Octavia Housing (202005125)

REPORT

COMPLAINT 202005125

Octavia Housing

20 April 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

The resident complains about;
1. a delayed repair to a window and the landlord’s subsequent offer of compensation;
2. the landlord’s response to her concerns about bullying by a contractor, and;
3. complaint handling.

Background and summary of events

On 28 July 2019 the resident submitted a stage one complaint to the landlord. She explained that her complaint was about the length of time taken to compete the repairs at her property and bullying from a contractor.
She said that there were a large number of visits to address the repairs, and overall it took ten months for the repairs to be completed. The resident stated that the main reason for the delay was due to the landlord employing a pest control contractor to undertake window repairs, stating that they were “…neither qualified or experienced glaziers.” She said the contractor ordered the wrong parts on more than one occasion and detailed ten appointments that were made in relation to the window repair, from June 2018 until the works were completed in January 2019.
In relation to bullying, the resident said that the contractor “…was extremely aggressive and unpleasant to me on his first visit on 7th June 2018 because I would not accede to his demands in regards to unsuitable material he wanted to use and to leave my front door open during the entire period while he was working.” She stated that following on from this he was “…deeply unpleasant and aggressive for the rest of the time he was at my home.” The resident said that when she reported the bullying to the landlord it was dismissed as a clash of personalities. The resident detailed her health issues and the impact the matters described had on her.
The landlord provided a formal response dated 14 August 2019. In this it explained that, as stated in the tenant handbook, if parts were required then a repair may take longer to complete. It said that “Given the age and design of the windows they do present problems in maintaining and repairing them...” However, it did accept the resident’s account of issues with ordering the correct replacement parts, and acknowledged that fitting restrictors to the windows “…was also an issue given the glass being cracked and needing to be replaced.” The landlord accepted that the length of time taken to complete the works was excessive and said that there were lessons to be learnt in terms of how works were carried out and the time taken to complete them. The complaint was upheld.
In relation to the concerns the resident had raised about bullying, the landlord said that all residents were treated equally, though apologised that the resident felt bullied. The landlord said that given it was over a year since the works were started it was difficult for people to be clear on exactly what happened. It had discussed the matter with the contractor, the staff member involved had been spoken to, and had said that at no time while he was working was he aggressive towards the resident. The landlord said “Clearly, I have two versions regarding what did or did not happen during the works…but given you feel the way you do and what you have said happened resulted in you feeling bullied, I partly uphold this part of your complaint.”
Finally, the landlord apologised for the time taken to complete the works and in accordance with its compensation procedure, offered £50 as a gesture of good will.
The resident submitted a stage two complaint on 30 August 2019. In this she outlined her concerns as being:
1. The incompetence of the contractors (who were a pest control firm) assigned to repair the window frame. The resident said that she was caused a great deal of physical and mental stress, and distress by all of the appointments/visits that were carried out.
2. In attempting to fit restrictors to the window frames himself, the surveyor caused the glass to crack and left a hole in the frame.
3. The stage one response saying that ‘things did not go to plan’ was an understatement and did not recognise “…the chaotic, shambolic events that transpired.” When she had raised her concerns about bullying these were dismissed as a clash of personalities.
4. It took over ten months for the repairs to be completed despite the fifteen working days completion time for routine repairs as stated on the landlord’s website. The resident felt she had a claim for damages, “In particular, damages for inconvenience and loss of enjoyment caused by the disrepair…These losses were significant given my disabilities, poor health and the length of time for which the disrepair existed. Further, [the landlord] is fully aware of my circumstances, my disabilities and frail health…”
5. The 14 August 2019 stage one response arrived at her address on 16 August 2019, and so was two days outside of the response time.
The resident said that she would be happy to consider an offer of compensation that reflected the distress she had been caused in order to resolve the matter swiftly.
Following on from a meeting with the resident to discuss her case, a complaints panel hearing took place on 28 November 2019. This summarised the complaint as being centred on dissatisfaction with the length of time it had taken to carry out repairs, the resident’s feeling and belief that she was bullied and discriminated against, the sum offered in compensation at stage one, and that the landlord’s legal opinion was not set out clearly. It recognised the outcomes sought as follows:
1. Compensation for delays in undertaking the works required and a clear explanation as to how any compensation offered was calculated.
2. An explanation as to why a pest control company was allocated glazing work and why, when problems occurred with the works, the landlord insisted on continuing to use the pest control company.
3. An acknowledgement that bullying and aggressive behaviour took place with written apologies.
4. Compensation for discrimination and bullying and associated lack of action taken by the landlord to prevent said bullying and harassment.
The panel accepted that the works took far too long to complete and offered £289.73 in compensation. This offer was based on a telephone conversation with the landlord’s Solicitor, who explained that the general rule of determining how much compensation would be due, if disrepair were to be proved, would be to consider the size of the property and the number of habitable rooms.
The property had four rooms, and each room would be worth 25% of the rent value. A view would then be taken as to the level of disrepair in the room and that percentage would be adjusted accordingly. In this instance the disrepair related to one window in one room. The resident still had a door to ventilate the room, and the period included autumn when the resident would not necessarily want to open their window. Therefore, in the solicitor’s opinion the likely award would be between 1% and 5% of rental income.
The calculation was then made as follows: The time period of disrepair at 46 weeks, which equated to a rental income of £5794.62. Using the higher of the percentages, 5%, the calculation was a figure of £289.73. An additional £20.00 was also offered for the missed appointment.
The letter went on to explain that the pest control company also had a general building company which carried out glazing works. Regarding the bullying that the resident described, the panel concluded that while it was very sorry that the resident felt bullied and harassed and would apologise for any stress she had felt, there was no evidence that the contractor’s staff bullied or harassed her. In light of this, there was no compensation payment due.
The panel made the following recommendations to the landlord.
1. Inform staff in the maintenance department that they are not to attempt to carry out work they are unqualified to do.
2. Review time frames for carrying out glazing repairs and put in place processes which ensure that repairs are carried out within the designated time periods.
3. Write to the resident with an apology for the delay in carrying out the repairs and offer her £289.73 compensation for the delay. In addition, an offer of £20.00 for a missed appointment.

