London & Quadrant Housing Trust (L&Q) (202214905)

REPORT

COMPLAINT 202214905

London & Quadrant Housing Trust

25 July 2023

Our approach

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

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

The complaint

The complaint is about:
1. The landlord’s response to the resident’s report of defects to bathroom works.
2. The landlord’s offer of compensation and its complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42(f) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The landlord’s response to the resident’s reports of defects to bathroom works.
Paragraph 42(f) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern matters where a complainant has raised, or had the opportunity to raise, the subject matter of the complaint as part of legal proceedings.
On 9 September 2022, the resident, through her solicitors, issued proceedings in the County Court for an order that the landlord carry out works and for damages (compensation). The works related to the walk-in shower room and alleged related damage, including mould and damp. The resident claimed loss of comfort, including her distress. These were the same issues and facts that was the subject of the resident’s first complaint.
The Ombudsman will not investigate a complaint that is subject to legal proceedings. This is because the court will be making a decision on the matter and it would neither be fair or proportionate for the Ombudsman to consider the matter separately.

Background and summary of events

The resident occupied her property, a two-bedroom flat, with her son under an “affordable rent” assured tenancy which began on 9 February 2021. The landlord had recorded that she and her son had disabilities.

Legal and policy framework

The landlord’s complaint policy and procedures set out as follows:
1. It operated a two-stage complaints procedure with response times of 10 and 20 working days respectively. It would inform the resident if it was unable to meet those deadlines. The resident had the right to escalate a complaint.
2. It would make contact within two working days to give complainants the opportunity to explain their side of things.
The landlord’s compensation policy set out as follows:
1. It would consider the impact of any failures in its complaint handling and where it had not complied with the Housing Ombudsman’s Complaint Handling Code.
2. It would partly or fully offset a compensation payment against any debt owed by a customer, including rent and service charge arrears.
3. It would ensure that payments and/or adjustments would be issued promptly.
4. Its “high” payment was between £100 and £200, for example, where there was a three months delay to a decision which delayed repairs.
5. If the customer declined the compensation, it should still make the payment offered. It did not preclude the customer from approaching the Housing Ombudsman.
6. It would consider issues, such as whether the Stage One complaint response was late without agreeing this with the customer, and whether it had answered all the points raised in the complaint.
The pre-action protocol for housing conditions set out within the County Court Rules ( the “Protocol”) states as follows:
1. The court would expect all parties to have complied with the Protocol as far as possible. There were possible sanctions if it did not do so.
2. The aim of the Protocol is to avoid unnecessary litigation.
3. The parties should consider whether some form of alternative dispute resolution (ADR) procedure would be more suitable than litigation and if so, try to agree which form of ADR to use. Both the landlord and the tenant may be required by the court to provide evidence that alternative means of resolving their dispute had been considered.
4. The courts take the view that litigation should be a last resort, and that claims should not be issued while a settlement is still actively being explored. Parties should be aware that the court will take into account the extent of the parties’ compliance with this Protocol when making orders about who should pay costs.
5. Options for resolving a dispute include the following:
  1. Any complaints/arbitration procedure operated by the landlord.
  2. The Housing Ombudsman Service deals with complaints from tenants of social housing in England about housing conditions.

