Leeds City Council (201914467)

REPORT

COMPLAINT 201914467

Leeds City Council

25 October 2021

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The resident complained about the landlord’s response to her complaint about the condition of the property when first let and her associated request for compensation.

Background and summary of events

On 25 August 2017 the resident, her partner and two sons moved into their current property by way of a mutual exchange. The landlord owns and manages the property. The resident had previously lived in a three bedroom house, owned and managed by a different landlord. The landlord has said that prior to the subsequent Occupational Therapist (OT) assessment (paragraph 7) the family was entitled to only a two bedroom property under its lettings policy, on account of the children being of the same gender, hence their being awarded the current property via mutual exchange as it was recorded as being two bedroomed. The resident’s position, however, was that she needed three bedrooms on account of her son’s particular needs and them not being able to share a room, as later borne out by the OT assessment.
Under its mutual exchange procedure, before approving an exchange the landlord will inspect and survey its property. On 7 July 2017 its senior technical officer, accompanied by its housing officer, attended and completed the necessary visual inspection of the property. On its mutual exchange visual inspection checklist, the surveyor noted the property to be a two bedroom house, with adequate heating and ventilation and to be free of mould/damp. In addition, however, he noted: ‘Customer has divided the bedroom into 2 rooms with [the landlord’s] permission from what she told me.’
From the evidence it would appear the large second bedroom had been divided in two by the outgoing tenant to create two smaller bedrooms: one with a window but no radiator; and a separate internal one with heating but no window.
On 25 August 2017 a mutual exchange visit report form was completed by the landlord’s housing officer who noted under ‘Any tenant improvements/DIY’ that: ‘Main bedroom has been put into two rooms’ but the section asking if written permission had been granted was not ticked to confirm either way. No checks were made by the landlord to ascertain whether the divided bedroom complied with building regulations or if it had given permission for the partition. The landlord approved the exchange the same day and the resident’s tenancy commenced on 28 August 2017.
In January 2019, while following up on the resident’s reports of bathroom damp/mould and bedroom radiators not working, the landlord’s repairs team noted the partition wall in the bedroom. It reported back to the housing team that this failed to comply with building regulations and would need to be removed.
The landlord has said that as the resident wished to retain the property it arranged for an occupational therapist’s (OT) assessment to ascertain what changes to the property might be necessary to meet the family’s needs. The OT report (dated 7 March 2019) recommended that, owing to the particular needs of the resident’s sons, they should have separate rooms in which to sleep and noted that the family would prefer to keep the property if it could be adapted for this. This resulted in a plan being drawn up to reconfigure the layout of the property to create a proper third bedroom.
The landlord offered to decant the resident and her family to a local hotel for the duration of the works, which were to be completed as soon as possible. The resident declined the offer on account of it not being suitable for her dogs. A move to a decant property was also discussed but one was not immediately available and finding a suitable one would have taken several weeks. The landlord has said the resident said she would prefer to move in with her parents to ensure works could start as soon as possible. In response to the resident’s concern about dust generated at the property during the works, the landlord said it would use dust extraction equipment and told the resident that it would keep internal doors closed during the works. [The resident has told the Ombudsman that when she visited the property during works this was not always the case.]
Stage 1 complaint: On 12 April 2019 the resident submitted a formal complaint to the landlord. In summary, she said:
1. The landlord – naming a particular member of the repairs team – ought never to have ‘signed off’ the partition wall and that as a result she would now have to move out while building works were undertaken to adapt the property. She said that she no longer had confidence in the named officer and did not want him to attend her property again.
2. She would have never moved to the property in the first place had the problem been appropriately identified during the exchange process.
Stage 1 response: On 29 April 2019 the landlord’s senior technical officer, who had attended the inspection with the housing officer, provided its Stage1 response [for which its complaints procedure gave a 15 working day response time]. In summary, he explained:
1. The landlord had not ‘signed off’ the partition wall, he himself had conducted the inspection and identified the potential issue with the partition wall and that its housing team ought to have taken the matter forward but had not. The officer the resident had named was not involved.
2. The issue of the partition wall ought to have been discussed with the resident at the housing team’s meeting with her to complete the paperwork for the exchange and in his view the exchange ought not to have gone ahead with the partition wall in place.
3. It was the housing, not repairs, team that approved exchanges and he apologised for the ‘mix up’ that had allowed the exchange to go ahead.
4. There had been failings on the landlord’s part and it understood the resident’s frustration. But it was not the fault of the repairs team as it had flagged the issue with the housing team, which should have resulted in the resident being informed of the repairs team’s advice which would have enabled her to make an informed decision with regard to the exchange.
5. On that basis it saw no reason to exclude the named officer from attending her property in future.
The landlord has said the bedroom works and kitchen replacement both started on 4 June 2019, with bedroom works completed on 17 June 2019 and kitchen on 21 June 2019. It appears that it was also in June 2019 that the resident accepted the landlord’s offer to reimburse her the £86 cost of the paint used in her initial redecoration of the property.