Assessment and findings

In her complaint to this Service the resident stated that the repair issue with the sliding mechanism to the window meant that it was not possible to open the window to allow ventilation of the sitting room, leading to dampness and mould-growth around the window, rendering the sitting room completely unusable, and exacerbating her serious underlying health conditions. She has said that while the landlord accepted that it took too long to carry out the repair, it failed to offer a reasonable sum in settlement to compensate her for loss and inconvenience she suffered, which she listed as damage to health, loss of use of over 40% of the property, and being accused of misconduct.
The resident contests the £289 offered for the following reasons:
1. No substantive justification for the offer was provided.
2. The formula used to calculate the amount was “manifestly unfair” and she questions “How can it be correct that the same value is assigned to each room in the flat, regardless of its size or purpose… How can it be fair that the bathroom, for example, is deemed to be a “habitable” room for the purpose of calculation the effect of the [landlord’s] Breach??”
3. The landlord sought to justify the offer by making assumptions about whether or not she would want to use the faulty window to ventilate the room at certain times of year and she states “The season of the year is not relevant to [the landlord’s] statutory obligation to repair the Property within a reasonable time.”
The resident also complains about the landlord’s complaint handling for the following reasons:
1. The stage one response arrived late.
2. She was informed at the complaints panel hearing that accusations had emerged in October 2019 that she had attacked one of the workmen that had attended the property, although no other information or evidence was provided. The resident states that this accusation was “invented” and does not think it appropriate that this was permitted as new evidence at the review panel.
3. The chair of the panel was also a board member of the landlord which the resident felt was “procedurally unfair” and not independent, as it should be.
4. No proper investigation of the claim of bullying was carried out, and there was no evidence of statements made in relation to this.
5. The final decision incorrectly said that the resident had just six months to raise the matter with the Ombudsman, whereas it was 12.
As a remedy to her complaint, the resident would like £2,700.96 in compensation, and a written apology and admission of: the breach; procedural errors, and; the false accusation against her.

Repair

The Ombudsman notes that the resident set out the chronology of the repair in her initial complaint to the landlord, and the landlord accepted this and the fact that there was a long delay in the repair being completed. Therefore, this is not in dispute and it is clear that the landlord failed to carry out the repair in good time, and in line with its own repairs policy. What is in dispute is the landlord’s offer of compensation for the delay.

