Royal Borough of Kensington and Chelsea (202121850)

REPORT

COMPLAINT 202121850

Royal Borough of Kensington and Chelsea

14 September 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

The resident complains about the landlord’s handling of:

a. A claim for compensation in relation to a mouse infestation.

b. A claim for compensation in relation to a flood.

Background

The landlord’s repairs policy in place at the time set out that critical repairs (where there was a serious safety hazard, the immediate risk of more extensive damage to a property or the potential to cause injury) would be attended to within four hours, and emergency repairs (such as burst pipes) within 24 hours.
The landlord’s compensation policy as was in place at the time set out that it would consider a compensation claim when residents had been severely inconvenienced by the landlord’s actions, and/or failures in service delivery had caused loss or major inconvenience.
Where a failing that the landlord was partially responsible for had impacted a resident, the following amounts could be considered:

a. Low impact: £20-£30

b. Medium impact: £50-£100

c. High impact: £200-350

Where a failing that the landlord was fully responsible for had an a impact on a resident, the following amounts could be considered:

a. Low impact: £30-50

b. Medium impact: £100-200

c. High impact: £350-500

Regarding loss or damage to possessions, residents were advised to take out home contents insurance. The policy stipulated that liability claims must be made to the insurance team, and were managed outside of the compensation policy.

