The Riverside Group Limited (202223877)

REPORT

COMPLAINT 202223877

The Riverside Group Limited

22 August 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

1. The complaint concerns:
   1. The landlord’s decision to recharge the resident to repair the toilet in the property.
   2. The conduct of a staff member during the repairs process.

Background

2. The resident is an assured tenant of the landlord, which is a housing association. The property is a house.
3. On 3 January 2023, the resident contacted the landlord to report that the cistern had fallen from the wall onto the toilet bowl causing damage. An operative attended the same day, who found that the toilet had been removed and the soil stack pipe cut back. The operative recommended the installation of a new toilet, which went ahead on 5 January 2023. The operative also recommended that the repair should be recharged to the resident.
4. The resident contacted the landlord on 3 January 2023 and requested to raise a formal complaint into the matter. The landlord’s notes of calls from the resident described the elements of the complaint as:
   1. The resident disputed the decision to recharge him for the new toilet. The resident noted that the fixtures and brackets holding the cistern in place were rusted and in a very poor condition.
   2. He explained that the supervisor who visited the property on 3 January 2023 stated that he should not have removed the damaged pieced of the toilet, but he was not advised of this when he called the landlord to report the issue.
   3. He had not been consulted about the decision to recharge him, and staff had incorrectly said that he agreed to the recharge.
   4. He also disputed the cost of the repair which he said was expensive compared to other options.
5. The landlord sent a stage one complaint response to the resident on 5 January 2023 and then a stage two complaint response on 6 January 2023. In its responses, the landlord:
   1. Acknowledged the photographs of the screws and brackets for the cistern sent to it by the resident. Explained that while these do show that they were rusty, that was not uncommon due to the amount of condensation behind the cistern. It noted that the fittings were still in place and capable of holding up the cistern.
   2. Noted that by the time the operative had arrived on 3 January 2023, the resident had removed the toilet and cut back the soil pipe. The operative was therefore unable to determine the extent or the cause of the damage to toilet and on that basis had recommended that the resident be recharged for the repair.
   3. Informed the resident that the surveyor who had attended on 3 January 2023 had been mistakenly informed that the resident and his housing officer had already spoken about the rechargeable repair. The landlord apologised for the confusion and also informed the resident that his comments about the conduct of the surveyor during the visit had been passed on to their manager.
   4. Confirmed its decision to recharge the resident for the costs of replacing the toilet based on the advice given to it by its staff.
6. The resident remained dissatisfied with the landlord’s handling of the matter and its decision and brought his complaint to the Ombudsman. He has told this service that the recharge costs were approximately £300.

Assessment and findings

Relevant policies and procedures

7. Section 2.3.2 of the tenancy agreement confirms that the landlord is responsible for keeping in good repair and working order “basins, sinks, baths, toilets (but not the toilet seat), flushing systems and waste pipes”. Section 2.3.4 states that the landlord “will not be liable for the repair of any items [detailed in section 2.3.2] if the repair is necessary because of damage to or neglect of [the] home by [the tenant] or members of [the tenant’s] household or visitors”.
8. The landlord’s website sets out the same repair obligations and the possibility that a tenant may need pay for repairs if they are responsible for the damage.

The landlord’s decision to recharge the resident to repair the toilet.

