Southwark Council (201815464)

REPORT

COMPLAINT 201815464

Southwark Council

11 January 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 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 resident complained about the landlord’s response to his:
   1. reports of a gas leak at the property on 8 February 2019.
   2. report of a gas leak on 20 February 2019.
   3. reports of its handling of the repair and replacement of windows at the property.
   4. complaint about the unsuitability and duration of stay in his ‘temporary’ accommodation.

Background and summary of events

2. In October 2015 the resident and his daughter moved from his original address to the current property, a one bedroom flat, as major works were planned at the original address. While the resident is of the view that his tenancy of the property is temporary, in accepting the new property he became the secure tenant of the property, but retaining the right to return to the original property following the works there. Both properties are owned and managed by the landlord.
3. Stage 1 complaint: On 24 February 2019 the resident formally complained to the landlord about having repeatedly smelt gas at the property. He complained about the landlord’s response to his reports, of a missed appointment, and that his most recent report remained unresolved, leaving the property without heating and hot water.
4. On 13 May 2019 the landlord replied.  [The landlord operates a two stage formal complaints process: Stage 1 complaint response within 15 working days and, if the complainant remains dissatisfied, a Stage 2 review response within 25 working days.] It said its investigation had identified one previous report from the resident, in June 2016, of a gas smell, in response to which the emergency provider had switched off the supply and its contractors then attended and repaired the leak. It said its four annual gas safety inspections since that time had found no leaks or smell of gas.
5. It explained further, however, that its contractors had responded to the resident’s more recent report of no heating and hot water on 8 February 2019 and had identified a faulty meter which was then replaced by the network provider. On recommissioning the gas supply, however, the providers found a ‘minor’ leak and capped the supply. There was a delay in repairing and reinstating the supply, apparently due to the intervening weekend, but when the landlord’s contractors attended on the Tuesday (12 February 2019) they were unable to complete the repair and a further visit was arranged for the Friday (15 February 2019). This appointment was missed, however, with the contractors eventually attending on the following Tuesday (19 February 2019). The landlord said it would arrange compensation for this missed appointment. [Under the landlord’s repairs policy if it fails to make a scheduled appointment it can compensate the resident with a payment of £50 or more.]
6. The landlord said that despite this repair to the gas supply, which left the boiler operational and with no leaks detected, the resident had immediately reported a further leak to the emergency provider, who attended, found a ‘minor’ leak and switched off the gas supply. The landlord said that despite it receiving this report on 20 February and its contractors’ repeated attempts at access, it was not until 26 February 2019 that they were able to repair the leak and reinstate the gas supply.
7. The landlord explained that although this leak had been minor and within the allowed safety standards, no smell was permissible and considered it could have been the residual smell from the repair. As for the leak occurring immediately after the repair and tests confirming it was ok, the landlord considered it most likely the leak had occurred after its contractors had left and as a result of settlement. But as a precaution it had asked that the engineer concerned be checked and monitored to ensure his work was satisfactory.
8. In conclusion the landlord said its contractors had acted appropriately and carried out all necessary tests and while apologising for the delay in reinstating the gas supply, heating and hot water, said it had made earlier attempts to access and rectify the problem. It signposted the resident to its review stage should he remain dissatisfied with its complaint response.
9. Stage 2 complaint: In July 2019 the resident brought his complaint about the above gas leaks, and a more recent report of a leak, to the Ombudsman, claiming his health had suffered as a result. He additionally complained that the landlord had failed to action his requests for window repairs and replacement, despite having assessed them as in need of replacement. He also complained that the landlord had failed to repair ceiling damage caused by its contractors and that as a result of insufficient kitchen space he had to keep his fridge freezer in the corridor. The resident said he wanted to be moved to more suitable temporary accommodation and be compensated for the ‘distress and upheaval’ caused him over the previous three years as a result of the gas and window issues. The resident said he had not had a final response from the landlord to his complaint.
