London & Quadrant Housing Trust (L&Q) (202127272)

REPORT

COMPLAINT 202127272

London and Quadrant Housing Trust

31 March 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

1. This is about the landlord’s handling of:
   1. the resident’s complaint about a neighbour’s building works.
   2. the associated complaint.

Background

2. The resident holds an assured tenancy with the landlord which started on 20 July 2009. The property is a one bedroom ground floor flat.
3. The resident has access to a garden at the rear of the property. The kitchen and bedroom look onto the boundary wall between the property and her neighbour’s. This wall separates the two properties and is the party wall. To access the garden there is a door from the kitchen.
4. The neighbouring property is not owned by the landlord.
5. The resident became unwell in 2020 with a rare form of cancer. Her treatment was ongoing during the height of the covid-19 lockdowns. She was in the high risk category if she contracted Covid-19.

Policies and Procedures

Vulnerable Residents Policy

6. The landlord has a ‘Vulnerable Residents Policy’. Its definition of a vulnerable resident includes ‘any condition or circumstance that places them at risk in their home’. The policy says that staff need to:
   1. Think – is the customer potentially vulnerable.
   2. Respond – ask how their condition effects them, what support needs they have and consider how it should respond.
   3. Record – ensure the recording of needs on the system so other colleagues know how to respond in the future.

Complaints Policy

7. The landlord takes complaints by phone, directly to any colleague or by email. The policy states that the landlord will aim to respond to a complaint within 10 working days. In case of escalation, a stage two response will be issued within 20 working days.
8. The policy states that stage one complaints will be dealt with by the person/department best placed to resolve the complaint.

Compensation Policy

9. The landlord has a compensation policy which guides its staff in making discretionary compensation as part of a complaint. Where an outdoor space becomes unusable due to a failing of the landlord it can award compensation of 10% of the daily rent rate. This is worked out by calculating the daily rate by multiplying the weekly rent by 52 and dividing the amount by 365. Once you have the daily rate, this can be multiplied by the number of days the space was unusable.
10. It can give compensation for distress and inconvenience. Vulnerabilities and situations which make failings more impactful ‘must be included when calculating a fair amount’. The range given is:
    1. Low – £10 – £20.
    2. Medium – £20 – £40.
    3. High £40 – £60.
11. Where the customer had taken time and effort to raise an issue and reach a solution. The range for payment is:
    1. Low – £10 to £50.
    2. Medium – £50 to £100.
    3. High – £100 to £200.
12. A range is also given for complaint handling delays.
    1. Short delay, low impact a low payment between £10 – £50
    2. A months delay but low impact, a medium payment between £50 and £100.
    3. A high payment for three months delay, between £100 and £200.

