Wandle Housing Association Limited (202115736)

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REPORT

COMPLAINT 202115736

Wandle Housing Association Limited

24 February 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

The complaint is about:
1. the landlord’s response to the resident’s reports of repairs to the bathroom.
2. an injury which the resident sustained when using the bathroom.
The Ombudsman has also assessed the landlord’s complaint handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman 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.
After carefully considering all the evidence, complaint 1(b) is outside of the Ombudsman’s jurisdiction. In correspondence to this Service, the resident has advised that he slipped in the bath due to a lack of ‘anti-slip’ and handrails and that he injured himself as a result. While the serious nature of this is noted, the resident’s injury, and whether it was sustained as a result of the conditions within the bathroom, is not a matter that the Ombudsman can investigate as part of this complaint.
The evidence that is available suggests that incident occurred after the landlord issued its final response to the complaint. The Scheme says at section 42 (a) that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaints procedure. As such, from the evidence that is available, this does not appear to have been a matter which the resident raised with the landlord during the course of his formal complaint. It therefore falls outside of our jurisdiction for the purposes of this investigation. Furthermore, as the issue relates to liability, and whether the landlord is responsible, the resident may wish to raise the issue as a personal injury claim through the landlord’s insurer or seek independent legal advice. This would be a more appropriate course of action than seeking compensation through the landlord’s formal complaints procedure.

Background

The resident is a tenant of the landlord’s property. The property is a two-bedroom ground floor flat. The resident, together with his young son, moved to the property via mutual exchange in September 2021.
A few weeks prior to the resident moving in the landlord undertook a ‘mutual exchange inspection’. It found the property to be in a ‘’fair state’’ and raised repairs for bath tiles and bath taps as well as to a window in the kitchen.
Following the mutual exchange, the resident expressed concern about the condition of the bathroom. He said that it was 25 years old and needed replacing. He added that the bath had ‘’no anti slip’’ or handles and was not up to safety standards. There were other concerns about the floor being warped, rotten panels and inadequate tiling. When the landlord initially responded to the complaint, it advised that the resident had signed to accept the property in its current condition. It added that repairs could not be carried out in the first six months of an mutual exchange, unless in an emergency.
The resident appealed saying that the property was unsafe for him and his six-month-old child. He said that the issues were major, and that he wanted a surveyor to visit. When the landlord issued its final response on 7 November 2021, it confirmed that a surveyor would attend on 11 November 2021. It said that following this, it would advise if the bathroom qualified for repairs prior to the six-month date.
The inspection identified that some repairs were required, and these were raised accordingly. During the inspection, the resident advised that he wished for the bathroom reconfigured as he did not like the layout. However, the landlord explained that it would not be changing the bathroom due to the cost and that it was an unnecessary and labour-intensive task.
In March 2022, the landlord confirmed to this Service that the repairs which had been identified during the November 2021 inspection were due to “conclude shortly”. It is unclear from the evidence that is available when the repairs were completed.

Assessment and findings

The landlord’s obligations

The landlord’s Empty Homes Policy says that properties that are part of a mutual exchange are not ‘empty homes’ in a true sense. When residents partake in a mutual exchange, the property is not considered to be void. Rather, the incoming tenant continues the existing tenancy. It follows that there is no obligation on the landlord to ensure that the property meets void, or letting, standards, during the mutual exchange process. Instead, a property inspection will take place to ensure that the property is safe and meets the decent homes standard. The landlord will also note any “non-standard” works or improvements that may have been completed by the outgoing tenant.
The landlord’s Mutual Exchange policy (the policy) in effect at the time of the resident’s exchange says at section 2.3 that the landlord ‘must arrange to inspect the property to ensure it is in good state of repair and appropriate for incoming household’. It states further that:
1. It will check if any alterations have been made and had been approved with landlord’s consent.
2. It must ensure that any adaptations carried out by the (previous) resident are safe and whether the property requires any repair work to be carried out before or soon after the exchange, if successful.
3. It will ‘agree the condition of the property and arrange for any necessary repairs with both the outgoing and incoming residents.’
Section 5 says ‘ the incoming resident must complete the Acceptance of Property form … This form commits the incoming tenant to accept the property in its present condition, including any adaptations the outgoing resident made’.
The landlord’s Repairs and Maintenance policy says that emergency repairs should be responded to within 24 hours, appointed repairs in 28 days and major works within 90 days. It also says that repairs to plumbing, baths and basins are the landlord’s responsibility. The landlord’s website lists appointed repairs as including minor plumbing repairs and repairs to plasterwork.

