Luton Borough Council (202013316)

REPORT

COMPLAINT 202013316

Luton Borough Council

31 August 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

1. The complaint is about the landlord’s response to the resident’s reports about:

a)     The property condition;

b)     The behaviour of an operative during a repairs appointment.

2. The landlord’s complaints handling has also been investigated.

Background and summary of events

Background

3. The resident is a secure tenant of the landlord at the property, a two–bedroom first floor flat. The tenancy commenced, on an introductory tenancy basis, on 8 November 2019, and became a secure tenancy on 7 November 2020.
4. The property was a new build property at the point that the tenancy commenced, with the developer (‘the developer’) having a responsibility to resolve any identified defect issues with the defects period. Irrespective of the new build status of the property, the landlord’s repair/maintenance obligations to the resident come within the scope of the Landlord and Tenant Act 1985, which requires the landlord to repair/maintain the structure and exterior of the property. Caselaw requires a landlord to resolve identified repair issues within a reasonable timeframe.
5. The landlord’s complaints procedure, in place at the time of the complaint, provided for a two stage complaints process, with stage one responses required after 15 working days and stage two responses required after 25 working days.

Summary of events

6. The resident complained formally to the landlord on 1 June 2020, in relation to her dissatisfaction with its response to property condition issues she said that she had reported on multiple occasions. She said that she had previously been informed that the issues had been referred on to the developer, but that this had not led to a resolution. The landlord logged a stage one complaint on 3 June.
7. On 4 June 2020, the landlord contacted the resident to see if she was available for a repairs inspection from its contractor on that date. The resident responded to say that she was not available until 8 June. An inspection was subsequently scheduled and took place on that date. No records of the inspection were available.
8. The resident requested escalation of her complaint on 26 June 2020 as she had not received a formal response. The landlord responded to say that it was in the process of raising the works identified during the inspection; the resident confirmed that she wanted the complaint escalated in any case. She also said that the kitchen socket issue had been resolved that same date (26 June), but that she had only been made aware of the appointment at very short notice and the contractor’s behaviour had been ‘disgusting’.
9. The landlord sent its stage two (final) response on 28 July 2020. It apologised for the issues experienced since taking the tenancy on. It also said:

a)     It had inspected the property on 8 June 2020 and issues identified to the oven and bathroom had been resolved;

b)     The developer, who was responsible for defect issues within the first 12 months, had instructed a sub-contractor to address a balcony leak;

c)     There was no record of a contractor appointment on 26 June 2020, though it had raised the resident’s reports with the contractor management team. It had also reported this issue to the developer in case it was one of their operatives who had attended.

10. The resident responded to the landlord on the same date. She disputed the landlord’s version of events, stating that a bathroom leak remained unresolved, the balcony leak had caused ‘damp’ within the property, there were two cracks to the balcony which had not been addressed, two taps continued to leak, the bath remained unattached and there was also now a leak from behind the washing machine. She said that she was aware of the 12 month defects period, but that the landlord was required to ensure that the developer completed required works. She also said that she was dissatisfied that there was no record of the contractor incident and that she had provided the contractor contact details for investigation purposes. The resident requested the date that the outstanding issues would be addressed and enquired about her escalation options, requesting that the landlord explain this in clear terms as she did not understand the wording of its policy.
11. There is no record of the landlord having responded to the resident’s email of 28 July 2020. There is evidence of an internal landlord email dated 29 July, in which it was identified that its contractor had attended and resolved ‘a number of issues’ and that there remained a single defect issue, which the developer had agreed to resolve. All the resident’s reported defect issues had been addressed according to this email.
12. According to the evidence available to this investigation, there then followed a significant gap during which there is no evidence of any progression on any of the matters raised. The resident contacted the Ombudsman on 4 February 2021, listing a number of points of dissatisfaction, including: a failure to provide a final response, outstanding repair issues (bathroom taps, unattached bath, external cracks allowing water ingress, crack in concrete flooring). She also said that the landlord had not been clear with respect to its complaints handling and that the overall experience had resulted in a deterioration in her mental health.
13. Following the Ombudsman’s request for evidence, an internal landlord email dated 25 June 2021 identified that the developer was responsible for responding to defect issues, but that it was ‘not very responsive when it comes to dealing with complaints’. A further internal landlord email of 28 June confirmed:

a)     The resident’s initial reports in June 2020 related to a kitchen socket, a fire door, leaking from above and an unfinished bathroom;

b)     An end of defects inspection had taken place on 5 May 2021, during which mastic had been applied above a patio door to resolve a leak issue;

c)     A ‘tell-tale’ was to be inserted to cracked brickwork in order to monitor the issue;

d)     Issues relating to the taps, the side of the bath, water ingress and the bedroom floor had not been recorded during the inspection, though it had been ‘inferred by the tenant that they were raised’;

e)     A discussion with the resident during the inspection had identified that a number of issues reported in 2020 had not been responded to, including the bedroom floor/ceiling, balcony leak, cracked brickwork, mastic to bath and plug socket left with ‘some mess’;

f)       The landlord’s contractor had addressed some points, with the developer holding responsibility for the majority of the issues, which ‘largely all need addressing’.

