Livv Housing Group (202113384)

REPORT

COMPLAINT 202113384

Livv Housing Group

8 July 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

This complaint is about the landlord’s:
1. Response to a rat infestation at the property;
2. Response to the resident’s related request to cover the property’s garden with flagstones;
3. complaint handling.

Background and summary of events

Background

The resident was an assured shorthold tenant when the tenancy began on
14 March 2019. The property is a two-bedroom terraced house with a garden to the rear. The landlord’s customer handbook confirms the landlord is obliged to complete any necessary repairs to the property’s structure. The resident is obliged to maintain the garden and prevent it from overgrowing.
The handbook details the landlord’s policy around pest control. It shows the landlord is responsible for sealing openings which allow pests into one of its properties. It is also responsible for removing any pests following this work. It confirms residents are responsible for removing pests after any entry points have been identified and sealed. Residents are also responsible for preventing infestation. The landlord is responsible for identifying and removing Japanese Knotweed.
Landlords are required to look at the condition of properties using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not set out any minimum standards, but it is concerned with avoiding, or minimising potential hazards. Pests, such as rats, are potential hazards that can fall within the scope of HHSRS because they can spread infection. HHSRS identifies missing or damaged external brickwork, including air bricks, as a known source of pests. Landlords are expected to effect repairs to minimise the ways pests can access a building.
Local authorities do have powers to act under HHSRS, but enforcement is seen as a last resort. Typically, landlords and local authorities work together, and a programme of improvement works is usually the starting point. Landlords should be aware of their obligations under HHSRS, and they are expected to carry out additional monitoring of a property where potential hazards are identified.
The landlord’s handbook also details its approach to adaptations for vulnerable residents. It shows responsibility for providing equipment and adaptations lies with the relevant local authority. Most requests for adaptations are considered via a recommendation from an Occupational Therapist or a similar health professional. The landlord has trained staff that can assess requests for minor adaptations.
The landlord operates a two stage complaints process. Its complaints policy confirms the landlord aims to resolve complaints within ten working days at stage one. At stage two, complaints will be reviewed within twenty working days by the landlord’s leadership team. A meeting with the complainant may be required to discuss the complaint. A final response letter will be issued to the complainant following the meeting.
The resident is disabled and has vulnerabilities relating to her mobility. The landlord has said it implemented measures to ensure its operatives allow her up to 20 minutes to answer the door. It is unclear whether these measures were in place from the beginning of the timeline below.

