Hammersmith and Fulham Council (202013211)

REPORT

COMPLAINT 202013211

Hammersmith and Fulham Council

29 July 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

The resident has complained about:
1. The handling of damp repairs at their previous home.
2. The handling of the decant from their previous home as part of the repairs, including the amount of associated compensation that has been paid.
3. The condition of their new home when let, together with the handling of the associated repairs.

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.
It is agreed by both the landlord and resident that the resident had been raising reports and complaints about the damp in their old home since at least 2017. The landlord proposed using new trial repairs in December 2019 to repair the damp. As part of this the resident was decanted from their old home in January 2020.
The resident ultimately made a formal complaint in November 2020. The landlord responded at stage 1 on 18 December 2020, and at stage 2 on 29 January 2021.
The Housing Ombudsman Service asks that residents raise a complaint about any service they are dissatisfied with within 6 months of the issue occurring. This is to ensure any response from the landlord is timely, relevant and can be based on the most readily available information.
The Housing Ombudsman Scheme states “23. The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion: e. were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.”
Therefore as the resident made their formal complaint in November 2020 this case will only assess the issues and incidents that are related to the decant, the condition of the new property, and the repairs at the new property.
Any complaint about the handling of repairs at the old property prior to December 2019 would have needed to be raised as a formal complaint by the resident with the landlord by May 2020 (or earlier if related to the handling of repairs in 2017/8).
The resident has raised the handling of the original damp repairs, including the impact on their health and the number of missed appointments, in their complaint to the Ombudsman. Unfortunately these issues are outside the jurisdiction of this case.

Background and summary of events

The formal complaints and responses show that both parties agree over the series of events in this case:
1. The resident moved out of their old home to stay at their mother’s home on 13 January. The landlord made the first offer of temporary accommodation on 13 January, which was declined. The resident formally moved out of their old home on 27 January and it was agreed they would stay at their mother’s home during the damp repairs.
2. The resident was offered another property on 28 February. They were told the void works for that property would take until April. The void works were not completed until June however.
3. The tenancy for the resident’s new home began on 15 June 2020.
4. That the resident’s fridge was scratched and a light fitting broken while they were held in storage by the landlord’s contractor.
5. That a number of repairs that should have been completed during the void period for the resident’s home were not completed. The resident had to chase these repairs June to October 2020. By October the outstanding repairs still included:
  1. Replacement bathroom.
  2. Front door repair.
  3. Plasterwork.
  4. Repairing a kitchen leak and associated repairs.
  5. Replacing the boiler and associated pipework.
  6. Surveying reported damp walls.
The landlord accepted that there had been a series of significant failures in its handling of the repairs and the decant. Therefore at stage 1 it:
1. Highlighted the £3955 it had paid the resident as subsistence payments in lieu of a decant property. This was calculated by £35 per day the resident lived with their mother. The stage 1 response noted that the landlord not paid for a period in May-June as well as two days in January. Therefore it stated a further £945 would be paid.
2. Explained that when the subsistence payment is paid, disturbance allowed of £500 plus £100 per bedroom is not paid. The landlord had incorrectly referred to this disturbance allowed and not the subsistence allowance in a February 2020 letter.
3. Despite the resident receiving the subsistence allowance however, the landlord had also processed a disturbance allowance in November 2020 and paid a further £210.12. This was the £700 due minus £489.88 in rent arrears. The arrears are discussed below as the resident disputes whether they should have been charged any rent at the time the arrears developed.
4. Offered £50 for the damaged light fitting.
5. Offered £400 to acknowledge the inconvenience caused by the delays in the damp repairs at the old property; and for the delays in the repairs at the new property that should have been completed during the void period.
The landlord increased its offer at stage 2.
1. It added a further £1000 to its offer for the overall inconvenience the resident had experienced. It also addressed £40 for the damage to the fridge.
2. This meant the combined total compensation offer from the landlord at the end of the complaint process was £1490 (£1400 as a goodwill payment, and £90 for the items damaged in storage).
3. This was in addition to the other payments and contributions noted above in the stage 1.

