Kingston upon Thames Council (202116740)

REPORT

COMPLAINT 202116740

Kingston upon Thames Council

7 September 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

This compliant is about:
1. The landlord’s tailored policy for visits to the property;
2. The landlord’s agent not wearing a face mask during a repair;
3. The landlord’s response to the resident’s reports of a marked window and curtains at the property;
4. The landlord’s response to the resident’s reported communal repairs;
5. 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, in accordance with paragraph 39(o) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. The landlord’s tailored policy for visits to the property.
Around April 2021, the resident complained that the landlord’s policy for multiple operatives to attend during visits to the property was an unnecessary waste of resources. In response, the landlord said the policy was implemented after the resident made several reports that its contractor damaged the property during home visits. It also said the resident’s account of her conversations with the contractor differed from the contractor’s version on a number of occasions. As a result, the tailored policy was necessary to “minimise the risk of additional disputed damages and miscommunication.”
Paragraph 39(o) of the Scheme says the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion, “seek to raise again matters which the Housing Ombudsman, or any other Ombudsman has already decided upon”.
On 1 January 2021, following an appeal from the resident, the Ombudsman determined the landlord was entitled to decide the number of staff members necessary to effectively complete repairs to the property (case 201914481). However, we ordered the landlord to clarify the tailored policy’s terms, including details of its expiry date and appeal process. The landlord complied with the Ombudsman’s order on 25 March 2021 and the matter is therefore closed.

Background and summary of events

Background

The resident is a secure tenant, and her current tenancy began around 2008. The property is a self-contained maisonette in a block. The landlord is the resident’s local authority.
The landlord provided its applicable tenancy conditions document and its repairs policy. No information was seen in either document to show it was obliged to notify the resident prior to completing minor repairs to communal areas.
Landlords are obliged to comply with a statutory process for consulting leaseholders where proposed repair, maintenance or improvement works would cost any leaseholder more than £250. Where this threshold is met, landlords are obliged to invite written observations from leaseholders after detailing the proposed works.
The landlord operates a two stage formal complaints process. Its complaints procedure confirms a full response will be issued within 15 working days at both stages.