Looking at the compensation amount offered for the repair, the landlord’s compensation policy that was in place at the time sets out that it would offer compensation when it did not meet its target response times for repairs, and then failed to meet a second deadline provided to the resident. This would seem to apply in this case, and therefore it was appropriate that compensation was offered. The Ombudsman agrees that the initial amount of £50 was far too low given the very long delay in completing the repair to the window. However, this was then increased to £289 plus £20 for a missed appointment.
The resident contends that the amount is too low as she was unable to use the living room at all, as she could not open the window to provide ventilation. While the Ombudsman can understand that being unable to provide ventilation via the window could directly affect the comfort of the resident, especially in light of the health issues that she has described, this Service cannot conclude that this would render a room totally uninhabitable. It is assumed that other windows in the property could be opened, as well as the door, and while not ideal this would have provided fresh air. Further, the Ombudsman understands that the mould at the property was remedied in mid-2018 and there is no indication that the resident reported further issues with this.
The Ombudsman also notes that the resident did not state in her complaints to the landlord or to the panel that she was totally unable to use the living room. Therefore, it was reasonable that the landlord sought advice from the solicitor on how to calculate a compensation amount based on the level of disrepair and the delay in resolving this. It provided an explanation for how this was calculated, which was also its legal view, as the resident had requested.
Looking at this Service’s own compensation guidance, this sets out amounts of between £250 to £700 in cases where there is considerable service failure or maladministration, but no permanent impact on the resident. The Ombudsman is satisfied that this case falls into this category. Referring to the case examples that the Ombudsman provides on its website, in a case where a nine-month delay in the works to a roof meant that the resident only had a temporary plastic roof covering for the period, an amount of £350 was ordered. In light of this example, the Ombudsman finds that the £289 the landlord has offered, plus the £20 for a missed appointment, was a reasonable redress to the inconvenience and frustration caused by the protracted manner in which the window repair was completed.
The resident has said that the time and number of appointments taken by the landlord to complete the repairs has impacted upon her health. While very sorry to hear this, the Ombudsman is unable to determine matters of causation and liability in terms of how a landlord’s actions might have impacted upon a resident’s health and well-being. Such issues would be better dealt with as a personal injury claim through the courts, or via an insurance claim, where appropriate professional medical evidence can be properly reviewed. This is in accordance with paragraph 39(i) of the Scheme which states that the Ombudsman will not consider complaints which concern matters where this Service considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, or other tribunal or procedure.

Bullying

The Ombudsman acknowledges that the resident strongly feels that she was bullied by the contractor, and has clearly been upset by her experience. Given that the contractor denied this and there is no corroborating evidence either way, the Ombudsman is unable to come to any conclusions about what happened. However, this investigation can look at the way the landlord handled the complaint about bullying and whether it dealt with it in a reasonable manner.
It is not clear when the resident first reported her concerns about bullying, which she has said began in June 2018, but the evidence available shows that the landlord was aware of this prior to October 2018. For example, in an email to the landlord dated 15 October 2018 the resident expressed her concern that the contractor had been asked to reattend to repair the window that was cracked when the surveyor attempted to fit the restrictors. She said “How can you send back those thugs to my home after what [the contractor] put me through? I do not feel safe with them. Seeing him and his employer again brought the whole upsetting experience back to the forefront of my mind. I feel traumatised at reliving the experience. I am not going to have bullies in my home.”
On 17 October 2018, the landlord emailed the resident stating “I profusely disagree with your constant statements regarding [the contractor’s] staff as they have been working for [the landlord] for 8 years without any complaints and their operative…has also carried numerous jobs without complaints, unfortunately it’s clear there has been a clash of personalities…Please note all staff employed [by the contractor] are time served tradesmen with the relevant DBS checks.”
This email exchange demonstrates that the landlord was aware of the resident’s concerns about the behaviour of the contractor, however there is no indication that it took any action on this at the time. While this Service acknowledges that the resident did not make a formal complaint until a year after the alleged bullying first occurred, this Service would have expected to see some indication that the landlord addressed the allegations with its contractor at the time. The Ombudsman does not consider it reasonable to dismiss such reports on the basis that the contractor has worked for several years without complaint.
When the formal complaint was made about bullying, the Ombudsman finds that the landlord took reasonable steps to investigate. As set out in its stage one response, it discussed the matter with the contractor, who raised it with the staff member involved who said that at no time was he aggressive towards the resident. It is very difficult for landlords (and the Ombudsman) to come to any conclusions when presented with two different versions of events with no information or evidence that can help determine which is correct, especially in cases such as this where a lot of time had passed. Nevertheless, the landlord did partly uphold the complaint as an acknowledgment of the resident’s feelings on the matter. The Ombudsman considers that in the circumstances this was a proportionate action, and in lieu of evidence that bullying took place, it was reasonable that the panel did not offer compensation.

