Southwark Council (202016004)

REPORT

COMPLAINT 202016004

Southwark Council

16 November 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 handling of:

 

1. Major works to the kitchen at the resident’s property.

 

2. The resident’s reports of damp and mould in the property.

 

3. The resident’s reports of overcrowding and his request to be rehoused.

 

Jurisdiction

 

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme (the Scheme). When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.

 

3. After carefully considering all the evidence, in accordance with paragraph 39(m) of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.

 

4. This Service cannot consider the resident’s complaint about the way in which his application for rehousing, the issue of overcrowding and allocation of a band/priority were handled. These issues are dealt with by the council in its capacity as a local authority and do not form part of its housing functions. This aspect of the complaint has therefore, not been considered by this Service. Our position here is in accordance with paragraph 39(m) o the Scheme which states that ‘the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.”

 

5. The resident is advised to make a complaint to the offices of the local authority which have previously dealt with these matters. If he remains dissatisfied with the response he is provided, he may wish to escalate the matters to the Local Government and Social Services Ombudsman (LGSCO) which had jurisdiction on this respect.

 

Background and summary of events

Scope

6. In light of the information provided in the previous paragraphs, this investigation will therefore concentrate on the resident’s complaints about major works to his kitchen and damp and mould inside his property. Any reference to his request to be rehoused will be for the purpose of providing context to the situation.

Background

7. At the time of the complaint, the resident was the secure tenant of a studio apartment where he lived with his spouse and young child. The property has a main living/sleeping area with kitchen and bathroom.

 

8. The landlord commenced major works to renovate the bathroom and kitchen around early 2020. These were planned works rather than being responsive to reported repairs. The bathroom was completed but whilst the kitchen was being worked on the COVID-19 pandemic arose. The landlord withdrew its operatives from the property. The resident argues that this left him without a functioning kitchen. The landlord disagrees and states that there were functioning facilities, albeit by way of a “temporary” kitchen rather than a completed one.

 

9. The kitchen had no extractor fan and the resident had already reported that poor ventilation was adversely affecting the property by creating condensation, resulting in damp and mould forming.

 

10. The resident applied for rehousing before the works started, stating that the property was overcrowded for its size. Whilst initially this was refused by the landlord, later, and as the child was older, the resident was given priority to be rehoused. The family moved out of the property at the end of May 2021.

Summary of Events

11. On 22 November 2019 the council wrote to the resident regarding his application for rehousing on the grounds of overcrowding. It determined that his application did not meet the statutory criteria definition of “overcrowding”.

 

12. In mid-February 2020 the resident reported damp and mould in the property. The landlord’s internal records note that it attended to this, but the works were not completed until September as they were “paused” due to the pandemic and an appointment was made to for a visit to be undertaken when it was safe for its operative to attend.

 

13. On 11 September 2020 the resident completed the landlord’s online complaint form. He stated as follows:

 

1. His kitchen work had started in February 2020 as part of “major works” but had not been completed. He explained that the work schedule had been disturbed by the pandemic lockdown but that he had heard nothing further from the landlord as to how the situation was to be resolved.

 

2. He reported that as the property was a bedsit, with kitchen appliances out of place there was limited space to move around. He complained that this was proving hazardous, and his young child had already fallen and cut her face requiring a hospital attendance.

 

3. He further complained that the kitchen area did not meet fire regulations in that there was no fire door and extractor fan.

 

14. On 14 September 2020 the landlord acknowledged the resident’s complaint and stated it aimed to respond to him by 5 October 2020.

 

15. On 21 September 2020 the landlord arranged to carry out a “3 stage mould treatment” to the external wall.

 

16. On 22 September 2020 the landlord emailed the resident with its response to his complaint in accordance with stage one of its complaints procedure. It reported that it had been in touch with its contractors regarding the outstanding works but that, due to the pandemic, internal works were currently delayed. It stated that the resident would be notified when the landlord had received a government directive allowing it to restart internal works. The email concluded “If you wish to escalate this matter, please contact ...”.
17. On 15 October 2020 the resident’s health visitor wrote to the landlord stating that in their opinion the unfinished renovation of the kitchen and the cramped living conditions presented an unsafe environment for his young child.

