Lewisham Council (202011375)

REPORT

COMPLAINT 202011375

Lewisham Council

27 September 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:
   1. The landlord’s handling of the replacement of the resident’s windows and the amount of compensation offered to the resident in recognition of the delay.
   2. The landlord’s complaints handling.

Background

2. The resident occupies the property, which is a flat located within a sheltered accommodation scheme, under a secure tenancy agreement with the landlord. The resident is disabled and suffers from a health condition affecting her mobility. Her son, who is autistic, also lives in the property.
3. The resident’s property was included in a planned programme of refurbishment and improvement works, involving the replacement of the property’s windows. Scaffolding was erected in October 2019 and contractor facilities, including portacabins and lavatories, were installed outside the resident’s property. Although the windows were ready for installation in April 2020, works were put on hold due to the COVID-19 pandemic. Works resumed on 6 July 2020 and the scaffolding was removed following installation of the windows.
4. In January 2021 the resident complained about the length of time it had taken the landlord to complete the window installation. She noted that her privacy had been affected by the presence of the contractor’s facilities outside her window and workmen on the scaffolding. She alleged that this had caused her significant stress and exacerbated her health condition, as well as impacting her autistic son. The resident stated that the contractor’s workmen were loud, used bad language and disposed of trade waste in her bins. She also reported that she had been unable to use her parking space. The resident was unhappy with the standard of workmanship, noting that the contractor had refused to fit the windows correctly due to a lack of budget for the additional work that would be required to make good any damaged areas.
5. In its complaint responses, the landlord acknowledged that there had been a delay in completing the works and removing the scaffolding due to the COVID-19 pandemic. The contractor had attended to inspect the resident’s windows and confirmed that further works were required. The landlord noted that it would only sign off the works once it was happy with the standard of work and method of installation. Following escalation of the complaint, the landlord noted that there had been a delay in following up on the window snagging works due to an administrative error by the contractor. The landlord confirmed it would not be replastering the area around the windows as the resident had requested.
6. The resident’s complaint was referred to an independent adjudicator before being passed to this Service. They found that it was reasonable for the landlord to put the works on hold during the pandemic, as the scheme’s residents were among the most vulnerable and the works required internal access. Although the internal making good to the resident’s windows could have been completed more quickly, this would not have reduced the overall duration of the project very much. The independent adjudicator recommended that the landlord apologise to the resident and offer £250 compensation in recognition of the avoidable delay. The resident feels this amount does not adequately reflect the stress and inconvenience she experienced, and the impact on her health, wellbeing, and finances. The resident has requested an increase in compensation and for any outstanding works to her property to be completed.

Assessment and findings

Jurisdiction and scope of investigation

7. Paragraph 39(i) of the Scheme states that the Ombudsman will not investigate matters where it is considered quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal, or procedure.
8. The resident has stated that the landlord’s failure to complete the works within a reasonable time has impacted hers and her son’s health and caused financial hardship. The Ombudsman does not have the expertise to assess whether the landlord’s actions have adversely affected the resident’s health, nor can this Service provide a binding determination, or award damages for personal injury, in the way that a court can. Should the resident wish to pursue this aspect of her complaint, she should seek independent legal advice.
9. Moreover, when the resident’s complaint was referred to this Service, she raised additional concerns about the landlord’s handling of works to the property’s ceilings and the installation of insulation within the loft. These issues were not raised as part of the initial complaint to the landlord made on 8 January 2021, however, and so the landlord has not had an opportunity to resolve the resident’s concerns via its internal complaints process.
10. Paragraph 39(a) of the Scheme states that the Ombudsman will not investigate complaints that are made prior to having exhausted the landlord’s internal complaints procedure. As such, the Ombudsman has not considered this matter as part of the investigation.