10. This Service forwarded the complaint to the landlord so that it could provide its final Stage 2 review response, which it did on 19 September 2019.  It detailed the investigation it had undertaken to enable it to have responded to his earlier Stage 1 complaint about the gas leaks. It said that it was aware the resident had claimed it had impacted his health but that when it had asked the resident for evidence of this he had refused. With respect to his more recent report of a leak in September 2019 it noted this had followed work to his boiler and that its contractors had checked for leaks but found none.
11. In addressing the resident’s claim that he had been living with repeated gas leaks it said its four annual gas safety inspections had not found any issues, and that after having addressed the 2016 leak, it had not received any further reports until February 2019. It maintained it had addressed that leak and that it had no evidence that it had failed to action any reports of a gas leak since 2016.
12. With respect to the resident’s more recent formal complaint regarding the windows, the landlord acknowledged that since February 2016 there had been plans to overhaul (repair or replace) the windows in his bedroom and living room. It said that a works order in March 2017 detailed the draught proofing and sill and frame repairs necessary. In July 2017 further works were ordered for window renewals but this was cancelled when a major work programme was planned instead, although ‘never came to fruition due to the decision of the leaseholder at that time.’ The landlord reported that a further works order was again raised for new windows in June 2018 (though to which windows was not made clear). But it said this failed to go ahead when the contractors changed and the job was cancelled.
13. The landlord apologised for the disappointment this would have caused the resident. It updated him to say it had since inspected the windows in question which it now considered could be repaired and so would be taken forward as such.
14. Finally, the landlord addressed the resident’s complaint that the property was intended to be temporary and that it had insufficient space. The landlord explained the resident had moved to the property from his original address as a secure tenant, but with the right to return to his earlier address once the works there were completed. It said it was chasing an update on the works and would report back. Alternatively, the landlord explained how the resident could arrange a mutual exchange enabling him to swap properties with another tenant, but that this would end his right to return to his original address.
15. The landlord subsequently undertook the window repairs, although it is not clear whether this was by way or replacement or repair. However, on 1 July 2020 the resident submitted a further formal complaint to the landlord, reiterating his complaint about the earlier gas leaks which he said had left him without heating, hot water and cooking facilities for two weeks, but additionally about the quality of the window replacements which he said did not fit properly, were draughty and insecure. He also reiterated his complaint that the current property was unsuitable, lacking sufficient space for him and his daughter, and inadequate storage and space for his appliances. The resident also reiterated his complaint about an even, unstable kitchen floor, and holes in his ceiling following work to instal smoke alarms.
16. On 7 July 2020 the landlord replied, noting it had previously considered the majority of the resident’s complaints through its complaint process and so he should refer those matters to the Ombudsman if dissatisfied. With regard to his new complaint about the recent repairs to his windows, the landlord noted that in response to his recent report that the ‘lounge window would not shut’ an emergency visit had been arranged but the resident had refused access on the grounds that it was not an emergency and he would like new windows, not a repair. The landlord said new windows were only provided where necessary and that if he still wished a repair he must again report it through the requisite channels.
17. With regard to the flooring issue, the landlord noted the resident had reported it on 2 July 2020 and that its contractor had attended [on 7 July 2020], identified a leak as a possible cause, arranged further work by 30 July 2020, and so it considered resolution to be ongoing. As to the ceiling holes, the landlord said it had no record of the resident having previously reported this repair, but provided him with the necessary contact details so that he could request it.  The resident has told the Ombudsman that he is unhappy with this response.

