London Borough of Barking and Dagenham (202117636)

REPORT

COMPLAINT 202117636

London Borough of Barking and Dagenham

11 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:
1. Handling of repairs at the resident’s property.
2. Handling of reports of pest infestation.
3. Decision to offset rent arrears from the resident’s home loss payment.
This Service has also considered the landlord’s complaint handling.

Background and summary of events

Background

The resident was a secure tenant of a local authority landlord and occupied a 1 bedroom third floor flat. The tenancy started on 16 April 2007. The tenancy at the property the resident has complained about ended on 17 October 2021.
The property and the surrounding area was subject to major redevelopment and a renewal programme. As part of the redevelopment and renewal scheme, it was agreed that residents would be permanently decanted from the affected properties, which included the resident who brought this complaint.
According to the information provided by the landlord, the resident’s property was in phase 4 of the redevelopment and decants would commence in December 2021.

Scope of investigation

The resident has explained that she had been reporting repairs issues to the landlord from 2015 and has provided emails she sent to the landlord on 29 September 2016 and 4 October 2016, explaining the disrepair and the impact on her health. We acknowledge that given that the block the resident lived in was due for regeneration it is likely that there would have been some disrepair. However, this Service can only investigate specific concerns and complaints brought to the landlord within a reasonable period of time from when the issue first occurred.
The Ombudsman’s remit does not extend to investigation of historical issues, as a resident is expected to raise issues with both the landlord and Ombudsman in a timely manner. As such, this investigation is focused solely on the events that progressed through the landlord’s complaints procedure that commenced shortly before 1 November 2021 and ended on 14 June 2022, which is the date this Service is satisfied marked the end of the landlord’s complaint process.
The resident has explained that the disrepair adversely impacted her health. The Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more appropriately dealt with as a personal injury claim through the courts or the landlord’s liability insurer (if it has one). This is a legal process and the resident should seek independent legal advice if she wants to pursue this option.