Chronology

On 8 October 2021, the resident’s son’s social worker had made recommendations for works to be carried out to the resident’s walk-in shower. On 21 December 2021, the resident made a complaint about the standard of the works to her walk-in shower and her request for rectification. In summary, it concerned the wet room water flooding into the living area, a swollen bathroom door, and black mould on walls and in the cupboard as well as holes cut into the cupboard.
In February 2022, a plumber attended, but stated he was not the right person as the issue was not a plumbing issue. In June 2022, the landlord attended the property in order to rectify the defect in the shower but this was unsuccessful. On 27 June 2022, the resident requested to escalate her complaint. She set out a chronology of events and the impact the situation was having on her.
On 30 June 2022, the landlord wrote with its Stage One decision offer of £1,400. The response set out a chronology. This included £120 for its delay in responding to the resident’s complaint.
The resident wrote on 8 July 2022 that she had instructed solicitors. She said she would be available for a third surveyor inspection, albeit reluctantly. The landlord replied that as at 11 July 2022 it had not heard from the resident’s solicitors and offered to carry out the works in the meantime. According to the resident, her solicitor had written to the landlord on 6 July 2022.
The landlord wrote to the resident on 30 August 2022 stating that it had escalated the resident’s complaint to Stage Two. The resident replied, asking the landlord to liaise with her solicitors regarding matters except access.
On 9 September 2022, the resident’s solicitor wrote a formal letter of claim under the pre-action protocol. At about the same time, the social worker wrote to the landlord with a complaint on the resident’s behalf. The letter was undated.
There followed an internal email discussion where the landlord sought to separate the complaint from the disrepair claim. It considered that all legal disrepairs were outside of the formal complaint process. At that time, the landlord paid the resident the compensation offered in June 2022, partly by crediting her rent account, which it did, according to its internal emails, on 23 September 2022.
On 26 September 2022, the landlord decided that the complaint process should be followed, despite there being a legal disrepair case in place. The legal disrepair protocol stated that residents should comply with the landlord’s complaints process before a disrepair claim is pursued and this was its message to tenants’ solicitors. This was to avoid incurring costs, “without following the correct process ahead of issuing a claim”. The Stage Two response was to address the issues of the wetroom and offer any relevant compensation. It would also continue to work to resolve the repairs issues in the meantime and noted it as part of the complaint.
On 27 September 2022, the landlord wrote to the resident with its Stage Two response. It offered the surplus on the rent account as a cheque. In recognition of the further delays, it offered a further £610 compensation including for delays in its complaint handling, which payment it would make by cheque.
The resident replied on 28 September 2022 as follows:
1. The landlord had paid compensation without her approval or discussing it with “anyone”.
2. She had advised the landlord on 30 August 2022 to discuss any issues with her solicitors.
3. She asked for the landlord’s reasons for making the payment and by what authority it was entitled to do so.
4. She considered that the landlord had “purposefully” paid the compensation in order to intentionally undermine her legal disrepair claim.
5. She did not accept the compensation, despite it “forcefully” crediting her rent arrears.
The landlord replied that it was sorry if the letter caused concern but all compensation offered was paid “automatically as recommended by the Housing Ombudsman”. The payment did not have a detrimental effect on the ongoing disrepair case or any further Housing Ombudsman referral.
On 30 September 2022, the resident made a formal complaint as follows:
1. The resident would have requested compensation once the disrepair and remedial works were completed.
2. She instructed solicitors to advocate on her behalf as communicating with the landlord was adversely affecting her physical, emotional and mental health.
3. She was advised to tell the landlord to liaise with her solicitors, which she did.
4. Her solicitors wrote to the landlord on 6 July 2022 requesting the landlord’s proposals for compensation. Such proposals had not been received.
5. She set out why she disagreed with the level of compensation and asked how it was calculated.
6. The inspections had not been completed but the complaint had been closed.
7. The payment had prevented her solicitors from legally advocating on her behalf in relation to the compensation amount. She had concluded that it was a “strategically deceptive move to hinder (her) from receiving advocacy from (her) solicitors” about the amount of compensation that had been offered.
8. The landlord was aware of the “percentage” deducted from rent in compensation for disrepair.
9. The landlord’s policy stated that “Compensation should not be offered until all work/issues have been resolved, or where a complaint has been lodged, and it had been fully investigated”.
10. She was already paying regularly paying off the rent arrears.
11. She had read this Service’s guidance. She requested a copy which stated “all compensations offered following a Stage Two complaint are paid automatically as recommended by the Housing Ombudsman”.
12. She had requested an up-to-date copy of the landlord’s compensation policy and procedures, as online she was only able to access the 2019 version.
13. She expected a revised offer of compensation.
On 28 December 2022, the landlord wrote with its Stage One response that it described as its final response as follows:
1. It was “satisfied” with the management of the case.
2. It apologised for the delay in replying and not making a call back.
3. It offered £50 for the inconvenience and a further of £30 in compensation in “full and final settlement to this matter”.
4. It would send a cheque for that amount.
The resident wrote back on 3 January 2023 stating the landlord had not addressed her question, in particular one which was very important to her. The landlord replied on 25 January 2023 that it would address her questions.
The resident issued a claim for disrepair on 9 January 2023.
The landlord wrote further on 2 February 2023 as follows:
1. It apologised for the further delays.
2. It did not close a complaint prior to being fully investigated. However, legal interaction fell outside the complaints process and was therefore dealt with separately.
3. The legal team would contact the resident or her legal representative directly with any updates.
4. In line with its policy, payments of compensation were paid “automatically” to a resident’s rent account when there was a shortfall in the rent account.
5. It referred to the then Housing Ombudsman Service’s Remedies Guidance at page 8 “Some landlords will wish to offset any payment of compensation against a complainant’s rent or service charge arrears. This approach will often be set out in a landlord’s compensation policy. In some instances, the Ombudsman will say that the landlord is entitled to do this”.
6. Rental charges were not used to calculate the rewards of compensation but in line with the compensation policy.
7. It appreciated that the compensation at Stage One was calculated for a period of nine months, but due to a member of staff who had been dealing with the matter having left her employment with the landlord, it was unable to investigate the reasoning for this. It had increased the compensation to cover a period of over 12 months. Based on the resident’s comments that she was “inconvenienced” for 16 months from February 2021 to June 2022, it increased the compensation to cover a further three months to a total of £2,520 by a further £510 as follows:
  1. £360 for the additional three months in relation to the resident’s distress and inconvenience
  2. £100 for time and effort
  3. £50 for the complaint handling delays.
8. It would send a cheque in payment.
9. This was in “full and final settlement”.

