Optivo (now Southern Housing) (202205984)

REPORT

COMPLAINT 202205984

Optivo (now Southern Housing)

18 January 2024

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 handling of:
1. the resident’s concerns about the condition of the property when it was let to them, including issues with the flooring.
2. the repairs to the flooring in the property since July 2021.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident is an assured tenant of the property, which is a 2-bedroom flat located on the 7th floor of the building.
On 27 November 2020 the resident complained to the landlord about the condition of the property when it was let to her. The landlord issued a response at both stage 1 and 2 of its complaint process. In its final response in June 2021, it apologised for the issues the resident had experienced when moving into the property and reimbursed her 6 weeks rent. It said that was to cover the period the resident felt unable to occupy the property. As part of its response, it acknowledged that the flooring was uneven due to water ingress. It said it had identified similar issues in several properties and the resident would be contacted regarding the repairs.
The resident contacted the landlord on 21 September 2021 to say that she was still struggling to get the flooring replaced and that the balcony door was still not fixed. She said she had contacted it several times and it was unacceptable as it had been ongoing for a year. A surveyor attended on 20 October 2021 and raised a job to repair the flooring in the hallway and kitchen. The resident was unhappy with this as she said the floor needed replacing as it was not safe.
The landlord informed the resident on 29 January 2022 that it had issues sourcing the flooring and it would need to liaise with another contractor. The resident responded to say it was becoming unreasonable and that it had been ongoing for 14 months. She said she had asked the landlord for updates on several occasions. She said she has had 4 surveyors visit and that one said it was a health and safety issue. The resident said another surveyor felt there was still water under the flooring from a flood which took place prior to her moving in and that was why it kept lifting. She said the last surveyor said it needed to be replaced. The resident said she wanted to raise a formal complaint.
The resident contacted the landlord on 16 February 2022 to complain about the condition of the property when it was let to her. She said prior to her tenancy there had been a burst pipe in the bathroom which resulted in water damage to the bedrooms, hallway, and kitchen. She said there were damp patches on the wall, that she had a hole in the hallway floor on which she had cut her foot several times, and that she was told to “put slippers on”. She said that to date she had been unable to move into the property and was living with family. She asked for matters to be dealt with urgently and the rent to be repaid until she could move in.
In its stage 1 response on 16 March 2022 the landlord apologised for the resident having cause to complain. It said only the hallway floor was affected and no other flooring. It said normally residents had full responsibility for the flooring and said this was in the tenancy agreement. It recommended that the resident held contents insurance to protect against damage to the flooring if there was a leak. The landlord said there were delays due to the pandemic, the resident having COVID-19, and mixed communication internally. It said the main reason for the delay was because it never undertakes works to flooring. It said the repair never got raised and apologised for the error. The landlord concluded by saying it had now raised the repair and agreed to a complete replacement. It said this would be a considerable cost and would be reasonable to be viewed as compensation. It said it would keep the resident updated moving forward.
The resident disagreed with the response. She said that there had been no thought to her wellbeing and complained about being passed between departments making it difficult to ascertain what was happening. She disputed that her having COVID-19 caused a delay as the landlord did not attend the appointment and she had to call to rearrange it. She said no insurance would cover the damage to the floor as it occurred prior to her tenancy and that the landlord’s insurance should have been used to repair the structural damage. She escalated the complaint to stage 2 on 23 March 2022.
The landlord provided its stage 2 response on 23 June 2022 which stated the following:
1. That the resident had previously complained about the condition of the property when she moved in, which included issues with the floor. It said it acknowledged the standard of the property was unacceptable at the time and reimbursed her £1,160.40.
2. A surveyor inspected the property on 20 October 2021 and reported the flooring was loose in the hallway and bathroom. It said orders were raised to carry out the repairs. It said following this there was a change in contractor and delays in completing the work. It said the work was completed on 6 May 2022.
3. It did not agree to all the flooring being changed as it was not required. The resident refused to accept the works unless it changed all the flooring, which contributed to the delay. It said a surveyor would reinspect the flooring on 6 July 2022.
4. There was no evidence to suggest the property was uninhabitable. It was unable to agree to the request for all rent and outgoings to be refunded.
5. The time taken from the repair being raised in October 2021 to it being completed on 6 May 2022 was unreasonable. It offered £500 and said the compensation covered all service failure and inconvenience related to the resident’s complaint.
6. It outlined the lessons it learnt from the experience which were to take ownership of repairs and communicate with contractors efficiently. To carry out a post inspection to ensure workmanship was completed to standard. Improve communication during works keeping residents fully updated with progress.
The resident remained dissatisfied with the response and referred her complaint to the Ombudsman. She said that there had been numerous issues since the beginning of her tenancy, that there was a hole in her flooring, and the walls were damp. She wanted to be reimbursed for her rent, costs of alternative accommodation, storage of furniture, utility bills, and compensation for the stress and ill health caused.