Summary of events

13. On 20 July 2021, the landlord received notice under the party wall act 1996 from a chartered surveyor. This notice informed the landlord that the neighbour planned to build a single storey, side infill rear extension and a loft extension.
14. On 27 September 2021, the resident contacted the landlord. She had received a party wall agreement from a chartered surveyor’s office. The surveyor was working on behalf of the neighbour.The resident’s concern was about a visit from the surveyor.She wasundergoing ‘immune suppressant treatment’ following a cancer operation and was isolating due to covid-19. The landlord told the resident to speak directly to the surveyor as she could decline the visit and send photographs, as required.
15. The resident advised that the neighbour appointed contractors and works began sometime in late December 2021.
16. On 12 January 2022, the resident contacted the landlord to report the neighbour’s contractors were working along the boundary and they were on the resident’s side in her garden. She reported not being able to open the back door as they were building a wall. She asked for a call back.
17. The landlord’s housing management team phoned the resident. They queried the work with the landlords building services department. This team confirmed they had received notice from the neighbour about works and approval had been given.  The landlords records showed that it would inform the resident that permission had been given for the work to go ahead.
18. On 9 March 2022 the landlord recorded a telephone call from the resident. It was about ongoing issues with building works which included her windows being obstructed by scaffolding and could not be opened. The resident said that the neighbour and contractors were in her garden ‘as they wish’. They had not respected her request for periods of quiet when she was working. The contractors also caused a security issue by leaving the fence open. The resident said she could not use her garden and asked how the neighbour had permission to use her garden without her consent.
19. On 15 March 2022, the landlord emailed the resident that the scaffolding would be down ‘by the end of the week’.
20. In April 2022 the resident contacted this service.She said that neither the landlord or the homeowner had contacted her about the work before it started. She also said that she could not use her garden and that the landlord was not responding to her complaints.
21. Following contact with this service, the landlord confirmed it had not dealt with a formal complaint about the matter. The property officer who was in contact with the resident about the neighbours works prior to the formal complaint acknowledged the complaint on 7 April 2022.  She said that she would investigate and respond to the resident about:
    1. Why the resident was not informed before any works started.
    2. Consider compensation or lower the rent for loss of the garden.
22. The resident emailed back, she said that she had already told the property officer ‘everything’, she wanted the stage one complaint to also address:
    1. Why she had been told her to speak to the neighbour herself, especially when the neighbour ‘lied and disrespected her’.
    2. Why the neighbour was allowed to ‘add and build scaffolding in the garden without her prior knowledge’.
23. On 21 April 2022, the landlord’s property officer provided its stage one reply. It had given permission for the neighbour to access the resident’s garden ‘in accordance with the application’. The neighbour had permission to use ‘part of the border to carry out their works’. It said it had taken on board the resident’s concern. It offered £150 as a goodwill gesture for the inconvenience caused. It said that it had communicated with the resident by email since 12 January 2022 and supported her by:
    1. Negotiating the removal of the obstructing scaffold ‘as soon as the need was complete’.
    2. Negotiating with the homeowner to get her windows cleaned.
    3. Receiving assurances that the contractors were not causing an obstruction.
24. On 27 April 2022, the resident wrote to the landlord to escalate the complaint to stage two. She said the landlord had not answered the questions about why it gave the neighbour permission to work in her garden and added that:
    1. The stage one investigating officer should not have handled the complaint, because they had not responded to any of her queries between 12 February and 15 March 2022 and had refused to take a complaint from her.
    2. The contractors removed her fence and left the garden open which was a worry for security.
    3. The neighbour had put a note through the door offering to clean the windows but this had not happened.
    4. For three weeks scaffolding had completely blocked the property’s rear windows and door.
    5. The landlord had not taken into account the distress caused by this work taking place during her recovery from cancer. It had never visited the property to support her whilst the works were ongoing. It had expected the resident to deal with the neighbour,who had been intimidating.
25. As part of this escalation the resident said:
    1. There had been no apology.
    2. There had been no explanation why she was not told about the works.
    3. The £150 compensation was not sufficient.
26. On 28 April 2022, the landlord acknowledged that the complaint had gone to stage two. It said there may be a delay in response. The customer relation team would ‘aim to contact you at their earliest convenience’.
27. On 9 June 2022, this service wrote to the landlord asking for it to complete a stage two review and send its final decision.
28. On 6 July 2022, the landlord provided its stage two decision. It apologised for the delay in the case being reviewed and explained this was due to an increased volume of work for which it was ‘truly sorry’. £30 was offered for this late response. The letter goes on to handle areas of the residents complaint separately.
29. For lack of communication and not adhering to deadlines and extensions it said that it had failed in its service. It said that it should have informed the resident of any work and scaffolding that would ‘impact your standard of living’. The landlord explained it had failed to acknowledge and efficiently communicate with the resident during the process, as well as considering her vulnerabilities. It apologised for the distress caused and offered £200. It also apologised  for the inconvenience and offered £150.
30. The landlord said that it was important that its staff recognised when customers had additional support needs. It said that its staff should have referred to its vulnerable residents policy, the equality act and the accessible services policy for guidance. The landlord explained that its property manager did not listen to the resident and progress the case quickly. It apologised that the resident had not received the care that it expected its staff to give to residents.
31. The landlord recognised that the level of compensation of £150 offered at stage one was insufficient and not reflective of the distress and inconvenience endured. It offered redresstotalling £575.24 which included an offer of 10% of the daily rent rate for the loss of use of the garden.