14. The developer’s internal email correspondence from 28 June 2021 said that the defects inspection of 5 May had identified two defect issues, cracking to the soffit of the balcony which had been addressed on the day, and a requirement to put a tell-tale on brickwork, which it understood was going to be done by the landlord’s contractor, though it acknowledged that it was not aware whether this had taken place or not.
15. Further email correspondence dated 28 and 29 June 2021, that went between the landlord’s agent and developer, identified concerns, from the landlord’s perspective, about the outstanding issues in relation to the case. Regarding outstanding works, it said that the ‘tell-tale’ was still to be placed on the brickwork and that the leak had re-occurred despite the mastic application during the defects inspection of 5 May. It was identified that the resident had laid flooring on top of the bedroom floor since 2020, though she was to email through a photo of the crack she had previously reported; the bedroom ceiling crack was detailed as no longer an issue. Works were listed as scheduled for 6 July to resolve the mastic issue to the balcony, to apply mastic to reattach the bath and to tidy up the mess around the electric socket. A plumber was also listed to look at the leaking taps in the kitchen and bathroom.
16. The landlord agent concluded that the developer should visit the property, rectify any reported issues, retain records of the visit and get final sign off for ‘all items beyond the mastic above the patio door’. With regard to any items where there was doubt as to whether the responsibility was with the developer, the agent welcomed a ‘conversation’, but requested that, for now the developer should assume responsibility.
17. During a telephone discussion with the Ombudsman on 16 August 2021, the resident confirmed that works had taken place to re-mastic around the balcony/bath and to make good the area around the electrical socket on 6 July, though she had not been satisfied with the standard of works to make good the socket. She also confirmed that a plumber had attended and identified a need to replace a bathroom tap but had not agreed to replace the kitchen tap; the resident had said that she had sought a second opinion and was awaiting a further plumber appointment. She also said that the ‘tell-tale’ to the brickwork had been installed at the beginning of August.

Additional evidence provided

18. The developer’s records following the end of defects inspection on 5 May 2021 detailed two issues: ‘bead of mastic above patio door’ and for a ‘tell–tale’ to be inserted into the brickwork, though this latter issue was not identified as a defects issue.
19. The developer’s list of reported defects from the beginning of tenancy details a number of reports, starting from soon after the tenancy start date:

a)     12 November 2019 – no hot water from bathroom tap;

b)     25 November 2019 – plug socket behind cooker not working;

c)     12 March 2020 – intercom not working;

d)     12 March 2020 – plug stuck in bathroom sink;

e)     12 March 2020 – large crack in brickwork on balcony;

f)       24 March 2020 – leak reported on balcony;

g)     28 July 2020 – leak on drainpipe;

h)     13 May 2021 – bead of mastic above patio door;

i)        13 May 2021 – tell-tale to be inserted in brickwork.

