Southern Housing Group Limited (202216750)

REPORT

COMPLAINT 202216750

Southern Housing Group Limited

29 September 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

This complaint is about the landlord’s handling of the resident’s concerns regarding remedial works to the cladding of her building and the associated communication.

Background

The property is a two bedroom, third-floor flat. The resident is a shared owner. The landlord is a housing association.
Organisation A is the freeholder of the property. The freeholder is not a member of the Housing Ombudsman Scheme and has no direct relationship with the resident. Organisation B is the external management agent of the property, appointed by A. Organisation C was appointed by B, c/o A, to undertake cladding replacement and associated works at the property. The landlord holds the head lease – the primary lease agreement between the landlord and A.
The landlord told this Service it has no vulnerabilities recorded for the resident. The resident informed the landlord and this Service that she has depression.

Scope of investigation

The resident said the landlord’s actions impacted her health. The Ombudsman empathises with the resident. However, as this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action had a detrimental impact on a resident’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are better suited for consideration by a court or via a personal injury claim. Nonetheless, the Ombudsman has considered the distress and inconvenience that may have been caused to the resident.
The resident complained about how the building safety works were handled. Under the rules of the Housing Ombudsman Scheme, this Service cannot consider complaints which, in the Ombudsman’s opinion, concern matters which do not relate to the actions and omissions by a member of the Scheme. The landlord investigated within this report was not responsible for organising or managing the building safety works. This was ultimately the responsibility of the freeholder. As such, this Service will not adjudicate on this aspect of the resident’s complaint. However, we will consider the landlord’s communication between all parties and how it handled the resident’s concerns about the impact caused to her.
The resident said she was financially impacted as she was unable to work from home when the plastic sheeting was added to her block during the remedial works. It is not the role of this Service to determine liability over loss of earnings. This is more suited to be decided through an insurance claim or via the courts. As such, the Ombudsman will not consider this.

Policies and procedures

The landlord has a 2-stage complaint policy. It aims to give a response within 10 working days at stage 1 and 20 working days at stage 2. If it is not possible for the landlord to respond within these timescales, it will explain why and agree an extension with the resident. This will not exceed a further 10 working days without good reason.
The landlord’s compensation policy states a claim for compensation is not covered where it concerns circumstances beyond the landlord’s control.
The landlord’s service charges guidance explains it is not always the freeholder of its properties. In these cases, it leases its properties from the freeholder (through a head lease).

Summary of events

Organisation C wrote to the residents of the block explaining cladding replacement works would start on 28 February 2022 and were expected to last 36 weeks. C provided the contact details of its site manager and resident liaison officer to address any questions or concerns.
C provided update letters to the landlord regarding surveys, scaffolding erection, and balcony restrictions. The onus was on the landlord to distribute these to the residents of the building.
The resident complained to the landlord on 25 July 2022. She said:
1. Plastic sheeting had replaced the netting that was installed around the building. She was not consulted about this.
2. There was no light or fresh air in her property.
3. The plastic sheeting banged in the wind and kept her awake at night.
4. She suffered from depression and worked from home.
5. She wanted to be temporarily moved to another property or have her rent paused so she could relocate for the duration of the works.
The landlord raised this internally and arranged for its building safety manager to attend the site. This Service has seen no report or evidence of what was observed during the site visit.
The resident followed up with the landlord on 28 July 2022. She explained her concerns were specifically about the replacement of the netting with plastic sheeting. She said she could no longer work from home, and she could not cook as the flat could not be ventilated. During a telephone call, the resident also said she was dissatisfied with the increased heat within her property, the restricted balcony access and difficulties opening the windows due to the dust and grime generated by the works.
Internal notes show the landlord arranged a meeting with the building safety team to discuss the works and the concerns raised. This Service has not seen records to evidence what was discussed or agreed at the meeting.
The landlord acknowledged the resident’s complaint on 1 August 2022. It chased for information internally, before contacting the resident on 8 August 2022 to extend its expected response date.
An internal record from the landlord shows an internal discussion regarding the indoor temperature of the properties within the block. It considered inspecting the inside of the flats or whether it was more appropriate for environmental health to attend.
On 8 August 2022, the resident was updated. The landlord explained the different parties involved and said it had been liaising with the freeholder and the freeholder’s contractors regarding the works. It said it provided information to leaseholders as and when it was received. It provided a link to the micro website (“microsite”) and said this was updated regarding the plastic sheeting on 19 April 2022. It urged the resident to contact environmental health if she felt the works impacted her ability to live in her property due to overheating.
On 17 August 2022, the resident told the landlord that she felt the property was uninhabitable and so she was leaving on 22 August 2022 until the remedial works were complete.
The landlord issued its stage 1 response on 19 August 2022. It outlined the resident’s complaint and said:
1. The freeholder was responsible for the remedial works. It outlined the various parties involved.
2. An update letter was provided to the resident on 8 August 2022.
3. A microsite was set up to share information about the remedial works to the block. It recognised the resident’s comments that some of the information on the site had been disabled. It apologised for this and ensured this was rectified.
4. On 19 April 2022, the microsite was updated to include information about the installation of the plastic sheeting.
5. It appreciated the building works were disruptive, however they were essential and had to be completed in line with the specification agreed with the planning requirements.
6. The plastic sheeting was added at the last possible moment to minimise disruption. It was required while the remedial works took place.
7. Its building safety manager visited the site on 1 August 2022. He took temperature readings from the scaffolding and found it to be 0.1 degrees above the outside temperature.
The resident escalated her complaint to stage 2 on 7 September 2022.
The resident said that after a period of respite, she returned to the property on 20 September 2022. She explained that as a self-employed yoga teacher, she had been unable to work from home since the plastic sheeting was installed in July 2022. She said she was paying rent for a property that had no views, light, access to the balcony and required constant cleaning.
On 13 October 2022, the landlord received an update letter from B regarding a delay to the completion of the works. The same day, the landlord said this was added to the microsite.
The landlord’s internal system indicates a stage 2 response was issued on 20 October 2022, however the resident said she did not receive it. The Ombudsman has seen a copy of the stage 2 response which was issued to the resident on 26 October 2022. It said:
1. It recognised the works were disruptive however they were essential to replace the non-compliant cladding.
2. The use of the plastic sheeting meant that views and light were restricted.
3. The property was close to a railway and a license was sought for the works to take place. A condition of the license was the application of plastic sheeting on the scaffolding.
4. Concerns were raised about the cleanliness of the site. A building safety manager attended the site and made recommendations. A follow up inspection took place in October 2022. He found the cleanliness to be of an acceptable standard.
5. The resident’s rent forms part of her lease agreement and continues to be payable during times of major works.
6. It sympathised with the difficult situation the resident was in and the unavoidable disruption. It said it provided updates via letters and the microsite.
7. It did not uphold the resident’s complaint.

