Lambeth Council (202217945)

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REPORT

COMPLAINT 202217945

Lambeth Council

17 October 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

The complaint relates to:
1. The landlord’s handling of repairs to the toilet.
2. The landlord’s handling of reports of Japanese Knotweed.
3. The landlord’s handling of the resident’s complaint.

Background

The resident has a secure tenancy which started on 10 December 2013. The property in question is a three-bed flat on the second floor of a four storey block. The landlord says that it had no vulnerabilities recorded for anybody living at the property. The resident has recently provided this service with evidence of some vulnerabilities.
The resident reported the downstairs toilet had a cracked toilet bowl in December 2021, which was not repaired or replaced at the time. The resident raised this repair again in April 2022 and later had to make further repair reports around the same toilet.
The resident complained as she said despite the landlord attending to repair the toilet, the toilet remained broken. The resident also reported Japanese Knotweed in her allocated garden area at the property but she states that the landlord took no action to address either of her concerns.
The resident’s complaint was around a downstairs toilet but there is another toilet within the property. As it was not the only toilet in the property, repairs would not be carried out within the ‘emergency’ timeframes set out in its repair policy. However, regardless of the number of toilets in the property, the landlord would still be expected to carry out repairs in a timely and professional manner.

Policies and Procedures

The landlord’s repair policy has five different categories with different response times. These are as follows:
1. Urgent Emergency – Attend within 2 hours and fix within 24 hours
2. Emergency – Fix within one working day
3. Routine repairs – Fix within seven days, or three days for works that fall within Right to Repair regulation
4. Routine repair – Fix within 28 working days
5. Planned repair – Complete within 90 days
Its repairs policy details repairs that fall under the ‘Right to Repair’ scheme and the response times for them. The Right to Repair scheme outlines repairs landlords should complete and a timeframe for them to be completed. These repairs are usually those that would likely affect health, safety or security of residents. Both “leaking toilet” and “toilet not flushing (if there is only one toilet in the property)” have a one-day response time.
The landlord uses a two-stage complaint process, which will be referred to within this report as stage one and stage two, it compromised of:
1. Local resolution – Landlord should provide a response within 20 working days. If this timeframe will not be met, it should explain the reason for the delay and when residents can expect a full response.
2. Final review – Landlord should acknowledge the complaint within 2 working days and provide a response within 25 working days. If this timeframe will not be met, it should explain the reason for the delay and when residents can expect a full response.