Assessment and findings

Property condition

20. It is not in dispute that the property was within the 12 month defects period when the resident moved into the property and that any defects identified during this period would fall to the developer to resolve. Whilst this was not in dispute, the resident’s tenancy agreement provided her with the implied right to have the landlord keep the structure and exterior of the property in a reasonable state of repair. As such, any repair issues reported would be expected to be resolved by, or on behalf of the landlord, within a reasonable timeframe, irrespective of the existence of the defects period.
21. The resident had reported multiple repair/defect issues to the landlord prior to her formal complaint of June 2020. These reports included issues with an electrical socket in the kitchen, cracked brickwork, a bathroom tap, the intercom and water ingress from the balcony. The intercom issue was not detailed elsewhere in the evidence and, as such, is considered to have been resolved. The remainder of these issues, which were all referenced following the complaint, can reasonably therefore be considered to amount to the issues that the resident believed were unresolved at the point of her formal complaint.
22. Having raised the complaint, the resident would have had a reasonable expectation that the landlord would have clarified the various responsibilities to her with respect to the property. Given the existence of the defects period, this might have included an explanation as to the landlord’s role in the resolution of any such issues, such as liaison with the developer, monitoring the progress on any defects issues and consideration as to how these issues affected its own repair/maintenance responsibilities to her. There is no evidence that the landlord’s response included such information and consequently, the resident’s sense of frustration and concerns about the lack of clarity were understandable.
23. From a repairs management perspective, the landlord acted promptly in response to the June 2020 complaint, by arranging a repairs inspection, which took place on 8 June 2020. There were no records of this inspection, so it has not been possible to identify the extent to which the inspection progressed the specific concerns that had been raised. However, the landlord subsequently confirmed, when the resident contacted it on 26 June, that it had identified works during the inspection and was in the process of raising a job to get the works completed. The landlord’s complaint response then confirmed that these works had taken place and that they related to the oven and bathroom at the property. From the list of items reported by the resident prior to the inspection, this would cover the bathroom taps and electrical socket issues.
24. The complaint response also referred to the developer having responsibility for the balcony leak issue, who had instructed a contractor to resolve this. There was no reference to the additional brickwork issue that had been reported by the resident however. Whilst this was of concern, otherwise, the landlord’s complaint response, at this stage, was reasonable. It had inspected, identified works to resolve repair issues and also confirmed that a defects issue (the balcony leak) would be addressed in the near future.
25. However, the resident responded immediately to the landlord’s complaint response. She disputed whether the bathroom issues had been resolved, referring to a leak, the taps and an unattached bath. She also said that the balcony issue had caused ‘damp’ within the property, that there were in fact two areas of cracking around the balcony area and that there was also a leak coming from behind the washing machine. It is of significant concern that there is no evidence of a response to this contact from the resident, both from a complaints handling perspective (considered in more depth below), and in relation to the property condition issues raised by the resident.
26. The landlord’s internal correspondence from this time refers to no unresolved issues at the property. This suggests that the resident’s contact had not been received by the sender, or at least, had not been taken into account. In any case, the landlord’s internal and external communication was clearly not satisfactory. The Ombudsman appreciates that repairs are often complex and that landlords will often rely upon contractors and sub-contractors to get works done. In addition, cases involving defects will often involve an additional layer of complexity. As such, it is essential that landlord’s communication and record keeping are sufficiently robust so that issues can be managed effectively, with an appropriate audit trail retained after the event. In this case, there is little evidence of such systems being in place.
27. It was not until the Ombudsman became involved and requested information on the case that further updates could be found as to the status of the issues reported by the resident. This was not until June 2021, more than a year after the resident’s formal complaint. At this point, the resident detailed the issues she considered to be outstanding (bathroom taps/bath, external cracking and crack in concrete floor). The landlord offered its view on what had initially been reported (electrical socket, a fire door, unfinished bathroom and a leak from above) and also referred to issues raised by the resident during the recent end of defects inspection (May 2021), which included bedroom floor/ceiling, unattached bath, the balcony leak and cracked brickwork, plus the area around the electrical socket, which had been left ‘in a mess’.
28. It is again of concern that there is a lack of clarity and contemporaneous records as to what was reported and when. For the purposes of this investigation, it is evident from the resident’s response to the landlord of 28 July 2020 that she remained dissatisfied with the bathroom taps/bath, the external cracking to brickwork and the balcony leak. In addition, the standard of works to the electrical socket was clearly an issue that was live at the point of the complaint and as such, has been considered here. The remainder of the issues, including the cracking to the bedroom ceiling/floor and the fire door have not been commented on any further here as there is no evidence that these were live issues at the time of the complaint.
29. The landlord confirmed that the balcony leak issue had been resolved during the defects inspection and that a tell-tale would be inserted to monitor the brickwork issue. Such actions were appropriate at that time, albeit delayed given that the resident had reported them more than a year previous. It is of concern, however, that the resident subsequently reported that the balcony leak had re-occurred and that the tell–tale was not inserted until the beginning of August. Though the mastic has now been reapplied to the balcony, as confirmed by the resident, it remains that this issue was left for an unacceptable length of time. It is not known, what, if any damage was caused to the property interior, or the resident’s possessions as a result of the water ingress here, though it is known that she had reported ‘damp’ from this issue. Having had the opportunity to respond to this issue through its complaints process, and having not done so, the Ombudsman is satisfied that the landlord is not disputing that the resident was affected in this way. In the absence of any evidence as to the actual damage caused, a reasonable and proportionate amount of compensation will be calculated to reflect this service failure. Regarding the brickwork monitoring, it is not clear what, if any detriment the resident has experienced, though the issue will certainly have contributed to her sense of frustration.
30. In respect of the other issues, the resident has confirmed that, on 6 July 2021, the bath had been reattached and that the area around the electrical socket had been made good, though she raised concerns about the standard of works to the electrical socket. She also confirmed that a plumber had inspected and confirmed that her bathroom taps would be replaced, though she questioned a decision not to replace a tap in the kitchen. Again, these works were completed (or identified in the case of the tap) excessively late given the reports from the resident had taken place in June/July 2020. This represents a further service failure on the part of the landlord.
31. Given the extent of the service failures identified, including excessive delays, a lack of clarity about responsibility, a failure to retain records, and excessive delays in identifying and resolving issues, the Ombudsman is satisfied that the landlord’s overall handling of this case, from a defects/repairs perspective, amounts to maladministration. A significant amount of compensation, in accordance with the Ombudsman’s remedies guidance has therefore been ordered to reflect the resident’s experience throughout this process. In addition, recommendations have been identified, both to address outstanding issues on the case, as well as to identify learning for the landlord.