Assessment and findings

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 42b of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
1. the resident’s concerns about the condition of the property when it was let to them, including issues with the flooring.
In her complaint to the Ombudsman, the resident has raised issues related to the property not being suitable for occupancy. The resident raised a formal complaint regarding this and the landlord provided stage 1 and 2 responses in 2021. In view of the time periods involved in this case, the acceptance of compensation offered at stage 2, and the resident not raising her dissatisfaction with the Ombudsman at the time, this investigation has not considered any of the issues which were responded to in the first stage 2 response.

Scope of the investigation

The historical issues outlined above provide contextual background to the current complaint, but the assessment is focused on the landlord’s actions to the more recent events, specifically, the repair to the flooring following the first stage 2 response from July 2021.
The resident has referred to her health and that the landlord’s handling of the repair could have had an impact on this. It is beyond the remit of the Service to determine whether there would have been a direct link between the actions or lack of action by the landlord and any subsequent impact on the resident’s health. The resident may wish to seek legal advice on making a personal injury claim if she wishes to pursue this. Although we cannot assess the impact of the landlord’s actions on the resident’s health, consideration has been given to the distress and inconvenience which the resident experienced as a result of the situation affecting her property.

Policies and procedures

The tenancy agreement outlines the landlord’s repair responsibilities are to keep the structure and outside of the property in a reasonable state of repair and proper working order. This includes outside doors, floors, ceilings, and doorframes, but not painting and decorating. It states that the resident is responsible for installing and maintaining all floor coverings in the property which are situated above another property. It said it does not consider laminate or wooden flooring to be an appropriate floor covering.
The landlord’s void lettable standard states that laminate flooring may be left in situ for ‘gifting’ to the incoming customer providing it is in good and serviceable condition and is not directly above a habitable room in another dwelling, otherwise it should be removed.
The landlord’s repairs policy states that if the repair is not an emergency it will arrange an appointment for as soon as possible and a time to suit the resident. It aims to complete all repairs in one visit and wants it to take as little time as possible.
The landlord’s compensation policy does not include claims which are refunds of rent. It states that where it is responsible it will consider service failures as reasons for compensation. This includes missed appointments, failure to repair, and quality of repair.
The landlord’s complaints policy states that on receiving a complaint it will confirm receipt within 24 hours. It aims to issue a stage 1 response within 10 working days. If the complaint is escalated to stage 2 it states that it will hold a review panel.

The landlord’s handling of the repairs to the flooring in the property since July 2021.