Handling of replacement of resident’s windows

11. The landlord has not provided copies of its repairs or planned works policies, although its website notes that major works will often cause some short-term disruption. Under the terms of the resident’s lease the landlord is required to keep the structure and exterior of the building, which includes the windows, in good repair. The Ombudsman would expect major works to be completed within a reasonable time.
12. The landlord has provided a copy of a condition survey conducted in 2017, which recommended the replacement of the building’s windows. In 2018, the landlord confirmed that the resident’s property would be included in the programme. The landlord has explained that scaffolding was initially erected at the end of 2019 for the windows to be measured. This remained in place whilst the windows were fabricated. It was reasonable for the scaffolding to remain in situ between measuring and installation, as to remove and replace the scaffolding would have involved unnecessary, additional costs.
13. The resident raised concerns about the length of time the scaffolding was in place, the impact of the works on her privacy and the contractor’s use of the site. In July 2020, the landlord responded to a Councillor Enquiry made on the resident’s behalf, where it acknowledged that residents had been inconvenienced by the works and the presence of welfare facilities but noted that such facilities must be in place to comply with regulations. The landlord explained that it had taken steps to minimise the impact on the resident, including facing the window-side of the contractor’s cabins away from her property, constructing a secure passageway to her door, installing a floodlight, relocating the designated smoking area, and making arrangements with the contractor to preserve access to her parking space.
14. The landlord responded sympathetically to the resident’s concerns but reasonably identified that some disruption due to major works was to be expected. The landlord took appropriate steps to reduce the inconvenience to the resident and it explained why it would not be possible to complete the works until the lockdown restrictions had been lifted, due to the vulnerability of the scheme’s residents. As identified in the independent adjudicator’s report, it would not be fair to require the landlord to compensate the resident for the unforeseen and unavoidable delays caused by the COVID-19 pandemic.
15. The landlord explained in its stage 1 response of 8 January 2021 that there were further delays once works resumed in July 2020, due to the lack of availability of materials and resources, which also resulted from the pandemic. Although the landlord could have been more proactive in keeping the resident updated about the status and progress of the repairs, its overall response demonstrated that it continued with the project as swiftly as it was able in the circumstances.
16. The resident’s complaint of 7 January 2021 also referred to her concerns about the contractors’ behaviour and use of the site, including the loss of use of her parking space. This aspect of the complaint should have been investigated and addressed in the complaint responses, even though the window installation had since been completed. There is no evidence that the landlord referred the resident’s concerns to its contractor or received a response. The resident has vulnerabilities, including limited mobility, which increased the impact of loss of use of her parking space. It would have been reasonable for the landlord to investigate her concerns to prevent similar issues from occurring in the future and the landlord’s failure to do so made the resident feel that it did not appreciate the stress and inconvenience she had been put to.
17. The Ombudsman notes that the landlord has not provided complete repairs records to this investigation, therefore it is not known on what date the resident’s window installation was completed. The independent adjudicator’s report stated that scaffolding had been struck in December 2020, although the landlord’s email of 8 January 2021 implied that it was still in place at that time. The lack of contemporaneous records has limited the Ombudsman’s ability to assess the landlord’s handling of the works. The landlord must ensure that it keeps adequate repairs records, and it should retain evidence of the communication with residents and its contractor about the progress of major works projects.
18. The landlord accepted that there was a delay in completing the internal making good to the area around the windows. The restrictions imposed by the Government in response to the COVID-19 pandemic were eased in March 2021, with non-essential businesses re-opening on 12 April 2021. The resident contacted the landlord on 24 March 2021 to ask why the snagging works to the window had not been completed following the easing of restrictions and the landlord explained in its response of 13 April 2021 that its contractor had failed to follow-up on the works due to an administrative error. Once it was made aware of the delay, which was relatively short in duration, the landlord made efforts to progress the works with its contractor. This demonstrated that it was keen to resolve the issue for the resident as quickly as possible.
19. The Ombudsman does not have the technical expertise to assess whether the landlord’s contractor used an appropriate method of installation for the windows, and whether the finish was up to the required professional standard. The Ombudsman must therefore rely on the evidence submitted by the parties. No documentary evidence has been provided to this investigation to support the resident’s suggestion that the method used to install the windows was inadequate. Whilst the Ombudsman acknowledges the resident’s statement that she was informed by the contractor that the windows should have been installed differently and appreciates that the resident’s preference was to have the area replastered, the landlord was entitled to rely on the conclusion of its Clerk of Works that the method used was adequate.
20. There appears to be some dispute between the parties as to whether the window works have been completed. The landlord has reported to this Service that no works to the windows are outstanding but the resident states that these works have been completed incorrectly and so further works are required. It is therefore recommended that the landlord arrange an inspection of the windows to assess whether the finish remains acceptable.
21. Overall, the Ombudsman is satisfied that the landlord’s offer of £250 compensation provides reasonable redress for the delay in completing the making good works to the resident’s windows, and the stress and inconvenience caused to the resident as a result of the works. This sum is in line with the amounts set out in this Service’s Remedies Guidance where the Ombudsman recognises that there was some impact on the resident that was of relatively short duration. As explained above, the Ombudsman is unable to compensate the resident for the longer delays caused by the COVID-19 pandemic, or for the impact on hers and her son’s health and associated financial hardship which may have resulted from this.

Complaints handling

22. The Complaints Policy provided to this investigation, which came into force in January 2021, sets out a 2-stage process. It is therefore assumed that the resident’s complaint was investigated under the old, 3-stage complaints process. Whilst a 3-stage process is not prohibited under the Ombudsman’s Complaints Handling Code, the Ombudsman notes that a 2-stage process is ideal to ensure that a resident’s complaint is resolved at the earliest opportunity. In this case, however, the landlord did provide prompt responses to the resident at each stage.
23. The landlord is also reminded that its complaints responses should state the stage of the complaint and information about how the complaint can be escalated. The landlord’s response of 8 January 2021 did not contain this information, although it was clarified by the landlord on 11 January 2021 and so the detriment to the resident was minimal. 
24. The Ombudsman issued a Complaints Handling Failure Order (CHFO) to the landlord on 23 February 2021, for failure to comply with this Service’s evidence request. The landlord has explained that it made several attempts to provide the information, although its emails were too large and were not received by this Service. On receipt of the CHFO, the landlord contacted this Service immediately to discuss how best to send the evidence and this was promptly provided. The Ombudsman will not therefore make a finding of service failure in relation to the landlord’s complaints handling.

Determination

25. In accordance with paragraph 55(b) of the Scheme, the landlord has made an offer of redress to the resident that, in the Ombudsman’s opinion, satisfactorily resolves the complaint about its handling of repairs to the resident’s windows and the compensation offered during the complaints process.
26. In accordance with paragraph 54 of the Scheme, there was no maladministration in respect of the landlord’s complaints handling.

Recommendations

27. It is recommended that the landlord:
    1. Re-offer the sum of £250 compensation to the resident if this has not already been paid.
    2. Arrange an inspection of the resident’s property to assess whether the finish of the area around the windows remains acceptable and carry out any additional, necessary works if required.