Southend-on-Sea City Council (202400256)

REPORT

COMPLAINT 202400256

Southend-on-Sea City Council

31 July 2024

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 handling of the resident’s reports of cracks and subsidence in his property.
2. The Ombudsman has decided to consider:
   1. The landlord’s record keeping.
   2. The landlord’s complaint handling.

Background

3. The resident lives in a 1-bedroom bungalow and holds a secure tenancy with the landlord. The landlord recorded that he has vulnerabilities including chronic obstructive pulmonary disease, arthritis, limited mobility, and mental health.
4. The resident raised intermittent concerns of cracks and subsidence from 2021. On 11 November 2022, the landlord instructed an independent survey of the resident’s property in response to the resident’s concerns. It identified no structural issues.
5. On 1 March 2023, the resident contacted the landlord regarding cracks on the walls of his property. The landlord noted that the cracks were hairline and the resident’s responsibility.
6. The resident raised a stage 1 formal complaint on 31 January 2024. He was dissatisfied that the landlord had not identified any structural issues to his property following surveys. He advised he had experienced issues with cracks in his property for years and that more had appeared.
7. The resident added to his complaint on 7 February 2024. He said there were multiple large cracks throughout the property which caused issues to the front door, back door, and windows.
8. The landlord finalised its stage 1 complaint response on 8 February 2024. In summary it said:
   1. Surveyors visited several times over the past 12 months concerning cracks in the resident’s property.
   2. On each occasion, surveyors identified that the cracks were not structural and were caused by heavy scraping during the removal of wallpaper.
   3. The cracks were on the surface and could be filled with normal decorator fillers. This was the resident’s responsibility.
   4. No structural issues were found with the property following a structural and CCTV survey.
9. The resident requested escalation of his complaint to stage 2 on 26 February 2024. He disagreed that there were no structural issues with his property and reported that he could see daylight through some of the cracks in the walls.
10. The landlord issued a stage 2 final response on 26 March 2024. In summary it said:
    1. It had investigated the resident’s concerns and the results confirmed there were no structural defects to the property.
    2. It would instruct a further independent survey to provide an impartial view given the resident’s ongoing concerns. If a different diagnosis were identified, it would address this.
11. The resident referred his complaint to the Ombudsman on 16 April 2024. He remains dissatisfied that cracks remain in his property. To resolve the matter, he wants the landlord to complete outstanding repairs to the cracks, back door, and windows.
12. An independent surveyor completed a structural inspection of the property on 18 April 2024. It recorded that no evidence was found of structural movement.

Assessment and findings

Scope of the investigation

13. The resident said that he reported concerns about the structure of his property to the landlord for 6 years. The Ombudsman can see that the resident raised reports to the landlord about the matter intermittently in 2021. An independent survey was completed in November 2022. Prior to this, reports of cracks and subsidence were not consistently raised by the resident. Therefore, this investigation will consider events from when an independent survey was completed in November 2022 up until the landlord’s final response on 26 March 2024.    

The landlord’s handling of the resident’s reports of cracks and subsidence in his property.