The landlord confirmed that the flooring was uneven due to water ingress and said it had identified a number of properties with similar issues throughout the building. It said the resident would be contacted by 14 July 2021 in relation to the repairs to the flooring. It did not specify which flooring this related to within the resident’s property or how it would be dealt with. By not doing so, this did not manage the resident’s expectations in relation to what to expect from the repair. If the resident was provided with that information and remained dissatisfied, then she could have approached the Ombudsman sooner.
It is not for the Ombudsman to determine whether the flooring was a health and safety issue. However, as the landlord confirmed that the flooring was uneven, which is a potential health and safety hazard, it should have demonstrated it considered this. It would have been reasonable for the landlord to have assessed the most appropriate action to protect against any potential accidents. This is in line with its obligations as a landlord and with the good practice in the housing health and safety rating system (HHSRS). There is no evidence of the landlord explaining its position regarding the safety of the flooring. This was likely to be unsettling for the resident, who was clearly concerned.
The resident contacted the landlord for an update regarding the flooring on 8 July 2021 and the landlord responded on 16 July 2021 to say that it will “check up on the flooring”. The resident contacted the landlord again on 21 September 2021 to say that she had contacted the landlord 10 times and was told she would receive a callback within 24 hours, which never happened. It was not acceptable that the landlord did not contact the resident as agreed and that the resident had to chase the landlord on several occasions for a response.
The resident contacted the landlord following a visit from the surveyor on 20 October 2021. The resident said she was told that the flooring would be repaired and not replaced as originally agreed by a previous surveyor. She said the surveyor said there was an issue with the cost. While we do not doubt the resident’s comments, the Ombudsman cannot establish any evidence to support this from the information provided. The Ombudsman must rely on contemporaneous documentary evidence to ascertain what events took place and reach conclusions on whether the landlord’s actions were reasonable in all the circumstances. In this instance, there was no written record of the landlord recommending that the flooring needed to be replaced. However, by not providing a response to the resident, the landlord missed an opportunity to explain the decisions made.
From the information provided, there had been more than one contractor attend the property in relation to the flooring. It was appropriate for the landlord to rely on its qualified staff and contractors if they determined that the flooring was not in full need of replacement. However, it is difficult to determine from the records when this was initially decided and who by. If a contractor had incorrectly shared information with the resident, the landlord should have explained to the resident why it was incorrect. The landlord did not sufficiently clarify this for the resident and the conflicting information would be frustrating.
In its stage 1 response, the landlord’s response is confusing and contradicts itself on more than one occasion. The delays were related to the job not being initially raised and internal disagreement regarding what the landlord was responsible for. The landlord said the main reason was because it would never undertake works to flooring. It concluded by saying that its head of department had intervened and agreed to do a complete replacement. The response did not provide reassurance to the resident that it had done or would effectively handle the repair moving forward.
The resident escalated her complaint highlighting that she had been passed around between departments and it was difficult to ascertain what was happening. The Ombudsman agrees that the landlord’s correspondence is indicative of a disorganised and confusing approach. The landlord should ensure that residents are provided with a cohesive service which is not adversely affected by different teams being involved.
Upon reviewing the landlord’s correspondence and record keeping in this case, the Ombudsman finds that there has been a lack of effective internal collaboration, which resulted in an adverse effect on the resident. The landlord acknowledged learning in respect to some areas, but it did not go far enough in addressing why there was so much internal confusion around the repair.
The landlord said that normally residents would have full responsibility for the flooring but it knew there was complications at the resident’s property with the construction being such a high specification. It is unclear whether the landlord was stating that the flooring should have been the resident’s responsibility and if so, the landlord should have explained this to the resident from the first report of the issue. The laminate flooring was left by the previous tenant, and the landlord should have confirmed at the start of the tenancy whether it had any maintenance responsibility for the flooring. Ultimately, as the landlord had agreed to conduct repairs to the flooring during the previous year, it would be appropriate for it to commit to that.
In its stage 2 response the landlord said that the flooring works were completed on 6 May 2022. It said that it did not agree to all flooring being changed as it was not required. It said a surveyor would inspect the flooring on 6 July 2022 and that there was no evidence to suggest the property was uninhabitable. It offered £500 for the delays. While the landlord’s repair policy did not outline specific timeframes for repairs to be undertaken, it took 217 working days from 1 July 2021 to 6 May 2022 when the works were completed. This was an unacceptable and avoidable delay.
Alongside the conflicting information to the resident was the conflicting information within the landlord’s policies. The tenancy agreement stated that the resident was responsible for installing and maintaining all floor coverings. It also said that it did not consider laminate or wooden flooring to be an appropriate floor covering. From the repair notes laminate flooring was installed in the property prior to the resident moving in. The landlord’s void lettable standard also stated that laminate flooring may be left for ‘gifting’ to the incoming customer providing it is in good and serviceable condition. From the policies provided, it is unclear whose responsibility it was to maintain the flooring and whether the laminate flooring should have been left in the property.
In its complaint responses, the landlord acknowledged that there were service failings in its repairs. It also acknowledged that the resident experienced delays and inconvenience in completion of the works. It acted appropriately by apologising to her and offering compensation. It was also positive that that it identified relevant lessons from the experience.
The Ombudsman will not make a finding of maladministration where a landlord has offered suitable redress to resolve a complaint. The landlord’s response and offer reasonably addressed its acknowledged failings and most of the complaint. However, there are aspects of its response which were not satisfactory. Unfortunately, it did not account for its poor record keeping which would have led to the confusion around the repair, nor did it consider its responsibilities from a health and safety perspective. As a result, the Ombudsman has found service failure in the landlord’s handling of the repairs to the flooring since July 2021.

