York City Council (202106125)

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REPORT

COMPLAINT 202106125

York City Council

5 July 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

  1. The complaint is about:
    1. the landlord’s handling of the resident’s reports of repairs required to the bathroom, including its decision not to replace the bathroom following the Right to Buy (RTB) application.
    2. the landlord’s handling of the formal complaint.

Background

  1. The resident was the secure tenant of the property (a house) since the tenancy was assigned to him on 6 May 2011.
  2. The resident made a Right to Buy (RTB) application in November 2020 which was finalised on 4 May 2021.
  3. The resident complained that his bathroom was not replaced after the landlord advised him in February 2020 that this work would be undertaken in order to address the cracked bath and bath panel (damaged by its contractors in November 2019). The resident complained that the landlord stated the work was not done due to his RTB application. The resident noted that he had been stressed and anxious as he waited for a new bathroom to be installed. He also complained that the landlord extended the timescale for the complaint response three times.
  4. In response to the complaint, the landlord explained that the bathroom work did not take place due to working arrangements during the Covid pandemic. It stated that once a RTB application is made, it only undertakes emergency repairs. The landlord partly upheld the complaint and apologised that it did not recognise its responsibility for the bath and bath panel repair following the RTB application. The landlord was to contact the resident to arrange the replacement of the bath and panel.
  5. As a resolution to the issues, the resident wanted compensation for the length of time he had waited for non-repair of the bathroom or a contribution towards the replacement bathroom, which he paid for after the RTB sale finalised.

Assessment and findings

Bathroom and RTB

  1. The landlord responded appropriately to the resident’s request for updates on the proposed bathroom works in February and March 2020 by advising that it would email the builder and subsequently re-raise the bathroom job, with an inspection being carried out on 1 March 2020.  Replacement bathrooms fall within the Tenants’ Choice programme which delivers new kitchens and bathrooms as part of a capital works programme and are not categorised as responsive repairs. 
  2. Lockdown regulations came into effect on 26 March 2020. It is understandable that the landlord did not progress the replacement bathroom work at this time. This is because the government guidance for landlords and tenants recommended access to a property for serious and urgent issues only and the bathroom work did not fall within this category.
  3. By 1 June 2020, government guidance stated that where workforce is available and resources allow, landlords and contractors can visit properties for planned internal works but noted that some landlords will have a backlog of repairs. There is no evidence as to what specific information the landlord provided to residents about its provision of services during the pandemic. Since the landlord’s website states that there continues to be a backlog of repairs, it would have been reasonable for the landlord to prioritise emergency and urgent repairs over its capital works programme. A second national lockdown started on 5 November 2020.
  4. The works to the bathroom were not completed before the resident made a RTB application in November 2020. The resident would have been aware that the RTB affected what repairs the landlord would complete since the landlord’s letter acknowledging the RTB application stated that the property would not be considered for modernisation or Tenants’ Choice improvements and only repairs required under the Landlord and Tenant Act 1985 would be carried out. There is no evidence that the resident queried the information about repairs at this time.
  5. The information contained in the landlord’s acknowledgement letter was in line with the landlord’s repairs policy which states that when the landlord receives a RTB application, it will only carry out emergency or urgent works to the property which are limited to repairing and maintaining the structure and exterior of the property; heating and hot water appliances; and pipes and wiring within the property. The landlord’s policy states, “generally repairs outstanding or underway at completion of the sale will be cancelled.” According to government information about RTB, the reason for this approach is that the valuation of the property is based on the date the application was made and any improvements or repairs after that date would affect the valuation.
  6. The landlord raised a repair on 12 February 2021 for a cracked toilet and to inspect the bath crack. Two jobs were raised on 9 March 2021, but it is not clear what these repairs were.  In any event, this would have understandably raised the resident’s expectations that the landlord would complete repairs and he emailed the landlord twice in March 2021, asking for an update and if works could be expedited as the crack in the bath was getting worse.
  7. It is expected that a landlord provides clear information about repairs that would or would not be completed whilst a RTB application is pending. The government’s RTB guide for local authorities states that although it can incur administrative costs, talking to a tenant about their RTB application at an early stage can deliver short and long-term savings including minimising post-RTB complications. In this case, had the landlord spoken directly to the resident about bathroom works and his RTB application, this may have helped manage the resident’s expectations with information specific to his situation.
  8. On 15 March 2021 the landlord advised the resident that its legal department stated that any substantial work at the property should be stopped. The following day the landlord’s legal officer advised the resident’s solicitor that only emergency repairs are completed once a RTB application has started, and that the bathroom was in working order with no serious issues. 
  9. However, the landlord missed the fact that the bath and bath panel had been damaged by contractors and remedying this damage remained outstanding. Replacing the bath and panel would have been sufficient to put matters right; replacing the entire bathroom was beyond what was required to fix the damage and the landlord was not obliged to replace a bathroom whilst a RTB application was pending.
  10. If the resident was not satisfied with the sale progressing without bathroom works being carried out, it would have been appropriate for him to ask his solicitor to pursue this matter with the landlord’s legal department. However, according to the landlord, there is no record of the resident’s solicitor querying bathroom works.
  11. The resident instead pursued the matter with the landlord as a formal complaint. On 21 March 2021 the resident complained that he had waited for 12 months for the contractor to contact him about the bathroom replacement which the landlord had promised him whilst he was still a tenant. The resident noted that he would have accepted a replacement bath and bath panel although a full bathroom replacement was his preferred option. 
  12. The landlord did not respond to the complaint until 3 June 2021 and in the meantime the RTB sale was finalised.  The landlord’s apology for not recognising it was responsible for repairing the damage to the bath and bath panel, along with an agreement to contact the resident to arrange replacement of both items, was an appropriate complaint response. The complaint response apologised, explained where the landlord went wrong and arranged for the resident to receive the service he was entitled to as far as possible, as per the landlord’s complaints procedure.
  13. However, the landlord’s complaints procedure also stated that complaint responses can offer appropriate and proportionate outcomes. Given the inconvenience incurred by the resident, the landlord could have considered compensation for the resident at this point and could have acknowledged where its communication about repairs during the RTB application could have been improved. The compensation guidance followed by the landlord provided for the payment of compensation unrelated to quantifiable loss or expense where a resident had been inconvenienced for a period of time.
  14. In not responding to the complaint until 3 June 2021, the landlord missed an opportunity to potentially resolve the complaint before the RTB finalised. The resident would then have been aware of the landlord’s final position before completing the sale. 
  15. It would be expected that the landlord follow-up on action agreed in its complaint response since this was to put right what had gone wrong. However, the landlord did not do so and subsequently noted in correspondence to the Ombudsman that this was due to a misunderstanding whereby managers were waiting for the resident to make contact rather than contacting the resident as agreed. The landlord apologised and offered to contact the resident to replace the bath and bath panel and pay £100 of compensation for the time and trouble in pursuing the complaint (this offer was not made to the resident). However, in the meantime the resident had already paid for a replacement bathroom.
  16. The Ombudsman would not expect the landlord to pay towards the replacement bathroom as the resident is now a freeholder and responsible for any repair work. Nonetheless, it is appropriate for the landlord to pay an award of compensation to recognise the distress and inconvenience caused by its communication regarding the bathroom works during the RTB application.
  17. Overall, this Service finds that the landlord failings lie in the missed opportunities to communicate directly to the resident to clarify its approach to repairs in his case (pending the RTB application) and missed an opportunity to put things right by making a payment of compensation in its complaint response. The period after the complaint response was an opportunity to put things right by replacing the bath and bath panel but the landlord did not contact the resident as agreed.