The landlord’s response to the resident’s reports of repair

The resident’s concerns about the overall condition of the bathroom are noted. It is not within the remit of the Service to assess the bathroom and determine whether it is hazardous. If the resident has concerns about his own safety, and the safety of his child, he may wish to contact his local Environmental Health Team and request a Housing Health and Safety Rating System risk assessment.
It also noted that the resident would like the landlord to install a new bathroom as resolution to his complaint. As detailed above, the landlord’s responsibility under the tenancy agreement is to carry out repairs within the property. To install a new bathroom would constitute an improvement to the property, and there is no obligation on the landlord to carry out improvement at the request of a resident. As such, this investigation has assessed whether the landlord has acted in line with its repair obligations under the tenancy agreement. We have also assessed whether the landlord acted in accordance with its internal policies and procedures, and in a manner that is fair and reasonable overall.
Soon after moving to the property, the resident reported that there were repairs outstanding within the bathroom. He also raised concerns about potential hazards. As detailed above, the resident’s concerns were raised as a formal complaint. The landlord responded by way of a stage one complaint response. Within this, it said that the resident had mutually exchanged to the property, and work could not “be carried out within the first 6 months”, unless it was an emergency.
This was reiterated by the landlord when it issued its stage two response to the complaint. However, the landlord advised that the resident had listed repairs “which may need to be rectified” as soon as possible. On that basis, it arranged for the property to be inspected.
The landlord’s response to the resident’s reports was inappropriate. The Ombudsman has reviewed the landlord’s mutual exchange policy, and the documents that were signed as part of the process. Having done so, it is unclear how the landlord adopted the position that it would not carry out repairs within the first six months of the mutual exchange. This not provided for by the mutual exchange policy. In addition, adopting such a stance is at odds with the landlord’s repair obligations under the tenancy agreement. The “Acceptance of Property Form” also states that signing the form “does not remove (the landlord’s) obligation” to keep its properties in a decent state of repair.
While the landlord subsequently agreed to inspect the property, its initial decision and handling of the situation was the cause of inconvenience and distress to the resident. The resident had reported that there were repairs required within bathroom, and the landlord should have taken steps to inspect these in response. The resident should not have had to escalate a complaint to stage two of the landlord’s procedure in order for it to visit the property and carry out an inspection.
Following the inspection, the landlord raised repairs to renew the washers on the basin taps, re-mastic the sink pedestal , renew the boxing in, retile the bath tiles, renew the bath panel and access panel and to patch plaster the wall in the lounge. It is noted that when the landlord inspected the property in August 2021, prior to the mutual exchange, repairs within the bathroom were noted.
An internal email between landlord staff shows that while the property was considered to be in a “fair state”, repairs were required to the bath tiles, and the bath taps. The same repairs were identified when the property was inspected by the landlord in November in response to the resident’s complaint. The evidence therefore suggests that the landlord had failed to complete the pre-mutual exchange repairs before the resident moved to the property. This was a departure from the mutual exchange policy as detailed above, and a further failing by the landlord. The inconvenience that was caused to the resident as a result of this has been reflected in the orders below.

The landlord’s complaint handling

The Housing Ombudsman’s Complaint Handling Code (the Code) was introduced with the aim of improving complaint handling across the housing sector. As a member of the Scheme, the landlord is obliged to establish and maintain a complaints procedure in accordance with any good practice recommended by the Ombudsman.
Section 5.8 of the Code states that a stage one complaint response must include:
1. the complaint stage.
2. the complaint definition.
3. the decision on the complaint.
4. the reasons for any decisions made.
5. the details of any remedy offered to put things right.
6. details of any outstanding actions.
7. details of how to escalate the matter to stage two if the resident is not satisfied with the answer.
The landlord’s letter of 20 October 2021 did not indicate which stage of the procedure it was responding at. Furthermore, it did not include a clear definition of the resident’s complaint. While this was not a significant failing, the landlord should review its complaint handling processes to ensure that its responses are Code compliant going forward.
The landlord’s response at stage two, and its explanation about its position was rather confusing, and somewhat contradictory. The landlord advised that the resident would need to wait six months for any works to be undertaken, but that the resident had mentioned issues that could need rectifying sooner. On that basis it had arranged an inspection.
As detailed above, the landlord’s position regarding repairs within the first six months of a mutual exchange is not provided for by any policy or procedure that has been provided to the Ombudsman. It would have been reasonable for the landlord to have acknowledged this when the complaint was considered at stage two. Instead, the landlord confirmed that the original decision was correct without reference to any policy or procedure. This was inappropriate, and the landlord should now take steps to put things right.

Determination

In accordance with paragraph 52 of the Scheme there was maladministration in:
1. The landlord’s response to the resident’s report of the repairs .
2. The landlord’s response to the resident’s complaint.

Orders

Within four weeks of the date of this determination, the landlord should:
1. Apologise to the resident for the failings identified by this investigation.
2. Pay the resident a total of £400 compensation, comprised of:
  1. £300 for the distress and inconvenience caused by its response to the resident’s report of repairs.
  2. £100 for the distress and inconvenience caused by its complaint handling.
Within six weeks of the date of this determination, the landlord should:
1. issue relevant staff with a reminder of its repair obligations under a tenancy and/or lease agreement. The landlord should also ensure that clarification is provided to staff about its repair obligations where mutual exchange properties are concerned.
2. review its complaint handlings practices. The landlord should remind complaints handling staff to refer to, and cite, relevant policies and procedures when reaching a decision in response to a complaint.