Summary of events

The resident and her adult children moved into the property in June 2021 (following a request from the landlord to swap her previous home for the property). The resident reported a mouse infestation in late November 2021. The landlord carried out pest control visits on three occasions in December 2021.
On 17 December 2021 the resident reported flooding into her home coming from the upstairs property, due to works that were being carried out there. This was resolved by the landlord that same day.
Also on 17 December 2021, the resident made a formal complaint to the landlord about two issues. She explained that she had moved to the property that summer, and found that it had a ‘serious mouse epidemic’ which pest control had been unable to eradicate due to ‘faulty structural damage’ in every room. She explained that all of her furniture had been urinated on and chewed by the mice, and the mice had shredded through personal belongings such as photographs, birth certificates, private sentimental letters and so on, which was very upsetting. She explained that the smell of mouse urine was everywhere.
The resident stated, ‘I have been informed by pest control that this mice epidemic has occurred because of serious flaws in the structure of the skirting and structure of the flat in general, there are too many holes and crevices in the design of the flat for vermin to enter i.e. the flat hasn’t been properly and sufficiently sealed to prevent this from happening.’ The resident explained that the situation had impacted her and her children mentally and physically, had left the living room uninhabitable, and said they were woken at night by ‘mice scurrying on our beds’. The resident said that she wanted compensation for the loss of furniture and personal belongings, as well as the mental stress she and her family were experiencing.
The resident said that her second complaint was about the flood that had occurred that day, which had ruined carpets, bedroom furniture, and clothes, and had also caused stress for her and her children. The resident said, ‘We had to endure the mess and hours of trying to clean up.’ The resident described ‘the smell of defecation’ that had seeped into carpets and asked for compensation for the damage caused by the flood.
A proofing contractor attended on 11 January 2022, finding signs of mouse activity. Their report noted that there were points of ingress in the kitchen, toilet, and lounge, and gaps found in the electric meter cupboard as well as nesting materials. The report noted, ‘The tenant says that her skirting boards are allowing mice access because there is a large gap underneath-while the skirting boards are higher than normal most of the skirting isn’t an issue because this property has concrete floors throughout. Where mice have been getting access is under the boxing that runs along the back windows in the lounge mice have chewed the lino at the end of this boxing where it meets the skirting board and I have sealed this area to prevent further ingress.’
The landlord sent a stage one response on 20 January 2022. It said that its Pest Control Officer had confirmed that there had been visits from the Environmental Health Team on the 3, 10, and 17 December to treat the mouse infestation. The landlord had then pest proofed the property on 11 January 2022, although the proofing contractor was unable to complete the work on this visit, and a return visit was booked for 27 January 2022. The Pest Control Officer would then attend on 28 January 2022 to inspect the proofing work.
Regarding the resident’s concerns about the general condition of the property and that mice may be gaining access through the gap between the floor and the walls, the landlord had arranged for the Repairs Team to visit on 27 January 2022 and fix quadrant beading to the floor which would fill the gap between the floor and the walls, preventing mice from being able to gain access. The landlord said that it was upholding the complaint.
Further proofing works were carried out that same month.
On 7 March 2022 the resident emailed the landlord saying that there had been no improvement with the mouse infestation, with skirting, carpet, and furniture being destroyed by the mice. She said, ‘…we have been living like this with this problem since we moved in, the flat is uninhabitable I have to insulate the gap under my bedroom door at night to keep the mice out it’s just an awful way to live…’ The landlord telephoned the resident that same day and during this call the resident asked to escalate her complaint, explaining that the issue was ongoing with no resolution.
A further proofing visit was undertaken on 9 March 2022, which identified more points of ingress at radiator pipes, along with signs of mice. The landlord carried out a further inspection of the property on 18 March 2022.
The landlord provided a stage two response on 23 March 2022. It acknowledged that the mouse problem was causing great distress, and said that it was truly sorry that the resident had felt unsupported by the landlord, stating, ‘It is clearly not acceptable for your family to have had to endure this situation over such an extended period and for the problem to still remain after all this time despite multiple visits having taken place during this period.’ The landlord assured the resident of its commitment to putting matters right.
The letter went on to explain that prior to the resident moving in, the landlord had carried out a number of works which included fitting a new kitchen and laying flooring throughout. The resident had first started reporting the presence of mice in November 2021. The pest proofing contractor visited on three separate occasions (the last visit being on 9 March 2022), and each time further holes were found and sealed. There had been no other recent reports of rodent infestation from residents of the other properties, nor any obvious reports of mice at the resident’s property prior to her moving in.
The landlord said, ‘This indicates to me that the fault lies in the new kitchen and flooring having been fitted to a poor standard, with numerous holes having been left unsealed. Clearly this is absolutely unacceptable, as is the fact that these faults were not subsequently identified and rectified during the post-inspection of the works.’ This had been drawn to the attention of the Assistant Director of Property Services, who would ensure measures were taken to improve the oversight and post-inspection of void works moving forwards.
The landlord said that to ensure any further holes were identified and sealed once and for all, its Carpentry Repairs Supervisor had carried out a full inspection of the property on 18 March 2022. From subsequent discussions with the Supervisor, Environmental Services Manager, and Environmental Services Support Officer, it had been noted that when the new laminate flooring throughout the property had been laid, no beading had been used around the skirting board, leaving a 1-inch gap between it and the floor through which mice could enter. To resolve this once and for all, the landlord had arranged for a contractor to attend to install the beading.
The landlord concluded, ‘On the basis of my findings above, I am fully upholding your complaint. In recognition of the significant time, trouble and distress which this situation has caused you and your family, I consider it wholly appropriate to offer you financial compensation. In line with our compensation policy, I would therefore like to offer you the sum of £200.’
On 24 March 2022 the resident emailed the landlord to say that £200 was inadequate compensation for a situation that still hadn’t been resolved. She said, ‘The furniture in my living room has been destroyed by the ongoing infestation of mice chewed gnawed urinated on everything violated contaminated bedding mattresses curtains and you believe £200 is adequate compensation for the stress my family have endured and are still enduring…’
In a further email that day the resident pointed out to the landlord that it had not addressed her concerns about the flood and damage this caused to her property. The landlord replied that same day stating that there had been no reference in her stage two escalation request about the flood, and that the complaint process had now been completed.
On 27 April 2022 the landlord’s insurance team wrote to resident about a claim she had submitted regarding both the infestation and the flood. It denied liability, and suggested that the landlord had acted in line with its service level agreement and had dealt with the mouse infestation in a timely and effective manner, as far as was reasonably practicable. It said that although there were multiple visits, these were required due to the type of infestation and Pest Control had confirmed that multiple proofing visits were normal. The letter said, ‘In terms of the structural problems which were said to have caused the mice infestations, looking at the Void Inspection records for this and records of complaints. There is no evidence to suggest that we were made aware of these structural problems prior to the incident date.’
With regards to the leak that the resident had said originated from the neighbouring property, the letter said, ‘We have no records of this leak emanating from [the neighbouring property] therefore there is no evidence that we acted negligently in the handling of this matter.’
On 20 May 2022 the landlord emailed the resident stating that it had been advised by its Insurance Department that that she had been in touch with it regarding a potential claim over damage sustained from the December 2021 flood. It stated, ‘Although this was not raised during your Stage 2 escalation, I have double checked our files and accept that you did originally raise this within your original Stage 1 complaint, and that this should have been addressed within the Stage 1 response sent to you on 20th January 2022.’ The landlord apologised for the oversight, and for not recognising this on 24 March 2022. The matter had been referred to a senior staff member and the landlord asked the resident for further information so that it could assess the request for compensation.
On 22 May 2022 the resident emailed the landlord saying that that the flood occurred on 17 December 2021 and had destroyed all the carpeting in the bedroom, the landing and stairs, and that clothes and furniture were also ruined. She said that the family spent two weeks cleaning up the mess and a bad smell was still evident.
On 25 May 2022 the landlord sent a final response on the matter. It noted that it encouraged all residents to have home contents insurance, but that the resident did not have any. It understood that the resident had approached the landlord’s insurance department with a claim for damaged belongings, which had been rejected on the basis that there was no failing in attending to the flood. It said, ‘Nonetheless, whilst the Council does not consider that any service failure occurred, and that we are not liable for the damage sustained to your belongings, we do accept that this aspect of your complaint should have been addressed within our Stage 1 response issued on 20th January 2022.’ It therefore offered a discretionary payment of £250 in relation to the damage caused by the flood. This was in addition to the £200 previously offered regarding the pest control issues, bringing the total to £450.

