Peabody Trust (202116900)

REPORT

COMPLAINT 202116900

Peabody Trust

30 June 2023

Our approach

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

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

The complaint

1. The complaint is about the landlord’s decision not to investigate its handling of the resident’s repairs earlier than 2021, and the subsequent compensation at the time of its final response.

Background

2. The resident holds an assured tenancy on a one-bedroom flat owned by the housing association landlord. The landlord has recorded a vulnerability for the resident affecting her spine, which can sometimes restrict her mobility. She uses a walking aid.
3. On 10 November 2021, the resident complained to the landlord that the property suffered from a long-standing concealed leak in the kitchen since 2013. She said she reported this to the landlord ‘countless’ number of times and made several formal complaints. The resident said the landlord sent its operatives to inspect the property, but they said tracing the leak was a ‘major’ job, which enabled the issue to continue since 2013. The resident said that because of the leak:
   1. The plaster walls crumbled; the skirting boards detached from the walls; the hallway floor was soaking wet; and the kitchen floor warped and partially collapsed, which made the resident feel unsafe.
   2. Damp and black mould spread on walls and in cupboards; a large fungus grew near the front door; a strong smell caused sore throats, headaches, and itchy eyes.
   3. The water pressure on the boiler gauge dropped to zero, which needed topping up twice daily and caused higher water bills.
4. The landlord acknowledged the complaint on 15 November 2021. It agreed to move the resident to temporary accommodation on 30 November 2021 while it coordinated various specialist contractors to carry out the remedial works simultaneously. During the stay in the temporary accommodation, the resident contacted the landlord and said her back was aching, and she was uncomfortable in the small room. She asked the landlord if she could move to the disabled room, but the landlord did not approve the resident’s request. As the landlord underestimated the damage caused to the resident’s bathroom, the remedial works took longer than planned. The resident returned home on 17 December 2021, and the remedial works were completed on 7 January 2022.
5. On 12 January 2022, the landlord responded to the resident’s complaint in full. It said: “I acknowledge you were at your wit’s end when we first spoke … I recognise you had raised complaints in the past. However, in line with our complaint policy, I have only reviewed the previous six months of your repair/contact history from when you submitted this complaint. Therefore, my review will include all relevant information [from] 9 May 2021. Because of this, I cannot award “retrospective compensation”… I apologise that we could not resolve your problem earlier”. The landlord offered the resident £350 for her time, trouble, and inconvenience and £50 as a gesture of goodwill, bringing the total award to £400.
6. The resident responded on 17 January 2022 and said she felt the landlord’s compensation was ‘insufficient’. In her opinion, it was a single leak that the landlord had failed to trace and repair since 2013, causing the issue to worsen. The resident said: “My living experience has been nothing short of horrific”. She asked to escalate her complaint to stage two.
7. The landlord issued its final response letter on 20 May 2022. It reiterated that, in its opinion, the compensation amount was “fair, reasonable and proportionate” as it was not “feasible or practicable” to review the complaint from 2013. It said: “The organisation was now vastly different due to multiple mergers, staff, operational, procedural, and IT changes”. The landlord also apologised and said it identified learning from the complaint as the resident’s case was included as an example in communications to its contractors. Given the delay in responding to stage two, the landlord offered a further £300, bringing the total compensation offer to £700.
8. The resident explained to the Ombudsman on 1 September 2022 that she was dissatisfied with the compensation as she felt it was inadequate and did not consider the time it took to repair the leak and resolve the complaint. She said she was depleted, mentally and physically tired. She said the disrepair in the property was so severe that her wooden walking stick became deformed. To resolve the complaint, the resident would like an acknowledgement that the landlord should have fixed the leak sooner and to consider the entire period of disrepair in its compensation offer.

Assessment and findings

Scope of Investigation

9. The Ombudsman notes the resident’s assertion that the landlord’s handling of this case has negatively impacted her health. While the Ombudsman is sorry to hear this, it is beyond the expertise of this Service to determine a causal link between the landlord’s actions (or lack thereof) and the impact on the resident’s health.
10. When there is a dispute over whether someone has been injured or a health condition has been made worse, the courts can rely on expert evidence. This will give an expert opinion of the cause of any injury or deterioration of a condition. Without that evidence, this Service cannot draw conclusions on whether the resident’s health has been affected by how the landlord handled the resident’s report of damp and mould in her bathroom. This question may be better for the courts where the appropriate expertise can be drawn on. Should the resident wish to pursue this matter, she may want to seek legal advice.

