Westminster City Council (202004648)

REPORT

COMPLAINT 202004648

Westminster City Council

22 November 2022

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 the landlord’s response to the resident’s:
1. reports about repairs to her railing and gate;
2. request for a building completion certificate;
3. concerns about the behaviour of the landlord’s surveyor.
The complaint is also about the landlord’s complaints handling.

Background and summary of events

Background

The resident is a leaseholder of the property of the landlord. The landlord is a local authority.
During the period of the complaint, the resident was carrying out works to partition an area of her property into a separate one-bedroom flat.
The landlord operates a two stage complaints policy.
The landlord’s ‘leaseholder handbook’ describes repairs to staircases in communal areas as the landlord’s responsibility. The policy also notes that resident’s will be asked to pay for any damage they have caused.
The leaseholder handbook also notes the landlord may grant permission for a resident to carry out improvements to their property, and that a variable fee may be payable for the permission.
It is a term of the lease agreement that the landlord is responsible for all exterior common walls, structures, and staircases. The costs associated with keeping these items in good repair may be recovered from the leaseholders.

Summary of events

In March 2019, the resident reported to the landlord that a metal railing outside her property had fallen down. The resident did not know how this happened and suggested it could have blown down in the wind, or could have been damaged by thieves. Shortly after, the landlord made safe the railing area by installing temporary wooden boards.
The landlord has provided this service with its internal communications from the period of the complaint. Based on these communications, it is evident that the landlord considered it was likely that the resident’s contractors damaged the railing during the partition works to the resident’s property, and that aside from making it safe, it was not the landlord’s responsibility to repair the railing. It is not evident that this position was communicated to the resident at this time.
In or around September 2019, the resident raised a formal complaint regarding the outstanding repair works to the railing. The resident also reported that the gate outside her property was missing and had possibly been stolen. She requested that the landlord replace this gate.
The landlord subsequently arranged for its surveyor to assess the railing in October 2019. The landlord’s internal communications noted that this was so the surveyor could investigate whether the damage had been caused by the resident’s contractors.
The resident has advised this service that during the surveyor’s inspection, she felt victimised by the surveyor and that the surveyor had informed her she may have to pay a £480 fee.
Following the inspection, the landlord requested the resident provide it with photographic evidence of the gate being in situ. It advised it did not consider there to have been a gate present at the time of sale, which it based on photographs from the period on Google Maps. It noted the resident had offered to replace the railing if the landlord replaced the gate, but that given it did not consider there ever was a gate, it would have to consider the proposal and that the “service centre team will contact you.”
The resident subsequently advised she felt victimised by the surveyor and that she wanted this added to the formal complaint.
At this time, in relation to the resident’s partition works, the landlord also noted it would need to see “all the certificates Building Control, Electric gas etc before l can sign the work off.”
In February 2020, the resident noted she was yet to receive a response to her complaint about the railing and the surveyor. She also provided a number of documents relating to the building completion certificate and queried if they would be sufficient. It is not evident the landlord replied.
On 19 August 2020, the resident raised a further complaint that the railing had still not been repaired by the landlord. The resident also noted she had now installed a gate at the property at her own expense. She further noted she was yet to receive a reply regarding the building completion certificate.