 

18. On 1 December 2020 the resident emailed the landlord. He stated that he had already had a stage one complaint response regarding his incomplete kitchen and damp/mould issue and that “I have final response from my Resident Service Officer, stating that there will be no internal work sometime next year” (sic).

 

19. He reiterated that he was living in the property with his spouse and very young child and that they were struggling to prepare food. The family had resorted to takeaways and eating out, but this was having financial repercussions.

 

20. The resident reported that the property was subject to condensation due to poor ventilation and the damp and mould was reforming despite a treatment having been applied. He stated the condition of the property was affecting his child’s health and the health visitor had contacted the landlord on his behalf. He was looking for a permanent solution to this issue. He confirmed that his family was on a waiting list for rehousing. His preferred remedy was for the issues to be resolved as soon as possible or to be given priority for rehousing.

 

21. The landlord took the resident’s email to be a request to escalate his complaint to the next stage of its complaints procedure and emailed him on 3 December 2020 stating that it was aiming to respond by 11 January 2021.

 

22. The landlord’s internal records show that on 16 December 2020 its staff members were debating what they could do about the situation now they had received the escalation request. The resident was aware of the reason why works had ceased but had requested an escalation because of the impact this was having on his family.

 

23. The landlord’s internal records further show that on 17 December 2020 its staff member was making enquiries to see if a proposal could be formulated to resolve the situation. A colleague reported that during a visit to the property in September “the resident had a fully functioning kitchen albeit temporary i.e., sink, worktop, his own small Baby Belling type cooker and fridge”.

 

24. By early January 2021, the landlord considered whether temporarily decanting the family from the property might be a way to make progress with “urgent works to this property”. Its contractors had reported that they could finish the works if the family were able to vacate the property for at least five days.

 

25. The landlord’s internal records show that on 11 January 2021 it noted that the full works could not be carried out due to pandemic restrictions, but an extractor fan could be installed to help with the damp and mould issue in the meantime, this being a health and safety issue.

 

26. The landlord wrote to the resident with its stage two review response that day, as follows.

 

1. It reported that it had not identified any significant fault on the part of its major works team. It explained that physical distancing measures brought in to ensure safety to both residents and its staff during the pandemic had meant that it had had to pause the internal works to the property. The decision was taken to comply with government guidance. It stated that “the team have confirmed that [she had] a functioning kitchen at present”.

 

2. The landlord confirmed that since the complaint had been received, its staff members had been looking at whether they could find a way to carry out the outstanding work safely. However, “the recent introduction of more stringent physical distancing measures” meant this had been unsuccessful.

 

3. The landlord maintained that, in its view, the resident did have a functioning kitchen and was able to prepare meals. However, to minimise the reported health concerns, its contractor had been instructed to install an extractor fan to reduce condensation in the property and this had already been put in hand.

 

4. In the meantime, the landlord acknowledged that some of its communications to the resident about the matter “could have been improved” and it apologised for this. However, it could not find fault with its ‘major works team’ for complying with government guidance.

 

5. The landlord committed to letting the resident know as soon as circumstances enabled the work to be completed.

 

27. In the meantime, the resident had complained about the way his rehousing application was being handled. On 15 March 2021 the council emailed the resident confirming it was reviewing the situation and setting a deadline for itself of 21 April 2021, but he would be advised if there was to be a delay.

 

28. On 22 April 2021 the resident emailed the resident requesting an update as he had not heard anything within the time frame set out. The landlord responded on 11 May 2021 that it had a backlog and was now looking to conclude its review by 28 May 2021.

 

29. On 28 May 2021 the council emailed the resident, apologising for the further delay in returning to him. The outcome of the resident’s review for rehousing had been successful in that now that the young child was a little older, the family were classified as overcrowded. Accordingly, the family had been awarded Band 1 Priority on the landlord’s “Homesearch System”.