Summary of events

The resident reported that the downstairs toilet was “cracked” on 3 December 2021. The landlord attended on 14 December 2021. Following its attendance, the landlord sent a text confirming completion of the repair. The resident provided a screenshot of their phone which shows they attempted to respond by text to advise that the repair was not completed but the response did not go through.
The resident raised a further works order with the landlord due to the toilet being “cracked” on 26 April 2022. This works order was noted as “follow on” on 13 May 2022 and 19 May 2022. No explanation of this note was provided by the landlord.
A new works order was raised by the landlord on 5 May 2022 and was noted “toilet keeps flushing something in the cistern has broken, please attend and remedy”. The works order is recorded as being cancelled but without any explanation.
On 24 May 2022, the landlord attended and its notes said “crack siliconed to prevent any further leaks”. A new toilet pan was ordered following this visit but no further appointment was booked.
The resident reported another fault with the toilet cistern on 14 July 2022. The works order said “resident reported the toilet cistern is flushing constantly”.
The resident said that she first raised concerns about Japanese Knotweed in her garden during a call to the landlord on 15 July 2022. This Service has not had sight of any record of this contact or an associated works order from either party.
The landlord attended the toilet cistern issue on 21 July 2022 and noted “new ball, valve and siphon fitted”. The works order noted “reinstated water tested left working”. Photographs of the work were provided to the landlord by the contractor.
The resident raised a complaint with the landlord on 9 August 2022. Within the complaint, the resident provided her notes around numerous calls and works orders, along with their associated reference numbers. Within the complaint she said the following:
1. Following the work on the toilet on 21 July 2022, the operative had “changed the knob to the other side. It does not work at all now”.
2. She had contacted the landlord on 15 July 2022 to raise concerns around the Japanese Knotweed and was told it would respond by 29 July 2022.
3. As she had not had a response, she had called the landlord about the Japanese Knotweed again on 1 August 2022.
4. She had not had a response over either issue and this meant that she had no use of her garden and no use of the toilet.
5. “Please see this as the initiation of a formal complaint”.
A surveyor called the resident on 16 August 2022 and raised a works order. The description of the required work was “resident stated toilet is damaged for months and needs to be replaced. Renew toilet, test and make sure fully operational”. “Inspection for damaged/ faulty toilet, resident states it needs replacing, concern about old pipework connected to toilet”. This was scheduled for 25 August 2022 on the works order.
On 17 August 2022, the resident emailed the landlord and said an operative had turned up that day to “fix the toilet”, rather than the surveyor. She said the surveyor had said he would call back to confirm the appointment on 25 August 2022 but he had not. The resident asked whether the surveyor would still be attending on 25 August 2022.
The surveyor said they attended on 25 August 2022. This Service has not had sight of any record or associated log notes from this visit. However, there were five emails between the resident and the surveyor following the visit. The surveyor said he “had chased the contractors who ordered the toilet” and he would update her when he received a response.
On 12 September 2022, the surveyor emailed the resident to indicate that the contractor wanted to carry out the work the next day. He confirmed it would be a morning appointment.
On 13 September 2022, an operative attended the property but no works were completed. The works order noted that the visit was to “replace toilet pan” but the resident refused these works. The notes from the visit said “Refused access to change the pan. Tenant said the cistern and pan needs replacing. On inspection I found the cistern was in good working order but the pan was cracked on the inside. I told the tenant that I can only replace the pan as the cistern is working well. The tenant said if I’m not going to replace everything I must leave”.
The resident emailed the landlord that day and requested that her complaint be escalated to stage two. No details of the reason for the escalation were provided.
The landlord responded to the resident’s complaint on 14 September 2022. Its response said that it was being “treated as a service request”. It said the responsive repair team was dealing with the toilet issue and the neighbourhood housing officer (NHO) would respond to her around the report of Japanese Knotweed.
Internal landlord emails show that on 14 September 2022, the NHO requested further information regarding any Japanese Knotweed treatment plan for the property. They informed the resident that “the treatment plan has now been completed”. The resident responded that day and said Japanese Knotweed was still present in the garden. The resident provided a photograph of an overgrown area of the garden.
On 15 September 2022, the specialist contractor emailed and confirmed to the landlord that the treatment plan for Japanese Knotweed at the property ended in November 2020. It said that at the time there was no visible growth and provided photographs taken at the time.
A internal request was sent to the complaints team on 20 September 2022, asking that the complaint be escalated.
The NHO emailed the resident on 21 September 2022 and confirmed that the treatment plan had ended in November 2020. They said that they would arrange for an inspection at her property and it would arrange a treatment plan, if required. This Service has not had sight of any record of an inspection taking place.
Internal landlord emails after 21 September 2022 show evidence of the complaints team looking to identify a timeline of events regarding the toilet repairs. Within these emails, the complaints team said it was “unclear as to if she currently has a working toilet (I hope so!)” and says on more than one occasion that they would “need to explain the justification for not replacing the toilet”.
On 18 October 2022, the landlord issued its stage two response. Within the response it said the following:
1. It acknowledged that the Japanese Knotweed treatment plan had ended in November 2020.
2. It said an inspection would be carried out by a contractor and if Japanese Knotweed was present it would arrange a treatment plan. If not, it would update the resident directly following the visit.
3. It said a toilet repair was completed on 21 July 2022 and photographic evidence had been reviewed.
4. It said that despite a further works order being raised to replace the toilet, “the professional opinion of the repairs operative is that the repairs carried out were sufficient and the new cistern was not required as it was in good working order”.
On 16 November 2022, the resident arranged for a specialist contractor to attend the property and identified Japanese Knotweed as being present in the resident’s garden. An email was sent to an email address for one of the NHO’s at the landlord. This Service has not had sight of any evidence of this being responded to or acted upon.
The landlord provided repair logs for the resident’s property after October 2022. These show no record of any works being raised by the landlord relating to Japanese Knotweed or a toilet repair between October 2022 and September 2023.

Assessment and findings

Scope of Investigation

Whilst it is accepted that the resident first reported an issue with the toilet in December 2021. This formal complaint was not raised until August 2022.
This report has therefore focussed on the events that occurred from six months prior to August 2022 until the end of the internal complaint process in October 2022. This is in accordance with paragraph 42(c) of the Ombudsman’s Scheme, which states that the Ombudsman may not consider complaints which were not raised with the landlord as a formal complaint within a reasonable time, which would normally be within six months of the matter arising. Events from prior to, and following the complaint process will be referred to, for context purposes.

The landlord’s handling of toilet repairs.