Stage 2 request: On 20 January 2020 the resident requested escalation of her complaint for a Stage 2 review [which the landlord aimed under its complaints procedure to provide within 15 working days. In summary, she explained:
1. Her exchange request had made clear she was looking to exchange like-for-like to another three bedroom property.
2. The property she was shown and accepted had three bedrooms, and the landlord had known of the configuration of the rooms.
3. Despite the surveyor stating the rooms were adequately heated and ventilated they had not been and this had detrimentally impacted their health. One son had to sleep on her bedroom floor because his bedroom was too cold.
4. She had paid to redecorate the house before being told the partition wall had to be removed.
5. The landlord’s suggestion that she could keep the partition wall if she did not use the room as a bedroom had been unacceptable and the subsequent OT assessment stressful.
6. Her family and dogs had to stay at her mother’s for six weeks while works were completed which was stressful and costly, and the change of environment and routine was particularly detrimental for one of her sons.
7. Her asthma had worsened during and after the works on account of the dust and dust extraction equipment was never provided.
8. She requested compensation of £20,000 for the distress, inconvenience and detrimental impact on her family’s health as a result of the landlord’s acknowledged failures. [The resident has told the Ombudsman that she appreciates now that the level of her request was unreasonable but that she wanted to indicate how upset she was at the situation.]
Stage 2 response: Following a number of conversations with the resident [evidence not seen], on 7 February 2020 the landlord’s maintenance contract officer informed the resident of the outcome of its review of her complaint. In summary, it explained:
1. Its technical officer ought to have, following its July 2017 inspection, identified that the partition wall was not permitted and highlighted the fact that it was in breach of building regulations.
2. He reiterated his apologies for this and explained its technical and housing management staff had received further training on the mutual exchange process.
3. The OT assessment, to which she had consented, was needed to identify what alterations to the property would meet her family’s needs.
4. Although she said the second bedroom had been excessively cold, the first reports it had received in relation to this was her request in January 2019 for a repair to faulty radiators, which it had completed.
5. To reduce disruption, it had brought forward work to replace her kitchen at the same time as the bedroom works and offered her hotel accommodation to reduce the disruption she said it would cause her sons. She had declined the offer on account of her dogs.
6. As temporarily moving to a vacant property was not appropriate as she wanted the work done quickly she had decided to move in with her parents for approximately three weeks.
7. Its technical officer had confirmed that dust extraction equipment had been used and the resident had confirmed the cleanliness of the property on her return. [The landlord later provided her with details of the equipment used.]
8. With respect to her claim that dust had detrimentally impacted hers and her sons’ health it noted she had not resided at the property during the work and had confirmed it was clean on return, had provided no medical evidence and nor would it be qualified to assess this.
9. In relation to her claim that her son’s health had been detrimentally impacted by his use of the third bedroom, it had not seen medical evidence of this, nor was it qualified to assess it.
10. The resident had confirmed that the work to reconfigure the bedrooms, replace the kitchen and fit a new bathroom had been completed satisfactorily.
11. It had also fitted new carpets and painted the new areas in her choice of colour, which was beyond its standard specification.
12. In acknowledgement of the inconvenience and upheaval for the resident and her family it offered her £200 compensation for her time and trouble in pursuing her complaint and £200 for the inconvenience of moving out during the alterations.
13. It could not consider her claim for £20,000 for the impact on her and her family’s health as she had not submitted evidence of this. It acknowledged that she had indicated in conversation that she did not consider that its offer resolved her complaint but in light of the level of compensation sought and the nature of the issues raised it advised that she seek legal advice. [The landlord has told the Ombudsman that in discussion with the resident prior to issuing its response she had provided no evidence to support her claim and had refused to provide further details. It said it advised she seek legal advice after it had sought the advice of its legal and corporate insurance teams.]
14. It said it was closing the complaint and signposted the resident to the Ombudsman if she remained dissatisfied.
It appears that following the closure of the complaint the resident resubmitted her Stage 2 complaint [date unknown]. She told the landlord she had sought legal advice and as a result wished to claim compensation of approximately£5000 for damage to possessions as a result of the works and the dust generated. She listed damage to: her hallway (£1000); beds (£900); bedroom carpet (£200); sofa (£900); outdoor furniture (£250); stair and landing carpet (£750). She also requested reimbursement of costs while living at her mother’s (£150); a refund of her payment of energy bills for the property while not living there; and compensation for the stress and anxiety caused to her and her family (£1000). [The resident has since told the Ombudsman that her revised request for compensation was made on the advice of her MP, who advised her to make her compensation request a reasonable one.] The Ombudsman has seen no evidence that the landlord ever received this further submission, although it has told the Ombudsman that on 12 February 2020 it emailed her to reiterate that she should seek legal advice.
In the course of the Ombudsman’s enquiries, the landlord has told the Ombudsman that the resident’s family were only entitled to a two bedroom property at the time of the mutual exchange and so had the works to remove the unauthorised partition taken place before the resident moved in the mutual exchange of the property would not have been agreed.

