Newcastle-upon-Tyne City Council (202006869)

REPORT

COMPLAINT 202006869

Newcastle-upon-Tyne City Council

12 March 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:
   1. the landlord’s work on the driveway and the drainage system at the property; and
   2. the landlord’s handling of the resident’s complaint.

Jurisdiction

2. 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.
3. After carefully considering all the evidence, in accordance with paragraph 39(i) of the Housing Ombudsman Scheme (the Scheme), the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
4. The resident states that the issue was affecting his pre-existent mental health issues. He also stated that he had tripped on the driveway due to the raised slabs. However, this Service is unable to establish a causal link between reports of the health issues experienced by complainants and the actions of landlords. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of his complaint. 
5. Our position here is in accordance with paragraph 39(i) of the Scheme which provides that: ‘The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure’.
6. Any mention of these issues in the sections below would be for contextual purposes only.

Background and summary of events

7. The resident is a secure tenant of the property, a semi-detached house, which is owned by the landlord.
8. The resident called the landlord on 30 January 2020 to report that he was not happy with works undertaken outside the property and wanted to make a complaint. He requested a call back by a staff member of the landlord. He made a verbal complaint to the landlord on 21 February 2020 in which he stated that he was not happy about the pathway in front of the property. He also wanted to complain about the staff member whom he stated was condescending towards him and he did not wish to have him visit the property any longer. He requested for a visit by a member of the complaints team so that he could show them the issue.
9. In its decision of 25 February 2020, the landlord stated that it had interviewed the staff member whom the resident had complained about and there had been conflicting information on events. It was therefore unable to progress the matter, or his complaint, further for this reason. It apologised for any miscommunication occurring and assured the resident that it had reminded its staff members about its codes of conduct and standards of behaviour required of them.
10. With respect to the quality of works on the exterior of the property, the landlord stated that it had arranged a visual inspection, which took place on 10 February 2020. Following this visit, works for relaying a few paving stones ‘which had movement’ was arranged for 21 February 2020. The resident had, however, refused access to operatives as he believed that the works would not be carried out as specified during the visit. It stated that a return works visit would take place if the resident permitted.
11. The resident sent several emails to the landlord on 9 July 2020 stating that he was not happy with the works that had been undertaken, he also sent photographs of the issue. He stated that the replaced slabs were broken, and he was stumbling on them. He did not wish for the work to continue until the next week and would not allow the operators to continue until the staff member to whom he was writing visited to inspect the works. The landlord responded on the same day to state that it would attend on the following day. The resident insisted that the specific staff member visits alone without any operatives or other staff member.
12. The resident sent several emails to the landlord on 10 July 2020 regarding the slabs, as well as the works to the drain, which he stated was not large enough and he wanted a bigger one installed. He sent several photographs on 11 and 12 July 2020 and stated that the replacement slabs were chipped, and he did not mind paying for new ones. He stated that the issue had made him ill and it was dangerous as he kept tripping. He reiterated that he did not want the operatives at the property, and he would not grant access if they came to do the works.
13. In the ensuing days the resident continued to write the landlord and request to be called to discuss the issue. He also stated that there were three slabs which needed moving and he would get a quote to do it himself. He stated that the slabs were not straight, and the edges were not level. He requested for the contact details of another staff member whom he wanted to call to visit regarding the slabs. He informed the landlord that a company which he had consulted had advised that it would have done the job differently, thus it was going to cost him more money to resolve the works. On 15 July 2020, the landlord informed the resident that it had given the named staff member his telephone number and she spoke to him. He stated that he would be having the paving lifted and the landlord would have to get operatives who installed a neighbour’s driveway to reinstall it.
14. In further emails in July 2020 the resident continued to request for the staff member’s contact details. The landlord informed the resident on 16 July 2020 that it had already advised him that it would be attending the property in two weeks’ time to inspect the external wall. It was its intention during this visit to attend with an operative from the same team as the officer whom the resident wanted to discuss with. The resident expressed his dissatisfaction with this arrangement and stated that he would take the matter further, he also rejected the landlord’s offer of visiting in two weeks. He continued to write the landlord and to state that the driveway of other residents down the road where tightly, and more neatly, installed than his.
15. In an email of 18 July 2020, the resident stated that he wanted the landlord to remove the drainage system in the garden and replace it as it had been previously. He stated that the new one was a hazard. He also stated that it would continue to cause flooding if left as the landlord had installed it. He was going to take legal action on the issues and continued to request that the landlord called him in further emails.
16. On 24 July 2020 the resident wrote to object to a visit to the property by subcontractors of the landlord as he had asked that the particular subcontractor does not visit. In its response of the same day the landlord informed him that this subcontractor was visiting to carry out a CCTV survey of the drains by pushing a camera down the pipe. It stated that this was the only contractor it had for this purpose and it would send him a copy of the footage. The resident responded to state that he had seen the footage and wanted to speak to the landlord. The landlord explained that it would contact him when it had also seen the footage but the resident continued to write to ask for it to call him and to state that he did not want to see certain operatives in the property. The staff member whom he had been communicating with agreed that he would be visiting alone. 
17. In its stage two decision of 3 August 2020, the landlord stated that it had visited the property and carried out a visual inspection. It had not found any faults with the installation and had explained this to the resident. With respect to the drains, it had agreed to install an arco drain which would be connected to the existing drainage system after carrying out some preventative maintenance. This would be adjusted to the paving and it would test the surrounding drains to ensure that it could handle high volumes of water.