In September 2020, the resident contacted this service regarding the landlord’s lack of response. Following a communication from this service, the landlord advised it had sent a stage one response in August 2020. Based on the evidence provided to this service, the landlord did send a stage one response to the resident in August 2020, however, this related to missing post and the resident’s service charge. It is not evident a response in relation to the complaints about the railing, surveyor, or the building completion certificate was provided at this time.
The landlord’s records indicate that in or around September 2020, it repaired the railing.
The resident still wanted the landlord to address her complaint and she chased the complaint response again in January 2021. On this occasion, the landlord acknowledged the complaint and confirmed it would provide a stage one response.
The landlord provided its stage one response on 27 January 2021, which included the following:
1. Regarding the railing, it noted it had acted promptly to make safe the railing area following the resident’s reports. It advised it had received a report from a neighbouring property that the resident’s contractor’s had removed the railing, which it had sought to investigate at the time. It acknowledged, however, that it had been unable to substantiate this and that it had subsequently agreed to repair the railing, which it had done in September 2020. It apologised for the delay and advised this had been due to the need for a Section 20 consultation with other residents in relation to the costs for the repair works, and delays due to the COVID-19 pandemic.
2. Regarding the gate, it reiterated its position that it did not consider there to have been a gate at the property for which it was responsible. It advised that if another resident had installed a gate in this area without the landlord’s knowledge, it would not be responsible for its replacement.
3. Regarding the building completion certificate, the landlord was unsure as to whether the resident was referring to a certificate for the partition works, or for its installation of the new railing. It advised it did not have a certificate for the railing.
4. Finally, it included a single sentence apologising if the resident felt victimised by its surveyor.
The resident subsequently escalated her complaint and clarified she wanted a certificate in relation to the partition works. She also raised concerns that the landlord’s communication had been poor throughout the period of the complaint.
The landlord acknowledged her escalation request on 19 February 2021, but measured her expectations as to the timeframe for its response due to internal delays. The landlord provided further updates regarding the ongoing delays to its response in March and April 2021.
The landlord provided its stage two response on 14 April 2021, which included the following:
1. Regarding its complaint response, it apologised for its delays.
2. It also acknowledged that its communication throughout the period of the complaint had been poor, for which it apologised. It advised the person originally investigating the railing complaints had gone on leave which had caused delays.
3. Regarding its surveyor, the landlord acknowledged the resident’s concerns that the surveyor should not have been necessary to inspect the railing. It advised that the surveyor had been there to inspect the resident’s works, and that it had informed the resident of this at the time. It concluded that there was no evidence of victimisation from the surveyor.
4. The landlord also noted that the resident’s works would usually incur a fee from the landlord, but that it would waive the fee in this instance.
5. Regarding the building completion certificate, the landlord requested the resident provide seven documents it required to issue the certificate, and requested that she resend any documents she had already provided.
6. The landlord acknowledged that the resident had expended time and trouble in pursuing the complaint, and offered £250 compensation in recognition of this.
Following the landlord’s stage two response, the resident raised concerns in April 2021 regarding the number of documents required for the landlord to issue the building completion certificate. The resident has advised this service that for a previous property, she was only required to provide three documents, which in this case she had already provided. She therefore disputed the additional documents were necessary and has raised concerns about the landlord’s understanding of the necessary requirements for a building completion certificate.