The first report of required toilet repairs was in December 2021, when the resident reported the pan as being cracked. The landlord marked this job as completed, despite it not having been replaced. The landlord then failed to follow up on the resident’s report of the toilet being cracked in April 2022. The works order was noted twice with “follow on” but no clear explanation of what this meant. When the landlord did attend, it found that the pan was cracked, it fixed a leak between the pipe and the pan and noted “resident needs change all WC with cistern and the pipe work”. No follow on works were carried out until the resident raised another fault with the toilet on 14 July 2022. This was a failing by the landlord, as it failed to act on the previous works orders that required a replacement of the toilet, or parts of it. Although this may not have prevented use of the toilet, it was clear that the resident was not comfortable using it while she felt it was not working. The works would not have been considered an urgent repair due to the availability of another toilet in the property, however, the toilet being out of use was a loss of a convenience to the resident.
After the landlord attended on 21 July 2022 and replaced the parts within the cistern, noting it as “working” following the visit. The resident said that the handle was not replaced correctly and that it did not work properly. Despite visits to the property since, reporting that the toilet was working, the landlord failed to correct the issue with the handle. Although this may not have affected the functionality of the toilet, it could have been corrected during those visits. The resident had raised concerns that she believed it was causing an issue and it would have been frustrating for the resident that this repair was not completed. The landlord missed an opportunity to alleviate the resident’s concerns, which could have gone some way to reassuring her that it was taking them seriously.
Throughout the repairs process, it is evident that the resident has been provided with inconsistent information. In May 2022 and August 2022, the resident was told that the toilet, both pan and cistern, would need to be replaced. The works order on 25 May 2022 said “resident needs change all WC with cistern and the pipe work” and she was told a replacement would be ordered. OweFollowing a visit from the surveyor on 25 August 2022, he emailed the resident on 1 September 2022 and said “I have chased the contractors who ordered the toilet”. These notes both indicated a need for the toilet to be replaced but when the landlord attends next, on 13 September 2022, it does so with the intention of carrying out works to “fix” the toilet instead. The resident was clearly frustrated throughout at the inconsistency from the landlord, over exactly what it would be doing to repair the toilet on each occasion. It is understandable that she would believe the toilet needed to be replaced, rather than “fixed”. This could only have caused her further distress and inconvenience due to the repeated nature of this problem.
It is clear that throughout this complaint, the landlord was aware of the toilet pan being ‘cracked’. This was recorded on four occasions between December 2021 and September 2022. Since identifying this issue, the landlord has not replaced the toilet pan. However, it is evident that the resident refused the landlord permission to complete this work on its last visit in September 2022, given her view that the whole toilet (including the cistern) needed to be replaced.
The landlord’s final position around the toilet was that following works carried out on 25 July 2022, it was in good working order. This was despite its acknowledgement of the pan being cracked and further works being required following the visit by a surveyor on 25 August 2022. As those works, on 13 September 2022, did not go ahead, it is unreasonable that the landlord considered the toilet in good working order. Regardless of why the works did not go ahead, the landlord was still aware of the resident’s concerns over the functionality of the toilet and it was aware that the pan was cracked. The landlord made no further attempts to rearrange these works or discuss it directly with the resident, despite this knowledge. This means that the resident has been left with a toilet, acknowledged by the landlord as requiring works, since May 2022. This shows a lack of consideration of the resident’s situation, which had caused her distress and inconvenience during that time.
Ultimately, the landlord has not managed the toilet repairs in a timely manner, it provided inconsistent information and despite knowing that there remain issues with the toilet, it has not taken any action to address it. After the complaint was raised, it advised the toilet would be replaced, then it failed to do so. Since works were refused by the resident in September 2022, the landlord has taken no further steps to try and resolve the matter. It could have attended following the complaint, carried out an inspection and, if required, carry out any remaining works. Instead, it has left the problem outstanding for over a year. When considering the failings in the management of this process, cumulatively this amounts to maladministration.

The landlord’s handling of reports of Japanese Knotweed.

