Optivo (202108225)

REPORT

COMPLAINT 202108225

Optivo

30 May 2022

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

This complaint is about:
1. The level of redress the landlord offered the resident in response to delays and failures linked to damp and mould repairs and a related decant;
2. The landlord’s complaint handling.

Background and summary of events

Background

The resident is an assured tenant, and the tenancy began on 2 June 2008. The property is a two-bedroom flat in a converted building (the block). The landlord’s records confirm the property has a small bathroom with a shower located in the bath. The resident lives with her daughter and received help to complain from her local MP. She has a number of vulnerabilities relating to her physical health.
The landlord’s temporary homes policy details the landlord’s decant procedure. It shows the landlord will always consider whether works can be completed without moving the affected resident. The landlord will take the final decision based on the overall risk to the household. Where facilities are not available, residents can claim laundry and meal costs from the landlord. The policy confirms rent is payable during a decant.
The landlord operates a two stage formal complaints process. It aims to respond within ten working days at stage one. The second stage consists of a panel review. The landlord aims to issue a final response within ten working days of a panel hearing.
The landlord’s compensation policy shows it can consider compensation for issues including failure to repair, quality of repair, missed appointments and loss of washing or bathing facilities. It confirms the landlord can offer a discretionary payment to recognise distress and inconvenience. For example, in the event it needed repeated attempts to resolve a problem.