Summary of events

The property repairs history report provided by the landlord showed the repairs history for the period between 16 June 2020 and 9 May 2022. It showed that on 16 June2020 there was no hot water to the property and that there was an issue with the communal electricity. It is not clear from the repairs log who reported the issue, but it does show that the job was completed on 19 June 2020. The repairs log also showed that the landlord assigned a job to repair a window on 12 November 2020 and it was completed the same day.
On 18 December 2020, the resident reported a faulty fluorescent tube. The job was issued with a 20-day timescale. The repairs log showed that the job was assigned on 2 February 2021 and completed on 5 July 2021.
On 21 August 2021, the resident made an out of hours call to the landlord to report that the kitchen sink was back surging and that she could not stop it. The job was logged as an emergency 4-hour call and from the information on the repairs log, an operative attended the same day and marked the job as complete.
On 4 October 2021, the resident reported a leak into her bedroom, kitchen and bathroom from the property above since the early hours of that day. The notes showed that the water was leaking out of the ceiling in the bathroom and running down the bedroom and kitchen walls. According to the notes it had been 24 hours since the resident reported the issue and no one had attended.
An operative attended the property as an out of hours call the same day, and, according to the summary on the repairs log, found and isolated a leaking washing machine valve connector at the property above. Another operative attended the same day to make safe the bathroom light and the switch. The repairs log showed that the operative disconnected the light and light switch and made a note that the bathroom light and pull cord would need to be renewed once the source of the leak was found and the area dried out. The notes showed that the job was completed on 5 October 2021 and the light was reinstated on 11 October 2021.
On 7 October 2021 a job was issued for a painter to attend the property and carry out a mould treatment caused by an ongoing leak, which had been remedied. The operative attended on 15 October 2021, and according to the notes on the repairs log was told by the resident not to do the job as she was imminently moving to a new property.
On 12 October 2021, the landlord emailed the resident thanking her for the telephone conversation and confirmed details of a property viewing. The following day the resident confirmed with the landlord by email that she had accepted the property. There was a further email exchange where the landlord confirmed that it would allow the resident 3 weeks to transfer to the new property. It explained that it would be in touch to arrange a removal date and to confirm the home loss payment.
On 15 October 2021 the resident telephoned the landlord to request that it reduce her rent arrears to reflect the ongoing disrepair issues she had experienced at the property. The landlord advised that any outstanding rent arrears would be deducted from the home loss payment she would get when she moved.
The landlord has provided a copy of an online pest control booking made by the resident on 31 October 2021 reporting cockroaches. There was a further message from the resident on 3 November 2021 asking to cancel the appointment because she was moving out and would not be at the property. The appointment was subsequently cancelled.
On 1 November 2021, the resident submitted a stage 1 complaint via the landlord’s web form. She explained that her complaint was in relation to housing disrepair and health and safety issues that had been ongoing since the tenancy start date. She added that there had been ongoing leaks which resulted in damp and mould in the property as well as cockroach infestations. The resident said that the ongoing issues had caused problems in the kitchen, bathroom and bedroom and added that the landlord had not carried out adequate repairs or found a permanent resolution. The resident stated that as a result of the disrepair and mould, she had ongoing health concerns, which she described as colds, chest infection and bowel issues. The resident concluded that as a resolution for the unresolved repairs and irreversible long term effects on her health over a 14 year period and in particular over the most recent 2 months, she wanted £1000 in compensation or for the rent arrears to be cleared and not offset from her home loss payment.
The landlord acknowledged the complaint on 2 November 2021 and advised the resident to expect a response by 15 November 2021.
On 18 November 2021, the resident emailed the landlord for an update to the complaint.
The landlord responded at stage 1 of its complaints process on 28 November 2021. It stated that it understood the complaint to be about ongoing repairs and that as a resolution the resident wanted her rent arrears to be written off. The landlord stated that it would not be able to investigate issues as far back as the resident’s start date and clarified that it could only look at issues raised recently, adding that the resident should have raised any issues that were more than a year old, with the landlord at the time. It added that it would generally only respond to complaints regarding matters occurring within the previous 6 months but that as part of its investigation it had gone back 12 months.
The landlord confirmed that the resident’s property was part of the phase 4 renewal programme and that there had been delays due to the Covid 19 pandemic impacting on the earlier phases. In its response the landlord set out the details of the telephone conversation that took place on 12 October 2021 in respect of the offer of a new property. It stated that it had explained that as part of the offer the landlord arranged removals at no cost and that the resident would still receive the home loss payment she would have received had she been awarded decant status, minus any money she owed to the landlord. The landlord added the resident had confirmed that she had understood this.
In its response the landlord explained that it was unable to investigate repairs issues dating back as far as 2015, but that it had looked at the resident’s recent reports of repairs and listed the issues reported from 21 August 2021 until 15 October 2021. Although it noted that the resident had stated that she had resolved the upsurging sink herself by plunging it and therefore the operative who attended never saw the full extent of the problem. The landlord acknowledged that the resident stated the issue had occurred again when she used her washing machine. It added that it expected residents to report all repairs and that she could have reported the issue again if it remained unresolved. The landlord added that it understood the resident had confirmed that the bathroom light had been fixed, and that she had said that the leak reported on 4 October 2021 remained unresolved for several days due to an issue with accessing the flat above.
The landlord acknowledged that the resident disputed that she had told the operative not to carry out the mould treatment because she was moving to an alternative property. It stated that it understood there was a conversation between the resident and the operative who explained how long the treatment would take. It noted that the resident advised that although she did not reject the work, she also did not dispute that it should not be completed. The landlord also acknowledged that the resident said that she had not logged all repairs issues as she chose to rectify some of the issues herself.
The landlord added that as per its letter of 25 October 2021, it had explained that the resident’s request for compensation linked to disrepair had not been accepted and that it was entitled as a matter of law to deduct the money the resident owed from the money it was paying her. This Service has not seen a copy of the letter referred to.
The landlord concluded that it would not offer a rent rebate and that any arrears would be deducted from the home loss payment. It added that if the resident was unhappy with the response, she could request a review within 28 days of the date of the letter.
The resident escalated her complaint 2 days later. She said that she felt the landlord had dismissed the issues she raised. The resident reiterated that the issue with the upsurging sink was never resolved and that the leak from the property above was temporarily fixed but the water continued to drip. She explained that she had left several telephone messages in October 2021 for the landlord to call her with regard the ongoing issues including damp, mould and a cockroach infestation, but that her calls were never returned. The resident added that it was typical of the landlord to leave issues unresolved as the property was being demolished for redevelopment. She explained that the property was in disrepair for the duration of her tenancy and it had a detrimental impact on her health. She described a leak that was ongoing for 9 months in 2015 and an issue with a faulty oven provided by the landlord, which she first reported in September 2020 and was not rectified until April 2021.
The resident added that the landlord’s repairs service between March 2019 and the summer 2021 was poor and that it became impossible to log every issue. She reiterated her request for £1000 compensation to reflect the impact the disrepair had on her physical and emotional health.
Despite both this Service and the resident herself contacting the landlord for an update on the stage 2 complaint on at least 4 occasions between 17 January 2022 and 24 February 2022, the landlord failed to respond to the resident’s escalated complaint. On 18 May 2022 this Service issued a Complaint Handling Failure Order to the landlord under paragraph 13 of the Housing Ombudsman Scheme. As part of this, the Ombudsman ordered the landlord to issue a final complaint response to the resident no later than 25 May 2022. However, the landlord did not issue a further response to the complaint.