Summary of events

The landlord’s repair records show a works order was raised on 31 May 2019 to address a small number of loose flag stones that were lifted by Environmental Health. The corresponding repair notes show the order was raised in response to a report from the resident. The landlord said the works were completed on
20 June 2019. While the Ombudsman was unable to confirm the completion date, the information seen suggests the required works were ultimately completed in accordance with the order.
The records show a works order to eradicate rats was raised on 18 December 2019 following a report from the resident. The corresponding repair notes show works were needed inside the property or in the garden, but no further information was provided. The landlord said the works were completed on
6 January 2020. While the completion date could not be confirmed, the information seen suggests the works were completed in line with the order.
A further works order to eradicate rats was raised on 30 September 2020 after another report from the resident. The repair notes show bait needed placing under floorboards in the bedroom. The landlord said the works were completed on 12 October 2020. Again, the information seen suggests the works were ultimately completed.
On 28 May 2021 a works order was raised to inspect rat holes in the property’s rear garden. The notes suggest the resident had reported the garden was unsafe. The landlord said it inspected the garden on 15 June 2021, but the inspection did not result in any additional orders being raised. The repair notes show the order was cancelled because the works were “no longer required”. No information was seen to confirm why this order was cancelled.
The landlord raised another works order to address rats on 7 July 2021 following a report by the resident. The notes show bait needed placing under the floorboards and air bricks needed sealing. The landlord said there was no recorded completion date for the works. The information seen suggests the works were not completed as instructed. No information was seen to confirm why the works were not carried out.
On 22 July 2021 the resident raised a formal complaint with the landlord. The landlord’s contact records show it concerned alleged disability discrimination, along with the landlord’s decision not to significantly increase the coverage of flag stones in the property’s garden. They show the resident was unhappy the landlord allowed her to move into an unsuitable property, which was infested with rats. Further, the resident said she had been asking for the garden to be made safe for around a year. The records show the landlord told the resident it was awaiting authorisation for flagging works. They also show the landlord had raised a works order for baiting, but a corresponding appointment needed scheduling.
The landlord issued a stage one response on 5 August 2021. Though the landlord apologised for a delayed response, the timeline shows the response was issued on the tenth working day following the resident’s complaint. The main points were:
1. The landlord had agreed to consider the resident’s requested works to the garden. After its surveyor compiled costings for the works, it declined to proceed on the basis they were deemed “cosmetic improvements”. The resident should contact the Occupational Health Service (OHS) about improvements needed for health reasons. The landlord would complete any works recommended by the OHS.
2. Between 29 July and 5 August 2021, the landlord attended the property on four occasions in response to the resident’s reports of rodent infestation. It was unable to access the property on each of these occasions. The landlord was sorry it did not provide the resident prior notice of attendance in respect of its first visit on 29 July 2021.
3. The landlord’s records showed it had been unable to gain access on a number of occasions. It would only be possible for the landlord to address the reported issues if it was allowed access to investigate. The resident should contact the landlord on the number provided to arrange a new appointment.
The resident called the landlord on 10 August 2021. The landlord’s contact records did not capture the full details of the conversation. They suggest the landlord arranged for both its local representative and its contractor to attend the property following the conversation.
On 16 August 2021 the resident escalated her complaint. From the landlord’s contact records, the resident said she needed her proposed garden works due to her disability. Further, refusing them amounted to discrimination by the landlord. The records show the resident said she was bedbound with physical and mental disabilities. The records show the landlord advised her it would complete any works recommended by an Occupational Therapist.
The landlord’s records show the resident’s complaint was logged at stage two on 25 August 2021.
The landlord updated the resident on 1 September 2021. It said its leadership team were available to complete the resident’s stage two panel hearing during a phone call on 3 September 2021. The resident was offered a choice of two start times for the hearing. The hearing took place as scheduled on 3 September 2021.This was 14 working days after the resident’s escalation request. The Ombudsman has not seen any minutes from the hearing.