Assessment and findings

18. Since the issue of a gas leak/smell in February 2019 and his making a formal complaint to the landlord about this, the resident raised a number of other areas of dissatisfaction directly with the Ombudsman – delayed window replacement programme; and suitability of temporary accommodation – and these were referred back to the landlord as the complaint was still being dealt with in its complaints procedure. Before coming to the Ombudsman, this Service expects a resident to have first exhausted a landlord’s complaints process in relation to the issue about which they are complaining. It was once the landlord had been given an opportunity to respond that the Ombudsman said it would consider those complaints.
19. This is because the Ombudsman’s role is to consider complaints impartially once they have exhausted a landlord’s complaints process; not to act as representative for either party as matters arise during the ongoing day to day landlord tenant relationship. Indeed, the Ombudsman requires a resident to have exhausted a landlord’s complaints process for good reason. Experience has shown that the more locally a complaint can be addressed the quicker and more effective the result will generally be for all parties and the better in the long term for relations between the parties.
20. That being the case, it is not for the Ombudsman to intervene for the resident in any new or ongoing matters encountered, without first having given the landlord an opportunity to address these.
21. In light of this, the Ombudsman notes that the matters that have since been raised by the complainant in relation to the quality of the window repairs, the floor repair (paragraphs 17-19 refer) and more recently a claim that a member of the landlord’s staff was unhelpful and rude during a telephone conversation, are all matters that have latterly been raised by the resident, and are either being addressed by the landlord or have yet to be submitted as a formal complaint to give it an opportunity to respond and resolve. Consequently, it would be inappropriate for the Ombudsman to seek to make a determination on these aspects of the complaint.
22. Turning now to the substance of the complaint, the Ombudsman recognises that by the time the resident had referred his complaint to the Ombudsman the resident was understandably frustrated at the length of time he had been living at the current property which he considered to be ‘temporary’. He moved to the current property in 2015 and says he was told he would be there for 2-3 years when in fact he has been there for significantly longer and with no sign of the commencement of works at the original property. The Ombudsman can only sympathise with the resident that he is still not able to return to his original address. But the Ombudsman has seen no evidence that this longer timescale was the result of a failure on the part of the landlord, that he was given any categorical assurances of a return within a particular timescale, or that when asked for an update, as the resident did during the course of his formal complaint, that the landlord failed to provide it.
23. The Ombudsman recognises that any answer that fails to assure the resident of a return in the near future will be of disappointment to him as he considers the current property unsuitable for his and his daughter’s needs. That is understandable, but the Ombudsman has seen no evidence that his delayed return to the original property is the result of a service failure on the part of the landlord. Furthermore, the landlord has explained to the resident the basis of his tenancy at the current property, the options open to him to exchange his current property should he wish to do so, but also the impact of this on his right to return to the original property. The Ombudsman also notes that in signing the tenancy agreement, the resident will have accepted it as presented and so presumably considered it at that stage to be suitable for him.
24. A review of the landlord’s internal records also indicates that the landlord had been holding regular meetings with residents of the original property to update them on the proposed works, had informed them the works were out to tender, that this would be a lengthy process but that it was hoped works could start in the summer of 2020. There is a record that the landlord, in its investigation of the complaint, checked that the resident’s up to date contact details were on its mailing list to receive details of the meetings; which it was. It is noted that while this information and update were obtained by the landlord after the issue of its Stage 2 response, there is no evidence to indicate this was not ultimately relayed to the resident. In light of the above it is not clear why the resident remained unaware of the position.
25. The Ombudsman has also not seen evidence of the resident having previously sought but not been provided with information regarding the status of his tenancy or his options for a relocation. But when he raised the issue as part of his complaint, it was helpful and appropriate for the landlord to provide the information when it did, and equally important that it had taken reasonable steps to ensure all residents were kept updated about the works and, specifically, that the resident had not been overlooked in this. 
26. Turning now to the resident’s primary complaint, namely the 2019 gas leak, the Ombudsman notes this was the first and only aspect of the resident’s overall complaint that he originally referred to the landlord and in respect of which it was given the opportunity to address through both stages of its complaints process. The resident has referred to repeated gas leaks, but from the information and chronology provided, the Ombudsman has seen no evidence of reports of leaks between 2016 and 2019. The leak that prompted the resident’s formal complaint was the one he reported on 8 February 2019. The fact of a gas leak is not evidence in itself of a failure on the part of the landlord as gas leaks can arise for a variety of different reasons and there is no evidence the Ombudsman has seen of a failing on the part of the landlord. The landlord is responsible, however, for its response to the report of a leak.
27. The priority the landlord appropriately accords such reports is reflected in its repairs policy through which it undertakes to attend emergency repairs within 24 hours. [Under its repairs policy the landlord undertakes to attend an emergency report (one which poses a serious risk to persons or property) within 24 hours and ideally within 2-4 hours in order to make the repair safe, noting a return visit may be required to complete the full repair.] However, this was not required of the landlord in this case. The first report from the resident on 8 February 2019 was not of a leak, but a lack of heating and hot water which turned out to be the result of a faulty meter that needed to be replaced by the network provider. Under the landlord’s repairs policy a fault causing a loss of heating and hot water is considered an urgent priority with a three working day call out. The records indicate the landlord attended to the issue of the faulty meter within that timeframe. When the network provider subsequently fitted the meter and detected a leak, it capped the supply therefore leaving another urgent repair for the landlord, not an emergency one.
