Selby District Council (202002870)

REPORT

COMPLAINT 202002870

Selby District Council

17 August 2021

Our approach

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

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

The complaint

1. The complaint is about the landlord’s response to the resident’s concerns about a lack of lintels at the property, and her request to install these and replace the windows.

Summary of events

2. In early 2019 the resident made enquiries with the landlord regarding purchasing her property, and it wrote to her with the relevant information and Right to Buy (RtB) application form. In its covering letter it stated ‘I should point out that when the council receives notice from a tenant claiming Right to Buy, it will only carry out repairs for which it has a statutory duty under Section 11 of the Landlord and Tenant Act 1985.’ The resident’s RtB application was dated 30 May 2019, and the landlord received it the following day.
3. Subsequently, the resident had a building survey carried out, which set out the following: ‘Above the external parts of window/door openings it was noted that there is no traditional lintel and it can be seen that the upper brick course is laid directly on upper face of the door/window frames. As a result of the inadequate provision for the external lintels we noted an obvious cracking/deflection of the brickwork directly above the living room and kitchen windows. See photos. The cracking above the kitchen window has been repointed previously but has now cracked again. Considering the extent of the cracking/deflection to the brickwork we would recommend that a steel lintel be installed above both windows and the brickwork re-built locally to facilitate installation of the lintel’.
4. On 29 November 2019 the resident emailed the landlord stating, ‘I have sent in a repair request for lintels and new windows due to receiving a building survey which states there are no window lintels present and the bricks have moved and are now resting on the windows.’ She noted that she had previously sent in a repair request as neither the front room nor kitchen windows closed properly and even when fully closed had large gaps in the window frames. She asked for the matter to be addressed urgently as the windows might give way and it was not safe, stating that the property did not conform to building regulations.
5. The Property Management Team Leader (the Team Leader) replied explaining that when the windows were changed in the early 1990’s the work would have been undertaken in accordance with all appropriate legislation in place at that time. The landlord was not required to carry out works to bring properties up to current building standards. He concluded that the landlord was not under any obligation to install lintels unless or until it decided to upgrade the windows.
6. The resident replied expressing her dissatisfaction, quoting the building survey report, and said that the landlord was responsible for keeping the property safe. She felt that the landlord was trying to avoid doing so, thinking that she would buy the property.
7. The landlord replied agreeing that it had an obligation to undertake essential health and safety repairs after a RtB application was made, and asked the resident to provide a copy of the full building survey report or a copy of the relevant section highlighting the surveyor’s belief that movement was still occurring. The Team Leader said that from a general perspective it would not consider minor settlement of the window header course to constitute an essential health and safety repair, but if the resident’s surveyor had provided evidence of ongoing movement, then it was happy to review the matter.
8. The resident responded referring to the section that she had previously highlighted (as set out paragraph three of this report, above), and the Team Leader said that he would attend to inspect the property. The resident agreed to this and said it was also the case that the windows did not close properly and allowed in cold air and noise.
9. On 21 December 2019 the resident emailed the Team Leader asking if he had been able to carry out the inspection as yet, and if so what the outcome had been. She acknowledged that the Team Leader had stated that any work carried out would be added to the valuation of the property, but said ‘I ask that you take into account that the lintels and windows are in need of repair due to identified building neglect on the part of the council which is also outlined in the buildings report and would therefore seem unfair to then put the cost of this onto myself or any other potential buyer.’
10. The Team Leader replied on 24 December 2019, explaining that he and a colleague had inspected the property on 16 December 2019, and found that there had been some movement in the brickwork due to the absence of lintels. He explained that it was not unusual for properties of that age to be without lintels, and he noted that many of the other properties in the area were constructed in the same manner. He said ‘It is likely some additional movement following replacement of the windows several years ago has also occurred, and whilst I would venture the movement is not ongoing, the only way to be certain would be to install ‘tell-tales’ to measure movement over time.’ He said that he was unable to assesses any internal gaps or operational difficulties but had seen that there was some minor deflection to the drip tray about the window heads. It was not possible to determine whether this had affected the main frame, though could not be ruled out.
11. The Team Leader said that the landlord was obliged to declare any major capital expenditure incurred in maintaining the property during the preceding 10 years as these costs had to be taken into account when calculating discount values. The valuation that had been completed on the property had taken into account the current state of repair and due allowance will have been made for necessary works. He said that if the landlord were to undertake works to install the lintels and replace the windows (if so required following further investigation for possible frame deflection), the costs of doing so would inevitably affect the resident’s RtB discount.