Complaints handling

  1. The resident made a formal complaint to the landlord on 21 March 2021. The landlord acknowledged the complaint the following day and advised that it would respond to the complaint as soon as possible and update the resident by 14 April 2021 if it was unable to respond by then. This was in line with the landlord’s complaints procedure which stated that the landlord will let the complainant know that the complaint has been registered within five working days.
  2. According to the landlord’s complaints procedure, it will deal with complaints at grade one or two following an assessment of the nature and complexity of the complaint. This complaint was dealt with at grade two only. 
  3. The issue here is that according to the Ombudsman’s Complaint Handling Code (para 3.6), a landlord’s complaints procedure shall comprise of two stages. This ensures that a resident has the opportunity to challenge any decision by correcting errors or sharing concerns via an appeal process.  In this case, since the landlord only issued one response to the complaint and then directed the resident to an ombudsman if he remained dissatisfied, there was no option for an appeal process within the landlord’s complaints procedure.
  4. The resident complained to the Ombudsman that the landlord made excuses not to deal with the issue and “extended the outcome decision 3 times.” The landlord’s timescale for response at grade 2 is 30 working days and if it is unable to meet that timescale, the landlord is to explain the delay, advise when a full response will be made, and this should be no longer than three calendar months.
  5. The resident’s reference to the decision being “extended” indicates that the landlord gave updates, although the Ombudsman has not had sight of these and nor is it clear why the timescale was extended to 3 June 2021. Nevertheless, the complaint response was issued within the landlord’s maximum timescale of three months. Thus, this Service concludes that despite the extension of the complaint response, the landlord dealt with the matter within its procedure.

Determination

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s reports of repairs required to the bathroom.
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord regarding its handling of the complaint.

Orders and recommendations

  1. The Ombudsman orders that within four weeks of the date of this report:
    1. the landlord pays the resident compensation of £150 in recognition of the distress and inconvenience caused by its handling of bathroom works during the RTB application.
    2. the landlord provides evidence to this Service of compliance with the order in this report.
  2. The Ombudsman recommends that:
    1. the landlord considers introducing a telephone conversation with RTB applicants at an early stage (as per the government guidance on RTB) in order to address queries and avoid post-RTB complications.
    2. the landlord ensures that within its complaints procedure the complainant has an opportunity to challenge any decision via an appeals process as required in the Ombudsman’s Complaint Handling Code.
    3. the landlord reviews its complaints procedure in view of the timescales for response set out in the Ombudsman’s Complaint Handling Code.