The landlord’s handling of the complaint.

The landlord did not respond to the complaint in line with its policy which states it will acknowledge the complaint within 24 hours and respond within 10 days. The resident submitted her formal complaint on 29 January 2022. There was no acknowledgement to the resident upon receiving the complaint. The resident complained to the landlord again on 16 February 2022 outlining all the issues she was having with the property and asked for them to be dealt with urgently. Again, there was no acknowledgement of this complaint, however it appears the landlord treated the email on 16 February 2022 as the formal complaint.
On 9 March 2022 the landlord informed the resident she would receive a response by 15 March 2022. By the time the landlord acknowledged the complaint it should have already responded. The landlord provided its stage 1 response on 16 March 2022. This was 32 working days after the resident had submitted the complaint in January 2022.
In its stage 1 response the landlord did not address all the issues raised within the resident’s complaint. It summarised the complaint from the resident as related to “delays in the flooring works being carried out and the fact you are unable to use your home”. The landlord did not provide a response to the issues the resident raised which related to her feeling she was unable to use her home. The resident had brought up these issues, so she had a right to expect the landlord to respond to them. By not addressing all the issues within the complaint, the landlord did not seek the opportunity to resolve the complaint at the earliest opportunity.
The language used in the stage 1 response was inappropriate. The landlord apologised for the resident having cause to complain, instead of apologising for its own mistakes. It also stated that as the replacement of the flooring would be a considerable cost, it felt it would be reasonable to view that as compensation. It is still not clear what responsibilities the landlord had regarding the flooring. It appears that by agreeing to carry out the works, it felt that would be sufficient compensation for the delays, the lack of communication, and the additional issues raised which it did not respond to. It could have better demonstrated that it was clear about what its obligations were and what failings had occurred. This would show the resident the landlord wanted to fix the problem and repair the landlord and tenant relationship. The landlord’s choice of words was unsympathetic and did not consider the distress and inconvenience caused to the resident.
The landlord said it recommended that residents hold contents insurance to protect residents against damage to flooring if there was a leak. While this is generally good advice, in this instance, it was inappropriate as the damage to the flooring took place prior to the resident moving in. The Ombudsman’s guidance on insurance sets out that if a landlord disputes that it has been at fault, it is reasonable for it to follow its policy for such claims and it can refer the resident to its own insurer. This is because an insurance claim will establish negligence and / or liability to pay.
The resident escalated her complaint via a review panel request form on 23 March 2022. The landlord informed the resident that a review panel would take place on 1 June 2022 and the stage 2 response was issued on 23 June 2022, 3 months after the complaint was escalated by the resident. While the complaints policy did not outline a timeframe for when the review panel should take place, the timeframe in providing a stage 2 response was unreasonable. By not providing the stage 2 response sooner, this prevented the resident from bringing her complaint to the Ombudsman earlier.
In its stage 2 response the landlord outlined that the resident had previously made a complaint about the condition of the property, that the landlord acknowledged the property was not acceptable, and reimbursed the resident. It was appropriate for the landlord to highlight that it had already considered the resident’s complaint regarding the condition of the property and that it appeared the resident accepted the response at the time. The landlord’s response referred to repairs to the flooring which took place following the initial complaint in 2021, which again was the appropriate step to take in handling the resident’s complaint. It would have been helpful to have seen this in the stage 1 response, as by outlining which elements of the complaint the landlord can respond to, this then helps to manage the resident’s expectations.
In her formal complaint and stage 2 escalation, the resident referred to damp patches in all the rooms, having to deal with mould which extended halfway up the walls next to the bathroom, and having to replace the carpet because it smelt of the damp. While there is an expectation that the resident should have raised these issues as a repair, there is also an expectation that the landlord would have addressed this in its stage 1 and 2 responses.
The landlord has responsibilities under the HHSRS and the Landlord and Tenant Act 1985 to ensure that the property is fit for human habitation. This includes ensuring the property is free from damp and mould. The landlord was already aware of damp and mould issues within the property, as shown in its inspection during the void period. While treatment was carried out at the time, it is not unreasonable to assume that the issue may reoccur, especially upon finding that the flooring was still impacted due to previous water damage. The landlord’s inaction within its complaint response left this issue unresolved. The resident has since stated that she paid for her own damp proofing treatment which had resolved the issue.
While the landlord made an offer of compensation for the flooring it did not address the failures in its complaint handling. It also did not sufficiently address the distress caused by the resident by having to continually chase the landlord and deal with conflicting information. The language used in the stage 1 response was inappropriate and the landlord failed to respond to all the issues in the resident’s complaint. As such, the Ombudsman has found maladministration in relation to the landlord’s complaint handling.