Assessment and findings

There was a significant delay in the landlord responding to the resident’s complaint of 21 December 2021. It considered the issues and made an offer of compensation. The landlord’s offer of £120 in relation to its complaint handling constituted, in the opinion of the Ombudsman, reasonable redress as it was in line with landlord’s policy and the Ombudsman’s own level of compensation in its Remedies Guidance. While it was frustrating for the resident, and clearly significantly outside its timescales, the impact was not of significant duration. There was no evidence that the delay impacted on achieving the solution itself.
Given the landlord’s compensation policy, and the Ombudsman’s expectations of a landlord’s complaint handling, it was appropriate to make the second payment as soon as practicable. The first payment, however, was made late. Given the resident’s complaint was that it was made at all, the Ombudsman does not find service failure in that regard.
The landlord took the view that it should address the complaint separately to the letter of claim under the pre-action protocol. This was reasonable and appropriate for a number of reasons as follows:
1. Firstly, the parties had an obligation to avoid litigation and to explore alternative dispute resolution. There may be sanctions if they fail to do so. The relevant pre-action protocol suggests the complaints procedure and a subsequent referral to this Service as a way to resolve complaints without litigation. The advantage of such a process for both parties is to avoid incurring legal costs. The resident could avail herself of advice for those circumstances although the Ombudsman appreciates that the resident would have to pay for such services or seek costs from the landlord.
2. While there are issues that the Ombudsman cannot resolve such as personal injury claims, there are some issues that legal action does not address, such as the quality of service and the complaints process itself.
While the interplay between the complaints route and the legal route is complex, one does not preclude the other and they can act in tandem. A ruling by the Ombudsman or an offer by the landlord does not rule out the tenant issuing proceedings. In this case, the landlord reasonably and explicitly stated that its offer of compensation in relation to the defects in the shower room did not bind the resident. Indeed, the resident issued proceedings through her solicitor in any event.
The Ombudsman would have found it unreasonable if the landlord had ceased to engage in the complaints process because the resident had engaged solicitors. The Ombudsman’s guidance is also to resolve a complaint within a timescale. A complaint is not only about compensation but about promoting a resolution. It is always open to a landlord to review compensation, where, for example, there have been further delays.
However, while the resident had requested escalation of her complaint, there was no doubt that on 30 August 2022, she asked the landlord not to respond to her but to her solicitors. She was clear that she only wanted contact in relation to making arrangements for access. She explained later that she did so in order not to have the stress of further contact from the landlord, although her concern was that the landlord’s payment would have prevented her solicitor from taking further action.
While the landlord had the option of sending its complaint response to the resident’s solicitor, making an offer of compensation did not have a practical adverse impact on the resident. It was open to her solicitors to make a counter-offer. There was no reason why her solicitors could not have continued to advocate for her and it did not prevent her, as a matter of fact, from issuing proceedings. In the circumstances, while it was frustrating for the resident that the landlord did not take account of the resident’s request, the Ombudsman does not find service failure in that regard, given the lack of significant practical and lasting impact.
The landlord was ambiguous as to whether it treated its response of 28 December 2022 as its final response. It did not explain why it did not offer the resident the opportunity to escalate the complaint. It merely stated it was “satisfied” with its complaint handling. It did not provide any explanation and it did not respond at that time to the resident’s numerous points, so that she was obliged to write again. This was frustrating for the resident.
However, the landlord wrote again on 2 February 2023 with a fuller response.
It explained that when the landlord referred to an “automatic payment”, it was referring to applying compensation to rent arrears, which was the then guidance of the Ombudsman. This meaning was not clear from its response of 28 September 2022 and indeed not what the resident understood the landlord to mean. This was particularly the case, as the resident’s complaint was that the landlord had paid the compensation without reference to her, although it was also about the fact she was already paying the arrears off in agreed instalments.
The Ombudsman will note here that this Service’s guidance on remedies has been subsequently amended so that a landlord should not apply compensation to rent arrears, but that guidance did not apply until September 2022.
It was inappropriate to refer to the offer as “full and final settlement”. That is a legal phrase indicating that, if it were accepted, the resident would not be able to make a further claim. That was misleading, given the resident was entitled to make a further claim or refer her complaint to this Service. While the landlord subsequently sought to reassure the resident, (thus demonstrating the use of the phrase was to no purpose) the use of the phrase may have led the resident to understand there was no further negotiation open to her.
Furthermore, it is inappropriate to use such a term to a lay person without explaining the implications of such a phrase. The landlord should avoid the use of the term in the context of a complaint altogether. It should only be used where the parties were explicitly seeking a final settlement, and in which case, the landlord should explain itself.
Moreover, the Service did not recommend that compensation is applied to rent arrears, but that it was reasonable to do so in appropriate circumstances. While there was no evidence that the landlord was deliberately misleading, the Ombudsman considers that the effect was misleading.
There was no evidence that the landlord paid the compensation to avoid legal action. Indeed, the landlord’s explanation was clear and reasonable that there were two separate processes and different criteria for setting compensation.
The landlord is normally expected to follow through its promised actions under its complaints process, however it was reasonable for only one team to deal with the issues. It was concerning that while it apologised for not maintaining its higher standards, it was not clear what it had learnt from the complaint. It was also concerning that because a member of staff had left, it was not able to explain its own actions and the Ombudsman will make a recommendation in that regard.
Nevertheless, while there were failings in the complaint response, the landlord’s actions and approach were reasonable, it took the opportunity to revise its compensation, to take on board what the resident had said and to provide a fuller response. In the circumstances, the Ombudsman considers that its offer of compensation, its actions, and its apology constituted reasonable redress in relation to the resident’s complaint about the landlord’s complaint handling.