Assessment and findings

Repairs

Both the lease agreement and the landlord’s leaseholder handbook describe exterior staircases as the landlord’s responsibility. It is not disputed that the railing in this case ran along the top of an exterior staircase at the property.
Where a landlord receives a report of damage to something for which it is responsible, the Ombudsman would expect a landlord to carry out an appropriate investigation so it can determine its responsibility. In this instance, following the resident’s reports in March 2019, it is not disputed that the landlord attended within a reasonable timeframe, and that it carried out temporary works to make safe the railing area.
Having assessed the issue, the Ombudsman would then expect the landlord to provide its position on its repair obligations to the resident in a timely manner. Based on the communications provided to this service, it is evident that the landlord had suspicions that the resident’s contractors were responsible for the damage to the railing. Its internal communications note that following the temporary works, the landlord considered that the replacement of the railing was therefore the resident’s responsibility.
It is not evident that having reached this conclusion, the landlord informed the resident of its position. The Ombudsman would expect a landlord to provide a resident with its position in a timely manner, and provide the resident with an explanation for this position. The landlord did not do this, however.
Based on the repair responsibilities noted in the lease agreement and the leaseholders handbook, regardless of who’s responsibility the damage was, the documents indicate it is nevertheless the landlord’s responsibility to carry out repairs. The landlord may then seek the costs of the repairs from the resident. If the landlord had a different view on how the responsibility to carry out repairs applied, the Ombudsman would expect a landlord to clearly articulate this to the resident and provide an explanation. The landlord did not do this, however.
The landlord’s failure to provide its position led to a period of around six months during which the resident was left unclear about how the repairs would be carried out.
Following the resident’s request for an update in September 2019, the landlord arranged for its surveyor to assess the property. The resident’s concerns about the behaviour of the surveyor is discussed further below. The resident has raised concerns about the need for the surveyor to attend given that she considered the railing to be a repair issue for the landlord’s repair team. From the landlord’s perspective, however, the repair was potentially connected to the resident’s partition works, which the surveyor had knowledge of. Additionally, while the surveyor may not traditionally be used by the repairs team for an inspection of repairs, it was nevertheless reasonable for the landlord to utilise its appropriately qualified staff as it saw fit. It was therefore reasonable for the landlord to arrange for the surveyor to assess the railing and for the landlord to consider their opinion as part of its repairs assessment.
Having assessed the railing, the landlord communicated to the resident that it would need time to consider her offer regarding replacing the railing in light of its position that there was no gate at the property for it to replace. It committed in its communications to keep the resident informed of its decision. While it did not give a specific timeframe, the Ombudsman would expect a landlord to respond within a reasonable timeframe, however, it is not evident the landlord returned to this issue until around September 2020, despite requests for updates from the resident in February 2020. Once again, the landlord’s failure to provide an update left the resident unclear about its position for a further 11 months, which would have caused her distress.
The landlord carried out the works in September 2020. It did not, however, provide a complaint response at this time in relation to its delays, despite requests from the resident. The landlord’s complaints handling is discussed further below.
When the landlord later provided a complaint response, it initially advised that it had received a report from a neighbouring property that the resident’s contractors had removed the railing. This service has not been provided with a copy of the report and the Ombudsman notes that the resident disputes this occurred. The Ombudsman understands, however, that the landlord has data protection obligations and so it was reasonable that it has not provided further details about this report. This service has not been provided with any evidence to suggest this report did not occur.
Regardless of the source of the landlord’s suspicions regarding the railing, the landlord acknowledged there was no evidence to suggest the railing had been damaged by the resident’s contractors. It had therefore appropriately accepted it was its responsibility.
In its formal responses, the landlord attributed the delays to its works to the Section 20 process, and to delays caused by COVID-19. The Ombudsman accepts that there were reasonable delays caused by the COVID-19 pandemic, and that the Section 20 procedure can slow down repairs. In such circumstances, however, the Ombudsman expects a landlord to keep a resident reasonably informed about these delays and provide indicative timeframes where possible. The landlord failed to provide any sort of updates, however, which again would have left the resident distressed and unclear about when repairs would occur.
The resident has also raised concerns that a gate at the front of the property went missing. It is not disputed that the landlord would be responsible for such a gate, however, the landlord disputed that such a gate ever existed. Based on the landlord’s internal communications, it carried out a reasonable investigation into this concern. Its records did not indicate there was a gate and no other property of similar specifications in the area had a gate. It is also consulted historical photos on Google Maps which did not depict a gate.
In this instance, the landlord appropriately articulated its position and invited the resident to provide further information about the gate. It also appropriately reiterated its position in its formal responses, and in the absence of additional evidence from the resident, it was reasonable that the landlord did not provide a gate. Given, however, that the resident suggested it may have been stolen, it would have been appropriate for the landlord to have signposted the resident to the police, which it did not do.
In summary, while the landlord initially took appropriate steps to make safe the railing, it subsequently failed to take any further steps. This was based on its opinion that the resident was responsible for the railing, which it later acknowledged was an unfounded position. Its failure to initially articulate this position denied the resident the opportunity to provide further information and led to significant unreasonable delays to the repairs. While an element of the delays caused by the Section 20 process and caused by COVID-19 may be reasonable, the landlord failed to keep the resident updated. It additionally failed to respond to numerous requests for updates from the resident, causing her to expend significant time and trouble in pursuing the repairs and her complaint. In the circumstances, this amounted to maladministration by the landlord.
In its stage two response, the landlord appropriately acknowledged that its communication throughout the course of the complaint had been poor, and it appropriately apologised. It also took some steps to remedy its failures by offering £250 compensation (although this was also intended to cover other elements of the complaint). Given the significant period of delays, along with the multiple instances where the landlord failed to provide its position, or respond to the resident’s requests for updates, this amount of compensation is not sufficient to remedy the impact caused to the resident.
Based on the above, the Ombudsman orders compensation of £400 for this element of the complaint, being £200 for the delays, and £200 for the landlord’s poor communication. This amount is in line with this service’s remedies guidance for instances of maladministration.