Policies and Procedures

11. The tenancy agreement reflects the landlord’s repairs obligations under section 11 of the Landlord and Tenant Act 1985 to “keep in repair” the structure and exterior of the property. Landlords must keep in repair and working order the installations for the supply of water and sanitation, space heating and hot water. ‘Keep in repair’ means the landlord must maintain the standard of repair throughout the tenancy. A landlord is only liable to carry out any repair once they have been put ‘on notice’ of the need for repair and have failed to do so within a reasonable time. The landlord is considered to have knowledge of a repair issue when contractors employed by it become aware of the problem.
12. The landlord’s complaint policy states: “When an expression of dissatisfaction is received, we would first look to resolve the matter locally via our contact centre. A risk-based approach is taken when deciding whether a problem should be escalated further and logged as a formal complaint depending on the circumstances presented, such as vulnerability or seriousness of failure. If a customer feels that their expression of dissatisfaction is not progressing at the right pace, the customer can request escalation of the case to their case manager.
13. The landlord has a two-stage complaints procedure. It aims to respond at stage one within 10 working days and 20 working days at stage two. The procedure says it will not investigate issues over six months old unless there are ‘exceptional circumstances’. The policy does not state what those exceptional circumstances might be.
14. In July 2020, the Ombudsman issued a new Complaint Handling Code (the Code), which set out good practices allowing landlords to respond to complaints effectively and fairly. This explained that a complaints policy should clearly set out the circumstances in which a matter will not be considered, and these circumstances should be fair and reasonable to residents. It gave an example issue that took place over six months before the complaint was made. It added, however, that where the problem was a recurring issue, the landlord should consider any older reports as part of the background to the complaint if this would help to resolve the matter for the resident. It added that relying on this exclusion might not be appropriate where complaints concern health and safety issues.
15. Landlords must consider the properties’ condition using a risk assessment approach called the Housing Health and Safety Rating System (HHSRS). HHSRS does not specify any minimum standards, but it is concerned with avoiding or minimising potential hazards. Damp and mould are potential category-one hazards that fall within the scope of HHSRS. Landlords should be aware of their obligations under HHSRS. They are expected to carry out additional monitoring of a property where potential hazards are identified.
16. The landlord’s compensation policy says compensation payments are made when a person has experienced a delay or has incurred additional costs because of a service failure or failure to carry out a service within published guidelines. For example, a temporary loss of amenities, an inability to use part of a property and a failure to meet agreed service standards. The amount of compensation the landlord offers is based on the following:
    1. The severity of the time, trouble, and inconvenience suffered.
    2. An assessment of whether the customer could have avoided the loss or inconvenience.
    3. Known costs that have been reasonably incurred.
    4. Any household vulnerabilities, including age or disability.
    5. Whether we have failed to follow policies and procedures.
    6. The time it has taken for us to resolve a problem.
17. The landlord’s matrix for calculating compensation if a room or a property is unusable is as follows: “For each unusable room, after the first 48 hours, a customer can receive a percentage of weekly rent, up to a maximum of 50%, as compensation using the guide below: Kitchen 25%, Bathroom 25%, Bedroom 20%, Living room 10%”.

The landlord’s decision not to investigate its handling of the resident’s repairs earlier than 2021, and the subsequent compensation at the time of its final response.

18. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles, which include treating people fairly, following fair processes, putting things right, and learning from outcomes. The Ombudsman must first consider whether a failure on the landlord’s part occurred and, if so, whether this adversely affected or caused detriment to the resident. If a failure by the landlord adversely affected the resident, the investigation will then consider whether the landlord took enough action to ‘put things right’ and learn from the outcome.
19. The Ombudsman’s role is to investigate issues relating to a specific complaint that has progressed through a landlord’s complaints process. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues and reach an informed conclusion on the events which occurred. Residents are encouraged to bring the unresolved problems through to the Ombudsman after the landlord’s complaints process, as this will enable any areas of potential service failure to be identified and addressed.
20. The Ombudsman appreciates that as issues become historic, it becomes increasingly difficult to unpick the events that took place and how matters were handled. Evidence becomes difficult to obtain and authenticate, and accounts become less reliable. As such, it is common for a landlord’s complaints policy to set out a timescale within which it expects a resident to complain about an issue they are experiencing.
21. In this case, the resident sought for the landlord to consider the circumstances and the way in which it handled her complaints from as early as 2013. In its first stage response, the landlord explained that in line with its complaints policy, it would only review and investigate complaints raised within six months of the issue occurring as the purpose of the complaint process was to encourage landlords and residents to work together to find a resolution at the earliest opportunity.
22. The Ombudsman has considered the landlord’s policy and notes that while it is prescriptive, it does provide scope for the landlord to apply its discretion, depending on the circumstance. The policy explains that the landlord may exercise discretion in exceptional circumstances when considering whether to accept a complaint submitted outside of this timescale. The landlord failed to mention this to the resident and to explain the circumstances under which it may have applied discretion to the resident’s case.
23. In the Ombudsman’s opinion, circumstances where it may be reasonable for the landlord to apply its discretion would include:
    1. Where the matter relates to safeguarding or health and safety concerns which the landlord is aware of.
    2. Where the resident brought the matter to the landlord in good time and continued to pursue the issue, but this had not been taken forward.
    3. Where the landlord had continuously failed to recognise the complaints and stalled the process in one way or another, which prevented the resident from exhausting its internal complaints process.
    4. Where the landlord had not provided the resident with referral rights, and as such, the resident was unaware of their right to escalate the complaint (both internally and to this Service).
24. With this in mind and from the evidence available to this Service, the Ombudsman has considered whether it would have been reasonable for the landlord to have widened the scope of its investigation to consider its handling of the case as far back as 2013.
25. While there is clear evidence that the resident raised her first formal complaint about the leak in October 2013 and made further complaints in 2014, there is a significant gap in the evidence between October 2014 to April 2018. The resident explained to this Service that she phoned the landlord ‘countless’ times during this period. The Ombudsman does not dispute that this may have been the case. In the absence of records, however, this Service is unable to consider what was said at the time and how the landlord responded.
26. Moreover, this Service would expect a resident to make a formal complaint with the landlord where continuous contact is being made to no avail and/or to seek the Ombudsman’s intervention where necessary. However, from the evidence available, it appears that the resident only re-raised the issue with the landlord in 2018. It was subsequently reasonable that the landlord did not extend its investigation as far back as 2013, given the length of time that had passed and the gap which arose.
27. In the Ombudsman’s opinion, however, it would have been reasonable for the landlord to have investigated matters back to 2018.
28. In 2018 the landlord launched its capital investment programme and decided to refit the resident’s kitchen. On 5 April 2018, its contractor visited the resident’s property for pre-installation measurements. It noted a “major damp problem” and a leak on a wall that needs investigating”. This was significant because, at this time, the landlord was put ‘on notice’ (as per paragraph 11 of this report). From this moment, the landlord was able to confirm for itself that the leak and subsequent damage remained an issue at the resident’s property. As per its repair obligations, it was subsequently responsible for arranging a reasonable repair from this time. Yet, while the new kitchen was installed around May 2018, there is no evidence that the contractor addressed the source of the leak.
29. Records show that over the following 12 months, the resident chased the repair several times and on 30 April 2019, she raised a formal complaint with the Chief Executive Officer (CEO). The landlord’s records show (on 10 June 2019) that the resident had not received a formal response at that time, despite chasing several senior managers.
30. Although the landlord proposed a meeting with the resident in June 2019, this Service is aware that the resident insisted on a formal written (complaint) response. The resident followed this up on 29 September 2019, at which time she requested that the landlord send “someone skilled” to fix the problems. The landlord confirmed that an operative would re-attend; however, it is unclear whether it did.
31. The Ombudsman understands that into early 2020, as a result of the COVID-19 outbreak, many of the landlord’s services were suspended. Still, nonetheless, it does not appear that it made contact with the resident until later that year to re-inspect the resident’s boiler and restore the water pressure. Evidence suggests that the resident also temporarily stopped pursuing this matter. Nevertheless, as the landlord had still not addressed the repair and had not responded to the complaint in full, the onus was on the landlord to communicate with the resident. It seems to this Service that the landlord had forgotten about the resident’s issue until it returned to the property in May 2021 and again identified for itself that the leak persisted and was causing damage to the property below.
32. Following a damp and mould survey in July 2021, the landlord apologised that the resident’s repair had still not been completed. It also recognised the impact that living with damp and mould could have on her health and well-being. This was followed by a further complaint from the resident in August 2021 which the landlord confirmed it had escalated with the “management team internally”. Yet another complaint was received in October 2021, at which time the landlord again advised it would respond at stage one.
33. On inspecting the resident’s property on 18 November 2021, the landlord noted: “A [burst] pipe within the kitchen wall, possibly running off of the boiler […] I witnessed the temperature gauge fluctuating the whole time I was there. The walls […] show damage from the burst pipe. Fungus […] outside the front door. The hallway cupboard has now also developed mould. The flooring is in a very dangerous state. I could have easily put my foot through it by the sink […] The only course of action I can recommend before the situation worsens is a two-week decant. It will require major plastering works to be carried out, along with a full Kitchen replacement. There is no way the flooring can be renewed, and units put back. The units nearest the window have water damage and are beyond trying to repair […] I can’t stress how bad the place looks. Before mould and damp gets worse throughout the hallway, we need to get this done as soon as possible”.
34. Noting the landlord’s description of the property in April 2018; the pictures shared by the resident in 2019; the results of the landlord’s damp and mould survey in July 2021; the resident’s complaint in October 2021; and the statement above from November 2021, it is clear that there was a continuous and severe issue which would have impacted the resident’s ability to enjoy her home. This Service is aware that the required works also resulted in the resident having to be moved to temporary accommodation (on 30 November 2021) for several weeks, partly as the landlord uncovered further extensive damage to her bathroom. While she was moved back to the property on 17 December 2021, works were not confirmed as completed until 7 January 2022.
35. The resident described her living experience as horrific. She explained that apart from the impact on her mental health and well-being, she had paid significantly higher water bills due to the leak and while she regularly purchased products to treat mould, she was unsuccessful. The resident explained that living with damp and mould had destroyed several personal items including food, furniture, and sentimental belongings. Evidence suggests that the landlord was still undertaking jobs as recently as May 2023 to make good parts of the property.
36. It is also worth noting that the Code indicates that it may not be appropriate to exclude historic complaints where there is a substantive issue concerning health and safety matters. The Code also states that where the problem is a recurring issue, the landlord should consider any older reports as part of the background to the complaint if this would help to resolve the matter for the resident.
37. In the Ombudsman’s view, the landlord subsequently missed the opportunity to ‘put things right’ for the resident by inappropriately applying its rule and narrowing the scope of its investigation.
38. It is clear to this Service that it would have been appropriate for the landlord to have applied its discretion, looking at matters at least as far back as 2018. The evidence demonstrates that:
    1. There was a considerable and consistent effort from the resident to pursue the outstanding repairs and to remind the landlord of the issue.
    2. The resident had several unresolved complaints about this issue which the landlord failed to take forward and process through its complaint’s procedure. Despite the resident’s request for a formal response, this was not issued until several complaints later. The resident specifically requested a formal response letter. The delayed response also failed to address the underlying cause of the complaint. Additionally, the landlord’s decision to continuously restart its complaints process at stage one meant that the resident was delayed in exhausting the process.
    3. The resident was never advised on how she could take matters further. The resident involved the CEO, councillor, and her MP as a form of escalation, and it was only once she contacted this Service that the complaint was appropriately progressed.
39. This Service has concluded that there was severe maladministration in the landlord’s handling of the resident’s repairs and subsequent complaint. The landlord’s decision to only review how it managed this from May 2021 meant that its offer of (£700) compensation also fell significantly below what would have been proportionate, given the circumstance.
40. The landlord’s award of compensation did not consider its failure to keep in repair the resident’s property for approximately four years and the impact this would have had on her ability to reasonably enjoy it over this period. The landlord was expected to put in place a lasting and effective fix to resolve this issue at the earliest opportunity. It also did not consider the excessive involvement that was required from the resident to pursue this matter.
41. It is clear to this Service that there were several complaint handling failures which the landlord may have recognised if it widened the scope of its investigation. Its misplaced application of its six-month rule resulted in a missed opportunity for the landlord to adequately put things right and learn from the events of this case.

