Southwark Council (202011769)

REPORT

COMPLAINT 202011769

Southwark Council

25 May 2021 [amended 15 July 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

The complaint concerns
1. the landlord’s response to the resident’s reports of repairs required to the kitchen window in his property
2. the landlord’s handling of the resident’s formal complaint about the matter.

Background and summary of events

The resident is a secure tenant of the landlord, which is a local authority. The property is a three-bedroom flat in a new-build mid-rise block.
Throughout the complaint the resident said that he reported a defect with the kitchen window in May 2019 upon moving into the property. The landlord’s position is that the matter was first reported 30 December 2019, which is the date of the earliest correspondence provided as evidence by the parties. The window did not open, and the resident said he was unable to ventilate the kitchen properly after cooking. The resident noted that the other properties in the building had kitchen windows that opened.
The landlord arranged an inspection of the window for 29 January 2020. On 14 February 2020 it wrote to the resident and explained that the window did not open by design and that a mechanical extractor fan was installed in the kitchen to provide ventilation.
In March 2020, the developer acknowledged that the window should have been openable and that this was a defect to be resolved by its sub-contractor who installed it originally. The sub-contractor had paused services due to the Covid-19 pandemic, and the resident was told there would be a delay before the work would be able to start.
The resident called the landlord on 26 May 2020 and informed it that he and his household were finding it difficult to cook in the kitchen now that the weather was warmer due to the lack of ventilation. The landlord requested the window serial number from the resident which he provided and which it then passed on to the developer.
The resident called the landlord on 6 June and 3 July 2020 to inform it he had yet to be contacted by the window sub-contractor. The resident called the landlord again on 9 July, notified it that he had still not been contacted and that he was now considering raising a complaint.
The resident wrote to the landlord on 13 July 2020 making a formal complaint. He asked for an update about when the window would be repaired and for compensation in recognition of the time and inconvenience this matter had caused him and his family.
The landlord acknowledged the complaint on 15 July 2020 and informed the resident that it aimed to provide a response by 5 August. It advised the resident under separate cover that the window sub-contractor had ordered the necessary parts and expected these to arrive by the end of August after which it would make an appointment to carry out the repair.
The resident wrote to the landlord on 21 August 2020 asking to escalate the complaint to stage two as he had yet to receive a complaint response. The resident then called and emailed the landlord on 26 August 2020 enquiring if the parts for the window had arrived. The resident contacted the landlord on at least two further occasions in early September for an update, and the landlord followed up by chasing its internal staff and contractors for responses.
The landlord responded to the complaint at stage one on 16 September 2020. The landlord summarised the resident’s complaint which it said it had received on 26 August 2020. It confirmed that the contractor had agreed to repair the kitchen window so that it opened, and it had been now listed as a defect. It explained it had been previously advised by the developer that the kitchen window was designed to be left shut, confirmed during the inspection of the property held on 29 January 2020, but that this had later proved incorrect. It then informed the resident that he would be contacted for an appointment date when the necessary parts had been received from the window manufacturer. The landlord apologised to the resident for the inconvenience that this matter had caused him.
The resident wrote to the landlord on 22 September 2020 escalating the complaint to stage two. He complained that his request for compensation had not been addressed, disputed the date on which the landlord said it had first received his complaint, and that he still had not heard from the window sub-contractor as to when the window would be repaired.
An appointment was made with the resident for 15 October 2020 to fit the necessary parts to allow the window to open.
The resident called the landlord and informed it that he had asked the sub-contractor not to complete the work. The landlord’s notes of the call state that the resident rejected the work because the contractor would have installed a manual winding mechanism to open the window and the resident wished to have the same mechanism installed as the other windows in the building. The resident says that he also had concerns that the winding mechanism would restrict the window from opening as wide as he would wish it to.
The resident also challenged the landlord’s position that it had been waiting for parts, submitting a video he had taken of the operative’s visit in which he says that the parts were always in stock.
The landlord sent its stage two complaint response to the resident on 27 October 2020. It explained that the property is a wheelchair–adapted unit and the mechanism the contractor attempted it fit would allow a wheelchair user to open the window. The landlord advised that the resident should now allow the works to proceed. The landlord noted that the resident first raised the matter on 30 December 2019 and that it would normally expect its contractor to provide a remedy within 28 days. However, incorrect advice about whether the window was designed to be opened caused a delay. The landlord apologised to the resident for this delay and for its failure to respond to his complaint within a timely manner. The landlord offered the resident £280 compensation, which it broke down as £180 in recognition of the delays and £100 for the time and trouble caused to the resident in pursing the matter.
From October 2020 onward the resident continued to express dissatisfaction with the landlord’s position about which type of opening mechanism it would fit, citing installations in other properties and advice he had received about the efficacy of a winding mechanism given the position of the window and kitchen worktop. He also asked why he had been advised by the landlord that the sub-contractor was waiting for parts but had then been told by the sub-contractor that the parts had always been in stock.