Building completion certificate

It is not disputed that the landlord provided permission for the resident to carry out partition works at the property. It is also not disputed that following satisfactory completion of the works, the resident expected a building completion certificate from the landlord. While briefly referred to in the leaseholder handbook, the landlord does not have a policy relating to this process, nor to the specific documents required for it to provide a building completion certificate.
As noted in the leaseholder handbook, the landlord may require a fee in relation to its permission for the works. In its internal communications, the landlord noted this fee to be £480 at the time the resident requested permission. The landlord noted, however, that it had not previously referred to this fee in its correspondence. It therefore appropriately used its discretion to waive this fee, which it advised in its formal complaint responses.
Following the surveyor’s inspection in October 2019, the landlord advised it required the resident to provide documents in order for it to sign off on the works. While it listed several documents it would need to see, its use of the word “etc.” indicated it required others as well. It would have been useful had it provided an accurate list at this time to assist the resident, but it did not.
Following its request, the resident provided three documents to the landlord in February 2020. The resident has advised this service that she was previously only required to provide these documents for another property she had developed. In her correspondence, she queried if this was all the landlord required. It is not evident, however, that the landlord responded or otherwise indicated at this time that it required further documents.
Following this, the resident raised concerns about the building completion certificate several more times as part of her chasing a complaint response. In its stage one response, the landlord advised it was unclear about what she needed, a certificate in relation to the resident’s works, or a certificate in relation to its own works to the railing. It is of concern that the landlord was unclear on this point given the number of times the resident had previously articulated her request prior to the railing works having been completed, along with her prior correspondence providing documents pursuant to her own works. Additionally, having expressed confusion on this point, the landlord did not request any further clarification from the resident, leading her to expend further time and trouble in making it clear what she wanted.
As part of its stage two response, the landlord identified seven documents it required for it to be able to provide a building completion certificate. The resident raised concerns about why it required this many documents in April 2021, however, the resident has advised this service that she was yet to receive a response as of July 2021.
The resident has also raised concerns with this service about the competency of the landlord’s staff for requesting these documents, which she considered unnecessary. It is not evident that the concerns about the landlord’s staff’s competency has been raised with the landlord as a formal complaint, nor that the landlord has had an opportunity to provide a formal response, and so this concern is outside of the scope of this investigation.
This service is not an expert in the documents required for a surveyor to sign off on building works and so cannot conclude that the landlord’s request was incorrect. Nevertheless, given that the resident raised concerns about the documents, the Ombudsman would expect a landlord to justify its request within a timely manner, which it did not do. This would have caused frustration for the resident, and further unreasonably delayed her obtaining a building completion certificate.
In summary, the landlord was unclear as to what documents it required for the building completion certificate in its initial request in October 2019. Having provided documents based on its earlier requirements, the landlord missed the opportunity to clarify to the resident what documents it required in February 2020. It also failed to adequately investigate the resident’s complaint at stage one, or request further information. Finally, while it appropriately explained what it required in its stage two response, it failed to respond to the resident’s requests for clarification.
In the circumstances, the landlord’s repeated poor communication amounted to maladministration in the circumstances. As noted above, while the landlord accepted there had been poor communication, the total amount of compensation offered is not sufficient to redress the distress caused to the resident. Based on the above failures, an amount of £200 compensation is appropriate to reflect the impact on the resident.
An order has also been made that the landlord provide an explanation for the documents it has requested, if it has not done so already.

Staff behaviour

The resident has advised this service that she has made previous complaints about the landlord’s surveyor in relation to other works. While it may be preferable for a landlord to use a different surveyor where there has previously been a breakdown in the relationship between a surveyor and a resident, the Ombudsman understands that a landlord’s resources are finite and this is not always possible. It was therefore reasonable that the landlord continued to use this surveyor to assess the resident’s works.
As noted above, the resident queried why the surveyor was sent to assess the railing. Given, however, the landlord had concerns that the issue with the railing and the resident’s works were connected, it was reasonable for the landlord to use the surveyor in its investigation, given their prior knowledge of the works. It was also reasonable for the landlord to utilise its appropriately qualified staff for the inspection of the railing as it saw fit. This approach would not amount to victimisation of the resident.
The resident has also noted that during her conversations with the surveyor, the surveyor threatened the resident with a fee. The Ombudsman was not present during this conversation and so cannot conclusively know what was said. Given that the landlord’s standard practice was to charge a fee in relation to permission for such works, it is possible this is the fee being referred to by the surveyor, who would not necessarily have known the landlord had failed to raise this fee in its correspondence. The mention of such a fee would not in and of itself amount to victimisation.
Given the resident’s reported concerns the Ombudsman would expect a reasonable investigation by the landlord. In its stage one response, however, the landlord simply apologised if the resident felt victimised. It is not evident any steps were taken to investigate the reports, such as discussing the concerns with the surveyor.
It was appropriate, therefore, that the landlord attempted a further explanation in its stage two response. This explanation noted the surveyor was there to assess the works only, and not the railing, which is contrary to the communications at the time of the event. Regardless, it is the Ombudsman’s assessment that it was reasonable for the surveyor to assess the works and the railing, and so the landlord’s position that this was not intended to victimise the resident was reasonable.