Determination

42. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration with regard to the landlord’s decision not to investigate its handling of the resident’s repairs earlier than 2021, and the subsequent compensation at the time of its final response.

Orders and recommendations

Orders

43. Within four weeks of the date of this report, a senior member of the management team must write to the resident with an apology and a recognition that it should have carried out the repair sooner. The landlord must provide evidence to the Ombudsman of compliance with the order.
44. Within four weeks of the date of this report, the landlord must pay the resident a total of £5,053.30, broken down as follows:
    1. Compensation for the loss of room and loss of enjoyment of her home, on a 20% of the rent paid from 5 April 2018, when the landlord had notice of the repair issue, to 7 January 2022, when the repair was completed. The Service has taken the average weekly amount the resident paid for the period, which was £103.25 and awarded £4,053.30.
    2. £1,000 for distress and inconvenience. This sum includes the £700 the landlord has already offered in its response.
45. The landlord should provide this Service with evidence of the above payment within four weeks of the date of this report. Payment should also be made directly to the resident’s bank account and should not be offset against any arrears the resident may have accrued.
46. The landlord must conduct a full senior management review of this case to identify learning and improve its working practices. The review must include the following:
    1. A review of its complaint procedure to ensure it complies with the Ombudsman’s Complaint Handling Code; and
    2. A review of its repairs procedures to ensure an effective mechanism is in place to record and store records, check the quality of the works, identify, and respond to repeat repairs, and whether the repair has solved the issue.
47. The outcome of the above review must be shared with this Service within eight weeks from the date of this report.