12. In reply the resident said that it was an urgent safety issue which the landlord should address and pay for and the suggestion that the costs would be deducted from the discount was ‘scandalous.’ She stated that she had previously reported the issue of the windows not closing securely and excessive noise heard from outside, and the contractor that attended agreed there was an issue and suggested changing the hinges. The resident said ‘The issue is clearly due to the bricks resting on and moving the windows which will also need replacing again due to the neglect of Selby council.’
13. On 9 July 2020 the resident submitted a stage one complaint. In this she stated that the valuation that had been carried out on the property had not taken into account the repairs required, pointing out that it could not have as neither she nor the landlord had been aware of these prior the buildings report. She said ‘Your valuation was not based on any inspection of the inside of the property or the building outside nor with any knowledge of the state of it and the repairs required.’ She said that the surveyor’s report stated that there were no steel lintels, the bricks had moved and were now resting on the windows, which is why they did not close properly. She stated ‘The surveyor also said that this had happened due to neglect of building repairs and care by Selby Council.’ The resident believed this to be an urgent safety issue which the landlord was responsible for, and she should not be expected to be responsible for the cost of the works required.
14. The resident said that the landlord had refused to carry out the repairs to the windows on the basis that a RTB application had been made, but then attended to carry out some non-urgent plastering works. The resident stated ‘We live in constant anxiety as we do not know if the windows are going to hold the weight of the walls, brick work could move at any time. There is a potential for it to cause harm to myself and my daughter along with pets in the home. Will you still then be saying that you left us at risk and caused severe injury or even death because I put in an application for the right to buy?’
15. The landlord provided a stage one response dated 5 August 2020. In this it explained that a joint site visit was carried out on 16 December 2019 by the Team Leader and a Property Management Officer. Whilst an internal inspection was not carried out, the officers had full access to the history of the building and or any upgrade / repair works carried out, over a period of twenty plus years. The landlord said ‘…the evaluation was based on the age of the building, works carried out since 2000 and any works required to bring the building to the current regulations and standards.’ The letter said that the evaluation price provided by the officers reflected the fact that work to both the windows and brickwork would need to be carried out by the purchaser, as highlighted in the resident’s own independent survey.
16. The landlord noted that only one outstanding repair job was included on the resident’s RtB application, and this was received via email on 30 May 2019, and related to plaster coming off around a window, a crack from window to wall, lots of cracks in ceiling at hall upstairs, and hole in bathroom ceiling where a new vent was put in. The letter concluded that the resident had been given a comprehensive response setting out the landlord’s position by the Property Manager.
17. That same day the resident submitted a stage two complaint, in which she described the stage one response from the landlord as confusing and not relating entirely to the complaint she had made. She said that she had raised the issue of the windows not fitting or shutting properly prior to her RtB application and explained that a contractor attended and said that they needed repairing and would arrange for this to be done.
18. She stated ‘However this was before we were informed that due to no lintels the bricks are now resting on the windows and it is because of this that they do not fit or shut properly. Now we know and although this was highlighted after I had applied for Right to Buy the initial inspection was completed prior to my application.’
19. The landlord provided a stage two response on 9 October 2020. In relation to the lintels, it explained that following an inspection of the exterior of the property in December 2019, the Team Leader agreed that there was evidence of some movement of the brick header courses, which had most likely occurred over time following removal of the original timber windows, and that there was some minor deflection to the window heads on the larger windows to the ground floor. As no internal inspection was carried out the landlord could not comment on whether this had impacted the window operation.
20. While the landlord accepted that there were some minor defects evident, if it were to replace the lintels and/or windows at this stage, it would likely impact the purchase price and/or discount offered given the property had been valued on the basis of its current condition. Even had any such works taken place in the preceding ten years, this would also have affected the purchase price: Part of the RtB calculation was the ‘Cost Floor’, which would apply if the landlord had spent money on repairing or maintaining the property in the last ten years, and could reduce the RtB discount.
21. The letter went on to say that an outstanding repair for plasterwork was noted on the RtB application, and it was for that reason that it had attempted to complete the repair. The landlord noted that while the resident had said in her 5 August 2020 complaint email that she previously reported an issue with the windows not fitting or shutting properly to the before submitting her RtB application (and had been advised by a contractor that they needed repairing), the only repair raised in respect of the windows was on 11 March 2019 and related to missing sealant around the window.
22. The landlord said that this was attended by a member of the in-house repair team on 31 May 2019 and all works completed. The landlord concluded ‘On the basis of the information available to me, I am satisfied no repairs relating to the windows were outstanding at the time your Right to Buy application was received.’