14. The terms and conditions of the resident’s tenancy agreement outlines that the resident is responsible for painting and decorating, minor repairs to the ceiling and minor repairs to walls, including small cracks.
15. It continues that the resident must pay the full cost of repairing, redecorating, or replacing any part of their home which has been damaged by the resident or their household.
16. Survey findings from 11 November 2022 identified that there was a vertical crack adjacent to the resident’s front door, various other hairline cracks in the property which were pointed out by the resident, and a crack in a brick wall of the resident’s garden. The report concluded that the crack by the front door was likely caused by, “over enthusiastic closing of the front door in combination with poorly formed joint made during the original construction”. It recorded that the crack in the garden wall was a result of thermal movement, and that hairline cracks were a result of shrinkage and natural settlement. The surveyor did not consider that the property was suffering from subsidence and was generally in good structural condition. It recommended that only the crack by the front door required repairing with a crack stitching product.
17. Records show that following the survey, the landlord contacted the resident on 19 December 2022 to inform him of the survey findings. It said that the survey concluded that the hairline cracks were due to shrinkage of plaster and that there was no suggestion of subsidence. It was appropriate for the landlord to communicate the survey findings to the resident. Although the resident disputed the conclusions and felt that the landlord were trying to cover up the issue, the evidence indicates that the information provided by the landlord was in accordance with the independent surveyor’s report.
18. To adhere to the recommendations made in the surveyor’s report, the landlord offered to repair the cracks around the resident’s front door. Records show that the resident refused this as he did not agree with the proposed works. As such, the landlord was unable to carry out the recommended repair. It was appropriate that the landlord advised the resident to contact it about the repair if he changed his mind. The landlord took steps which the Ombudsman would expect it to and was transparent with the resident.
19. The resident contacted the landlord on 1 March 2023 to enquire about repairs to cracks within his property. As per the survey findings, the cracks within the resident’s property were hairline. In accordance with the terms and conditions of the resident’s tenancy agreement, these would not be the landlord’s responsibility to repair. It was therefore reasonable that the landlord recorded these cracks were the resident’s responsibility to repair.    
20. Records show that the resident was informed in May 2023 by the landlord that it would not replaster the resident’s property during a phone call. The landlord recorded in April 2023 that the resident had been informed “several times” that the landlord would not address the minor cracks in his property as it was the resident’s responsibility. However, the landlord did not retain records to corroborate this communication. Therefore, the Ombudsman is unable to conclude that the resident was informed within a timely manner that the hairline cracks within his property were his responsibility to repair. Having said this, it was appropriate that the landlord clarified its position to the resident so that his expectations were set.
21. The landlord repeatedly mentioned throughout the case that damage and cracks to the plastering on the walls of the property were caused by the resident. It recorded that he had scraped off the wallpaper and used a hammer on the walls which caused the plastering to blow. Although the landlord supplied photographs of damage to the plastering, this does not confirm that the tenant caused the reported cracks. Within an internal landlord email in 2022, a landlord staff member asked if they were able to prove that the tenant caused the damage to the walls. No response was provided, which suggested that although this might be the case it is unclear where this information stemmed from. In the absence of such evidence, it was inappropriate for the landlord to continually refer to the cracks as being caused by the resident and to include this within its complaint responses.
22. The landlord said in its stage 1 complaint response that it had completed a CCTV survey and that surveyors had visited several times over the past 12 months to investigate the resident’s concerns of subsidence. It informed the resident that the CCTV survey returned clear and the inspections confirmed that there were no structural issues with the property. These were appropriate steps for the landlord to take given the resident’s ongoing reports of large cracks, and the wall coming away from the ceiling. However, the Ombudsman has not been provided with copies of these surveys or inspection findings despite re-requesting this information in July 2024. As such, we have not been able to substantiate the landlord’s findings for these.
23. Having said this, the Ombudsman is satisfied that the landlord’s conclusion that subsidence did not affect the resident’s property was evidence based. As outlined previously, the independent survey from November 2022 did not identify structural problems. Secondly, records show that a surveyor reported they had investigated claims of subsidence and found no issues in April 2023. Further, to provide additional reassurance to the resident, the landlord completed another independent survey after the final response. This was positive given the resident’s ongoing concerns. The Ombudsman was provided with a copy of the findings from the independent survey (completed on 16 April 2024). This outlined there was no evidence of structural movement or any noticeable progression in defects at the property since their last inspection. The surveyor concluded that most of the cracks were hairline and cosmetic in nature. Similarly to the findings in November 2022, they noted the significant vertical crack by the front door which was again thought to be a result of repeated excessive force when the door was closed.  
24. The independent survey recommended a repair to address the crack by the front door due to its size. Records show that the landlord raised a work order for the repair on the day after the survey findings were shared with it. This was appropriate. The landlord informed the Ombudsman that an appointment was arranged for 21 June 2024 which the resident cancelled on the day it was due to attend. It reported that the matter was subsequently re-arranged for 24 July 2024. It is appropriate that the landlord has continued to attempt to complete this repair in accordance with the survey findings.  
25. Overall, the landlord’s response to the reports of subsidence was appropriate. The Ombudsman has seen evidence that the landlord and an independent surveyor found no issues with the cracks or any suggestion of subsidence. Given the resident’s ongoing concerns, it was positive that the landlord took additional steps to reassure the resident and clearly communicated its findings in its complaint responses.
26. Further, the landlord’s decision not to complete repairs to hairline cracks was reasonable and in line with the resident’s tenancy agreement. The Ombudsman is satisfied that the landlord took reasonable steps to attempt to repair the significant crack by the resident’s front door which was identified in 2 surveys.  As such, there was no maladministration in the landlord’s handling of the resident’s reports of cracks and subsidence in his property.