In accordance with the resident’s tenancy agreement, the resident is responsible for keeping “any garden tidy and free of rubbish”. The tenancy agreement is silent with regard to who would be responsible for removing invasive plant species. However, there is an implied responsibility that the landlord would address invasive plant species such as Japanese Knotweed, because it would be liable, as the landlord, for any legal repercussions if the issue was to spread to a neighbouring property. Moreover, the treatment required would be specialist, due to the nature and duration of the specialist treatment. For example, according to the government’s guidance, it usually takes around three years to treat Japanese Knotweed, with specialist chemical treatment usually required to fully eradicate the plant. This therefore would not be something a tenant would be expected to address, unless explicitly stated in the tenancy agreement.
This Service has not had sight of any record showing the landlord was aware of reports of the Japanese Knotweed until the resident’s complaint on 9 August 2022. That is not to say it was not reported prior to this date. The landlord failed to respond to the concerns or take any action until 14 September 2022, five weeks after the complaint was recorded. This was a failing on the part of the landlord as it should have acknowledged the resident’s concerns in a timely manner and provided either a timeframe for its response, or a plan of action to address it. Instead, any potential Japanese Knotweed at the property has been allowed to continue growing and the resident has been left thinking her concerns were being ignored.
After identifying that the treatment plan with the specialist contractor had ended in November 2020, it took the landlord a further six days to provide a response. When it did, it said it would arrange a further inspection and either arrange a new treatment plan or update the resident accordingly. To date, the landlord has not completed an inspection, or provided the resident with any meaningful update. This was a significant failing on the part of the landlord, as it failed to follow up on an agreed action, leaving the resident feeling ignored, and with limited enjoyment of her garden.
Following a request from this Service, the landlord provided copies of its repair logs and confirmed that no action has been taken around reports of Japanese Knotweed at the property since it issued its complaint response in October 2022. Given it was at least aware of the resident’s suspicion of Japanese Knotweed, this lack of any action being taken must be considered a failing by the landlord.
Due to the lack of action from the landlord, the resident had an independent survey carried out by a specialist contractor in November 2022. This Service has seen evidence of an email from the contractor, dated 16 November 2022, sent to one of the NHO’s at the landlord, who had been involved in the initial complaint. This email said it had identified Japanese Knotweed was present at the property. Despite the resident’s report and the contractors email, the landlord did not act upon this evidence of the problem. This was another failing on the part of the landlord, as it failed to respond to either report of the issue at the property. This further contributed to the resident being without full enjoyment and use of the garden space that forms part of her tenancy, for over one year.
It is clear that in the absence of any action by the landlord, the resident provided evidence to back up her concerns, of Japanese Knotweed being present at the property, and it still failed to take any steps to identify or treat the problem. The resident was left waiting for a response to an issue that has caused her to lose the use of her garden space for at least one year after she reported it. As a garden is considered part of a dwelling, loss of its use means the resident had the quiet enjoyment of her home affected during this period. When considering the failings in the management of this process, cumulatively this amounts to maladministration.

The landlord’s handling of the resident’s complaint.

At the time of the complaint and to date, the landlord’s complaint policy is not in line with the Complaint Handling Code. This is due to councils currently working under two different separate schemes, this Service and the Local Government and Social Care Ombudsman (LGSCO).
It is clear that the landlord failed to utilise its own two-stage complaint policy when managing the resident’s complaint. A stage one response was never issued, as the landlord said that resident’s email from 9 August 2022 was managed as a service request. This was despite the resident’s email clearly stating that it was “initiation of a formal complaint”. This is a failing on the part of the landlord as it both failed to identify a complaint, in line with the Complaint Handling Code, and to also follow the instruction of its resident for their email to be treated as such. This meant that the resident was not afforded an opportunity to have their complaint investigated at stage one of the process. This could only have added to the resident’s distress and her feeling that the landlord was not taking her reports seriously.
It is clear that part of the complaint was looked into as a service request, as the resident was contacted by a surveyor to discuss the issues with her toilet. However, the other part of the complaint relating to the Japanese Knotweed was not acted upon until she had raised a stage two complaint. This demonstrates a lack of joined up working within the landlord’s different functions, as its repairs team had acted upon the toilet issue but the neighbourhood function failed to act on the Japanese Knotweed at this stage. Had the landlord acted in line with its complaint policy and the dispute resolution principles, both of the issues raised within the complaint would have been addressed within a formal response. In order to provide such a response, the landlord would have had to take some form of action, or at least acknowledge, each of the issues raised in the complaint.
The resident’s email to escalate the complaint to stage two provided no reason for the escalation. The landlord failed to contact her following the escalation, in order to establish the current situation around each issue or to gain a full understanding of the reason for her complaint. Within internal emails, it acknowledges not being aware of whether the toilet was working. This could have been achieved by either calling or emailing the resident to obtain this information. By not doing so, the landlord could only respond to the initial, brief complaint from 9 August 2022 and review its recorded actions since then. This lack of investigation means that the resident was not afforded a fair review of her complaint at stage two.
The stage two response provided by the landlord addresses the two main issues raised within the complaint but offers no indication of whether the complaint was upheld or not. In relation to the Japanese Knotweed, it repeats the contents of emails previously sent to the resident and says that an inspection has been arranged but provides no date for this inspection. In relation to the toilet repair, it shows no real understanding of what has happened. It says that the “professional opinion” was that it was in good working order. However, it fails to address why throughout the process the resident was given inconsistent information about repairs and it also fails to acknowledge or address the outstanding issue of the toilet pan being cracked. This was another failing by the landlord as it has not conducted a thorough investigation, acknowledged its failings or proposed a satisfactory outcome to this complaint.
It is clear that the landlord failed to manage the complaint in line with the timeframes set out in its own policy. The failure to investigate the initial complaint at stage one, then led to one of the two issues not being considered until after the complaint was escalated. When the complaint was escalated, the landlord failed to carry out any meaningful investigation and provides mostly just information taken from repair notes and emails the resident had already received. After the response was issued, the landlord failed to follow up on the proposed inspection and the resident has indicated that both issues remain outstanding. When considering the failings in the management of this process, cumulatively this amounts to maladministration.