Assessment and findings

23. In her complaint to this Service the resident has said that she felt the situation at the property constituted an emergency repair, and states ‘I have serious concerns about the brick work moving further and collapsing whilst we are in the house and our animals are also exposed should it collapse or the windows no longer hold up the bricks. Surely this is an emergency, the surveyor stated this had happened due to lack of care of the property so Selby Council have neglected their duty of care and made living in the property a risk to health, life, scary and causing anxiety.’ She has said that the landlord did attend to carry out some minor plastering work, so if it did undertake this non–emergency repair, it should also carry out works to the windows.
24. The resident has provided her own chronology, and sets out that the vents on the windows were repaired on 4 February 2019. She says that she then complained that the vents made no difference to the drafts or closing of the windows and the landlord attended to carry out an inspection on 7 May 2019 and 31 May 2019. She states ‘The contractor stated none of the hinges were working properly therefore the windows would not close properly and agreed to have them repaired. He obviously did not realise that the lintels were resting on the windows bending them making it impossible to close fully. Either way it should have been done at this point. However, when no one came to fix them I rang Selby council again on 29.11.2019 and they said they would send someone out. They did not.’
25. The resident states that she received the RtB offer from the landlord on 10 February 2020 and did not accept this until 4 March 2021 (the Ombudsman understands that this is the date that she purchased the property). She concludes ‘Therefore it was already an outstanding complaint and work agreed as in the issue with the plastering which they are taking responsibility for.‘
26. It is important to note that it is not the role of this Service to determine what works, if any, were required to the property in relation to the lintel and window issue. Rather, it is the Ombudsman’s role to determine whether the landlord responded reasonably and fairly to the concerns that the resident raised, based on the information and evidence available.
27. The resident points out that she had raised a repair issue with the windows prior to her making her RtB application, which she feels was caused by the lack of lintels, and therefore the landlord should have addressed this. The Ombudsman has reviewed the repair records and can see that on 11 March 2019 a job was raised relating to a seal on the front room window that was missing and needed replacing. This was attended to on 31 March 2019. The record also stated ‘Tenant would like window to be checked to see if fitted properly because noise level from outside is very high – can hear people talking outside.’ The job is marked as completed. The resident states that the operative said that the hinges needed to be changed and would arrange this, but there is no record of a job being raised in the evidence available. Neither is there any indication that the resident followed this up with the landlord at any time, or raised this as outstanding in her RtB application. 
28. Even taking into account the resident’s recollection of events and possible requirement for replacement hinges, this does not show that the landlord was aware of the lack of lintels and possible movement prior to the application being submitted. It is clear that no concerns were raised about this until identified in the surveyor’s report in late 2019. Therefore, this was not a matter that was reported to the landlord before the RtB application was made, and so it was not obliged to address it as such.
29. While the landlord does not have a specific policy on non-urgent repairs at properties going through the RtB process, it is usual for landlords to cease carrying out day-to-day repairs or maintenance in these circumstances, only attending for emergency repairs to protect the health and safety of residents and/or keep the property weathertight. For example, the landlord would still be expected to repair a failure of the heating and hot water systems, electrical failure and serious plumbing leaks.