The landlord’s record keeping.

27. As part of this investigation, the landlord was requested to provide relevant information that would reasonably be recorded and retained by the landlord. The documentation provided was limited. For example, it failed to provide copies of all survey and inspection reports, or communication logs with the resident.
28. The landlord provided its evidence predominantly in the form of internal emails where it outlined survey findings and actions it had taken. However, most emails were written in retrospect of events which had taken place. Such records are difficult for the Ombudsman to rely on as they are not time and date stamped. Further, it was challenging for the Ombudsman to substantiate findings which the landlord recorded.
29. The Ombudsman requested further documents from the landlord on 17 July 2024. This included survey and inspection reports which the landlord referred to in its complaint responses. However, these were not provided. In the absence of these reports, we can only conclude that this was not available. It was insufficient that the landlord did not retain these documents.
30. The Ombudsman’s Spotlight report on Knowledge and Information Management outlines that a lack of understanding of the importance of good knowledge and information management and an associated cultural acceptance of poor practice adversely affects both service delivery and complaints handling. Even where the landlord has fulfilled its obligations, if it cannot evidence this, it leaves the landlord professionally vulnerable.
31. Given the concerns identified in the landlord’s record keeping, the Ombudsman has identified service failure. As such, the landlord is ordered to review its existing databases to ensure it can capture required information, and train staff on using the systems in line with this service’s Spotlight report on Knowledge and Information Management. The landlord should share its findings with this service.

The landlord’s complaint handling.

32. In accordance with its complaints policy, the landlord commits to respond to a stage 1 complaint within 10 working days from the date of acknowledgement and stage 2 within 20 working days from the date of acknowledgement to escalate the matter.
33. The landlord’s complaints policy outlines that where a resident raises further related concerns during the investigation, this will where practicable be included in the stage 1 complaint response.
34. At stage 1, the landlord recorded the resident’s complaint in an email which was sent to the complaints team on the day it was logged. On 7 February 2024, the landlord discussed the complaint with the resident and he added further details. He reported that the cracks in his property caused issues with his front door, back door and windows. The landlord forwarded this information onto the complaint handler and confirmed that a response was due to the complaint by 21 February 2024. As the information was directly related to the original complaint and forwarded onto the relevant staff member, the matter should have been investigated and responded to at stage 1 in accordance with the landlord’s policy.
35. Having said this, the Ombudsman notes that the resident did not re-report issues with the windows and doors in his property beyond February 2024, or in his escalation request. Additionally, surveys did not identify issues with the resident’s door or windows.
36. Overall, it would have been best practice for the landlord to address all of the resident’s complaint points at stage 1 including the reported issues with the doors and windows in the resident’s property. A recommendation has been made in this regard. However, the Ombudsman has not identified any detriment caused to the resident by the landlord not addressing this concern.
37. Further, the Ombudsman notes that the landlord’s complaint handling was predominantly positive. For example, it issued its complaint responses within its allocated timeframes, passed the resident’s complaint details to the relevant department, and provided clear and detailed responses to the resident’s concerns about subsidence and cracks in the property. As such, there was no maladministration in the landlord’s complaint handling.   

Determination

38. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
    1. No maladministration regarding the landlord’s handling of the resident’s reports of cracks and subsidence in his property.
    2. Service failure regarding the landlord’s record keeping.
    3. No maladministration regarding the landlord’s complaint handling.

Order

39. The landlord is ordered to review its existing databases to ensure it can capture required information, and train staff on using the systems in line with the Ombudsman’s Spotlight report on Knowledge and Information Management.
40. The landlord should provide the Ombudsman with evidence of compliance with the above order within 4 weeks from the date of this report.

Recommendation

41. The landlord is recommended to confirm complaint points with residents at the acknowledgement stage to ensure that all aspects of residents’ complaints are identified and responded to.