Assessment and findings

Kitchen window repair

The landlord’s defects policy says that when a defect is reported it will forward it to the developer, who will instruct the relevant sub-contractor who will in turn inform the landlord when the defect has been remedied. It says that it is the developer’s responsibility to chase the sub-contractor if there is no update.
The landlord’s compensation policy includes the following tariffs:
1. The landlord will award £5, £10 or £20 per week – up to £250, £500, or £1,000 per year – for delays in providing a service, dependent on the severity of the impact to the resident:
  1. Low impact is described as no significant distress or inconvenience.
  2. Medium impact is described as “injustice” where the landlord has failed to meet its service standards.
  3. Major impact is described as a serious failure with injury to health.
2. The above tariff is also applied separately where the circumstances of the complaint caused distress to the resident.
3. The landlord will award between £50 and £250 for time and trouble incurred in seeking to resolve a problem.
Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. The Ombudsman considers whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
The landlord acted fairly in acknowledging its mistakes and apologising to the resident. The landlord recognised that after the issue was raised the resident was given incorrect advice as to whether the kitchen window was meant to be opened, resulting in a delay before the condition of the window was recognised as a defect and any effort was made to remedy it.
There were further delays due to restrictions on the contractor’s work and the manufacturer being closed for several months during the Covid-19 pandemic. These delays were beyond the landlord’s control and the landlord would not be expected to compensate the resident for inconvenience caused by delays beyond its control.
The landlord remained in contact with the contractor and the window manufacturer during this period and chased up the status of the part and the reasons for the delay. However, it did not correspondingly keep in contact with the resident which meant that the resident had to contact the landlord first to receive updates. It was therefore appropriate to both apologise to the resident for the delays and award compensation in recognition of the time and trouble this had caused him.
The landlord’s offer of £100 compensation in relation to time and trouble incurred in pursuing the matter was appropriate in accordance with its policy, and reasonable in the circumstances. There is insufficient evidence of failings that would make an award at the higher end of the landlord’s time and trouble tariff appropriate, though there were failings. The resident chased the landlord on several occasions for updates on the repair and, broadly, the landlord’s defects team responded to the resident’s contact within a reasonable time; however, it remains that it could have proactively kept the resident updated about its progress and avoid the resident feeling the need to chase it for updates.
The landlord’s offer of £180 was made in relation to the delay in accepting the window as a defect requiring a remedy and the distress caused by this. However, it did not explain how it had arrived at this figure with reference to its compensation policy, nor has it provided any evidence of how it arrived at this amount when responding to the Ombudsman’s request for evidence.
Over nine months elapsed between the first evidence of the matter being raised and the contractor’s visit to install the winding mechanism. Three months of this time was unavoidable due to the window sub-contractor being closed in response to the ongoing pandemic. It would have been appropriate for the landlord to consider compensation in relation to at least six months of the period leading to its final response where it had delayed in identify and/or remedy the defect. It would also have been reasonable to consider the distress and inconvenience caused to the resident in accordance with its policy.
The resident has raised concerns about the effects of the kitchen window defect on the health and wellbeing of the household, particularly his wife who was pregnant during the period and was said to experience headaches because of the heat and humidity of the kitchen. The Ombudsman is not best placed to assess the impact the circumstances of a complaint have had on a resident’s physical or mental health and wellbeing but can consider how a landlord has acted on such information. The resident described the circumstances to the landlord on several occasions throughout the period, and there is no evidence that the landlord took this into account when considering its compensation offer. However, there is also no evidence that any medical evidence was provided in support of the resident’s position about the effect the lack of an opening window in the kitchen was having on him and his household which would have made it appropriate for the landlord to address these concerns in detail.
As of the most recent evidence, the defect has yet to be remedied.

