London Borough of Ealing (202314273)

REPORT

COMPLAINT 202314273

London Borough of Ealing

15 March 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

1. The complaint is about the landlord’s handling of reports of subsidence.
2. The landlord’s record keeping has been investigated.
3. The landlord’s complaint handling has also been investigated.

Background

4. The resident holds a secure tenancy for a ground floor, 1 bedroom flat with the landlord, which is a local authority. The tenancy began in 2010.
5. In September 2022 the resident reported cracks within her property and said that the landlord arranged for an operative to attend.
6. The resident noticed that the cracks were getting worse and reported this to the landlord. On 13 September 2022, the landlord raised a works order for a structural survey and CCTV investigation to be completed.
7. A specialist contractor attended on 30 September 2022 and supplied the landlord with a report on 4 October 2022. The report stated that it had observed high level cracking, low level cracking and an uneven floor. It concluded that following a very dry summer, there is indication that there was shrinkage of the underlying clay soils. It recommended that a further site investigation be carried out, which included coring a hole through the existing floor and test the samples in conjunction with a below ground drainage CCTV survey. Any next steps would be determined following this.
8. On 12 December 2022 the resident contacted her local MP and asked for his assistance with progressing her concerns. She explained that she had not had any contact from the landlord and did not know what was happening following the structural survey. The landlord logged this email as an MP enquiry.
9. On 3 January 2023 the landlord raised a works order for the further site investigation to be completed.
10. On 10 February 2023, the contractor attended the site and conducted a site investigation and CCTV survey. The investigation was stopped as material was found which was suspected asbestos.
11. On 17 February 2023, samples were taken and tested for asbestos. The tests identified that the material was not asbestos.
12. On 9 March 2023 the resident raised a stage 1 complaint to the landlord, the resident said:
    1. That she had reported subsidence in September 2022, but was not kept informed about what was happening.
    2. As she did not get a response from the landlord, she contacted her MP for assistance.
    3. An inspection happened in February 2023, but she had not heard anything from the landlord.
    4. That despite employees saying that the property was structurally safe, she was scared to live within the property with her young son. The fixtures were unstable and mould had also formed.
13. On 20 March 2023, the landlord provided its stage 1 response, where it said that its consulting structural engineer had confirmed that it was scheduled to reattend on 28 March 2023 to continue its investigations and provide its recommendations. It would then be able to resolve the structural defects that were affecting the building and apologised for the length of time it was taking to resolve the matter and inconvenience caused.
14. On 31 March 2023, the contractor returned to the block and continued its investigations. On 24 April 2023 it provided the landlord with a comprehensive and detailed report. The report confirmed that it had carried out an internal ground investigation within the property, external investigations and a CCTV survey. It recommended that consideration should be given to 2 remedial options for the floor. It also suggested consideration be given to underpinning the foundations.
15. On an unknown date the resident escalated her stage 2 complaint, where she explained that she had not received a response from the landlord, despite chasing it up and wanted a clear plan of what steps were going to be taken to rectify the issues.
16. On 26 May 2023, the landlord provided its stage 2 response which said that:
    1. Its contractor attended on 10 February and 31 March 2023.
    2. The recommendations would be reviewed by the relevant team for consideration to be included for budget approval, which would allow the remedial works to be procured and completed in the current financial year.
    3. It would be unable to give the resident a definitive timescale of when the works would be completed but would provide her with an update as soon as it was able too.
    4. In recognition of the delays and inconvenience in pursuing the complaint, the landlord offered £150 compensation.
17. On 26 June 2023 the resident contacted the Ombudsman and said that she was felt unsafe within her home and requested further assistance. On 3 August 2022, the resident confirmed that in order to resolve her complaint, she wanted the work to be carried out so that she felt safe within her home and reimbursement for rent as the property was not in liveable conditions. She further explained that the work and issue had a detrimental impact on her mental health and wellbeing.
18. On 5 August 2023, the resident further informed the Ombudsman that as a result of the subsidence she was experiencing sewage coming through the floor, the boiler was on a wall that was cracked, there was mould and the situation had gotten so bad she was sleeping on her parent’s sofa.

Assessment and findings

The Ombudsman’s approach.

19. The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure.
20. When investigating a complaint, the Ombudsman applies its dispute resolution principles. These are high-level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:  
    1. Be fair – treat people fairly and follow fair processes  
    2. Put things right, and  
    3. Learn from outcomes.
21. The Ombudsman must first consider whether a failing on the part of the landlord occurred and, if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Scope of investigation.