Summary of events

The landlord’s repair history shows a works order was raised on 24 September 2020 to inspect damp at the property. It shows the inspection was prompted by contact from the resident’s MP. It confirms damp was reported in both the front room and bathroom.
The landlord’s corresponding inspection report noted signs of damp plaster in a bedroom. It shows the landlord was unable to confirm the presence of damp in the bathroom but recommended upgrading the fan. It said the landlord would arrange its contractor to inspect the property and quote for remedial works.
The repair history shows a works order for the inspection was raised on
2 October 2020. The Ombudsman has not seen a copy of the contractor’s report. The repair history did not record the subsequent works order. No information was seen to show when the quote was received, or when the contractor was instructed to complete the repairs.
The evidence suggests remedial works began on 22 April 2021. This was around seven months after a works order was raised for the contractor’s inspection. It also suggests the resident was decanted to a hotel the following day. However, minor inconsistencies around dates can be seen in the remaining timeline, which is largely based on correspondence between the parties.
The resident raised a formal complaint with the landlord on 25 April 2021. She said damp and mould had been ongoing in the property since 2017. Further, the situation had affected her health and wellbeing in addition to damaging her belongings. The main points were:
1. The resident was pleased the landlord was taking steps to address the problem. However, she was unhappy it took intervention from her local MP to progress the issue.
2. The landlord failed to arrange temporary accommodation in advance of the works. The resident ultimately had to make two phone calls to resolve the situation. This demonstrated a lack of communication and consideration on the landlord’s part.
3. While works to the property were ongoing, the landlord should also replace wallpaper, along with the bath, toilet and bathroom flooring. Painting and tiling should be completed in a timely manner.
4. The resident’s laundry costs should be reimbursed during the decant, along with the cost of school meals for her daughter. This was on the basis she temporarily lacked the facilities to carry out the family’s usual routine. Further, she was spending £3 per day on internet access at the hotel to enable her to work from home.
5. Though the resident was grateful to be given a daily breakfast allowance, cow’s milk and gluten did not agree with her. As a result, the landlord should pay her this allowance directly.
6. The resident returned to the property twice daily to let the contractors in and feed her pet turtle. However, she suffered from chronic pain disease and was struggling with repeated bus journeys. The landlord should therefore pay her taxi fares.
7. The resident wanted compensation for damaged possessions, and to recognise the duration of the damp problem, along with the stress it caused. Further, separate compensation should be awarded to acknowledge the negative impact of the situation on the resident’s health.
On 27 April 2021 the landlord sent the resident an email summary of a conversation which took place earlier that day. It said they discussed moving the resident to a serviced apartment given her concerns. The resident replied that “on reflection” she would stay at the hotel because moving would involve additional stress.
On 30 April 2021 the landlord acknowledged the complaint. It said a surveyor would investigate the resident’s concerns and a response would be issued by
17 May 2021.
The resident updated the landlord on 7 May 2021. She said, having returned to the property, the works were incomplete. This was because there were gaps between the flooring and the walls, a fan had been disconnected and the bathroom door frame was cracked. Further, she was told works were complete on 6 May 2021 but had been forced to return to the hotel. This was because the bath had not been “boxed in” and the central heating was not working.
She said the landlord had attended the heating that day. However, radiators in the bathroom and hallway stopped working soon after its contractor left. The resident said she suffered from chronic pain in addition to asthma and arthritis. Overall, she felt the property was uninhabitable and the landlord was failing in its duty of care.
The landlord issued a stage one response on 17 May 2021. It acknowledged the resident was seeking compensation for the length of time taken for repairs to begin. It said the damp appeared to result from extensive works it undertook to the block’s drains. The main points were:
1. The landlord had issued a further £400 payment to cover the resident’s expenses during the decant. It was sorry for a delay in issuing the payment. In total, £780 had been paid to cover food and laundry costs for the resident and her daughter.
2. The resident was offered a serviced apartment on two occasions and changed her mind. This type of accommodation would have included free internet access. However, the landlord would reimburse the resident’s internet costs if she could provide the relevant receipts.
3. The landlord’s surveyor would order any necessary repairs and oversee the works until completion. Since wallpaper could be conducive to mould growth, the landlord would redecorate any affected areas with emulsion allowing the walls to “breathe”.
4. The landlord was unable to compensate the resident for any food left at the property since it could have been taken to a serviced apartment. It suggested the resident could make a home insurance claim to cover any associated costs. While it was unable to compensate the resident’s taxi fares, it could reimburse a daily bus fare allowance of £65.10 in total.