18. The landlord further stated that, although it had arranged for the works to be undertaken, the resident had refused to grant access. He had asked its employees to leave the property several times; caused unnecessary delays and made high levels of persistent contact with its personnel. It had visited the property after completion of works and arranged for the driveway to be sealed but the resident had refused that. An independent inspection had been arranged to be carried out by the council’s Highways Department, as requested by the resident, and they had verified that the works met requisite standards. The landlord requested that the resident ceases to make persistent calls to its staff members as the singular point of contact would be maintained.
19. In an email, the landlord agreed to visit on the evening of 3 August 2020, however it wrote to the resident on the day to advise that it had to rearrange the visit due to work commitments. It requested a postponement to 5 August 2020. The resident wrote several emails to express his dissatisfaction with this, on the day, and stated that he wanted a call from the staff member else he would put in a complaint. The meeting was rearranged for 6 August 2020, although the staff member was on annual leave on the day. Following the visit, the resident wrote to states that he wanted the slabs to be reinstalled and he knew a company with more than 40 years’ experience whom he preferred to do this. He sent the landlord several emails on 6 and 12 August 2020 on this issue as well as regarding the drains.
20. In an email of 14 August 2020, the resident requested for the escalation of his complaint to stage three. He wrote the landlord again on 17 August 2020 to request for an update on the issue. In its response of 18 August 2020, the landlord advised that the wall had been checked and the damp readings were low, but another visit will take place to ensure that it remained at the right level.
21. In an email of 18 August 2020, the landlord requested for clarifications from the resident on what points he disagreed with in the last decision on the case. He responded to state that the driveway had been level and tightly installed until the ‘dangerous drainage’ was installed. This had caused the slabs to lift up, there were wide gaps, it was difficult to walk on and a visitor caught their heel in it. The landlord had not responded to his offer to pay for new slabs. He also clarified that he was not happy with every aspect of the complaints decision. He wrote the landlord again on 18 and 19 August asking to be called and stating that he would take legal action.
22. The landlord responded by advising him that the drive was safe, and the drainage has been installed to remove water falling on the drive. The resident stated that he didn’t want to live in the property anymore because of the issue and he intended to make the matter public. The resident continued to write in the days following, requesting a call from the landlord. The landlord asked for him to clarify if he had a new issue to discuss. He however responded that he wanted to speak to the staff member whose contact details he had been requesting for. He continued to send further emails and to state that he was not happy with the driveway and had lost his mother, but the landlord did not wish to call him. 
23. On 25 August 2020 a staff member of the landlord who was dealing with his complaint wrote to the resident to request a visit to the property on that day. In his response of the same day the resident asked to be called on the following day as he had just lost his mother. The officer wrote back to explain that they were working from home and could not telephone him, they asked if they could meet with him on the following day instead. The resident responded that it was not convenient for him and he would contact the landlord when he could take a visit.
24. The staff member responded by stating that they would be visiting to observe how the drains worked while it was raining, as was the case that day. This was an inspection of the exterior and did not require for them to meet with the resident. In his response, the resident stated that the staff member was being selfish, and he would take legal action if a visit was conducted without meeting with him. He stated that he wanted to talk with the staff member during the visit and was being pushed by their suggestion of a visit without his permission. The staff member responded to clarify again the reason for their visit and that this was necessary as it would aid the further review of his complaint. They also stated that they would visit again on the following day to meet with the resident.
25. A telephone conversation took place between the landlord and the resident on 26 August 2020 after which the landlord wrote to confirm that it would visit the property on 14 September 2020. This would mean that a decision on his formal complaint would be made by 30 September 2020. The resident continued to contact the landlord to request for updates after the visit and prior to the date given for a decision on the complaint.
26. In its final decision of 29 September 2020, the landlord provided details of the issue, including the resident’s descriptions of the situation, as detailed in several emails and telephone conversations. It stated that a visit to the property on 25 August 2020 during a heavy rainfall showed that the driveway was slightly wet but there was no flooding. It inspected the driveway and found no defect with the paving slabs or their installation, there were also no large gaps or trip hazards and the drain was clean.
27. The landlord had visited on 14 September 2020 and the resident had pointed out areas of the driveway that he was dissatisfied with. He stated that some of the paving slabs were loose, there were gaps and chipped slabs all of which caused a trip hazard. This was a dry day and the landlord had seen no evidence of the issues mentioned by the resident, other than a very small chip which was neither unsightly nor a trip hazard.
28. The resident had complained about not being satisfied with the newly installed arco drainage system as it was not what he wanted. The landlord advised that it found that it was the most suitable drain for the driveway as it removed excess water. The resident stated that the system went all the way to the front of his doorstep and a friend’s footwear had become damaged by the drain. Although the landlord understood that the extension had been at the resident’s request, it agreed to arrange for it to be shortened. It asked the resident to contact it if he wanted this to be done.
29. In subsequent emails to the landlord, the resident objected to a statement in the decision regarding his being open about his mental health problems and him sending staff members and operatives away from the property. The landlord explained in its response that this information had come from the recordings of his statement to its staff member when he called to complain. It explained that it was the duty of the officer dealing with the complaint to review all correspondence and reflect these in the decision. It clarified that it had completed its consideration of his complaint and he could seek external intervention. The resident continued to write the landlord to request the relaying of the slabs in the months following its final decision.