Assessment and findings

The resident applied to mutually exchange her three bedroom house for what she reasonably considered to be another three bedroom house. While the new house was recorded as being two bedroomed, it was configured and presented as having three bedrooms. The landlord was aware of its configuration and appeared aware the resident was seeking three bedrooms.
As the Ombudsman sees it, if the landlord had any reason to consider the property not suitable for the resident it was open to it to refuse the exchange and notify the resident of its reasons for this (in accordance with its mutual exchange procedure). It did not do so. On that basis the resident chose the property in the reasonable expectation that as she currently resided in a three bedroom property she was entitled to a similar three bedroom property, and that as the property she was choosing had three bedrooms it was an appropriate exchange and was accordingly approved by the landlord.
Having agreed the mutual exchange, the landlord was obliged to inspect it and check, amongst other things, that any improvements were permitted. It did not do so with respect to the partition wall and it acknowledges that failure. In light of the consequences of this for the resident and her family, that was a serious omission. The Ombudsman therefore welcomes the fact that the landlord has learnt from this complaint and through staff training has taken steps to avoid a recurrence.
Although hopefully preventing a similarly unfortunate scenario for future tenants, the Ombudsman recognises that learning comes too late to mitigate the impact on the resident and her family of the landlord’s failure. It was therefore important that in appropriately acknowledging its error, it then took steps to put matters right for the resident and her family. In the Ombudsman’s view, in arranging the OT assessment, acknowledging her wish to keep the property, and carrying out the work recommended by the OT to modify the layout of the property to create the third bedroom the landlord was taking appropriate steps to return the resident to the position she would have been in had it not been for its error. That was a fair and reasonable response by the landlord.
The Ombudsman notes the landlord’s statement that, had the reconfiguration occurred prior to the resident moving in, she would not have been awarded the property as she was entitled to only a two bedroom property under its lettings policy. As the Ombudsman sees it, however, that is not relevant to how the landlord handled the resident’s mutual exchange and its responsibility for the position in which the resident found herself.
Regardless of what the resident would have been entitled to under the landlord’s lettings policy prior to the OT assessment, the Ombudsman considers the resident had a reasonable expectation that she was entitled to the current property and it had been appropriately awarded. This reasonable expectation arose from the fact of her entitlement with her then landlord to a three bedroom property; her request for exchange to another three bedroom property; the configuration of the current property as three bedroomed; and the landlord having agreed the mutual exchange for the property in question.
The fact of the work, however, was clearly going to be considerably disruptive for the family. Consequently, the landlord’s decision to combine the reconfiguration work with planned improvements to the kitchen and bathroom was both pragmatic and sensitive to the need to minimise disruption for the family.
It was also reasonable that the landlord offer to decant the family to a hotel during the course of the works. In the Ombudsman’s view, the resident’s reasons for declining this offer and choosing instead to live with her mother during the works were not unreasonable as the work needed to be done as soon as possible, she had pets to consider and another vacant property was not immediately available.
Being away from their home for a period of three weeks would have been disruptive for the family. There is no indication from the evidence provided that the works were not completed within a reasonable timeframe and the resident has not complained of unreasonable delay in the landlord’s completion of the works. But the cause of the family having to leave the property, albeit temporarily, was the direct result of the landlord’s acknowledged error in allowing the family to move into a property where, had it done what it ought to have done before permitting the exchange (ie remove the partition wall), the unsuitability of the two bedroom property would have been clear to the family.
That being the case, in considering the resident’s complaint the landlord ought to have taken full account of the stress and inconvenience the period of decant had on the family. It has offered £200 for this, but as the Ombudsman sees it, that sum falls short of providing tangible recognition of the disruption and inconvenience experienced by the family in having to move, with its dogs, to live with relatives. During this time the resident’s family would not only have been without the comfort and convenience of their own home, but the resident has also described the impact of the disruption on one of her sons in particular. And while no supporting evidence was provided, the Ombudsman notes the OT’s assessment of this son’s particular needs and the fact that the brothers required separate rooms in which to sleep. These were factors which, in the Ombudsman’s view, were not adequately recognised in the landlord’s offer of compensation.
Beyond the resident’s request for compensation for distress and inconvenience, she also sought compensation for the impact she claimed the works and the earlier bedroom configuration had had on her family’s health. The Ombudsman notes the landlord has said any claim for damages/personal injury would ultimately be for its insurers to determine and that it has never received evidence from the resident in support of her claim.