5. A home insurance claim should be raised in relation to the resident’s damaged items. If the resident felt the landlord was responsible, she could raise a claim with its insurer using an enclosed form. Since the landlord was not qualified to assess any impacts to the resident’s health, she should include the details in her insurance claim.
6. £100 compensation was awarded to recognise the delay in responding to the repair represented a “partial service failure”. However, it was partly due to the impact of the pandemic. Overall, the landlord was able to offer £165.10 in compensation including the resident’s travel costs.
The resident replied the following day. She said £1200 compensation would be fairer based on £100 per month for one year. An additional £200 should also be awarded because no prior arrangements were made for temporary accommodation. Further, a separate £200 should be awarded to cover her travel expenses and two weeks rent should be refunded. Overall, she said, the landlord’s offer was insulting, and its recent payment was outstanding.
The landlord wrote to the resident’s MP on 20 May 2021. It said works to the property’s bathroom and hallway began on 22 April 2021. They included “carrying out” a damp proof course in the bathroom, re-plastering and waterproofing works, along with installing a humidistat fan. It said the scope of the works was explained to the resident in advance, and she was told the toilet and bath would remain in place.
It also said when works began the resident expressed concern about disruption whilst working from home. It therefore responded to her request for temporary accommodation by arranging a hotel until the works were complete. At this point the resident decided to travel home daily to facilitate access for the contractor. A key safe was installed outside the property on 23 April 2021 to ensure this routine was unnecessary.
However, it said, the resident refused to use it and gave the key to her neighbour instead. Further, on 27 April 2021 she raised additional concerns over food and internet access. She was therefore offered a move to a serviced apartment. However, the resident declined the offer and opted to stay in the hotel. While the landlord was unable to compensate for any damaged items, it gave the resident its insurer’s details.
On 21 May 2021 the landlord acknowledged the complaint at stage two. It said a panel hearing would be held on 11 June 2021 and any additional information should be provided by 28 May 2021.
The resident updated the landlord on 24 May 2021. She said its contractor told her the property would lack washing facilities for two weeks on 21 April 2021. At this point, she called the landlord to discuss the situation as she was previously unaware of the level of disruption entailed by the works. She also said the landlord completed the decant paperwork the next day after she called again.
Further, at this stage she explained she would need to return to the property daily to care for her pet turtle, in addition to granting access for the contractor. This was on the basis the turtle’s tank was too heavy to move. She said the landlord eventually confirmed her hotel booking on 23 April 2021. She disputed the date the key safe was installed on the basis the installation took place on 28 April 2021.
She said she had to work from the property most mornings prior to the installation of the key safe. This was because the contractors were due to begin work at 8am daily, but frequently did not arrive until 9am. The resident said she notified them she needed to start work at 9am. The wording of her update suggests this didn’t make a significant difference to the contractor’s start time.
The resident also said she was not offered alternative accommodation before she contacted the landlord on 22 April 2021. Further, she would not have declined a temporary decent if she had known the property would lack washing facilities for around two weeks. Overall, she felt she was being unfairly blamed for the situation.
The resident updated the landlord on 31 May 2021 and 2 June 2021. Her second email contained the heading “Decoration formal complaint.” Her main points were:
1. Works were incomplete and mould was still present around the property, which had not been re-tiled or redecorated. As a result, the resident was unable to enjoy her home or arrange her belongings.
2. The resident was not notified in writing about the extent of the works or the required timescale beforehand. The landlord did not consider her disability or necessity of arranging a decant.
3. The landlord failed to attend a scheduled tiling appointment on 27 May 2021. It also failed to notify the resident it was unable to attend. Further, it arranged an unnecessary inspection on 2 June 2021. It took the resident two phone calls to establish that no works would be undertaken during this visit.
4. There were quality issues with the works since the bathroom door was difficult to close. An operative inspected the door and told the resident they needed to go and buy materials. However, they subsequently failed to return to the property.
5. Wallpaper was damaged during the works and the landlord said it would discuss replacing it at a senior level. However, the resident had not been updated about the situation. Further, she was not told in advance that wallpaper would not be replaced.
6. Because the contractor frequently started late the resident did not have time to leave the property before she began work. As a result, she had to work in a noisy and dusty environment. The contractor incorrectly claimed to have finished the works, but ultimately another contractor was needed for a further two days afterwards.
The landlord’s repair notes from 16 June 2021 show the bath was left in the garden for two weeks while repairs to the property were ongoing. They said the bath was damaged during this time but was reinstalled by the contractor. Further, the property’s basin and toilet needed renewing.