Assessment and findings

Landlord’s obligations and policies

The Ombudsman’s Dispute Resolution Principles are:

Be fair

Put things right

Learn from outcomes

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.
The landlord’s timescales for completing repairs are on its website. Its right to repair scheme ensures that repairs that might affect a resident’s health, safety or security are completed within a certain timeframe. It states that it aims to deal with the repair at the first visit, but if further work is required an appointment will be made with the resident after the first visit. Urgent repairs are dealt with within 4 hours, the following are some of the examples it gives of emergency works:
1. Uncontrollable water leaks.
2. Total loss of water supply.
3. Blocked drains (if backing up).
In addition, it lists the timescale for repairs based on the type of repair. Timescales range between 4 hours for urgent repairs to 20 working days for all repairs that are the responsibility of the landlord and not given as an example on the landlord’s website.
The landlord has confirmed to this Service that when calculating and awarding Home Loss payments to residents who need to move from their home on a permanent basis, it adopts the Home Loss payments regulations as set out in the Land Compensation Act 1973.
The landlord operates a 2 stage complaints process. Its policy sets out that it will acknowledge stage 1 complaints within 5 working days and respond to the complaint within 10 working days. Residents are expected to request a review of a stage 1 response within 28 days of having received it. The landlord will acknowledge receipt of the escalation request within 5 working days and aim to respond within 30 working days. It will not investigate a complaint where the issue has occurred more than 6 months earlier.
Section 6.24 of the landlord’s Tenancy Conditions document explains that it cannot carry out a repair or accept liability for it unless a resident reports the issue. Section 6.27 states that in the event of a dangerous water leak or where the water leak is causing nuisance to neighbours or the structure of the building, the landlord may need to access the property immediately and if necessary, by force.

The landlord’s handling of repairs at the residents property

The landlord has provided a copy of its repairs log for the property which shows the date a repair issue is reported and the timescales for the repair to be completed, the date the repair is assigned and the date the job is completed.
On 18 December 2020, the resident reported a faulty fluorescent light. Despite the job being given a 20-day timescale for repair, it was not assigned to an operative until 2 February 2021, which was 30 working days after the repair was first reported. The repairs log shows that the repair was completed on 5 July 2021, which was 135 days after the repair was first reported. This far exceeds the landlord’s 20-day repair timescale. The landlord has failed in its service delivery and failed to adhere to its own policy position.
On 21 August 2021 the resident made an out of hours call to report that her kitchen sink was back surging. The landlord has shown that it attended the property the same day and the repairs log showed that the job was also completed the same day. The resident has advised that she fixed the issue herself and consequently when the operative attended, the issue was no longer relevant. She further explained that the issue reoccurred after the operative had left. The landlord’s tenancy conditions document states that it cannot carry out a repair or accept liability for it unless the resident reports it. Given that having attended the property the issue was no longer relevant, it was reasonable for the landlord to mark the job as completed. It was also reasonable for the landlord to assume that the issue had not reoccurred.
On 4 October 2021 the resident reported an out of hours leak from the property above hers, which affected 3 rooms in her property. The repairs log shows that the issue was reported and recorded appropriately as an urgent repair. According to the landlord’s repairs policy, urgent repairs which include uncontrollable leaks should be dealt with within 4 hours of being reported. Whilst not entirely clear, it appears that when the summary of the issue was reported by the resident, she stated that the leak had been ongoing since 1am, and that it had been over 24 hours and a plumber had still not attended. The repairs log showed that the job was assigned on 4 October 2021 and attended that day. The landlord has shown, through the evidence provided that it followed its policy position and attended the property within the appropriate timescales.
It was appropriate for the landlord to ensure the water from the leak had fully dried out before instructing an operative to decorate the affected area. The operative who responded to the leak concluded that it had emanated from a faulty washing machine valve. It was therefore reasonable for the landlord to conclude that once the valve had been repaired or replaced this would solve the leak.
The evidence shows that the job to decorate the affected walls was raised on 7 October 2021 and given a 20-day timescale for completion. The operative attended on 15 October 2021, which was within the prescribed timescale. This was a reasonable response for the landlord and demonstrated that it was willing to rectify the damage caused by the leak.
We understand that the required work was not carried out as the resident had been offered and had accepted a property transfer as part of the landlord’s redevelopment and decant process.
The resident maintains that she believes that due to the property being part of the overall planned redevelopment for the area, the landlord failed to carry out repairs or find permanent solutions to ongoing leaks. The landlord has advised us that it was obligated to carry out certain repairs regardless of whether a block is part of any regeneration programme, such repairs relating to Health and Safety or compliance and anything that would be considered disrepair. The approach would however have been not to carry out any works which would have been considered improvement works and out of the scope of normal responsive repair responsibility.
We have considered all of the information available from both parties. Whilst the landlord has demonstrated that in the majority of cases it has reacted within the prescribed timescales, on at least one occasion, during the period investigated, the landlord failed to respond to the repair within the expected timescale, which caused the resident inconvenience while waiting for the repair Therefore, this Service has found a service failure in the landlord’s handling of repairs at the resident’s property.