 

30. The landlord explained that the “overarching scenario with the pandemic has led to yet more applicants approaching the service, which in turn has resulted in backlogs”. As a result, the landlord had not been able to address cases as quickly as it would have liked, and it acknowledged the impact that this was having on applicants and upon this resident.

 

31. The landlord noted that the resident had managed to successfully bid on a flat. Ongoing pandemic restrictions meant a viewing would have to be managed carefully but, the landlord noted, matters were slowly returning to normal.

 

32. On 31 May 2021 the resident and his family were housed elsewhere. The evidence does not confirm whether the kitchen had been completed by this time.

 

Agreements, policies and procedures

 

33. The landlord operates a two stage complaints process as set out in its Complaints Policy. The first stage is for the complaint to be responded to by the relevant service area within the landlord’s organisation. If the resident is dissatisfied with the outcome, then an independent review will be carried out by the landlord’s Customer Resolutions Team.

 

34. The policy provides that the landlord can offer to pay compensation which “should be appropriate and proportionate” but it is not automatic and should only be offered were the complaint investigation has revealed “maladministration” on its behalf. When assessing the level of compensation to be offered, the landlord considers the impact any service failing has had on the resident – and whether it can be categorised as “low”, “medium” or “major”.

 

35. The low category applies where there has been some distress and/or inconvenience but a reasonably tolerant person might be taken to cope with it; the medium category relates to the situation where a clear injustice has occurred and this can include repeated low-level events which have accumulated to become more significant; the major bracket relates to serious failures, taking place over a protracted period of time.

 

36. For delay in delivering a service, the compensation amounts are £5, £10, or £20 per week (£250, £500 or £1000 per annum) for low, medium or major impact respectively; Distress is calculated at the same rates. Compensation can then be offered for the resident’s “time and trouble” with minimum and maximum rates of £50 and £250 respectively.

 

Assessment

 

The landlord’s handling of major works to the kitchen at the resident’s property.

The landlord’s handling of the resident’s reports of damp and mould in the property.

 

37. These two issues have been considered together because they relate to the same set of events and evidence.

 

38. This is a complaint which centres around the unique set of challenges presented to both landlords and residents resulting from the COVID-19 pandemic and the measures taken to try to alleviate it.

 

39. The landlord has not produced any sort of policy document setting out its approach for dealing with the pandemic with respect to repairs/planned works. It has asserted that it has followed government guidance but has not produced any document encompassing that to illustrate its point. However, it is public knowledge that restrictions of varying levels were imposed due to the pandemic lockdown from March 2020.

 

40. The landlord has asserted that it stopped work due to social distancing rules and the fact the property represented a small space, as a studio flat and the resident has not challenged that. It is noted that he has not suggested that the landlord acted unreasonably in stopping work. His concern has been the impact leaving the kitchen unfinished has had on his family. He wanted the landlord to offer a solution to the situation and has complained about a lack of communication as to what was going on. In his view, despite the restrictions, the landlord could have done more to deal with the situation.

 

41. The evidence demonstrates that it was only once the resident complained that the landlord arranged to visit the property to see what could be done. The resident reports his chasing communications to the landlord went unanswered. Whilst there is no evidence of him contacting the landlord between March 2020 (when the work was paused) and September 2020 (when he complained), it is reasonable to conclude that he did chase the landlord because of the nature of the difficulties he was experiencing. There is no evidence of a response.

 

42. It is noted that the landlord considered it safe to visit the property in September 2020 when the complaint was made and to treat the damp and mould at that time. However, it did not consider installing the extractor fan or looking at a temporary decant, until January 2021 when the resident pressed the issue further, escalating his complaint. Neither is there any evidence of the landlord liaising with the resident to find a solution. Its stage one complaint response was to simply repeat what was already known and to leave the matter open ended.

 

43. In the Ombudsman’s view the landlord might reasonably have been expected to do more to try to help this resident, even if it was ultimately unsuccessful. It could have considered the temporary decant a lot sooner than it did, even if its conclusion was that this was not possible. It might reasonably have discussed this with the resident.