Staff behaviour

32. The landlord’s complaint response of July 2020 identified no records of a contractor appointment on 26 June 2020. It explained that, as such, it was limited in the investigation that it could undertake, but that it had referred the case on to the various contractors involved on the case and also the developer, whose operatives may also have been involved.
33. Whilst the above actions present as reasonable, the resident then provided the landlord with evidence of the contact details when she responded to the complaint. Whilst further investigation might not have resulted in a different outcome, this would have been reasonable given the further information provided by the resident. This might have provided the resident with reassurance and provided the opportunity for the specific contractor to have been identified and spoken to by the landlord. The landlord’s failure to complete any further investigation amounts to a service failure, with a small amount of compensation suitable redress for any inconvenience or distress experienced.

 

Complaints handling

34. The resident requested that the complaint be escalated straight to stage two of the complaints process as she had not received a timely response to her initial complaint. This resulted in a single stage complaints process that, for the reasons identified with in the assessment of the property condition issues above, was not satisfactory. The stage two response that was sent also did not provide any details for the resident’s further options for escalation, such as approaching this Service, or further internal consideration.
35. Though the escalation to stage two had been directly requested by the resident, she had also enquired about her rights to progress the case and confirmed that she did not understand the landlord’s complaints policy. In the circumstances, the Ombudsman considers the landlord’s decision to not undertake further investigation to have been inappropriate. This meant that it missed the opportunity to identify the issues identified above and that it failed to respond to a direct request from the resident.
36. It is also of concern that the landlord was seemingly aware of the developer’s lack of engagement with regards complaints (see summary of events 25 June 2021). As the landlord, it retains an overall responsibility for all aspects of the complaints process, including the communication between relevant stakeholders engaged in the process. As such, this failure on the part of the developer reflected a failure within its own complaints process.

Determination (decision)

37. In accordance with paragraph 54 of the Scheme, there was maladministration in relation to the landlord’s response to the resident’s reports about the property condition.
38. In accordance with paragraph 54 of the Scheme, there was service failure with respect to the landlord’s response to the resident’s reports about staff behaviour.
39. In accordance with paragraph 54 of the Scheme, there was maladministration in relation to the landlord’s complaints handling.

Reasons

40. The landlord failed to clarify, through the complaints procedure, where responsibility sat for the various issues that had been reported. It also failed to communicate effectively and did not retain accurate records. These failures contributed to the excessive delay in identifying and resolving the issues that had been reported.
41. The landlord was unable to identify a record of the contractor appointment during which the alleged inappropriate behaviour occurred. Though it referred the reports on appropriately, there is no evidence that it took further action on the new information provided by the resident.
42. The landlord provided a single stage complaints process and did not respond to the resident when she registered further dissatisfaction. This was not appropriate in the circumstances and contributed to the overall failure on the case.

Orders and recommendations

Order

43. The landlord to pay the resident £1,350 in compensation, broken down as follows:

a)     £1,000 for the service failures identified with its response to the property condition issues;

b)     £100 for the service failure identified with its response to the staff behaviour issues;

c)     £250 for the service failures identified with its complaints handling.

44. The landlord to confirm compliance with the above order by 28 September 2021.

Recommendations

45. The landlord to review the complaints handling failures identified on this case and identify appropriate guidance/training. This will include reference to the Ombudsman’s complaints handling code.
46. The landlord to review its procedures relating to the management of new build properties and defect periods, focussing upon liaison arrangements, record keeping and communication. The landlord to share the findings of this review with the Ombudsman within six months of this report.
47. The landlord to ensure that the resident is kept updated with respect to the monitoring of the brickwork issue, the further plumber inspection and that she be contacted in relation to her concerns about the work done to the electrical socket.