The landlord wrote to the resident’s MP on 23 June 2021. It said, around 5 April 2021, its contractor told the resident the property’s bath would be unusable for up to four days during the works. Further, she confirmed she was happy to remain at the property regardless. However, on 26 April 2021 she changed her mind and asked to be placed in temporary accommodation. It confirmed the key safe was installed on 28 April 2021 and that all outstanding repairs would be assessed during a post inspection on 19 July 2021.
The landlord issued a stage two response on 24 June 2021. It said the damp and redecoration works were completed on 10 May and 7 June 2021 respectively. Additional works, including tiling; decoration; grab rail installation and bath repair were arranged for 19 July 2021 at the resident’s request. The main points were:
1. The landlord was unaware of the resident’s full circumstances when it arranged the decant. When it became aware, she was offered alternative accommodation in a serviced apartment.
2. The landlord was sorry about the resident’s damaged items. It understood she raised a claim with its insurer, which was awaiting evidence to progress matters.
3. The landlord would not increase its previous offer of £165.10 in total compensation. It was unable to consider increased transport costs since the resident chose to travel by taxi. It was also unable to consider any health impacts under its compensation policy.
4. The resident’s rent was payable during the decant. This was in line with the landlord’s relevant policy.
The landlord’s internal correspondence from the same day shows the resident had been calling to raise concerns about the toilet and the sink. It said the works were previously agreed and asked if they could be added to the contractor’s schedule for 19 July 2021. In correspondence the following day, the landlord said the resident was calling “every day” about tiling works which needed completing urgently.
The resident updated the landlord on 28 June 2021. She said she had to make calls and send emails to ensure the works were progressing. Further, the landlord declined to replace the toilet because the bathroom was renewed in 2009, but this information was incorrect. She also said she needed grab rails in the bathroom due to her health conditions. Further, the landlord would be responsible for any injury she incurred.
The resident emailed her MP the same day. She said the compensation offered was unfair because it should reflect events for the last 12 months. While the landlord had attributed delays to the impact of the pandemic, the resident felt its “poor communication” was to blame.
Around this time the resident raised concerns about discrimination on the part of the landlord. She mentioned the issue in correspondence with the landlord and the MP. Her comments were based on the landlord’s decision not to reimburse her taxi fare, and its failure to reinstall grab rails in the bathroom. She said the landlord failed to recognise fibromyalgia met the definition of a disability.
The landlord’s internal correspondence from 30 June 2021 shows its insurer had accepted liability. However, the food element was excluded from its settlement because the loss did not arise from either the landlord’s negligence or a building defect. The correspondence said the resident had been paid a total of £780 for disturbances. The landlord’s records show this figure was based on a £25 per day meal allowance for the resident and her daughter over 15 days, along with a £10 per week laundry allowance.
The resident updated the landlord the same day. She said she was pleased the bathroom was nearly complete and a grab rail had been fitted. Further, though the bathroom previously had two grab rails she was “happy” nonetheless. However, the issue of compensation was outstanding because she had not heard from the insurer, and she was dissatisfied with the landlord’s offer of £100. This was on the basis the situation was inconvenient and impacted her job as an agency worker.
The landlord’s internal correspondence from 1 July 2021 shows it inspected the property that day. It shows the landlord agreed to replace the replace the toilet, but it said the basin was in good condition. Further, the resident was “really happy” with the works overall but had concerns about the paint finish on some surfaces. As a result, it was agreed the landlord would leave her some paint when it replaced the toilet.
The landlord’s repair notes from 19 July 2021 show a new toilet had been fitted. However, they suggest a plumber would need to reattend because it was leaking from the waste pipe.
The landlord wrote to the resident’s MP on 26 July 2021. The main points were:
1. The landlord was sorry its contractor was late and did not leave the resident enough time to reach a suitable place to work. Feedback had been provided to the contractor with a view to improving the landlord’s service.
2. The resident had declined an offer of £2500 to settle her claim with its insurer. The insurer would assess the situation and remain in contact with the resident.
3. The landlord had reconsidered the resident’s travel costs and increased its previous offer to £196. This was because the resident travelled by taxi for health reasons. (The evidence suggests this calculation was based on comments the resident made around the time of the panel hearing).
4. The landlord was unable to consider the resident’s claim for stress under its compensation policy. The issue was addressed by its insurer as part of its own investigation and subsequent offer to the resident.
5. On 2 July 2021 the landlord wallpapered the hallway, repaired the bath, replaced some tiles and installed a grab rail. The toilet was replaced on
  17 July 2021 and paint was provided to the resident as agreed.
The Ombudsman has seen an undated post works inspection report, along with an accompanying resident satisfaction survey. The report shows no further works were required. The survey shows the resident was satisfied with the completed works.