Events after the end of the complaints process

The resident contacted this Service on 31 October 2022. She felt the landlord had not considered the impact on her and how difficult the situation was to manage.
The landlord received a call from organisation C, who said they had been contacted regarding a lack of updates on the works. It asked the landlord whether its letter dated 13 October 2022 had been sent to the resident. The landlord explained that it had been uploaded to the microsite on 13 October 2022. Records indicate a physical copy of the update letter was posted on 2 November 2022.

Assessment and findings

As the landlord is not the freeholder of the building, it is not responsible for its structure, exterior or the arrangement or management of the fire safety works. This is the responsibility of A – the freeholder. However, as the resident’s contract for the property is with the landlord, not A, the Ombudsman would expect to see pro-active engagement by the landlord with A (or A’s appointed agents) to raise the resident’s concerns.
In this case, it is difficult to determine the exact course of events due to the lack of evidence. This Service has not been provided with a comprehensive record of communication between the landlord and A and B, records from internal meetings or reports from site visits. It is vital landlords keep clear, accurate and easily accessible records to provide an audit trail of events. This helps the Ombudsman to understand the landlord’s actions and decision making at the time. If this Service investigates a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to determine that an action took place or that the landlord acted fairly and in line with its policies. From the evidence available, the Ombudsman cannot conclude that the landlord pro-actively engaged with A (or A’s appointed agents) regarding the resident’s concerns. As such, it is concluded that the landlord did not effectively represent the interests of the resident.
In responding to the complaint, it was the landlord’s position that as A was responsible for the building safety repairs there was little else it could do to progress the matter, as it was reliant on the actions of A and its appointed agents. The Ombudsman recognises the landlord signposted the resident to environmental health if she believed the works impacted her ability to live in the property due to overheating, and it attended to investigate the resident’s concerns over the cleanliness of the site. These were fair actions. However, while the Ombudsman appreciates the landlord had no authority over the works, its response was not satisfactory. It is unreasonable that the landlord has not demonstrated any proactive attempts to inspect the resident’s property and offer a view on any of the detailed impacts on her living conditions that she reported. If it had done so, it may have been able to offer her advice or take mitigating actions to alleviate her concerns. In the Ombudsman’s opinion this would have been a fair and reasonable course of action, considering the resident’s vulnerability and distress over her living conditions. This would have also made the resident feel heard and understood, improving the landlord/resident relationship. Additionally, it would have been appropriate for the landlord to assess whether there were any simple actions which it could take to provide temporary relief to the resident.
As works were being scheduled and undertaken by a third party, it is accepted matters were out of the landlord’s hands to a certain extent. In such circumstances, the Ombudsman would expect to see that it had done all it could to keep the resident updated. The landlord acknowledged within its complaint investigation that some of the information on its microsite had been disabled. It remedied this as soon as possible. It is not clear how long this information was disabled for or what specific information was unavailable. Additionally, it said update letters from C were uploaded to the microsite, however it has not evidenced this. It also has not demonstrated that the update letters provided by C were dispatched to the resident within a timely manner. The Ombudsman determines that the communication failings throughout exacerbated the situation and worsened the impact on a vulnerable resident.
The Ombudsman finds the landlord gave the resident clear and correct information regarding her rent obligations as per the lease agreement. It also provided a reason for the plastic sheeting and empathised with the unavoidable disruption during the remedial works. This was appropriate in the circumstances.
Overall, communication and record keeping failures were identified. The Ombudsman is minded that the landlord could have done more to assess the resident’s concerns, consider the impact, follow this up with the freeholder and explore possible solutions to provide short-term relief. Cumulatively, the landlord’s handling of the substantive issue amounts to maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord handling of the resident’s concerns regarding remedial works to the cladding of her building and the associated communication.

Reasons

The landlord has not evidenced that it communicated effectively with the freeholder or its appointed agents about the resident’s concerns. It did not evidence efficient communication with the resident regarding the remedial works. It did not explore options to provide temporary relief to the resident and it did not evidence that it considered her vulnerability in its decision making.

Orders and recommendations

Orders

Within 4 weeks from the date of this report, the landlord is ordered to:
1. Pay the resident £300 compensation to recognise the distress and inconvenience caused to the resident by the failings identified within this report.
2. Update its records to reflect the resident’s vulnerability, subject to any data protection requirements.
The landlord is to provide evidence of compliance with the above orders to this Service.

Recommendation

It is recommended that the landlord reviews the Housing Ombudsman’s spotlight report on knowledge and information management and self-assesses against the recommendations contained within.