Sandwell Metropolitan Borough Council (202204475)

REPORT

COMPLAINT 202204475

Sandwell Metropolitan Borough Council

17 January 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 response to the resident’s reports that its contractor damaged her kitchen flooring.

Background

2. The resident is a tenant of the landlord.
3. Following works undertaken in the resident’s property on 21 July 2021, the resident informed the landlord that the contractor had damaged the kitchen’s laminate flooring in the kitchen. The evidence suggests that the landlord then advised the resident to make a claim for damages through the landlord’s internal claims process.  
4. On 19 August 2021 the resident completed the landlord’s internal Claim Notification Form in which she contended that the contractor had damaged her flooring and purposely concealed the damage with rubbish. A member of the landlord’s staff attended the property on 2 September 2021 as part of the landlord’s investigation. The landlord also took a statement from the contractor, who denied that they had damaged the flooring.
5. According to the landlord’s records, the resident’s claim was denied on 16 September 2021 following its investigation. However, the resident completed a further Claim Notification Form regarding the same issue on 6 March 2022.
6. The resident subsequently raised a formal complaint with the landlord because she sought compensation for the damaged flooring, which she attributed to the negligence of the landlord’s contractor.
7. The landlord did not uphold the complaint because, following its internal investigation, there was insufficient evidence to show who had caused the damage to the flooring. However, it offered a £100 voucher as a goodwill gesture because the process had been prolonged, which the landlord attributed to not having any witnesses to the damage. It reaffirmed that this would not mean accepting liability for the damage.
8. On 6 October 2022, the resident received two letters from the landlord: the first letter referred to the resident’s second claim, made in March 2022, that was denied due to the resident including the incorrect date for when the incident occurred; the second letter referred to the resident’s initial claim raised in August 2021. This too was denied but an apology was included, due to it not providing a response sooner.
9. The resident brought her complaint to this Service because she remained dissatisfied with the landlord’s position following its investigation. She wanted the landlord to increase the level of compensation to reflect the stress, inconvenience and damaged caused to her flooring.