Complaints handling

The resident raised a formal complaint in September 2019 regarding the lack of response in relation to the works to the railing. While the landlord arranged for its surveyor to attend, it did not provide its position on a formal complaint response. The resident again referred to her formal complaint when raising concerns about the surveyor, and again in August 2020 when chasing a response.
Following intervention from this service, the landlord advised it had provided a stage one response in August 2020. This service has been provided with the formal response, which relates to complaints about missing post and to the resident’s service charge. It is evident that the landlord misunderstood which complaint response was outstanding.
The Ombudsman nevertheless expects the landlord to have robust complaint handling records, and given the number of times the resident referred to a formal complaint in her correspondence, the landlord was clearly aware she was expecting a response.
In its internal communications, the landlord noted the complaints were originally referred to in correspondence with a staff member rather than its complaints team. The Ombudsman, however, expects for a landlord’s staff to be appropriately trained to either refer the complaint to its complaints team internally, or otherwise signpost a resident to its complaints team, which the staff member did not do. This resulted in the resident’s complaint being left without investigation or response for a significant period of time, which would have left her distressed, and caused her time and trouble in chasing a response.
The Ombudsman also notes there were a number of delays to the landlord’s stage two response. While the response took an extended period of time, the landlord took appropriate steps to measure the resident’s expectations and provide regular updates.
The initial delay to the landlord’s stage one response, however, was significant and amounted to maladministration in the circumstances. An amount of £100 compensation is appropriate to reflect the impact caused to the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of the complaints regarding its:
1. response to the resident’s reports about repairs to her railing and gate;
2. response to the resident’s request for a building completion certificate;
3. complaints handling.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints regarding its response to the resident’s concerns about the behaviour of its surveyor.

Reasons

Repairs

In summary, while the landlord initially took appropriate steps to make safe the railing, it subsequently failed to take any further steps. This was based on its opinion that the resident was responsible for the railing, which it later acknowledged was an unfounded position. Its failure to initially articulate this position denied the resident the opportunity to provide further information and led to significant unreasonable delays to the repairs. While an element of the delays caused by the Section 20 process and caused by COVID-19 may be reasonable, the landlord failed to keep the resident updated. It additionally failed to respond to numerous requests for updates from the resident, causing her to expend significant time and trouble in pursuing the repairs and her complaint. In the circumstances, this amounted to maladministration by the landlord.

Completion certificate

The landlord was unclear as to what documents it required for the building completion certificate in its initial request in October 2019. Having provided documents based on its earlier requirements, the landlord missed the opportunity to clarify to the resident what documents it required in February 2020. It also failed to adequately investigate the resident’s complaint at stage one, or request further information. Finally, while it appropriately explained what it required in its stage two response, it failed to respond to the resident’s requests for clarification.

Staff behaviour

Given that the landlord had concerns that the issue with the railing and the resident’s works were connected, it was reasonable for the landlord to use the surveyor in its investigation, given their prior knowledge of the works. It was also reasonable for the landlord to utilise its appropriately qualified staff for the inspection of the railing as it saw fit.

Complaints handling

There were significant delays to the landlord’s stage one response, despite multiple requests for updates from the resident. The delays were also exacerbated by the landlord’s poor record keeping as to which complaints had been responded to already, and which were outstanding.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay compensation of £700, comprising:
1. £400 for any distress and inconvenience caused to the resident by its delays and poor communication in relation to the repairs to her railing;
2. £200 for any distress and inconvenience caused to the resident by its poor communication in relation to the building completion certificate;
3. £100 for its ineffective complaints handling.
This replaces the landlord’s previous offer of £250. This amount must be paid within four weeks of the date of this determination.
Should the building completion certificate remain outstanding, the landlord to contact the resident within four weeks of the date of this determination and rearticulate its request for documents relating to the building completion certificate, and provide a clear explanation as to why it requires each document.

Recommendations

The Landlord to take steps to ensure that its complaints handling staff have up to date training. This should also include consideration of this Service’s guidance on remedies at https://www.housingombudsman.org.uk/aboutus/corporateinformation/policies/disputeresolution/guidance-on-remedies/ and the completion of our free online dispute resolution training for landlords at https://www.housingombudsman.org.uk/landlords/e-learning/.