The resident emailed the landlord on 5 September 2021. She said the hearing failed to address either the severity of the situation or her concerns around disability discrimination. Further, the landlord failed to provide an adequate reason for declining the flagging works, which she requested as a “reasonable adjustment”. She felt the landlord did not “believe” she was disabled, and it should give her an opportunity to provide confirmatory evidence. She said she ended the hearing because she suffered a panic attack. However, the landlord had not asked whether she needed help at any stage of the meeting.
The landlord issued its stage two response on 10 September 2021. This was within 20 working days of the resident’s escalation request. The landlord said it was sorry for any occasions where its operatives attended the property without giving the resident notice in advance. It was also sorry for any unprofessional conduct by any of its attending operatives. The landlord agreed to the following works and actions:
1. Re-levelling of existing flagging around the immediate perimeter of the property.
2. Increasing the overall paved area by adding two rows of flags to the property’s rear.
3. Ensuring areas where flags and grass met were level and free from trip hazards.
4. Filling of potholes in the rear garden caused by rat runs.
5. Arrange a Knotweed specialist to inspect the garden to identify any destructive plants.
6. Arrange an environmental contractor to assess any further requirements for vermin control.
7. Written notice would be issued in advance of each works appointment. As a courtesy, attending operatives would also call the resident around 15 minutes before arriving. This would allow the resident a suitable amount of time to open the door.
On 13 September 2021 the resident spoke to the Ombudsman. She said she became aware of a rat infestation around three weeks after moving into the property. Further, she had received a visit from Environmental Health, who told her the infestation was severe. She said she had been threatened with eviction for not maintaining the garden.
The resident said the landlord’s local representative had discriminated against her. She also said the landlord laid rat bait without telling her and her dog subsequently died after eating the bait. The resident said the landlord had dismissed this allegation and she never received an apology.
During internal correspondence on 20 September 2021, the landlord said the resident had not agreed to its proposed list of works. The correspondence said the landlord needed to act on its proposals and the works should be “booked in”. The landlord said it hoped the resident would engage and allow the required access.
Further internal correspondence from 20 September 2021 shows the landlord had not instructed the proposed works. This was on the basis the resident declined them. The correspondence said if the resident now agreed then the works should be passed to its repairs team for scheduling.
The resident asked the landlord for an update on 28 September 2021. She said she had “another bad fall” after getting stuck in a rat’s nest. Further, cleaning “hundreds of rat droppings” had inflamed her nose and was preventing her from catching her breath. She also said her knee was in serious pain after several falls.
On 5 October 2021 the resident contacted the landlord through a webchat. The transcript shows her enquiry related to the landlord’s stage two response. The resident said she was previously advised the landlord would look at the complaint again and get back to her. However, she had not received a response although the landlord was aware she was distressed and that her mental health was suffering.
The resident updated the Ombudsman the same day. The main points were:
1. The resident was prevented from inspecting the garden while viewing the property. She was therefore unaware of the infestation until after she moved in. However, neighbours made several reports about the rats which resulted in a visit from Environmental Health. The infestation was found to be affecting both the inside of the property and the garden.
2. The resident had suffered “many falls and injuries” in the garden and, at one stage, had counted 75 rat’s nests. Her fibromyalgia, amongst other “debilitating conditions””, had left her susceptible to incurring such injuries given the garden’s condition. She was currently bed bound because of extreme pain but had previously been threatened with eviction for failing to maintain the garden.
3. The situation prompted the resident to ask for the whole garden to be covered with flag stones given the danger to her physical and mental health. Further, she was constantly paying to have rat droppings cleaned and could not afford to go to hospital for treatment. The landlord ignored her requests for “reasonable adjustments” to the garden, along with her concerns around discrimination.
The landlord updated the resident on 26 October 2021. It said it understood she felt her concerns around discrimination were not addressed during its complaints process. However, since the process had been exhausted, the resident would need to approach the Ombudsman with her complaint. This was on the basis the landlord would not reinvestigate complaints that had completed its internal procedure.
On 26 April 2022 the resident updated the Ombudsman by email. She said she was “constantly being verbally threatened” by the landlord because she was unable to keep on top of the garden due to the number of rats nests. Further, she had recently fallen over and hurt her knees while attempting to maintain it. Images attached to the email appeared to show several burrows in the property’s lawn.
The resident updated the Ombudsman during a phone call on 27 June 2022. She said the works agreed in the landlord’s stage two response were all outstanding. Further, this was because the landlord never contacted her to arrange them.