Summary of events

The resident exchanged multiple emails with the landlord on 18 May 2021. The exchange began when the resident reported “little white and red spots” on the outside of a recently replaced window. She said they appeared to be paint marks and, since she had not been painting nearby, the landlord should arrange to remove them. The resident also chased an outstanding repair to the building’s roof. She said she was previously told the repair would be completed on the same day as window replacement works to the property.
Soon afterwards, the resident reported the landlord’s contractor had left a dirty mark on her curtains while replacing windows that day. She said she specifically asked the contractor’s operative whether the curtains needed removing prior to the works. However, they were left in place because the operative said removing them was unnecessary. The resident said the curtains needed dry cleaning and she asked whether the landlord would pay. Her email included an image of a marked curtain.
The resident subsequently reported that another of the contractor’s attending operatives was not wearing a face mask. Her email shows the property’s “spy hole” was also replaced that day and two of the contractor’s operatives were in attendance. She said it was the second time she had raised concerns about the contractor’s lack of appropriate face coverings. Further, she was previously assured that the issue would not reoccur.
The landlord’s internal correspondence shows it began investigating the resident’s concerns the same day. The landlord’s contractor subsequently responded to its enquiries over a number of emails. The main points were:
1. The contractor had spoken to its window operative about the resident’s image. They “categorically stated” they had not touched the curtain or caused the mark shown.
2. The resident made similar allegations against the contractor’s operatives on “every” other job it had attended. As a result, the contractor would not accept any further works orders for the resident until the landlord put a process in place to eliminate the risks to its staff.
3. There was “no foundation” to the allegation that the contractor was responsible for red and white spots on one of its previously glazed units. The contractor said it was shocked at the suggestion and that its relevant works had been completed “weeks ago”.
4. The contractor had spoken to its spy hole repair operatives. Its discussions confirmed, contrary to the contractor’s “clear and precise instructions” effective from March 2020, one of the operatives was not wearing a mask. As a result, the contractor would commence formal disciplinary proceedings against the individual concerned. It was sorry this avoidable situation had occurred.
5. The contractor would respond to the landlord’s enquiry about outstanding asphalt flooring works to the building’s roof/balcony area in due course.
The landlord subsequently emailed the resident to relay the key information. Its email prompted her to raise a formal complaint the same day. It concerned the operative’s lack of a face mask, the marked window and curtain, and the landlord’s handling of repairs to lights and roofing in the building’s communal areas. She said the contractor was lying about the damage and had refused to take responsibility. Further, despite reporting the repairs weeks ago, she had not been given any completion dates for the lights or roofing works.
The landlord acknowledged the resident’s complaint on 20 May 2021. It said it would respond to her concerns within 15 working days.
The contractor updated the landlord by email on 25 May 2021. It said it was awaiting further instructions from the landlord after providing specifications and costings for asphalt flooring works to the building’s roof/balcony on 24 May 2021. The landlord acknowledged the email the following day. It said it would advise the resident the works were pending and that the full details would be confirmed in due course.
On 9 June 2021 the landlord issued a stage one response. This was 15 working days after the resident submitted her formal complaint. The main points were:
1. The contractor had confirmed the resident’s concerns about face coverings were correct. It had asked the landlord to apologise to the resident on its behalf. The relevant operative had been spoken to under the contractor’s internal disciplinary procedure. As a result, this aspect of the resident’s complaint was upheld.
2. The window operative rejected any assertion they marked the resident’s curtains. They had removed a net curtain prior to the works at the resident’s request. However, they had advised the resident that the curtains would not be in their way. With hindsight, the operative should have asked the resident to remove her curtains if she was concerned.
3. The contractor had not carried out any painting works, red or otherwise, near the property’s windows. As a result, the landlord was unable to reach an outcome in relation to this aspect of the resident’s complaint. This was broadly on the basis there was no evidence to support the resident’s version of events.
4. On 25 May 2021 two lights were repaired in the building’s communal areas. The repairs were completed within the landlord’s relevant 20 working day timescale. In relation to the roof/fire escape balcony repairs, the landlord was currently unable to provide any commencement dates. This was because it was required to consult the building’s leaseholders, prior to the works, given the costs involved.
5. This formal consultation process was necessary to ensure the landlord could recover a portion of its costs from the leaseholders. This aspect of the resident’s complaint was therefore not upheld.
The resident asked to escalate her complaint in an email the following day. Her main points were:
1. The landlord could not fairly expect the resident to have photographed the curtains prior to the window works. She had assumed the operative would not mark them based on their response to her enquiry about removing them. Further, the operative was unlikely to admit marking the curtains and may not have even realised what happened.
2. The contractor had damaged the property or the resident’s belongings “many” times and it typically denied responsibility. It was unreasonable to expect the resident to document the precise condition of the property prior to any works. In any case, the contractor would still deny responsibility for any issues. For example, it was currently disputing a scratched window frame despite the resident’s images.
3. The landlord had not provided dates for the light repairs and the roof was a health and safety issue. This was because someone could trip over lumps in the roof while trying to escape a fire. Overall, the resident was surprised the repair was taking so long, and that the contractor was charging so much for small section of asphalt.
During her escalation request the resident said “You obviously expect me to take a video of every (contractor) workman who comes to my flat, so I can provide evidence of them damaging my flat”. The landlord later told the Ombudsman, in response to our request for the case evidence, that the resident suggested its visits should be recorded. It also said it failed to address her suggestion in its stage two response. It pointed to the resident’s escalation email as the source of the suggestion.
The resident’s escalation wording suggests she was illustrating a point intended to question the fairness of the landlord’s approach. No additional information was seen to show this was a serious suggestion or that resident wanted it to be addressed as part of her formal complaint.
The landlord issued a stage two response on 30 June 2021. This was 14 working days after the resident’s escalation request. None of the resident’s complaint points were upheld. The main points were:
1. The contractor denied any responsibility for the resident’s marked curtains. However, it had agreed to consider covering the cleaning costs if the resident could provide a relevant quotation. This approach was being offered on a goodwill basis. The resident should not proceed with any professional cleaning unless the contractor approved her quote.
2. The landlord understood the landing light was repaired on 24 May 2021 and the matter was resolved. While it was sorry the resident was not given a date for the repair, the works took place in the building’s communal areas. It was deemed unnecessary to provide the resident with advanced notice because the landlord did not need her to facilitate access for the repair.
3. Repairs to the roof were still outstanding due to the required leaseholder consultation. The consultation was necessary given the estimated cost of the repairs. The consultation process was due to begin in two weeks and residents would be kept informed as required.

Assessment and findings

It is recognised the overall situation is frustrating for the resident. Further, that she has raised similar concerns on a number of previous occasions. In accordance with the above timeline, the Ombudsman did not consider the resident’s comment around filming repairs to be a distinct complaint point that warranted inclusion in the landlord’s final response letter. The resident can raise a new formal complaint with the landlord if she wants to pursue the matter.