22. Within the resident’s email dated 5 August 2023, the resident raised issues with the Ombudsman which were not brought to the landlord’s attention as part of the landlord’s complaint process, which include sewage coming up through the flooring and cracked skirting.
23. In accordance with paragraph 42(a), the Ombudsman is unable to consider complaints about matters which have not yet exhausted the landlord’s internal complaints procedure. For this reason, the Ombudsman has not considered the above issues.
24. The resident should report any required repairs to the landlord. If the resident is dissatisfied with the landlord’s handling of the further repairs she can raise a new complaint about this to the landlord. If she remains dissatisfied with the landlord’s final response to their new complaint they may be able to refer the matter to the Ombudsman. 

The landlord’s handling of reports of subsidence

25. The resident is a secure tenant of the landlord, which means the landlord has a legal and contractual obligation to maintain the resident’s home. It must ensure it completes the repairs it is responsible for within a reasonable timescale.
26. The repair’s handbook confirms that the landlord is responsible for all repairs to the structure and exterior of its buildings. It further confirms that major repairs are classed as those that are complicated, and timescales will depend on the nature of work involved.
27. The resident says that she first reported an issue with cracking in September 2022, for which the landlord raised a repair for a plasterer to attend and repair. She says that when she noticed the cracks were getting worse, she reported this to the landlord, who sent a surveyor out to the property to assess.
28. The landlord’s records are very basic, and it has not been able to provide any evidence to show when the resident first reported the issue, or any follow up contact. However, there is a works order dated 13 September 2022, which the landlord raised for a structural survey to be completed. This is in line with the resident’s timeline of events.
29. Following the contractor’s site visit on 30 September 2022, it provided the landlord with its initial findings, which recommended a further visit to collect and test samples of soils and a CCTV survey. Although there is no definitive evidence, it is reasonable to conclude that the landlord accepted the recommendations, as it issued a Section 20 Notice of Intent on 23 November 2022, which lasted until 22 December 2022. (This notice would have been issued to leaseholders of flats in the block to consult them about the landlord’s intention to carry out major works for which they would be asked to pay.)
30. The resident said that she contacted the landlord on numerous occasions for an update following the inspections. However, there is no evidence to show that it made any contact with her to update her on the findings, the next steps or what she could expect. Had the landlord been in contact with the resident, it might have alleviated the distress she was experiencing while living in the property.
31. In December 2022, the resident contacted her local MP to seek assistance with obtaining answers from the landlord. While there is information to show that it dealt with the email as an MP enquiry and informed the MP’s office that it would contact the resident to provide her with an update, there is no evidence to show it did this. This would have further exacerbated the resident’s frustrations, as despite her efforts to obtain an update from another avenue, she was no further forward in obtaining answers. 
32. While the landlord has been unable to provide full and detailed evidence in relation its communications with the resident, it was able to provide the contractor’s various site investigation reports and findings.
33. Following a second site visit in February 2023, whereby it came across an unexpected issue with suspected asbestos and service pipes, the contractor again revisited in April 2023 and made further recommendations. While there is no clear audit trail, as the contractor returned it is reasonable to conclude that the landlord was actively reviewing the information it received from the contractor and acting upon the recommendations. Furthermore, the landlord also informed the Ombudsman that it has applied for money to be set aside to carry out the works within 2024/2025 budget.
34. The Ombudsman is satisfied that the actions the landlord has taken in relation the reports of subsidence within the property were appropriate. The landlord took the appropriate steps and appointed a specialist contractor to carry out extensive tests and acted upon the recommendations given. It has further applied for money to be allocated to the block for the works to be carried out.
35. Reports of subsidence can be complicated and the landlord’s decision to appoint a specialist structural contractor was a reasonable step to take. Structural contractors have expert knowledge and are qualified to inspect the structure of a property and confirm whether the property is safe to live in. The issue lies with the lack of communication the landlord gave the resident.
36. The Ombudsman acknowledges that the landlord might not have been able to give the resident a definitive timescale given the extension budget required, but it should have taken more proactive steps to listen to the resident and try to lessen the distress she was experiencing. As this did not happen, a finding of maladministration has been made.
37. In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
38. The landlord offered £150 in relation to the delays and inconvenience whilst pursuing her complaint, which is the maximum amount it can award in line with its compensation policy, but the Ombudsman does not feel that this fairly reflects the distress and inconvenience that the resident has experienced.
39. The landlord was aware that the resident felt unsafe within her property and was concerned about the effects it may have on her young child. The resident explained that the subsidence had caused mould to develop within her property, and that some of her fixtures were unsafe. There is no evidence to show that the landlord took any action to address this and this left the resident feeling vulnerable within her property.
40. Furthermore, she sought answers from her MP and the internal complaints process, but the landlord failed to take appropriate steps to reassure the resident, nor did it keep her informed of the steps it was taking and what she could expect.
41. In line with the Ombudsman’s guidance on remedies, where there has been a failure which the landlord has made some attempt to put things right but failed to address the detriment to the resident then payments from £100 are recommended. In recognition of the landlord’s failure to communicate with the resident effectively, the landlord is ordered to pay the resident £400.