30. This Service notes that it was stated in the landlord’s covering letter that it sent to the resident along with the RtB form that once it received a RtB application, it would only carry out repairs for which it had a statutory duty under Section 11 of the Landlord and Tenant Act 1985. The Act sets out that the landlord must keep in repair the structure and exterior of the building, and therefore it was appropriate that the Team Leader attended to make an assessment of the situation in light of the resident’s concerns, to determine whether a repair was necessary at that time. The Team Leader did not identify an immediate/urgent need for a repair, explaining that he did not think that movement was ongoing, and the only way to determine this was to measure movement over time.
31. The resident feels that the matter constituted an emergency, and that there was a danger of injury or death. She states that her surveyor’s report set out that the lintels and windows were in need of repair due to identified building neglect on the part of the council. The Ombudsman has reviewed the surveyor’s report and cannot see that this is stated at any point. Neither is there any indication in the surveyor’s report that the issue was an emergency or posed any danger, with the only section referring to the matter being that as set out in paragraph three of this report, above.
32. The resident stated in her complaints to the landlord that the windows at the property also needed to be replaced. Again, this is not borne out in the surveyor’s report, which in relation to the windows stated ‘We did note that a number of windows did not operate fully and this is possibly due to there being no external lintels…It should be possible to adjust those windows that are not fully operable to enable full and adequate working.’ There is no indication here that the windows required replacement.
33. The Team Leader’s explanation acknowledged that under current Building Regulations it would be expected to install lintels as part of a programme to upgrade the windows. However, there was no obligation for it to do so until such time as works to upgrade were undertaken. The Ombudsman can confirm that a landlord is not required to undertake work to retrospectively bring properties in line with new building regulations.
34. The Ombudsman does find that the landlord’s stage one response was unclear, seemingly confusing the Team Leader’s inspection of the property in December 2019 with a valuation. However, the stage two response set out the landlord’s position, confirming the information that the resident had previously been given by the Team Leader, and explaining how any works carried out would have affected the property price (although this was perhaps somewhat unnecessary as the evidence indicates that there were no ‘emergency’ works for the landlord to complete).
35. It perhaps would have been better had the response set out why the repair was not deemed an ‘emergency’ and reassured the resident that there was no danger from the issue. However, while these were shortcomings in the response, overall, the Ombudsman finds no maladministration here.

Determination (decision)

36. In line with section 54 of the Housing Ombudsman Scheme, there was no maladministration on the part of the landlord in relation to its response to the resident’s concerns about a lack of lintels at the property, and her request to install these and replace the windows.

Reasons

37. The landlord’s response to the resident’s concerns was reasonable, given that there is no indication that the matters raised constituted an ‘emergency’ or works necessary to keep the property weathertight, or for health and safety reasons. The specific issue was not raised prior to the RtB application being made.
38. The Team Leader explained to the resident that generally minor settlement of the window header course would not constitute an essential health and safety repair. They carried out an inspection, which did not identify any emergency works required. In the information provided to the Ombudsman, the landlord has further explained that while the landlord’s own inspection concurred with the report’s assessment that some minor movement had occurred which was indicative that there were no lintels, ‘This in itself however is not unusual and does not constitute an emergency. These houses were built circa 1930 and have survived 90+ years without lintels.’

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