9. The tenancy agreement makes clear that the landlord is entitled to recharge any repairs which are needed because of damage or neglect by the resident. The resident first reported that the cistern had fallen off the wall and on to the toilet bowl, damaging it. Nothing in the information provided by the landlord or resident indicates there was any suggestion the issue was caused by the resident. Accordingly, if the matter had ended there, there would have been no grounds to recharge the resident for the repairs.
10. However, the resident cleaned up the damage, and apparently disposed of the toilet and cistern. He also cut into one of the pipes servicing the toilet. Based on those actions the landlord’s contractors decided it was appropriate to recharge the resident for the cost of the repairs. In its complaint response the landlord explained the decision was made because “although the brackets were rusty, they were still in situ and capable of holding up the cistern”, and that “you should have left the soil pipe and the frontline worker would have cut this back if required when fitting the new toilet.” Those explanations appear to be incomplete, and on their own do not provide fair and reasonable grounds for the recharge.
11. There are grounds which could justify the decision in these circumstances, such as if the cistern might have been suitable to be repaired and replaced onto the wall, rather than needing to purchase a new one; or if the damage to the pipe meant that extra repair work was needed which might otherwise have been avoided. However, the explanations provided by the contractors and landlord do not make such consequences clear. It is possible that this is what was meant, but if so, the landlord’s explanations did not say that, and no evidence has been provided showing that the resident’s actions led to greater time or effort resolving the repair.
12. In its complaint response the landlord further explained that because the resident cleaned up and disposed of the damaged toilet, the contractor was unable to determine the extent or the cause of the damage and decided to recharge the costs on that basis. This explanation appears to be saying that because the contractors could not see if the resident had caused the original damage or not, it decided to recharge him. If so, in the face of the resident’s denial that he had caused any damage, and without further evidence supporting this ‘balance of probabilities’ type of conclusion, that decision could not be said to be fair or reasonable.
13. Overall, there is not enough evidence for this investigation to determine whether the landlord’s decision was justified or not, and there were potentially reasonable grounds for the landlord to recharge the resident. Nonetheless, the landlord has not clearly explained what its grounds were, or why the resident’s actions met the recharge criteria. That lack of explanation was a failing.
14. The resident complained to the landlord that when he reported the repair, he was not told that he should leave the damaged toilet as it was and not clean-up. Conversely, there is no evidence of the resident asking if he should clean up or leave the items where they were. In the circumstances, this point does not appear to have a clear bearing on the primary issue.
15. The resident complained that the cost of the repairs the landlord was recharging to him were significantly higher than he would expect. He did not provide any evidence in support of his contention, so there was nothing the landlord could reasonably be expected to say in response. Nonetheless, the landlord must ensure that any costs it recharges are accurately evidenced and should provide that evidence to the resident if it has not already done so.

The conduct of the supervisor

16. As an element of the complaint, the resident highlighted the behaviour of the supervisor who attended the property on 3 January 2023. The resident explained to the landlord that the supervisor’s behaviour was unprofessional and that they had incorrectly stated that he had already spoken with his housing officer and agreed to the rechargeable repair.
17. In line with its code of conduct detailed above, once the resident had complained about the behaviour of the supervisor, the landlord would be expected to investigate the issue and take any appropriate action. The resident has provided the Ombudsman with his recollection the events that occurred on 3 January 2023, and the landlord has provided the Ombudsman with internal communication from its staff. Both have been considered; however, the Ombudsman cannot reconcile the difference and say with any certainty what happened whilst the inspection of the bathroom took place. However, this assessment has considered how the landlord responded to the concerns that were raised by the resident, with reference to the contemporaneous evidence that is available.
18. The landlord’s internal notes show that following the complaint being raised, both the supervisor and housing officer were interviewed. The landlord determined that there had been a breakdown of communication which resulted in the supervisor mistakenly believing that the housing officer had reached an agreement with the resident about the recharge. It was therefore appropriate for the landlord to apologise to the resident. An apology represents appropriate redress for this element of the complaint as while the supervisor provided incorrect information to the resident, it was the operative who inspected the toilet who had recommended the resident should be recharged for the repair and therefore this misunderstanding had no effect on the landlord’s decision.
19. The landlord also acted appropriately by informing the supervisor’s manager of the resident’s comments about their conduct. The resident stated his dissatisfaction that this landlord did not inform him of the result of this investigation in its complaint responses. Due to data protection issues, the landlord would not be expected to tell the resident what specific details regarding what, if any, action it took regarding the supervisor. It is outside the Ombudsman’s role to investigate employment matters and therefore we would not assess any specific action which the landlord may have taken or comment on this as part of our assessment of this complaint.

Determination

20. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its decision to recharge the resident to repair the toilet in the property.
21. In accordance with paragraph 52 of the Scheme, there was no maladministration by the landlord concerning the conduct of a staff member during the repairs process.

Orders

22. In light of the uncertainty around the basis for the landlord’s recharge decision it is ordered to retake the decision. It must clearly explain the reasoning for its new decision, especially if it maintains the decision to recharge the resident. Such a decision must be fair and reasonable, and based either on a robust conclusion that the resident caused the original damage, or that his clean-up actions caused extra costs and effort that would not otherwise have been incurred.
23. The landlord must also pay to the resident £200 compensation in light of the confusion and inconvenience caused to him by its handling of this issue. This payment must be made directly to the resident, rather than to his rent account (unless he requests that it be).
24. Evidence of compliance with these orders must be provided to this Service within four weeks of this report.