Nevertheless, in light of the fact that at Stage 2 of the complaints process the resident made explicit her request for damages for personal injury, the Ombudsman finds that while it was reasonable for the landlord to advise the resident to seek legal advice – as such issues fall to be professionally determined – the Ombudsman would also have expected to see evidence of the landlord having advised the resident, at Stage 2, of the process for making such a claim. Doing so would at least have enabled the resident to determine if legal advice was necessary. As it transpired, however, its failure to do so was of no ultimate detriment to the resident as it appears the landlord’s subsequent discussions with her still failed to elicit the necessary further details and evidence in support of her claim.
The Ombudsman recognises a significant aspect of the resident’s compensation request was for the damage she says was caused to items at the property (eg beds, rattan furniture). Importantly, however, she made this request after she had exhausted the landlord’s formal complaints process and consequently the landlord cannot be criticised for not having addressed it in the course of its complaint responses. Nevertheless, regardless of the stage at which the resident makes any such request, the Ombudsman would expect the landlord to consider the claim in accordance with its compensation scheme, and on provision from the resident of any necessary supporting evidence.
The Ombudsman notes the resident has also sought reimbursement of additional costs incurred whilst at her mother’s. Again, although this was after the landlord had concluded its consideration of the complaint the Ombudsman would expect the landlord to give due consideration to any costs additionally incurred by the resident as a direct result of its error. This is because, in the Ombudsman’s view, it would be unreasonable to expect the resident to incur expenses whilst decanted that she would not have incurred were it not for the landlord’s earlier failure. Although the resident has put a figure on this she has not explained what this was for or provided evidence of it. Were she to do so, the Ombudsman would expect the landlord to give her request due consideration.
Similarly, the resident has also – post complaint – requested a refund of the energy bills she paid for the property whilst she was not living there (although does not appear to have provided evidence of the cost). As the Ombudsman sees it, however, the resident would have expected to have had to pay an amount for energy usage during the period in question and so unless she can show that she effectively paid more during this time the Ombudsman would not consider it an additional expense incurred as a direct result of the landlord’s failure. Nevertheless, it is an item of compensation that would reasonably fall to the landlord to consider on receipt of supporting evidence from the resident.
Aside from the issue of compensation, the Ombudsman has considered the landlord’s handling of the resident’s complaint. Its Stage 1 response was timely and considered the complaint as the resident had explained it, namely concerning the partition wall and her understanding that its having been overlooked was down to a particular named officer. But by the time of the Stage 2 response the landlord appears to have been at odds with itself as to which officer/team was ultimately responsible for the original failure. While that was an important detail for the landlord itself in terms of identifying the learning to be taken from the complaint, in the Ombudsman’s view it resulted in a Stage 1 response that appeared more concerned with absolving an individual team of responsibility than taking full ownership of the failure.
The Ombudsman considers it would have been more appropriate at Stage 1 for the landlord to ascertain why things had not been done as it considered they ought to have been, rather than simply state that they had not been. An investigation would have confirmed the correct process and, if it had not been followed, the reasons for this. The failure to adequately ascertain the position meant the resident was provided with an apology for the failure but no explanation of what would be done differently in the future. The Ombudsman also notes that although the resident had not requested compensation at that stage, the fact that the landlord was acknowledging its error ought to have prompted it to assure the resident that it would, following the works, consider the impact of its error on her and her family. The fact that it did not do so inevitably caused the resident inconvenience as she had to prompt a consideration through the escalation of her complaint to Stage 2, but it also resulted in a six month delay in the landlord’s consideration of compensation. That would have been understandably disappointing and frustrating for the resident and would have undermined her confidence that the landlord would give her request due consideration.
It was therefore reasonable that the landlord considered the resident’s Stage 2 request outside its prescribed timescales [which its complaints procedure at the time required to be submitted within 28 days of receipt of its Stage 1 response]. It was also appropriate that the landlord offer the resident compensation for her time and trouble in pursing her complaint. However, the Ombudsman does not consider the £200 offered for this goes sufficiently far in acknowledging the fact that the resident had to proactively pursue her complaint in order to have the issue of compensation considered when the landlord had already accepted fault.
In terms of learning from the complaint the Ombudsman welcomes the fact that the landlord has confirmed it has since raised awareness internally for the need for appropriate checks to be made to identify issues such as the one in this case. That is appropriate action which should help ensure the failure in this case is not repeated.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in response to the resident’s complaint about the condition of the property when first let and her associated request for compensation.