Assessment and findings

10. When the resident reported that a contractor had damaged the flooring, it was appropriate for the landlord to conduct an internal investigation into the claim before it decided on the next steps – for example, referring the matter to its liability insurer, completing any repairs at its discretion, or advising a resident to claim via their own home contents insurance.
11. The route taken subsequently would of course depend on the outcome of its investigation. It would, for instance, be reasonable for a landlord to carry out its own investigation and not refer the matter to its liability insurer so long as the landlord had carried out a thorough investigation before making a decision. This is because if the landlord’s investigation was fair and thorough, it would be unlikely that the insurer would come to a different conclusion following a similar investigation.  However, if a landlord had not completed a thorough investigation itself, it may be appropriate to refer the claim to its liability insurer so that an investigation could be carried out.
12. In this case, the evidence demonstrates that the landlord did indeed conduct a thorough investigation into the resident’s claim before it made a decision about the next steps. As part of its investigation, the landlord visited the property to inspect the damage on 2 September 2021 and on 4 August 2022, following the resident’s formal complaint of 16 June 2022. Both visits confirmed there was damage to the flooring but could not conclusively establish how, when, and by whom, the flooring was damaged.
13. The landlord also noted that the damage appeared to be quite old, despite the resident saying that the flooring had only been installed a couple of weeks previously. Whilst the Ombudsman does not doubt the resident’s account of when the flooring was installed, as an independent and impartial arbiter of complaints we can only base our decisions on the information provided. The Ombudsman has not seen evidence that an invoice provided to show when the flooring was installed and therefore we cannot confirm when it was installed.
14. In addition, the landlord took a statement from the contractor in relation to his procedures during the visit on 21 July 2021, in which the contractor was adamant that he had not damaged the flooring and all appropriate precautions were taken when carrying out the work.
15. In view of the above, there was not enough evidence for the landlord to conclude that its contractor had caused the damage to the resident’s flooring. Ultimately, it came down to the resident’s word against the contractor’s. Whilst the lack of a conclusive decision either way was frustrating for the resident, the landlord’s decision not to refer the claim to its liability insurer was reasonable in the circumstances because it is likely the insurer would come to the same conclusion as there was not enough evidence to confirm liability.
16. It is acknowledged that, during its investigation, the landlord mentioned repairing the damaged vinyl tiles in the kitchen. Not all landlords have liability insurance for this type of situation; and even if they did, a landlord may choose to settle a liability claim itself outside the insurance process. This was a reasonable approach at the time as it may have resulted in quicker resolution for the resident. However, the resident refused this repair as she wanted the whole floor replaced – being as her original flooring was obsolete – the landlord rightly continued its internal investigation as it would need to wait for the outcome before it made any decision about a full replacement. The decision not to reconsider this offer following the conclusion of its investigation was also appropriate as there was no evidence to confirm that the contractor had caused the damage.
17. That being said, it is not disputed by either party that the process in reaching this decision was somewhat elongated unnecessarily, with poor communication from the landlord. According to the stipulations outlined in the landlord’s Claim Notification Form, an acknowledgement should be received within three weeks of receipt of the claim, and a decision on the claim should be received within three months of the landlord acknowledging receipt of the claim.
18. As the landlord received the resident’s Claim Notification Form on 23 August 2021, the resident should have received the acknowledgment by 13 September 2021 and, in turn, the decision should have been received by 13 December 2021. However, this Service has not seen a formal acknowledgment of the resident’s claim; nor was a formal decision received until 6 October 2022, over a year later.
19. The landlord’s communications with the resident during the period of 19 August 2021 to 21 September 2021, indicate that the landlord had at least informally acknowledged the claim and the resident was aware an investigation was being carried out. Moreover, it is also apparent that there was some acknowledgement that the claim had been rejected, as the resident and the landlord have both mentioned in correspondence that the resident’s claim was rejected in September 2021.
20. In communication with this Service on 6 June 2022, the resident believed she may have received a letter in September 2021 with the landlord’s final outcome but she was unsure about this              . Likewise, the landlord’s internal records, dated 18 January 2022, also reference to a letter sent to the resident in September 2021 which confirmed that resident’s claim was refused. Thus, it seems that the resident could have been made aware of the landlord’s decision in or around September 2021. However, this Service did not receive a copy of the letter from either party. As mentioned above, the only formal response to the resident’s original claim was received in October 2022.
21. It seems as though the landlord has partially recognised, in the landlord’s stage two complaint response of 16 August 2022 and the landlord’s letter of 6 October 2022, that the matter had been drawn-out unnecessarily and communication was not ideal. For example, the landlord’s contact notes of 18 January 2022 detail the resident remaining dissatisfied with the repudiation of her claim. The notes confirm how the resident could appeal the decision: it states that the resident would need to write to the claims handler explaining why she does not agree with the decision and to provide further evidence to support her position. From the records provided, this did not happen. The note on 18 January 2022 states that communication should be sent to the resident and an update provided. The resident followed this up on 20 January 2022 requesting a call back, yet no further communication was received regarding this matter until the landlord’s stage one complaint response of 6 June 2022. Even so, this did not explain how the resident could appeal against the decision regarding her claim.
22. The lack of clarity regarding the next steps following the landlord’s decision to reject the resident’s claim is likely to have led to the resident completing a further Claim Notification Form in March 2022 as well as contacting this Service in June 2022 for guidance. If the landlord had confirmed its decision formally in writing in September 2021, which included how to appeal the decision, this could have avoided the matter extending to October 2022, over a year after the original claim.
23. Clear communication from a landlord is of the utmost importance so that it can avoid matters such as this being unnecessarily protracted. Consequently, because the landlord did not follow the correct procedure, as per the timeframes set out in the Claim Notification Form, and did not take the opportunity to clarify its position and next steps in January 2022, the resident experienced unnecessary distress and inconvenience, as well as time and trouble, trying to obtain a resolution.
24. In view of this, the landlord would need to put matters right to satisfactorily resolve the complaint. According to the landlord’s complaints policy, when failings have been identified, the landlord will acknowledge faults when they occur and take responsibility for putting things right. Following an investigation into a complaint, if it is recognised that the service did not meet the required standards, the landlord will:
    1. apologise where appropriate.
    2. rectify the mistake or problem within an agreed timeframe and provide a resident with the service they should have received.
    3. make a decision that should have been made earlier.
    4. review its practices, policies or procedures as appropriate. In some cases, it may be appropriate to offer financial recompense to recognise time and trouble taken to resolve an issue, or for any distress that may have been caused due to incorrect action or failure to take action.
25. Whilst it is evident the landlord acknowledged, in its stage two complaint response, that the matter had “…dragged on without resolution due to there being no witnesses to the damage…”, it is worth noting here that the landlord’s offer of the £100 voucher was a gesture of goodwill to find an amicable resolution and was not an admittance of liability nor fault. The landlord has therefore not fully acknowledged its failings and thereby has not done enough to put matters right, in accordance with its complaints policy.
26. The landlord’s formal response to the resident’s claim for damages, dated 6 October 2022, did not provide the expected next steps and expectations, as elucidated above in the internal records of 18 January 2022, whereby the note states quite clearly that the option to appeal is available. In contrast, the formal repudiation letter of 6 October 2022 simple states that if the resident wished to pursue this matter further, it recommended seeking legal advice.
27. In light of this, the landlord should carry out a case review to identify any points of learning which can be taken from this complaint. The landlord should then write to the resident with its findings, apologise, and highlight any learning from the case.
28. Furthermore, the landlord should increase the offer of compensation to £200. Whilst the £100 voucher goes some way to putting the matters right, it is the Ombudsman’s opinion that the amount of £200 compensation would  provide a more proportionate amount for the service failures identified; this is in line with our Service’s remedies guidance (published on our website), which suggests awards of between £100-£600 where there has been service failure which had an impact on the complainant and may not have significantly affected the overall outcome. In this case, the delays and poor communication did not affect the outcome of the complaint as the landlord ultimately acted reasonably following the report of damage to the resident’s kitchen flooring. Nevertheless, the poor communication at times did have an impact on the resident and compensation is due in view of this.
29. In summary, whilst the landlord’s decision to not refer the resident’s claim to its liability insurance was reasonable in the circumstance, the landlord has not fully acknowledged its failings in regard to its communication and procedures and therefore further redress is warranted to satisfactorily resolve the complaint.

Determination

30. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its response to the resident’s reports that its contractor damaged her kitchen flooring.

Orders

31. In view of the failings identified in this report, the landlord is ordered to:
    1. Pay the resident £200 compensation. This is inclusive of the initial £100 voucher offered at stage two of the landlord’s internal complaints procedure, if it has not already been given. The compensation should be paid within four weeks from the date of this decision.
    2. Carry out a case review to identify any lessons that can be learnt from this complaint and any changes which may been needed to the landlord’s processes and policies in view of this. The landlord should write to the resident and this Service to confirm the findings of this case review within eight weeks of the date of this decision.