Determination (decision)

In accordance with Paragraph 42(f) of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s response to the resident’s report of defects to bathroom works was outside the Ombudsman’s jurisdiction.
In accordance with Paragraph 53(b) of the Housing Ombudsman Scheme, in the Ombudsman’s view, there was reasonable redress offered in relation to the landlord’s complaint handling.

Reasons

The resident had issued proceedings for a claim for disrepair and therefore the resident’s complaint was dealt with under another jurisdiction.
While the landlord should have taken care of the resident’s request not to write to her direct, it was reasonable of the landlord to address the complaint within its complaint process. It was also reasonable and appropriate that it made payment of the compensation.

Recommendations

The landlord should ensure that its polices are easily accessible on its website and there is an option to access archived policies for reference purposes and transparency.
The landlord should ensure that its staff maintain adequate records so that its actions are explainable even after a member of staff has left its employment.
The landlord should be mindful of its use of language in its complaints responses, for example:
1. It should not use the term “full and final settlement” in the context of a complaint as the resident is entitled to refer their complaint to this Service. It should also refrain from using the term (which has a legal connotation) altogether unless the landlord intends to seek an agreement to bind the resident, in which case it should explain the full implications of such a phrase.
2. Refrain from referring to a Stage One response as “final”, given the resident’s right to request escalation of their complaint.
3. Take care to be accurate when explaining its decisions and references to this service’s guidance, which it should cite by way of a link or attachment, for example where it stated that the Ombudsman “recommended” payment of compensation against rent arrears.