28. But it was not until 19 February 2019 that the landlord was able to resolve this repair, leaving the resident and his daughter without heating and hot water until 19 February 2019 through no fault on their part. The Ombudsman notes from the landlord’s records that it delivered fan heaters to the property on 15 February 2019 which will have gone some way to mitigating their discomfort, although will have cost money to run. And the landlord has already undertaken to pay the resident compensation for a missed appointment during this time.
29. But in its consideration of the complaint, the Ombudsman considers the landlord ought to have given consideration to the overall inconvenience and discomfort caused to the resident and his daughter in being left without a gas supply, and so cooking facilities, heating and hot water for ten days during the winter months.
30. As with the 8 February 2019 call out, the 20 February 2019 one was immediately attended by the network provider and the supply capped, leaving again an urgent but not emergency repair for the landlord. It is not for the Ombudsman to determine the cause of a gas leak or smell, but the landlord has investigated the issue and considers that as a result of tests following the repair, the leak likely occurred afterwards and in itself was not serious. Nevertheless, the Ombudsman considers its undertaking to consequently check and monitor the operative’s subsequent work was a precautionary one, and appropriately aimed at preventing a recurrence.
31. So once again the resident was without heating and hot water until 26 February 2019 when the repair was resolved and supply reinstated. However, in this instance the delay appears to have been the result of the landlord not being able to gain access from the resident for the repair. Although the resident would presumably have had use of the fan heaters during this time, he would still have been inconvenienced by this further delay. But in the absence of evidence to indicate that delay was the result of a failure on the part of the landlord there would be no grounds for the Ombudsman to ask the landlord to consider compensation for this further delay in its consideration of the complaint.
32. Another aspect of the property with which the resident has been dissatisfied has been the condition of its windows, and about which he has relatively recently raised a complaint about the landlord’s handling. From the information provided, the history of the window repairs at the property is a long and somewhat confused one. But it would appear that back in 2016 the landlord had consulted on a major works programme to replace the windows at the property, both at front elevation (living and bedroom) and rear (kitchen and bathroom). It seems that following leaseholder objection to PVC replacement windows at the front, and further inspections of these, it was considered the rear windows could be replaced with like-for-like windows, which was done, but for the front windows to be repaired, and not replaced. The Ombudsman has seen no evidence to indicate the front windows were repaired at that time.
33. It seems to the Ombudsman that having identified in 2016/17 that the front and back windows were in need of repair, the landlord was entitled to determine whether this should be done in by replacement or repair. But having determined repairs to be appropriate, having consulted and inspected the windows in question, the resident was left with a reasonable expectation that the repairs to the front windows would go ahead. When this did not happen the Ombudsman has seen no evidence that the landlord communicated its decision or any explanation to the resident, or kept him updated on developments. Indeed, the records indicate a fair degree of confusion on the part of the landlord as to the up to date position, as works to the windows were cancelled on a number of occasions, with the final cancellation in June 2018 failing to lead to a new appointment. This confusion and lack of communication can only have exacerbated the resident’s frustration and disappointment.
34. It was the resident’s complaint in July 2019 and landlord’s subsequent investigation that appears to have prompted the landlord’s reinspection of the windows in September 2019 and a scheduling of the eventual repair. While noting the resident’s dispute that he was responsible for a missed appointment for this repair, the Ombudsman has seen no evidence that the landlord was responsible for undue delay after this point.
35. Nevertheless, it ought not to have been necessary for the resident to complain in order to prompt the repair to which he was entitled and for which he had by that stage already been waiting for around three years. That was a significant period of time for the resident and his daughter to live with windows in need of some repair; to live with an ongoing expectation of their repair; the disappointment of cancelled repairs; and being kept in the dark about progress or lack of.  Accordingly, the Ombudsman would have expected the landlord in the course of its complaint response to have more fully considered and recognised the extent of its delay and the impact of this on the resident. 
36. Following the repair, the Ombudsman notes the resident is unhappy with the quality of the repairs undertaken. The landlord, in its follow up reply of 7 July 2020, appropriately directed the resident to its repairs service for the resolution of the repair. It also appropriately signposted the resident to the Ombudsman if he remained unhappy with those aspects of his complaint that had already exhausted its complaints procedure.
37. In addressing in this response the remaining aspects of the resident’s new complaint, the landlord reasonably detailed the action taken to date with respect to the flooring repair. It would appear the landlord’s response to the repair request was timely and that it was working to resolve the defect. As for the complaint about the ceiling holes, while the landlord was entitled to point out that a repair request had not previously been raised for this, the matter had been previously brought to the landlord’s attention in July 2019 as part of the request for a Stage 2 escalation of the complaint. It would therefore have been more appropriate for the landlord to have addressed the issue and referred the resident to its repairs procedure at that stage. Be that as it may, the Ombudsman does not consider anything of substance turns on this as the resident would already have been aware of the repairs procedure and how to raise a request for a repair, irrespective of the landlord’s complaint response on this point.
38. Finally, the Ombudsman considers it appropriate that the resident continue to pursue his various repair requests (be it to rectify previous window repairs, ceiling damage, or flooring repairs) through the landlord’s repairs process and allow access when necessary to enable work to be done. Should he remain dissatisfied with the work undertaken or the time taken, or indeed the actions of landlord staff (noting his recent complaint about an unhelpful member of staff) he will have recourse through the landlord’s complaints process as he did with his earlier complaint. But it is important that the resident ensure he gives the landlord adequate opportunity to respond to repairs as and when they arise, and his complaints by following the appropriate channels for these.