Assessment and findings

32. The Ombudsman’s Dispute Resolution Principles are:
    1. Be fair
    2. Put things right
    3. Learn from the outcomes.

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

The resident’s complaint about the neighbour’s building work.

33. The Party-Wall Act 1996 sets out how to:
    1. make an application to undertake works
    2. what to do if you do receive an application.
34. Under the Act, the neighbour had to give notice in writing of what she planned to do. This must be served at least two months before the planned start date for the work.
35. In the act, as the adjoining owner, the landlord’s rights were:
    1. Necessary measures are taken to protect its property from foreseeable damage and for its security.
    2. Not to have unnecessary inconvenience.
    3. To be compensated for loss or damage caused by relevant works.
36. Whilst the landlord was not responsible for the work or the conduct of the contractors, it was reasonable to expect the landlord to consider the impact on its resident in line with the rights given to it under the Act. As it became aware of building works that may cause disruption to the resident it had a role to communicate with the resident about the  proposed works and to address any concerns she may have. Looking at the available evidence there is no indication that this happened when the landlord was initially informed of the proposed works. However, it is evident that the resident was aware that the works were proposed as she received a Party Wall notice in September 2021 from the neighbour’s surveyor. When advising the resident to contact the surveyor directly the landlord was giving appropriate advice but there is no indication that it took further steps to establish if there was anything else it could do to support the resident. The landlord has recognised and apologised for this failing through its complaint responses.
37. The landlord’s vulnerable resident’s policy encourages its staff to think about their resident’s vulnerabilities. They should consider what support is needed. When the resident reported that the neighbour’s work was causing an issue by scaffolding blocking her access to her garden, she had already advised the landlord that she had health concerns therefore, there was an additional responsibility to support the resident.
38. It is reasonable to conclude that the landlord did have some discussions with the neighbour to support its resident. In its stage one response the landlord refers to acting on the resident’s report of dust on her windows by speaking with the neighbour. The resident then acknowledged at stage two that the neighbour had put a note through the door about getting the windows cleaned.   This was an offer from the neighbour to rectify some of the impact of the works and while the resident has said this has not taken place, this is not the fault of the landlord as it was not responsible for the neighbour completing this action.
39. The resident has said that she did not receive any contact between 12 February and 15 March 2022 from the property officer.  The landlord has provided a record of the resident asking for a call back on 9 March 2022 but no record of the call being returned. The next recorded action recorded is the landlord emailing the resident on 15 March 2022 to say that the scaffolding should be removed ‘by the end of the week’. Considering the resident’s health concerns, the ongoing problems being caused by the works including disturbance and the scaffolding obstructing the resident’s windows, the landlord did not provide sufficient support to the resident at the time.
40. At stage two the landlord has sought to remedy its failures in communication by offering an apology, explanation and redress. It has shown empathy and understanding in how it approached its response. It recognised its failings in communication were made worse by the residents health conditions and had resulted in distress and inconvenience for her. It said it ‘should have informed the resident of any work, timescales and scaffolding that would impact on her living standard’. It acknowledged it had failed to consider her vulnerabilities and communicate with her during the process. It offered redress including: A total of £575.24. Broken down as:
    1. Late stage 2 response – £30.
    2. Service failure from poor communication – £50.
    3. Loss of use of the garden for 11 weeks at 10% of daily rent – (£1.84 x 11 = £20.24)
    4. Distress caused by poor communication – £200.
    5. Inconvenience caused by poor communication – £150.
    6. Time and Effort – £125.
41. The landlords has sought to offer redress for its communication failings by offering £50 for its service failure, £200 for causing distress and £150 for inconvenience. This compensation amount is above the amounts that can be offered using the landlords compensation policy, which has the highest rate of £60 for its failings caused by an impact due to a vulnerability . In offering above this amount the landlord has demonstrated its consideration of the impact of its lack of action on the resident.
42. However, the landlords offer of 10% of the daily rent x 11 weeks comes to the sum of £20.24. In the event of an unusable outside space, the landlord’s compensation policy allows for 10% of the daily rent payments. Calculation of 10% of the daily rent needs to be multiplied by the number of days, rather than the number of weeks. The landlord has made an error in this offer by incorrectly applying its policy to compensate the resident for the main part of the complaint, which was her loss of use of the garden.
43. The payment should be adjusted for loss of the garden for 77 days at £1.84 per day. This sum comes to £141.68.