Assessment and findings

The resident expressed concern that some of the landlord’s actions amounted to discrimination. It is recognised this is a serious matter which was likely prompted by considerable distress on her part. It may help to explain the Ombudsman cannot make findings under the Equalities Act (2010) or otherwise. Such concerns are therefore a legal matter which are likely to need consideration by a court.
However, the Ombudsman can consider the landlord’s response to the resident’s suggestion. On that basis, this assessment considered the evidence carefully with the resident’s concern in mind. From the information seen, the suggestion was raised informally following the landlord’s stage two response. The timeline shows, in respect of the grab rails, the landlord responded promptly to the resident’s comment since a replacement was installed within days of the issue being raised.
Further, the landlord ultimately reconsidered its position in respect of the resident’s travel costs. It recalculated its award accordingly and offered additional compensation in line with her previous comments. No information was seen to show she was asked to evidence these costs. This action was reasonable given the resident’s circumstances. Overall, the evidence shows the landlord engaged appropriately with the resident’s comments, which were not part of her original complaint.

The landlord’s level of redress

The timeline shows it took around seven months for the contractor to begin remedial works after its initial inspection was ordered. This is based on the period between 2 October 2020 and 22 April 2021. Two national lockdowns occurred during this time. The landlord accepted partial responsibility for a delay and awarded the resident £100 in compensation for any distress and inconvenience caused.
In total, lockdown restrictions applied for around three and a half months. A further month was added to this timescale to allow additional time for the landlord’s operations to recover. This calculation shows there was a delay of around two a half months. No information was seen to clarify the cause of this delay. On that basis, the landlord correctly awarded compensation and the redress it offered was reasonable given the circumstances.
While it is understood the resident feels the overall delay had a negative impact on her health, the Ombudsman is unable to assess medical information. It is noted the landlord correctly advised her to contact its insurer about this aspect of her complaint.
The parties disagree about the circumstances of the decant. The timeline shows they have both been broadly consistent in their respective comments. The landlord said the resident was happy to stay at the property, having discussed the scope of repairs with its contractor in advance. However, no evidence was seen to confirm this discussion took place. On the contrary, it is noted the landlord’s records confirm the bath was left outside for around two weeks. This appears to support the resident’s comments from 24 April 2021. At this point, she said she had only recently been made aware the bath would be unusable for a two-week period.
The landlord’s temporary homes policy shows it is entitled to take the final decision to decant based on risk. It is therefore reasonable to conclude it should have consulted its contractor before the works began to establish the level of disruption involved. Afterwards, it should have held its own discussion with the resident, which included the facilities available during the repairs, along with an exploration of her personal circumstances. It would likely be inappropriate to allow the resident to remain in a property that lacked washing facilities for an extended period, even if her preference was to stay.
The landlord correctly decanted the resident soon after the works began. This was prompted by a request from the resident. The evidence suggests this situation was avoidable with sufficient planning and communication. The timeline shows the resident was given little time to prepare for the move. Since the decant was arranged in haste, the accommodation provided was not wholly compatible with her circumstances. This is evident from concerns the resident subsequently raised. For example, around travel and her ability to work from home. The landlord later recognised a serviced apartment was a more suitable option.
The above shows the landlord was responsible for preventable disruption which was not reflected in its offer of compensation. However, its temporary homes policy confirms the resident was entitled to meal and laundry allowances during the decant as she lacked facilities at the hotel. The £780 it reimbursed to cover these expenses was appropriate and its calculation appears correct given the duration of the decant. As mentioned, the landlord’s offer in respect of the delay was also reasonable.
In relation to the failures identified the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the complainant’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
The timeline suggests the landlord was responsible for further unacknowledged communication issues. For example, the resident was incorrectly advised to return home on 6 May 2021 but subsequently returned to the hotel because the property wasn’t ready. It is reasonable to conclude this was inconvenient. The evidence confirms the initial works were not completed until 10 May 2021. This represents avoidable disruption and inconvenience to the resident over a period of around five days. This is based on the period between 6 and 10 May 2021.
Further, the landlord said it installed a key safe to ensure its contractors could access the property in the resident’s absence. While it initially said the installation took place on 23 April 2021, it later confirmed the correct date was 28 April 2021. The resident said she worked at the property each morning until the key safe was installed and her work was disturbed as a result. This represents unnecessary distress and inconvenience to the resident over a period of around six days. The landlord ultimately apologised and said feedback was provided to the contractor.
Further communication failures were evident in respect of grab rails in the bathroom. The landlord’s 2020 inspection report confirms two rails were fitted in the bath at this time. The landlord’s post works inspection records show a single new rail was fitted following completion of the works. They also confirm the shower was replaced along with the bath tiles. From the interim correspondence between the parties, the rails were not initially replaced until the resident raised concerns they were missing.
This suggests there was an avoidable period of up to eight weeks when the bathroom lacked grab rails. This is based on the period between 10 May and 30 June 2021. This was inappropriate given the resident’s circumstances and her correspondence suggests the situation was distressing. It is reasonable to conclude it could also have been avoided given better communication between the landlord, its contractors and the resident. Again, this failure was not reflected in the landlord’s offer of compensation.
The timeline points to further communication failures in relation to the replacement toilet. The landlord’s records confirm replacement works were agreed on 16 June 2021. However, the item was not replaced for around one month despite works being completed in the interim period. This suggests the landlord missed an opportunity to minimise the number of visits and reduce the level of inconvenience to the resident. Again, it is reasonable to conclude this situation was avoidable.
The resident said she needed to chase the landlord to progress issues during the timeline. This included the initial decant and the replacement grab rails. The landlord’s records confirm she called every day about tiles. Overall, the information seen supports the resident’s version of events. It is reasonable to conclude the overall level of engagement required from the resident was inconvenient. Though the repair works necessarily entailed some disruption to the resident, the evidence shows the situation was exacerbated by the landlord’s poor communication. It suggests the unacknowledged period of disruption lasted for up to ten weeks in total.
Ultimately, the landlord’s offer of £296 in total compensation (excluding £780 in allowances which should be considered separate) did not reflect the above identified failures. It is acknowledged the landlord took steps to address some issues. However, the unaddressed failures had a considerable impact on the resident and warranted compensation. Overall, the landlord’s total redress failed to treat the resident fairly or sufficiently put things right. This represents service failure on the landlord’s part.
Given the above, the Ombudsman will order additional compensation in line with instances where ‘a complainant repeatedly had to chase responses and seek correction of mistakes, necessitating an unreasonable level of involvement’. This is a reasonable benchmark given the circumstances.