Determination (decision)

39. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in its response to the resident’s report of a gas leak on 8 February 2019.
40. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s report of a gas leak on 20 February 2019.
41. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of the repair and replacement of windows at the property.
42. In accordance with paragraph 54 there was no maladministration by the landlord in its response to the resident’s complaint about the unsuitability and duration of stay in his ‘temporary’ accommodation.

Reasons

43. It took the landlord ten days to reinstate the resident’s gas supply following his report of a leak on 8 February 2019, which was significantly outside its three working day target timescale, and was partly the result of a missed appointment. The landlord’s offer of a missed appointment payment fails, in the Ombudsman’s opinion, to fully recognise the significant inconvenience and discomfort suffered by the resident and his daughter in being left without cooking facilities, hot water, and general heating during a ten day period in winter months.
44. The time taken by the landlord to resolve the gas leak reported by the resident on 20 February 2019 was the result of the landlord’s inability to access the property, but through no fault on its part.
45. Despite identifying the need to repair windows at the property during 2016/17 it failed to complete this work until late 2019 and throughout this period failed to communicate with the resident its reasons for the delay, cancellations and changes to proposed repairs. This caused the resident considerable inconvenience, frustration and disappointment that was not fully recognised by the landlord in its complaint response.
46. The Ombudsman has seen no evidence to indicate that it was a failure by the landlord which left the resident unaware of the up to date position with regard to works at the original property, or that it had failed to respond to any previous complaint that the current property was no longer suitable. When the resident raised his complaint about this with the landlord it appropriately outlined the options open to him, clarified for him his status as a secure, not temporary, tenant of the property, and ensured he was being included in the regular updates being provided to residents. There was no evidence to suggest the time being taken to complete works at the original property was the result of a failure on the part of the landlord.

Orders and recommendations

47. The Ombudsman orders the landlord to pay the resident £100 compensation for its delayed reinstatement of his gas supply.
48. The Ombudsman orders the landlord pay the resident £50 for its missed appointment on 15 February 2019 if it has not already done so.
49. The Ombudsman orders the landlord to pay the resident £250 compensation for its delayed window repairs and failure to communicate with the resident.