Reasons

By the time of the resident’s formal complaint the landlord had already realised its error of failing to identify, prior to exchange, the unauthorised partition wall and had taken steps to correct this. Had it not done so the Ombudsman would have been making a determination of maladministration in relation to that fundamental error. In considering her subsequent complaint, however, the landlord failed to provide the resident with adequate redress for the impact on her and her family of its error and failed to provide a full complaint response at the earliest opportunity. That was a service failure by the landlord.

Orders

Within four weeks of the date of this determination the landlord is ordered:

i. to pay the resident £600 compensation for the distress and inconvenience of having to be decanted for a period of three weeks while works to the property were undertaken. [This is in place of the £200 already offered and so if already made, the landlord should deduct £200 from this amount.]

ii. to pay the resident £400 for the time and trouble she incurred in pursuing her complaint and request for compensation for distress and inconvenience. [This is in place of the £200 already offered and so if already made, the landlord should deduct £200 from this amount.]

Recommendations

It is recommended that the landlord write to the resident to advise her of the process by which she can pursue a claim for personal injury.
It is recommended that the landlord write to the resident to advise her of the process by which she can make a claim for damage to her possessions; the evidence required and the timescales involved. It should then consider any subsequent claim and provide the resident with a written response.
It is recommended that the landlord write to the resident to explain the process by which she can request reimbursement of costs incurred during her period of decant (additional costs incurred at her mother’s, including any claim for reimbursement of energy bills), the evidence required in support of her request and for the landlord to consider any costs reasonably incurred and evidenced by the resident, and to reimburse those expenses where appropriate.