Assessment and findings

In her complaint to the Ombudsman, the resident has explained that the outstanding issue is the offer of compensation, which she feels is inadequate. She has also explained that the mouse infestation has not been remedied, and would like this to be resolved. The resident states, ‘The mice have destroyed (by defecating and gnawing on) all of our furniture, sofas, bookcases, tables, chairs, mattresses, bedding, piano, clothes, our carpets, documents such as birth certificates and university degrees…Furthermore, we had a flood as well which was not our fault…which caused even more damage to carpets and furniture.’
The resident has explained how upsetting the infestation has been for her and her children, and described the distress and trauma of living with this for a prolonged period. She has said that she is still finding mice in her home to date, such as in the microwave and in food cupboards. She has explained that there is now no furniture in the living room as there was ‘no point’ in replacing this, as it would only be damaged again by the mice. The resident has also explained that she and her children have had the inconvenience of numerous contractor visits.
The resident also notes that there is an issue with mice in the communal areas of the estate as well as in her own home, although this is not something that was raised during the course of the complaint with the landlord.
Finally, the resident has explained that the flood in December 2021 caused significant damage.
The resident seeks £5000 in compensation for the time and trouble, trauma and stress experienced, as well as replacing damaged belongings. Due to the ongoing mouse infestation she would like to move from the property into a new home, and requests that the landlord assist with this.
When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:

a. Be fair – treat people fairly and follow fair processes;

b. put things right, and;

c. learn from outcomes.

The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse affect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Mouse infestation

The evidence available shows that once the landlord was made aware of the mouse issue in November 2021 it took action to try and resolve this via pest control and proofing work. However, the landlord has identified that a failing on its part when carrying out works to the property prior to the resident moving in likely led to the mouse infestation. While it is clear that pest control and proofing works have been undertaken with follow up inspections, the resident has explained that this has not resolved the matter, which she states the landlord is aware of. In response to the Ombudsman’s request for confirmation as to whether the mouse infestation has been resolved the landlord has replied ‘not applicable’. It is understood from this (and the resident’s own report) that the infestation is ongoing.
As the infestation has had an adverse affect on the resident and her family as detailed in her complaints, the landlord needed to take action to ‘put things right’ via its complaint process. It is clear that the landlord made efforts to do so. It provided considered, detailed responses to the complaint, acknowledging the failings that had occurred and detailing the steps it had and would take to address the infestation, offering sincere apologies. This was reasonable and the landlord acted fairly here. In addition, the landlord detailed the action it would take to address the failings in the post tenancy works that were carried out unsatisfactorily, showing that it took steps to ‘learn from outcomes.’
The landlord also offered compensation for the resident’s time, trouble and distress, which was an appropriate action to take in line with its compensation policy. The £200 offered falls into the upper range of the ‘medium’ impact bracket within the compensation policy. However, the amount offered was inadequate as a remedy to the (at that point) four month period that the resident had been experiencing the issue, and the detriment she had detailed this had on her and her children. The landlord did not act fairly here.
Taking into account the amounts set out in the landlord’s compensation policy where it had been fully responsible for a failing, and the adverse affect experienced by the resident in terms of distress and inconvenience, it would have been appropriate for the landlord to assess this under the high impact banding, given the unpleasant nature of the issue and the time it had been ongoing.
In terms of the resident’s claim of damages to personal belongings, the landlord did not acknowledge or address this in its responses to the complaint. This was a failing on the part of the landlord. It would have been appropriate for it to have initially considered whether its actions may have contributed to the damage (outside of any strict liability claim). If the landlord accepted that it had been at fault, and there is some indication of this given that it acknowledged failings that likely led to the infestation, the landlord should have either ‘put right’ any damage caused (for example, by paying compensation), and/or facilitated a claim on its own insurance policy for any damaged belongings.
This failing led to an adverse affect to the resident, who experienced frustration that her request for compensation for damages was not addressed, and further time and trouble in pursuing the matter.
It is noted that the landlord’s compensation policy states that liability claims must be made to the insurance team and are managed outside of the compensation policy. However, an investigation by an insurance company is different to a landlord’s consideration of a complaint. An insurer determining an insurance claim has a narrower focus than a landlord’s complaint investigation and is concerned solely with negligence and liability. A landlord can identify service failings and the adverse effect caused by these, which might include damage to belongings. This is reflected in the Ombudsman’s Guidance on Complaints involving Insurance Issues (https://www.housing-ombudsman.org.uk/wp-content/uploads/2020/11/Guidance-on-Insurance.pdf).
Given that the landlord in this case did not contest responsibility for the infestation but found that its investigation indicated that service failings led to mice accessing the property, it would have been appropriate for it to have given discretionary consideration to offering compensation through the complaints procedure for damage to belongings (or loss), and not only distress and inconvenience. This Service is aware, through its consideration of other cases involving the landlord, that such discretionary consideration has been made in the past and it is not clear why, in this case, this did not happen.
It would have also been appropriate for the landlord to have explained its decision making here in line with the Ombudsman’s guidance, which states that:

a. A landlord should initially at least consider whether there is any evidence that it has been at fault for any claimed damage to a complainant’s property / belongings and not refer complainant’s straight to an insurer, although it may be appropriate for a landlord to notify its insurer of a potential claim

b. A landlord should clearly explain to complainants what issues can be considered through its formal complaints procedure and what can be progressed through its / the complainant’s insurers. It should also appropriately signpost complainants for personal injury and / or any other insurance related claims.

While the matter was referred to the insurer after conclusion of the complaint procedure, the claim was rejected as liability was not found. The landlord is ordered to now give consideration to the resident’s request for compensation for damaged belongings, taking into account the failings identified through its consideration of the resident’s complaint. The landlord is also recommended to consider the Ombudsman’s guidance on insurance complaints, and decide whether its own policy requires updating and whether staff training is required in this area.
Finally, it is unclear why the ‘beading’ as promised in the stage one response was not carried out, and at what point the further promise of this work in the stage two response was followed through (although the resident has stated that his has now been done). Neither is it clear why it was considered that this would resolve the mouse infestation (and the resident has confirmed that it has not) given the proofing contractor’s 11 January 2022 finding that the gap between the skirting and the floor was not the issue.
As the infestation is ongoing and it is unclear what action the landlord plans to take to resolve this, an order is made below to address this.

Flood

While it is understandable that this incident was distressing for the resident, there is no indication of a failing on the part of the landlord in its handling of this matter. It is not clear if this repair was classed as ‘critical’ or ‘emergency’ but the resident has stated that the landlord attended that same day (and has not complained about response times) and remedied the issue. There is no evidence that the flood itself was caused by any failing on the part of the landlord.
There was a failing in the landlord’s handling of the complaint about this issue, which it failed to address. However, it later acknowledged this, apologised, and provided a response along with £250 compensation. The landlord acted fairly here and ‘put things right’.
It is noted that the landlord’s insurer denied liability for the damages claimed. Given the landlord did not accept any fault on its part in relation to the flood, it was appropriate that the claim for damage was decided by an insurer.

Determination (decision)

In accordance with section 54 of the Scheme, there was maladministration on the part of the landlord in its handling of a claim for compensation in relation to a mouse infestation.
In accordance with section 55 (b) of the Scheme, there was an offer of reasonable redress regarding the claim for compensation in relation to a flood.

Reasons

The landlord has identified that the mouse infestation had likely occurred due to numerous holes having been left unsealed when works were carried out to the property. While the landlord had taken steps to ‘put things right’ by carrying at pest control and proofing works and offering compensation, the compensation amount offered for the time, trouble and distress was insufficient. In addition, the landlord failed to address the resident’s request for compensation for damaged belongings. Finally, the infestation is ongoing but it is unclear what the landlord’s plan is to address this.

There was no failing in the landlord’s handling of the flood and no indication that it was at fault for this. Therefore, its response to the resident’s compensation request was reasonable. It has appropriately remedied the complaint handling failing with its offer of compensation.

Orders

Within one month of the date of this report, the landlord must:

a. Pay the resident a total of £650, comprised of £500 for the distress, time and trouble, and inconvenience that the mouse infestation caused, and £150 for the frustration, time and trouble the failure to respond to and consider the request for compensation for damaged belongings caused.

If the £200 offered in the landlord’s 23 March 2022 letter has already been paid, it can be deducted from this amount.

b. Consider the request for compensation for damaged belongings (obtaining more details of this from the resident), taking into account the failings identified through its consideration of the resident’s complaint. Confirm the outcome of this in writing to both the resident and this Service.

c. Write to the resident, copying in this Service, setting out an action plan for addressing the ongoing infestation, which should include reference to any infestation in the communal areas.

Recommendations

If it has not already done so, the landlord should pay the resident the £250 offered in relation to the complaint about the flood, as the decision of ‘reasonable redress’ was made on this basis.
The landlord should consider the Ombudsman’s guidance on insurance complaints, and decide whether its own policy requires updating and whether staff training is required in this area.
The landlord should write to the resident setting out her options for moving home, and whether there is any assistance that it is able to offer with this in light of the ongoing infestation.