The landlord’s agent not wearing a face mask during a repair

The timeline shows the landlord responded appropriately to the resident’s concerns about its agent’s lack of a face covering. This is because it engaged with her concerns and promptly made enquiries with its contractor. Ultimately, its enquiries resulted in the contractor confirming her concerns were correct. It was therefore appropriate that the landlord passed on the contractor’s apology to the resident in its stage one response.
It was noted the contractor said it took internal disciplinary action against the operative based on a breach of its “clear and precise” instructions. Further, that the resident appears to have accepted this outcome given the matter was not included in her escalation request on 10 June 2021. The landlord could have asked its contractor to issue a general reminder that non-compliance with its mask policy would likely result in disciplinary action.
However, given the contractor and the resident’s responses, it cannot fairly be said that the landlord should have done more to address the situation. Given the above, the landlord’s actions were sufficient to put things right for the resident. The landlord therefore offered reasonable redress in respect of this complaint point.

The landlord’s response to the resident’s reports of a marked a window and curtains at the property

In relation to the reported window spots, the resident and the contractor have provided conflicting information. However, no supporting evidence has been seen either way. For example, in contrast to the marked curtains, no images were seen to show the reported spots on the window. Nor was the landlord’s repair history seen to highlight any potential causes. As a result, the Ombudsman is unable to reach any conclusions about the spots. However, we can assess the landlord’s response to the resident’s concerns based on the information seen.
On that basis, the landlord’s response to the resident’s report was reasonable. This is because the landlord’s correspondence shows it took the resident’s concerns at face value and promptly submitted them to the contractor for a response. The contractor’s reply suggests it referred to its previous works schedule when responding. This was reasonable action from the landlord given the circumstances. No information was seen to show it should have made additional enquiries with the contractor based on either party’s response.
In relation to the marked curtains, it was noted the information seen indicates, contrary to the landlord’s tailored visits policy, that the window operative attended the property alone. It is reasonable to conclude this was unlikely to impact the resident since she has consistently argued against this policy. Since there were no additional witnesses to the repair, it was reasonable for the landlord to agree to consider the resident’s cleaning expenses, as a gesture of goodwill, upon receipt of a relevant quotation.
It may help to explain that offering a gesture of goodwill is different to accepting responsibility. Since no information was seen to suggest the landlord should have adopted a different approach, there was no maladministration by the landlord in respect of this complaint point.

The landlord’s response to the resident’s reported communal repairs

In relation to the communal lighting repairs, the information seen suggests they were completed around seven days after the resident’s initial complaint. No information was seen to show the resident disputed the timeline given in the landlord’s stage one response on 9 June 2021. Instead, her escalation request was based on the landlord’s level of communication in relation to the repair. However, the Ombudsman was unable to find any information to show the landlord failed to comply with a relevant obligation to provide the resident a completion date.
With regards to the roofing repair, the information seen shows it also related to the building’s communal areas. No information was seen to show the condition of the roof presented an immediate danger to the health, safety or security of the building’s residents. Nor was any seen to show either the resident or the property was adversely impacted by the duration of the landlord’s response. The wording of her escalation request, around the cost of asphalt works, supports the landlord’s statement that the £250 leaseholder consultation threshold was met.
The landlord’s relevant documentation does not specify a timescale for planned or cyclical works. However, no information was seen to show avoidable errors on the landlord’s part unreasonably extended its response timescale during the above timeline. Nor was any information seen to show the resident was previously given incorrect information about the repair.
Given the above, the Ombudsman was unable to point to any delays or failures relating to either of the communal repairs referenced in the resident’s complaint. As a result, there was no maladministration by the landlord in respect of this complaint point.

The landlord’s complaint handling

This assessment also considered the landlord’s complaint handling. The timeline confirms the landlord issued responses within its relevant timescale at both stages of its complaints process. No information was seen to show it unfairly overlooked any of the resident’s complaint points. Nor was any seen to show it failed to respond to any clear opportunities to learn from the resident’s complaint. Since no complaint handling delays or failures were identified, there was no maladministration in respect of the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect of:
1. The resident’s reports of a marked window and curtains at the property.
2. The landlord’s response to the resident’s reported communal repairs.
3. The landlord’s complaint handling.
In accordance with paragraph 55 of the Housing Ombudsman Scheme, the landlord offered reasonable redress in relation to its agent not wearing a face mask during a repair.

Reasons

By promptly making enquiries with its contractor, the landlord responded reasonably to the resident’s reports of spots on one of the property’s windows. It also agreed to consider the resident’s curtain cleaning expenses on a goodwill basis. This was a reasonable approach given the circumstances.
From the information seen, the Ombudsman was unable to point to any delays or failures relating to either of the communal repairs referenced in the resident’s complaint. Nor were any separate complaint handling delays or failures identified.
The landlord passed the contractor’s apology for its agent’s behaviour on to the resident. Since the contractor confirmed it spoke to the agent under its internal disciplinary procedure, it cannot fairly be said that the landlord should have done more to put things right.

Recommendations

The landlord to review its systems for reported communal repairs. This is with a view to incorporating repair updates to the reporting resident if possible.
The landlord should confirm its intentions in relation to the above recommendation within three weeks of the date of this report.