The landlord’s complaint handling

The timeline shows the landlord responded in accordance with the timescales given in its complaints policy. Its stage one response was issued ten working days after the complaint was acknowledged. Its stage two response was issued nine working days after the panel hearing. The timeline confirms the landlord’s complaint handling continued informally for around one month afterwards. This is because a revised offer of compensation, in respect of the resident’s travel expenses, was issued on 26 July 2021.
The resident raised a number of additional concerns, along with objections, in the period between the landlord’s stage one response and its revised compensation offer. For example, in relation to missed and unnecessary scheduled appointments and grab rails. It is acknowledged this added to the overall complexity of the complaint. Nevertheless, the landlord’s offer of £100 compensation for distress and inconvenience remained consistent from an early stage of the timeline. This suggests it overlooked aspects of the resident’s complaint.
For example, no evidence was seen to show the landlord responded to the resident’s concerns around missed and unnecessary appointments despite the subject heading of her email from 2 June 2021. The timeline shows the matter was raised prior to the panel hearing and could reasonably have been included in its response. If the landlord lacked sufficient time to include the matter in its existing investigation, it should have told the resident to raise a separate formal complaint about the issue. In contrast, the landlord ultimately responded to the resident’s concerns around the contractor’s daily start time on 26 July 2021. Both issues were referenced in the resident’s email on 2 June 2021.
The landlord’s complaint handling was considered in conjunction with the Housing Ombudsman’s Complaint Handling Code, which was published in July 2020. Section 5.6 of the code confirms “Landlord’s must address all points raised in the complaint…”. Given the above, the evidence shows the landlord’s complaint handling did not confirm to the Code. This represents service failure on the landlord’s part given the complexity of the complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure in respect of:
1. The level of redress the landlord offered the resident in response to delays and failures linked to damp and mould repairs and a related decant;
2. The landlord’s complaint handling.

Reasons

The landlord failed to identify the full extent of its failures or the associated distress and inconvenience to the resident. As a result, its offer of redress failed treat the resident fairly or sufficiently put things right.
Contrary to the Housing Ombudsman’s Complaint Handling Code, the landlord failed to address all points raised during the resident’s complaint.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay the resident a total of £696 within four weeks comprising:
1. £596 for any distress and inconvenience the resident was caused by the above identified delays and failures with the landlord’s level of redress. This amount is to be reduced by £296 if the landlord has already paid its revised the compensation offered on 26 July 2021.
2. £100 for any distress and inconvenience the resident was caused by the above identified delays and failures in respect of the landlord’s complaint handling.

Recommendations

The landlord to review its decant process with a view to preventing last minute decants related to scheduled works.
The landlord to share this report with its relevant staff and contractors with a view to improving its service going forwards.
The landlord should provide evidence of compliance with the above order and recommendations within four weeks.