Assessment and findings

The timetable for the repairs and move is agreed by both parties. The resident has complained however that the landlord’s offer of compensation is not sufficient however. They have asked that the landlord refund the rent it charged on their old property for the period they stayed at their mother’s (January-June 2020).
The landlord does not have to refund the rent however for the January-June 2020 period. Although the resident was not living at the property, the tenancy was still in place, as was their obligation to pay the rent, until June 2020.
When a resident is decanted temporarily for repairs, this is so the landlord can meet its repairing obligations in the tenancy agreement. Just as the landlord is meeting its repairing obligations, so must the tenant meet their obligation to pay the rent. If the resident had moved to a temporary decant property instead of their mother’s home, they would not have had to pay the rent on that second property. They would have continued to pay the same rent as their had for the original property.
Therefore under the tenancy agreement it was reasonable for the landlord to request the payment of the rent for the old property while the resident still had their tenancy for it.
It is important to note however, that the landlord incorrectly offered the resident the £700 disturbance allowance. It did not have to pay this to the resident as it had paid the subsistence allowance instead. Despite this, and given it had offered incorrect advice earlier, the landlord agreed to pay both amounts. As part of the disturbance allowance payment the landlord took away the rent arrears. Therefore the landlord has in effect cancelled those rent arrears by deducting them from a compensation payment it was not due to pay anyway.
The failures in the landlord’s service were:
1. The landlord stated the new property would be ready in April, but it was not ready until June.
2. Despite offering the property in June 2020, the landlord had failed to complete a number of significant works that were due during the void period.
3. Having already not completed the works when due during the void period, the landlord then took too long to complete the various works to the new property with the resident now living there.
4. The landlord did not provide the details of how to claim for any damage against the storage company.
5. The landlord did not correctly calculate the subsistence payments at the time they were due.
The landlord’s repair failures were significant. However equally relevant was the repeated nature of the failures that suggested the landlord had failed to learn from the earlier events.
The Housing Ombudsman Service’s Remedies Guidance states:

“Awards of £250 to £700 – Remedies in the range of these amounts may be for cases where the Ombudsman has found considerable service failure or maladministration, but there may be no permanent impact on the complainant.

Awards of £700 and above – Remedies in the range of these amounts are used in recognition of maladministration / severe maladministration that has had a severe long-term impact on the complainant. Remedies in this range will be appropriate when there has been a significant and serious long-term effect on the complainant, including physical or emotional impact, or both.”

The landlord has offered a total of £1400 for the inconvenience of the repair failures listed above. This is a significant award as suggested by the Housing Ombudsman’s guidance above. Given the scale of the offer (together with the other payments offered) the landlord has made a reasonable offer of redress in response to the complaint.
The landlord has also separately offered compensation for the failure to give advice about the storage company’s process for reporting damages. As this compensation was based on the maximum amount paid by the contractor without an insurance claim, this was a reasonable offer.
The landlord has not referred to the inconvenience caused by its failure to pay the subsistence allowance. It has used its complaint procedure to pro-actively identify the error and put it right. This is the priority of any landlord’s complaint response. While there will have been inconvenience, the landlord has gone above and beyond its policy by offering both the subsistence and the disturbance allowances when normally only one is payable. Therefore although the landlord will have caused inconvenience at the time by not maintaining the correct subsistence allowance, this issue was not specifically raised by the resident and the landlord has paid other, additional compensation. This can be taken as reasonable redress for this error.

Determination (decision)

In accordance with paragraph 23(e) of the Housing Ombudsman Scheme, the complaint about the handling of damp repairs at the previous home is outside the jurisdiction of the Housing Ombudsman Service.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme:
1. The landlord has made a reasonable offer of redress to acknowledge the failures in the handling of the decant from the previous home.
2. The landlord has made a reasonable offer of redress to acknowledge the failures in the condition of the new home when let, together with the handling of the associated repairs.

Recommendations

I would like to recommend:
1. That the landlord confirm in writing with the resident when the repairs identified in the stage 1 and 2 response for this case were completed. The resident has referred to ongoing repairs in 2021. The repair logs refer to new issues (such as a major leak from pipes and associated damage and the windows). These repairs are not relevant to this case. However the landlord should ensure that the offer of compensation in December 2020 was sufficient, and does not need reviewing in light of any further repairs from this case continuing unreasonably in 2021.