Determination

In accordance with paragraph 42b of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
1. the resident’s concerns about the condition of the property when it was let to them, including issues with the flooring.
In accordance with paragraph 52 of the Scheme, there was:
1. service failure in the landlord’s handling of the flooring in the property since July 2021.
2. maladministration in the landlord’s handling of the complaint.

Orders and recommendations

Orders

The landlord is ordered to review its record keeping in line with the Ombudsman’s Spotlight report on Knowledge and Information Management published in May 2023, and provide the Ombudsman with evidence of how it has considered the recommendations set out in the report.
The landlord is ordered to review its tenancy agreements and policies related to void standards to ensure there is no conflicting information. It should consider whether additional action is required when conducting void inspections of properties which have suffered significant water damage.
The landlord is ordered to complete an inspection of the flooring in the resident’s property to ensure that there are no health and safety risks associated with the water ingress which occurred prior to the resident moving in. The landlord should then write to the resident to confirm its findings and explain its position in relation to any further work required.
The landlord is to pay the resident a total of £800 compensation comprising of:
1. £500 it previously offered the resident for the delays in carrying out the repair and any inconvenience caused as a result if it has not already done so.
2. £100 for additional failings identified in its handling of the repair.
3. £200 compensation, in recognition of the resident’s distress, time and trouble caused by the failures in its complaint handling.
The landlord is to provide compliance with the above orders within 6 weeks of the date of this report.

Recommendations

The landlord should review the Housing Ombudsman’s Spotlight report on damp and mould and consider how it can apply the recommendations in the report to its current policies and procedures. This is to ensure future reports of damp and mould are responded to effectively in appropriate timescales.
The landlord to consider the costs incurred by the resident for the damp treatment carried out within her property and consider reimbursing her as a goodwill gesture.
If the landlord is aware of any grants which could assist with the costs of moving the resident’s furniture out of storage (the resident has suggested it is), it should provide the resident with this information.