Assessment and findings

It is recognised the situation is distressing for the resident. The timeline confirms it has been ongoing for a considerable period of time. The infestation’s impact on her health and wellbeing is also acknowledged. From the outset of her complaint, the resident repeatedly said she experienced disability discrimination from the landlord. It is understood this allegation was based on its response to the situation.
It is recognised this is a serious allegation that was likely prompted by a significant level of distress on the resident’s part. It may help to explain that the Ombudsman cannot make findings under the Equalities Act (2010) or otherwise. The allegation is therefore a legal matter that likely needs considering by a court. The resident could contact Citizen’s Advice if she needs assistance pursuing legal action.
However, the Ombudsman can consider the landlord’s response to the resident’s allegation. On that basis, this assessment considered the evidence carefully with the resident’s concerns in mind. The landlord’s response to the allegation will be considered during the below evaluation of its complaint handling.
From the information seen, the resident’s concerns about her dog were raised after the landlord issued its final response letter. If she has not done so already, the resident could raise a new formal complaint if she wants the landlord to address this issue. No information was seen to show the landlord gave the resident notice of impending tenancy action during the timeline.

The landlord’s response to a rat infestation at the property

The following assessment is based on the limited evidence detailed in the timeline above. The landlord has not disputed the resident’s version of events. The information seen shows the property’s garden is currently affected by the damage the infestation caused. However, the timeline confirms the infestation previously impacted the property’s interior. It is reasonable to conclude the interior could again be affected without sufficient remedial action from the landlord.
The timeline shows the relevant local authority’s Environmental Health department was involved with the infestation at an early stage. However, no information was seen to confirm either the nature of this involvement or the root cause of the infestation. By itself, the local authority’s involvement indicates the infestation was severe. This is supported by the resident’s comments around both the number of burrows in the garden, and reports her neighbours made to the local authority.
The landlord’s repair records suggest it was responding to the resident’s reports of rats on a reactive basis. This is because no obvious pattern was evident from the timing of its corresponding works orders. The evidence therefore suggests it failed to conduct additional monitoring of an identified potential hazard in line with the expectations outlined in HHSRS. This was inappropriate action from the landlord given the circumstances. From the information seen, it was difficult to quantify the resulting impact to the resident. However, it is reasonable to conclude the infestation could have been resolved at an earlier stage of the timeline given appropriate monitoring.
For example, the timeline shows the resident was reporting the rats from around May 2019. No evidence was seen to show the property was ultimately cleared by a relevant qualified professional. On the contrary, the landlord agreed to a further environmental inspection in its stage two response, which the evidence suggests remains outstanding. As a result, the resident was living with, at least, the anxiety of infestation for over three years at the point of this assessment. It is accepted the landlord’s treatment works led to phases of reduced rat activity during this period.
Nevertheless, the resident said the infestation had a significant effect on her health and wellbeing. For example, she said her breathing was impacted due to the quantity of rat of droppings. It is reasonable to conclude the overall situation was exacerbated by the resident’s vulnerabilities. Her comments around paying for cleaning indicates her ability to manage the situation independently was sometimes limited.
The evidence also suggests the landlord failed to complete baiting and sealing works identified in July 2021. The landlord was obliged to complete these works in line with both the responsibilities detailed in its customer handbook, and the expectations set out in HHSRS. Since no information was seen to show these works were ultimately completed, the evidence suggests they were outstanding for around twelve months at the point of this assessment. This was an inappropriate period given the circumstances.
In its stage one response, the landlord said it failed to gain access to the property on a number of occasions around this time. It also apologised for failing to notify the resident in advance of its first visit. This apology suggests the visit did not conform to a previous arrangement concerning access. The landlord’s stage two response suggests it adopted an additional contact process to help the resident and to avoid future access issues. This was a reasonable measure given the circumstances.
Though the landlord said the resident should call to rearrange the baiting and sealing works, it should have reasonably made a formal written request for access given the potential for reinfestation, along with the related property damage and health risks. It is reasonable to conclude any infestation could also affect neighbouring properties and their occupants. As a result, the landlord lacked an appropriate degree of resolution focus given the circumstances. A similar rationale also applies to the outstanding list of works that the landlord agreed at stage two. For example, it is reasonable to conclude levelling works were agreed to minimise trip hazards, which can also fall within the scope of HHSRS.
Overall, the evidence shows there was maladministration in respect of the landlord’s response to the rat infestation. This is because the landlord failed to conduct additional monitoring of an identified potential hazard in line with HHSRS. It is reasonable to conclude the infestation could have been resolved earlier if it has done so. Since no evidence was seen to show the property was appropriately cleared, the overall timeline is over three years running from May 2019.
The landlord also failed to complete baiting and sealing works in line with its obligations. The evidence suggests these works have been outstanding for around 12 months. Access issues could reasonably have been overcome with an appropriate degree of resolution focus.

The landlord’s response to the resident’s related request to cover the property’s garden with flagstones

In relation to the resident’s requested works, the landlord’s handbook shows it is obliged to repair the structure of the property. No information was seen to show it is obliged to make improvements. Nevertheless, the evidence suggests the landlord arranged a surveyor’s inspection following the resident’s reports of damage, and her related request for increased flag stone coverage. This was a reasonable course of action given the resident’s individual circumstances.
While the Ombudsman has not seen the surveyor’s report, it is likely the landlord’s agreed list of works, outlined in its stage two response, resulted from this inspection. The evidence suggests the landlord gave reasonable consideration to the resident’s preferred works. This is because the timeline indicates it compiled the relevant costings and took a decision based on a reasonable amount of information. The landlord was entitled to rely on the professional opinion of a relevant qualified surveyor.
In its stage one response, the landlord advised the resident to contact the OHS about her proposed works. This was in line with the information contained in its customer handbook, which shows the landlord can only independently assess requests for minor adaptations. It is reasonable to conclude that adapting the whole garden fell outside of the landlord’s internal assessment capabilities.
Typically, in response to requests for adaptations on health grounds, the Ombudsman expects landlords to implement any recommendations resulting from a needs-based assessment undertaken by a qualified health professional. The landlord said it would complete any recommended works arising from this type of evaluation. This was appropriate information consistent with both the landlord’s approach and the Ombudsman’s expectations. Given the above, the evidence shows there was no maladministration in respect of the landlord’s response to the resident’s related request to cover the property’s garden with flagstones.