Determination (decision)

In accordance with paragraph 52 of the Scheme there was maladministration in the landlord’s handling of toilet repairs.
In accordance with paragraph 52 of the Scheme there was maladministration in the landlord’s handling of reports of Japanese Knotweed.
In accordance with paragraph 52 of the Scheme there was maladministration in the landlord’s handling of the resident’s complaint.

Reasons

The landlord’s handling of toilet repairs.

The landlord failed to address repairs in April 2022 that were already outstanding from December 2021, in a timely manner, or in line with its repair policy. It then provided inconsistent information around its findings and its follow up actions after attending to repair different parts of the toilet on four occasions, between May 2022 and September 2022. Despite being aware of the toilet requiring works, it has failed to take any action to repair it. This has caused the resident significant inconvenience in the loss of use of the toilet and distress, time and trouble in her efforts to have the required repairs carried out.

The landlord’s handling of reports of Japanese Knotweed.

The landlord failed to address the resident’s report of Japanese Knotweed at the property for over five weeks. When it did, it acknowledged that there was no longer any treatment plan for it and agreed to carry out a new inspection. However, the landlord did not carry out the agreed inspection and despite having received evidence of the problem from a contractor, it has still not taken any action. This has caused significant inconvenience for the resident as she lost the full enjoyment and use of her garden for over a year since the report, affecting her quiet enjoyment of her home.

The landlord’s handling of the resident’s complaint.

After receiving the resident’s complaint, the landlord failed to address it as such, despite it specifically saying it was a formal complaint. The landlord took action around one element of the complaint but did nothing around the other element until she escalated it to stage two. No formal stage one response was provided, so the stage two could not be considered a review. Its stage two response did not show that any consideration of her complaint had been made, outside of repeating the contents of emails and works order notes. No follow up actions were taken and no further works planned following the complaint.

Orders

The landlord should arrange to attend the property within 28 days of the date of this report and carry out the following:
1. Replace the downstairs toilet pan.
2. Correct the position of the flush handle.
3. Carry out a review of the toilet cistern and carry out any required repairs.
The landlord is ordered to make a payment of £400 to the resident towards the time, trouble and inconvenience caused by the landlord’s management of the toilet repairs. This should be paid directly to the resident within 28 days of the date of this report This is broken down as follows:
1. £200 for loss of use of the toilet between April 2022 and the end of the internal complaint process in October 2022.
2. £200 for distress, time and trouble.
The landlord must arrange an inspection for Japanese Knotweed at the property and if present, arrange for a treatment plan to begin, within 28 days of the date of this report.
The landlord is ordered to make a payment of £200 to the resident towards the loss of an amenity and inconvenience caused by the landlord’s handling of the reports of Japanese Knotweed at the property. This should be paid directly to the resident within 28 days of the date of this report.
The landlord is ordered to make a payment of £200 to the resident towards the distress and inconvenience caused by its handling of the resident’s complaint. This should be paid directly to the resident within 28 days of the date of this report.
The landlord must contact the resident within 28 days of the date of this report and either carry out, or offer the resident a vulnerability check. Its records should be updated accordingly.
The landlord must review the learning from this report, it must advise this Service of its intentions within four weeks of the date of this report and provide a report showing that this has been brought into its operations identified improvements within three months of the date of this report. This review must consider at minimum:
1. Ensure adequacy of records, in line with this Service’s Spotlight report on Knowledge and Information Management (KIM) from May 2023, when repairs and inspections are taking place and detailing the outcomes.
2. Knowledge refresh for relevant staff re complaint handling timeframes and managing complaints in line with the Code.
3. Ensure that thorough complaint investigations are undertaken and responses are formally issued at stage 1 and only stage two responses issued once it is entirely satisfied with the completeness of its responses, utilising resident agreed time extensions where required and justified.