst it is not appropriate to expand upon them within this report, this Service is aware of the complex circumstances surrounding the living situation of the landlord’s tenant in the upstairs flat. An internal email evidence that, following the fraud teams report, the landlord received legal advice that it could not seek possession of the property due to these.
However, this does not negate the landlord’s failure to effectively manage this case. Subletting of social housing is a breach of tenancy and a criminal offence. Landlords have a responsibility to investigate, detect and enforce against such activity. The landlord also has a responsibility to address ASB linked to its properties – even where the perpetrator is not the tenant. Its ASB policy says that all residents have the right to “live a life free from ASB” and have their reports “investigated thoroughly”. The landlord’s inaction denied the resident both rights.
The policy also says that the landlord is “committed to preventing anti-social behaviour (ASB) and tackling ASB at an early stage, to ensure tenants and leaseholders feel safe and secure in their homes”. It says that it takes a “victim focused approach in terms of protecting the victim from experiencing further ASB” and takes “full account of the impact upon the victim”.
There is no evidence of this approach in the landlord’s management of this case. Despite the resident repeatedly voicing concerns about his “safety and security” the landlord failed to appropriately acknowledge these at any point. It failed to update the resident and often even to respond to his emails. Consequently, the resident was left feeling “uneasy” in his own home, being disturbed at unsocial hours, and sharing communal space with “unregistered, unvetted occupants” who were subject to the attention of the police.
In its ASB policy the landlord states that it will “continually risk assess” and “work with the police and provide the necessary support to retain a multi-agency response to tackling ASB”. However, there is no evidence that the landlord shared information with the police or requested any – despite the resident making it aware of 3 arrests in the upstairs flat. Failing to do this meant the landlord did not obtain vital information which would have helped it to determine the risk posed to the resident. There is no evidence the landlord carried out an appropriate risk assessment on the case at any time.
The landlord’s ASB policy says that it will “have regard to the full range of civil and criminal powers that are at our disposal” and “where appropriate, will not hesitate to use enforcement action”. As a local authority, the landlord has use of a range of options including community protection notices, injunctions and closure orders. There is no evidence that it considered these, or any other enforcement action at any point. In fact, the landlord failed to even seek legal advice on its options until the fraud team recommended this, a full 2 years after the resident first made it aware of his concerns.
There were 18 months between the resident first raising his concerns about the upstairs flat and the landlord’s stage 2 complaint response. Despite the quantity of reports and information provided by the resident, the landlord failed to conduct an appropriate investigation. Although the landlord’s stage 2 response claimed it had “worked continuously” to address the subletting and ASB, the only action it can evidence taking throughout that period is sending a letter about noise nuisance.
The resident was exposed to unknown risk and intrusive noise nuisance from multiple unauthorised occupants of the flat above, even after bringing the matter to the landlord’s attention through his complaint. The landlord has not acknowledged this serious failure or its impact on the resident’s daily life and enjoyment of his home, which appears to still be ongoing. A finding of severe maladministration has been reached due to this.

Complaint handling

The landlord’s complaints policy says that it will provide a full written response within 15 working days of receiving a complaint. It says that “if the complaint cannot be responded to within 15 working days an interim response should be sent to the customer explaining the reason for delay and advising them of when they can expect to receive a response”.
The resident made his complaint to the landlord on 6 February 2022. It did not provide its stage 1 response until 7 November 2022 – 190 working days later. There is no evidence that the landlord sent an interim response or otherwise communicated with the resident about this delay.
Whilst the stage 1 response apologised “for not responding sooner”, it did not explain the reasons for this. Nor did it make an appropriate offer of redress for such an unreasonable delay.
As established earlier in this report, the resident made several complaints to the landlord during 2021 and 2022. The landlord provided a stage 2 response to one of these complaints on 3 March 2022, which addressed the same issues as the complaint considered in this report. It is possible that these concurrent complaints caused confusion amongst landlord staff and contributed to the delays considered here.
The Code says that it is reasonable for landlords not to accept complaints about “matters that have previously been considered under the complaints policy”. The Ombudsman notes that the landlord does not list such an exclusion in its complaints policy. The landlord may wish to consider reviewing its position this, to avoid confusion for both its staff and residents caused by overlapping complaints on the same subjects.
The resident asked to escalate his complaint to stage 2 of the landlord’s process on 2 January 2023. As with stage 1, the landlord’s policy allows 15 working days for its response, with an interim response required if it cannot meet this target.
The landlord did not provide its stage 2 response until 7 February 2023 – 25 working days after the resident asked to escalate their complaint. There is no evidence of it sending an interim response. The landlord’s stage 2 response failed to acknowledge or apologise for this delay.
The stage 2 response signposted the resident to the Local Government and Social Care Ombudsman (LGSCO) if he felt his complaint remained unresolved. This was inappropriate as his complaint related entirely to the landlord’s housing management, which is the remit of the Housing Ombudsman. This resulted in the resident taking time and trouble to approach the LGSCO only for it to redirect him to this Service.
In summary, the landlord failed to respond to the resident’s complaint in keeping with its policy. Its stage 1 response was unreasonably delayed for over 8 months with no explanation provided or redress offered. Its stage 2 response was also delayed and the landlord failed to acknowledge this entirely. The landlord then inappropriately signposted the resident to the wrong ombudsman service. These combined failings result in a finding of maladministration.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of leaks, damp and mould in the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration in the landlord’s handling of the resident’s reports of subletting and ASB in the flat above.
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 this determination the Ombudsman orders the landlord to:
1. Pay the resident compensation of £3,050 comprised of:
  1. £1,050 offered in its stage 2 complaint response, if not already paid
  2. A further £1,800 for the severe maladministration in its handling of his reports of subletting and ASB
  3. A further £200 for the maladministration in its complaint handling
2. Write to the resident apologising for maladministration identified by this report.
3. Seek legal advice on appropriate measures to prevent the subletting and/or unauthorised occupation of the upstairs flat. Based upon this, the landlord should write to the resident providing an up to date action plan on the case including timescales where practicable.
4. Review the training and guidance it provides to relevant staff members on identifying and investigating subletting in its properties to ensure that they are aware of:
  1. The framework provided by its tenancy conditions and the Prevention of Social Housing Fraud Act 2013 to enforce against subletting.
  2. Internal resources, such as the legal and fraud teams, available to assist with this, and how to contact them.
  3. The civil and criminal powers available to the landlord, and the wider council, to address this.
5. Remind complaint handling staff of the jurisdictions of the Housing Ombudsman and the LGSCO, and when they should refer complainants to each of these services (or in some circumstances, both).
6. Carry out all schedule of works as per it’s contractor’s survey report at it’s own expense as it confirmed it would and in line with terms of the lease, this includes repairs to the floor joists.
The landlord should provide evidence of compliance with these orders to this Service.