 

44. Given the damp and mould and extractor fan issues were a matter of health and safety, it might reasonably have looked into whether it could deal with these sooner than it did in September 2020 and January 2021 respectively. If its conclusion was that it was not possible to action them before then, then it would have been reasonable to explain this to the resident. There is no evidence that it did so.

 

45. More importantly, the resident was reporting that he had a lack of kitchen facilities. Whilst this is contested, it is noted that there is no evidence of the landlord taking steps to satisfy itself on this point prior to the complaint being made. At that point it decided there were temporary facilities. The evidence points to a working oven, sink and fridge being available to the resident, but he reasonably reports finding catering for his family challenging under these circumstances.

 

46. The Ombudsman finds that the landlord was not proactive in dealing with the matter and the resident had to chase it for any action to be taken. Nonetheless, it is by no means guaranteed that had the landlord tried to find a way around the situation sooner, or had it been more proactive in managing the health and safety aspects and/or the resident’s expectations, a better or quicker outcome could have been achieved.

 

47. The issue here is that the landlord failed to acknowledge or appreciate the impact on the resident and communicate with him accordingly. This represented a failing in the service offered to the resident, both with respect of its handling of the major works and in connection with the damp and mould issue.

 

48. In the Ombudsman’s view the landlord might reasonably have offered the resident some compensation. According to its Complaints Policy it can do so where a resident has suffered distress and also where they have been put to time and trouble in their dealings with the landlord.

 

49. Initially the position would have been clear to the resident as the first lockdown was imposed. However, there was a period after it was relaxed to some degree (approximately mid 2020) when it was reasonable for him to question whether progress could be made. His complaint came in September, but further restrictions were then imposed in November 2020. Just as the landlord was considering a decant in January 2021 so a further lockdown and stricter restrictions were again re-imposed.

 

50. On that basis it cannot be said that the resident’s distress should be assessed as taking place for at least a year, even though these events took place over a longer time period than that. This is because it might reasonably have been apparent to the resident, at certain points between March 2020 and May 2021 (when he left the property) that it was harder for the landlord to make progress.

 

51. In the Ombudsman’s view, the distress might reasonably have been categorised as medium and lasting for less than a year. Further, the resident was put to time and trouble in pursuing the issue, thus further compensation would be appropriate for his efforts.

 

52. Finally, and for the sake of completeness, it has been noted that there was a delay between the landlord providing its stage one complaint response, and the  matter being escalated to stage two of its procedure. The original response was given on 22 September 2020 but the escalation was not initiated by the landlord until 3 December 2020.

 

53. There is no evidence of the resident requesting an escalation until his email of 1 December 2020, and the landlord’s initial decision did provide contact details for the resident to make the request if he remained dissatisfied. The resident reported to the landlord, in his 1 December email, that he had been told by one of its staff members that work could not commence until the following year anyway. Whilst this may have dissuaded him from pursuing his complaint further at the time, there is no evidence to suggest the landlord acted to frustrate the resident’s complaint from being reviewed.

 

Determination (decision)

 

54. In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in respect of its handling of major works to the kitchen at the resident’s property.

 

55. In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in respect of its handling the resident’s reports of damp and mould in the property.
56. In accordance with paragraph 39(m) of the Scheme, the resident’s reports of overcrowding and his request to be rehoused are outside the jurisdiction of this Service to consider.

 

Reasons

 

57. The pandemic created challenges for landlords and residents and the landlord’s activities were curtailed through no fault of its own. However, landlord was not proactive in trying to find a solution, or in communicating with the resident. the impact on the resident was significant. He and his family had to live in this property for fourteen months with a temporary kitchen and condensation issues. It was only through his complaint that any attempt to find an improvement was pursued.

 

Orders

 

58. The landlord to pay to the resident compensation of £350 to reflect the impact on him of its service failings as detailed above.

 

59. The landlord to confirm to this Service within 28 days that it will comply with this order.