Complaint handling

When the resident escalated her complaint, the complaint panel were provided with a report on the case. This set out that the contractor denied the accusation that it bullied or was aggressive towards the resident, and that “They say they were working under very difficult circumstances and it was the resident whose behaviour was unacceptable.” An example was provided where it was alleged that the resident shouted at an operative and tapped him repeatedly with her walking stick.
The resident is unhappy that this allegation was raised at this point in the complaint process, however, the Ombudsman does not find that it was inappropriate: The contractor was responding to the allegations made against it and it was not unreasonable for it to describe its own version of events, although the Ombudsman acknowledges that the resident strongly refutes the allegation and has been upset by this.
The resident has provided the Ombudsman with an audio recording of the panel hearing which she feels shows the landlord’s “… evasive response and refusal to provide information to support [the landlord’s] baseless claim that I had acted in a bullying manner towards a workman.” It should be noted that the Ombudsman is limited to the extent it can rely on audio/video evidence as it is not possible for this Service to determine the location or circumstances of such recordings. Nevertheless, this Service has listened to the recording, and notes that the resident asked the landlord a number of questions about the alleged incident. The landlord explained that no formal complaint had been made by the contractor about the incident and said that the report was not detailed, and so it was not able to provide the level of detail the resident was asking for, such as the time of the alleged incident or the location. The landlord also did not know the name of the operative that reported the incident. On the basis of the recording provided, the Ombudsman has found no indication that the landlord refused to provide information that it held.
While the resident is concerned that there was no “evidence of statements made” in relation to her bullying complaint, the Ombudsman finds that the landlord’s response at both stages of the complaint process (explaining that the contractor had been spoken with, as well as the staff member accused, and the allegations had been denied) is evidence that the allegations were raised appropriately. This Service would not expect the landlord to provide the resident with copies of written statements.
Regarding the composition of the complaint panel, the landlord’s own complaint policy sets out that the panel would consist of individuals either on the Board or one of its Committees. At least one member would be a resident, and the landlord had an “…appointed independent Chair of the Panel.” The resident has pointed out that the chair was in fact also a member of the Board, and therefore questions their independence. The Ombudsman agrees that, given the complaint policy reference to an appointed “independent” chairperson, it is perhaps surprising that they were a Board member. However, as the Ombudsman finds that the conclusion of the panel was overall reasonable and the compensation offered appropriate, this would not appear to have had a negative impact on the outcome for the resident.
Finally, the Ombudsman agrees that the landlord’s stage one response was a few days late, and that the final response inaccurately indicated that the resident had six months in which to submit her complaint to the Ombudsman. While these were certainly shortcomings in the complaint handling, the Ombudsman does not consider these so significant as to warrant a finding of service failure or maladministration.

Determination (decision)

In accordance with Section 55 of the Scheme, the landlord made an offer of redress which, in the Ombudsman’s opinion, satisfactorily resolved the complaint about the window repair.
In accordance with Section 54 of the Scheme, there was service failure by the landlord in its response to the concerns about bullying by a contractor.
In accordance with Section 54 of the Scheme, there was no maladministration in the landlord’s complaint handling.

Reasons

The Ombudsman is satisfied that the compensation awarded by the landlord for the delayed repair is a reasonable amount. In addition, the landlord has taken learning from the case, in the form of the recommendation made by the panel to review time frames for carrying out glazing repairs and put in place processes which ensure that repairs are carried out within the designated time periods.
While the landlord responded appropriately to the formal complaint about bullying, it is concerning that there is no indication that this was raised with the contractor at the time. This could have been an opportunity lost to deal with the matter sooner.
Finally, while there were some shortcomings in the landlord’s complaint handling, overall the matter was handled in a reasonable and timely manner.

Orders

The Ombudsman orders the landlord to:
1. Pay the resident £75 for the lost opportunity to address the bullying accusations at the time that they were made.
2. Write to the resident, copying this Service in, setting out what steps it will take in the future when such concerns are raised about its contractors.

Recommendations

The landlord may want to consider whether a Board member is an appropriately “independent” person to chair complaint panels.
If it has not already been paid, reoffer the £289 plus £20 to the resident, as it was on this basis that the finding of “reasonable redress” has been made.