Assessment and findings

30. It is the duty of the landlord to undertake repairs to the driveway and drains of the property in accordance with the terms and conditions of the tenancy agreement. The documents provided to this Service indicate that there were no delays by the landlord in visiting the property to assess the situation when the resident reported his dissatisfaction with the works to the slabs and drains.
31. It is reasonable for the landlord to rely on the findings of its professional personnel and contractors in determining whether works have been completed 2 reasonable standards. The resident has maintained that the slabs are on even have large gaps have been improperly installed and are a tripping hazard. He also maintains that the new drainage system is unsatisfactory, and he would want to revert to the previous one.
32. Several inspections of the issues have been undertaken by staff members of the landlord to verify the situation. Vitally, the council’s Highways Department has also undertaken an inspection. All of the visits have resulted in the same consistent finding that the works have been completed to appropriate standards and any further actions would be to make good the repairs. The resident’s views of the situation and disagreement with the landlord’s findings cannot be considered as a professional assessment of the works and this Service has not been provided with any expert report confirming his assertions. There is, therefore, no basis upon which to conclude that the landlord’s assessment if the works is inaccurate.
33. The resident has sent several photographs of the driveway slabs and drainage which have been provided to this service. It must be clarified that this Service attaches minimal weight to photographs in assessing cases as it is not an expert on photographic evidence and is unable to ascertain that the photographs depict what they are purported to. As such, we would not usually refer to these when investigating complaints.
34. The landlord received an exceptionally high number of emails from the resident in which he consistently refused the visit of operatives to complete the works to the driveway and the drains. On the other hand, he was also requesting contact by specific staff members and would provide time scales within which this had to happen. it is noted that the resident is vulnerable. He makes mention of this frequently in his communications with the landlord and has also stated as much to this Service. This Service finds that although his demands on the landlord’s time were excessive, it was reasonable in recognising his vulnerability and providing responses whenever necessary.
35. It must be emphasised that the landlord has no obligation to undertake works to the specifications of its residents but must base its actions on the advice of its expert operatives, as already stated. The landlord continued to explain its position to the resident while also visiting the property to ensure that it was taking the right measures in dealing with the issue. 
36. It was reasonable that the landlord decided that it would not provide the resident with direct contact details for a specific staff member. It would have made the matter even more unmanageable if he was provided with more direct contact details for more staff members. It is the landlord’s responsibility to ensure that communications with residents did not become unwieldy and that it make good use of its time and resources. Thus, it was appropriate that it did not respond to the resident’s request for contact at the frequency he demanded, while also taking his vulnerability into account.
37. Overall, the landlord provided adequate clarifications to the resident about the works that had been completed and why they had been undertaken. It continued to ensure that he was aware that it remained willing to visit the property to complete the repairs in accordance with its findings. This Service finds that the landlord was proactive in dealing with this matter and mindful of the personal circumstances of the resident. It was objective in its consideration of the resident’s reports as it based its findings on the works on several inspection visits during by various staff members at all stages of the matter.
38. With respect to the resident’s complaint about the staff member, the landlord explained to the resident that it had investigated the matter. In the absence of an independent corroboration of events, it would have been impossible for the landlord to ascertain what had transpired. Thus, it was reasonable that it advised the resident that it could not consider the matter further.
39. There was considerable lapse of time between the first and second stage decisions in this matter. Nonetheless, there was very frequent communication between the landlord and the resident in the months following the stage one decision. Furthermore, the landlord had clarified in the stage one decision that there was no basis for progressing the issues further. However, as the resident requested the escalation of the matter and reported that the works were substandard, it agreed to escalate the complaint. There was therefore no failing in the landlord’s handling of the formal complaint. 

Determination (decision)

40. In accordance with paragraph 54 of the Scheme there was no maladministration by the landlord in respect of:
    1. Its work on the driveway and the drainage system at the property; and
    2. Its handling of the resident’s complaint.

Reasons

41. The evidence provided indicates that all inspections to the property have concluded that the driveway paving has been adequately installed and the new drainage system is functioning appropriately. the landlord has also been highly responsive to communications by the resident and provided adequate responses to his formal complaint.

Recommendations

42. The landlord should consider reoffering the resident a visit to complete all outstanding works, including the shortening of the drains.