Complaint handling

44. On 7 April 2022 the resident as part of her stage one complaint raised an issue with the support given to her by the property officer. She said she had told the officer ‘everything’ and complained that the advice she had received was to deal with the neighbour directly, ‘despite the neighbour being intimidating’. The stage one complaint response was then issued by the property officer involved in handling the case.
45. On receipt of the stage one, the resident raised impartiality as an issue in her stage two escalation email. She said that the  property officer should not have handled the complaint as ‘she had not responded to her between 12 February and 15 March 2021’. The landlord did not address this concern in its handling of the stage two response.
46.  The landlords complaints policy says that ‘the person/department best placed to resolve the complaint’ will complete the stage one investigation. It does not offer guidance to ensure impartial complaint handling. Section 4.6 of the Ombudsman’s complaint handling codes says that a complaint investigation ‘must be completed in an impartial manner’.
47. The landlord has not conducted an impartial investigation by allowing its property officer to handle the stage one complaint as some of the issues raised in the formal complaint were about the property officer’s contact with the resident. It was not acknowledged at stage two. Therefore, the landlord failed to identify that this was a concern raised in the formal complaint that required a response.
48. The landlord’s complaints  policy allows for complaints in any format. Once received, a stage one reply will be sent within ten days and stage two within 20 days. This is in line with the Ombudsman’s complaint handling code.
49. The resident asked for a stage two review on 27 April 2022. The final response was sent on 6 July 2022, which is a total of 47 working days later. It is noted that the landlord offered £30 compensation and an apology for its delay. The compensation is not in line with its own compensation policy that enables offers of between £50 and £100 for complaints where there have been delays of more than a month in sending a response. £100 is a more appropriate amount as the landlord did not apply its own policy correctly and the length of time in responding at stage two was more than a month.
50. The landlord has awarded the resident £125 for time and effort for the resident through this complaint. Based on the compensation policy of the landlord which allows payments for high impact between £100 and £200, this is a reasonable amount. It shows that the landlord has considered the length of time the issue had remained unresolved and that the resident had to use this service prior to obtaining a stage one and two response.

Determination (decision)

51. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in respect of its handling of the resident’s complaints about the neighbour’s building work.
52. In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in its complaints handling.

Reasons

53. The landlord accepted its service failings in how it communicated with the resident and the lack of support provided in relation to her concerns about the neighbour’s building works. It offered reasonable compensation in recognition of the distress caused by its failings. However, it did not calculate its compensation offer for the garden loss in line with its own policy.
54. There were failings in the handling of the formal complaint as it did not handle the stage 1 impartially nor did it address this matter in its stage 2. It did not respond to the stage 2 within its own timeframes and did not offer reasonable redress for these failings.

Orders and recommendations

55. It is ordered that the landlord pay the resident £541.68 within four weeks of receiving this order. This is comprised of:
    1. Service failure for lack of communication and support with neighbour – £50.
    2. Distress – £200.
    3. Inconvenience – £150.
    4. No access to garden for 77 days at 10% of daily rent – (£1.84 x 77 = £141.68)
    5. The landlord can reduce this (£541.68) by any payment already accepted by the resident.
56. It is also ordered that the landlord pays the resident a total of £225 for its complaint handling failures within four weeks of receiving the order. This is made up of the following amounts
    1. Late stage two response £100
    2. Time and effort – £125.