The landlord’s complaint handling

The timeline confirms the landlord’s complaint handling conformed to the timescales set out in its complaints policy. However, it also confirms there were other issues with the landlord’s complaint handling. For example, no evidence was seen to show the landlord responded to the resident’s concerns around discrimination. These concerns were raised consistently throughout the complaints process and were clearly important to the resident.
Further, this was a serious allegation which warranted a response. That the landlord declined to address it, at least in its written responses, therefore represents a significant failure on its part. The evidence also suggests the landlord gave the resident incorrect information when it said her concerns, around discrimination, had exhausted its complaints procedure.
Similarly, the landlord’s call records show the resident’s initial complaint included concerns around the suitability of the property from the outset of the tenancy. Again, no information was seen to show the landlord responded to this issue. While it is accepted this issue was not raised with the same level of persistence, it is reasonable to conclude it should have been identified at the beginning of the complaint journey. If it was unsure, the landlord could have asked the resident if this matter formed part of her complaint.
This assessment considered the above information in conjunction with the Housing Ombudsman’s Complaint Handling Code, which was published in July 2020. The Code says, “Landlords shall address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate”. This information can be found in section 3.14 in the applicable version of the Code, and in section 5.6 of the updated version. The above shows the landlord’s complaint handling failed to comply with the requirements of the Code.
As a result of this failure, the resident’s concerns remained unaddressed after around 12 months. Further, the landlord may have missed an opportunity to put things right and its position in relation to the allegation remains unclear. It is reasonable to conclude an understanding of the landlord’s position is essential for the resident to determine her subsequent course of action. For example, it will allow her to decide whether she wants to pursue legal action or not. The above shows the landlord’s overall complaint handling was unfair to the resident.
The above identified failures confirm there was maladministration in respect of the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:
1. Maladministration in respect of the landlord’s response to a rat infestation at the property.
2. No maladministration in respect of the landlord’s response to the resident’s related request to cover the property’s garden with flagstones.
3. Maladministration in respect of the landlord’s complaint handling.

Reasons

The evidence suggests the landlord failed to conduct additional monitoring of the infestation in accordance with HHSRS. This likely prevented the infestation from being resolved earlier. The evidence suggests the problem remains unresolved after more than three years. The landlord also failed to complete identified works in line with its obligations. While access did present an issue, the landlord demonstrated an inappropriate degree of resolution focus. As a result, repair works remain outstanding after around 12 months.
The landlord said it would complete any recommended works arising from a needs-based assessment undertaken by a qualified health professional. This was appropriate information consistent with both the landlord’s approach and the Ombudsman’s expectations.
The landlord failed to address all the resident’s complaint points contrary to the Housing Ombudsman’s Complaint Handling Code. This was unfair to the resident and some of her most important concerns remain unaddressed after around twelve months.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay the resident a total of £1050 within four weeks comprising:
1. £800 for any distress and inconvenience the resident was caused by the above identified delays and failures in respect of the landlord’s response to a rat infestation, which the timeline shows remains unresolved after more than three years.
2. £250 for any distress and inconvenience the resident was caused by the above identified failures in respect of the landlord’s complaint handling.
The landlord to inspect the property within four weeks to establish whether additional pest control measures are needed. The inspection should be undertaken by a relevant professional. Any outstanding sealing works should be completed to prevent reinfestation. The landlord should write to the resident and the Ombudsman with its findings.
The landlord to respond the resident’s outstanding complaint points within four weeks. The landlord can contact the resident to clarify any issues as necessary.
The landlord to share this report with its relevant staff. This is with a view to improving its service in cases that involve potential hazards and access issues. Compliance with the Code is a key learning for complaint handling staff.

Recommendations

The landlord to review its record keeping processes in relation to both repairs and complaints. This is with a view to improving the accuracy of its record keeping going forwards.
The landlord should provide evidence of compliance with the above orders and confirm its intentions in relation to the recommendation within four weeks.