Complaint handling

The landlord’s complaints policy has two stages. Its procedure sets out that it will acknowledge complaints within three working days and include a deadline for reply, which is 15 working days at stage one, and 25 working days at stage two.
In his complaint to the Ombudsman, the resident raised concerns about the landlord’s complaints handling, specifically:
1. The landlord’s responses at both stages include incorrect dates on which the complaint was submitted and escalated to stage two.
2. The landlord failed to respond to his request for compensation or a timescale within which he could expect it to carry out the window repair.
3. The landlord failed to respond to his initial stage one complaint, and later re-registered the complaint under a separate reference number.
The landlord acknowledged the resident’s initial complaint on 13 July 2020 but failed to respond within the timescale set out in its procedure.
It then registered the complaint under a second reference number after the resident’s second email chasing it for a response on 26 August; its stage one response under that reference refers to the complaint being received on 26 August. This kind of administrative oversight can be frustrating for residents and could have been easily avoided by the responding officer investigating the relevant correspondence before responding.
The error was repeated in the stage two response, compounding the frustration caused to the resident. The stage two response stated that the resident’s request for a review of the complaint was received on 8 October 2020; the resident had sent this to the landlord on 22 September. Again, this error was easily avoidable. However, its stage two response was issued within 25 working days of the review request.
The landlord’s stage one response failed to address the resident’s request for compensation, which was inappropriate considering the resident’s specific request for it to consider this. It rectified this by addressing the compensation request in its stage two response as appropriate.
It did attempt to respond to his request for a timescale, explaining that it was in contact with the developer’s window sub-contractor for a date by which the parts it had ordered would be delivered and that an appointment would be made once the parts had been received. In the circumstances, it could not have been specific, although it could have relied on the experience of the sub-contractor or its own team to give an estimate on how long such orders usually take.
The landlord’s final response includes a short, general apology for the delays in responding to the resident’s complaint but made no effort to explain the reasons for those delays or identify any learning from the outcome of the complaint.

Determination (decision)

In accordance with paragraph 54 of the Scheme:
1. the landlord was responsible for service failure in its response to the resident’s reports of repairs required to the kitchen window in his property
2. the landlord was responsible for service failure in its handling of the resident’s formal complaint about the matter.

Reasons

The landlord acknowledged and apologised for the delays and inconvenience caused to the resident in the circumstances and awarded appropriate compensation for the time and trouble the resident had gone to in reporting and chasing the matter. However, it failed to award appropriate compensation for the delays and distress caused by the circumstances of the complaint. The defect remains unresolved.
The landlord delayed unreasonably in responding to the complaint at stage one and confusingly re-registered the complaint when the resident chased it for a response. The dates cited in these responses were incorrect, and while the landlord did acknowledge and apologise for its failures and sought to put things right, there is no evidence that it identified any learning from its failures.

Orders and recommendations

The landlord is ordered to pay the resident £600 in compensation for the distress and inconvenience caused by the delays in identifying the defect and attempting to remedy it, and by its handling of the formal complaint.

This amount includes the:

£100 already offered by the landlord in relation to time and trouble.
£180 already offered for delays and distress, which has been increased to £500 for six months of delays and distress, both at the medium impact tariff.

The landlord is ordered to write to the resident setting out a clear and timed plan of how and when it intends to remedy the window defect.
The landlord is ordered to investigate with the developer and window sub-contractor to determine why it was advised that there was a need to order parts, whether the adapted window opening mechanism was in fact in stock at the time, and the reasons for any misunderstandings in this matter including an assessment of its own record keeping. It should then write to the resident and the Ombudsman with the findings of its investigation ensuring to describe the steps it intends to take to ensure that this delay does not recur.
The landlord is ordered to investigate its actions and omissions in the time which has elapsed since its initial attempt to install the window opening mechanism on 15 October 2020 and assess these to determine whether further compensation is appropriate. It should then write to the resident and the Ombudsman with the findings of its investigation, acknowledge and apologise for any service failures identified, set out what it intends to do to put things right, and identify any learning.