The landlord’s record keeping

42. As outlined above, it is concerning that the landlord has not been able to provide the Ombudsman with evidence of the resident’s contact, along with detailed repair history and any internal communication. The landlord was given multiple opportunities to provide copies of its internal records, but confirmed that it was unable to do so, aside from what it already had provided.
43. The Ombudsman’s spotlight report on knowledge and information management states that “good knowledge and information management is crucial to any organisation’s ability to perform and achieve its mission…If information is not created correctly, it has less integrity and cannot be relied on. This can be either a complete absence of information, or inaccurate and partial information… The failings to create and record information accurately results in landlords not taking appropriate and timely action, missing opportunities to identify that actions were wrong or inadequate, and contributing to inadequate communication and redress. Incorrect information can also cause real detriment…[and] contribute to an increased risk to a resident’s health and safety…[Vulnerabilities] may also mean that reasonable adjustments are appropriate to actively prevent harm or distress.”
44. The spotlight report therefore recommends that landlords take steps to improve their knowledge and information management, including by implementing a strategy for this, benchmarking against other organisations’ good practice, reviewing internal guidance around recording vulnerabilities, and conducting appropriate staff training.
45. It is of concern that there is no indication that the landlord has taken such steps to do so in light of its poor record keeping in the resident’s case, as outlined above. A recommendation to do so has been made, below.

The landlord’s complaint handling.

46. The Ombudsman’s Complaint Handling Code April 2022, (the Code), paragraph 5.6 specifies that landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law, and good practice where appropriate.
47. The resident explained within her stage 1 complaint that she felt scared to live in the property with her young child, there was mould forming and although staff had told her that her property was safe to live in, she did not feel that way living within the property.
48. In line with point 5.6 of the Code, the landlord should have addressed the resident’s complaint points fully. This did not happen as it failed to acknowledge the concerns and further issues the resident says she was experiencing as a result of the subsidence. The response also failed to acknowledge the way the resident felt and the distress that the issue was having on her.
49. The Ombudsman would expect to see the landlord actively listening to the resident’s concerns and providing reassurance and taking steps to address the issues she was experiencing within her home.
50. The resident escalated her complaint following the second structural inspection and further expressed her dissatisfaction with the landlord’s lack of communication with her, and she wanted someone to tell her what steps it was going to take to rectify the issue.
51. While the landlord responded and confirmed that it was unable to give a definitive timescale as to when it could complete the works, which was fair in the circumstances. It again failed to provide the resident with any reassurances or confirm what steps it would take to try and alleviate the distress she was experiencing, which was a further missed opportunity for the landlord.
52. The Ombudsman would expect to see a landlord applying its dispute resolution principles (be fair, put things right and learn from outcomes), conducting a thorough investigation at all stages of the complaint process and attempting to put things right for the resident. The landlord failed to do this and this amounts to maladministration and will attract compensation.
53. In line with the Ombudsman’s remedy guidance, where the landlord has not acknowledged its failings, a payment of over £100 is recommended. The initial stage 1 response did not provide her with any reassurance regarding the distress she was experiencing. When she escalated her complaint, she also received a poor response at stage 2, which would have added to the resident’s frustration. The landlord missed a vital opportunity to rebuild the landlord resident relationship, and therefore an order of £200 has been made.
54. The landlord has additionally been recommended below to review its staff’s training needs with regard to record keeping, complaint handling and remedies, including in light of the findings of this report, the Housing Ombudsman’s Complaint Handling Code, and our remedies guidance.

Determination

55. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s:
56. Handling of reports of subsidence.
57. Record keeping.
58. Complaint handling.

Orders and recommendations

59. The landlord is ordered to write to the resident and apologise for the failings identified within 4 weeks of the date of this determination.
60. The landlord is ordered to pay the resident a total of £600 within four weeks of the date of this report for:
    1. £400 for distress and inconvenience caused as a result of the landlord’s handling of reports of subsidence.
    2. £200 for failure with the complaint handling.
61. The landlord is ordered within 4 weeks of the date of this report to arrange to attend the property and carry out a full inspection in relation to damp and mould, unsafe fixtures within the property and the current internal condition. The landlord is ordered to share the results of the inspection and provide a detailed timetable for the remedial works with the resident and this Service within 2 weeks of the inspection.
62. It should also consider if the property is fit for habitation while the works are outstanding and, if not, whether a decant would be appropriate.
63. The landlord is ordered to write to the resident within 4 weeks to confirm the current position in relation to the structural works.
64. It is recommended that the landlord:
    1. Review its record keeping practices in relation to inspections, repairs and residents’ vulnerabilities, including in light of the findings of this report and the Ombudsman’s spotlight report on knowledge and information management.
    2. Review its staff’s training needs with regard to record keeping, complaint handling and remedies, including in light of the findings of this report, the Housing Ombudsman’s Complaint Handling Code, and our remedies guidance.