The landlord’s handling of reports of pest infestation

Following our request for information and evidence relating to the landlord’s handling of reports of pest infestation, the landlord advised that due to GDPR and the integration of a new system, it did not hold any appointment bookings relating to pest control pre-March 2021.
It was able to provide details of an online booking made by the resident on 31 October 2021 which was subsequently cancelled by the resident.
The resident explained to us that she had reported cockroaches at the property and that each time the landlord took action she would also set her own traps and bait.
It is not clear to this Service why the landlord would dispose of records that are less than 3 years old. It is also unclear why the integration of a new system would result in the loss of data.
This Service’s Spotlight report of Knowledge and Information Management published in May 2023 sets out the importance of good knowledge and information management. We acknowledge that the spotlight report was published after the complaint investigation period. Nevertheless, it holds valuable information and guidance for landlords to consider. The report is very clear that when carrying out a merger or other similar changes, landlords should carry out due diligence on the systems to ensure data is not lost. Whilst the loss of data in this case has not been the result of a merger, it must be noted that the landlord appeared to have lost relevant data when it integrated a new system.
It has not been possible to effectively investigate this element of the complaint, due to the landlord’s inability to provide relevant data. Consequently, as the landlord cannot evidence it responded to these reports appropriately, this Service finds a service failure in the landlord’s handling of the reports of pest infestation. We will therefore make a recommendation in relation to record keeping.

The landlord’s decision to offset rent arrears from the resident’s home loss payment.

The resident was entitled to a Home Loss payment because she was being permanently displaced from her property.
The landlord has explained to this Service that in a telephone conversation with the resident on 15 October 2021, it advised that any outstanding rent arrears would be deducted from the Home Loss payment due when the resident moved to her new property. It was appropriate for the landlord to notify the resident of its intention to offset the rent arrears from the Home Loss payment.
In its stage 1 complaint response, the landlord set out that it had consulted with its legal department and would as a matter of law be entitled to deduct what the resident owed from what the resident was being paid.
It is not in dispute that the resident had rent arrears. The landlord has advised this Service that a payment plan had been agreed with the resident on 12 August 2020, but the arrears continued to grow. This Service has not seen evidence of the agreed payment plan, nor has it seen evidence of any letters notifying the resident of her rent arrears. However, based on evidence provided in relation to this part of the complaint, it is clear that the resident was aware of the rent arrears.
Although section 29 of the Land Compensation Act 1973 is silent on the right of a landlord to offset arrears from a Home Loss payment, it has been held that if there was a connection between the parties’ claims, an equitable offset could be made and there would be no injustice in allowing a landlord to offset, for example, rent arrears from the tenant’s home loss payment.
In making a finding we have considered if the landlord has acted fairly in all the circumstances of the case. It is not in dispute that the resident had rent arrears and evidence has been provided by the landlord showing that the arrears continued to accrue. Even allowing for the rent arrears being offset from the home loss payment, the resident was still left with a considerable sum of money in recompense from being displaced from her home. This service finds no maladministration in the landlord’s decision to offset rent arrears from the resident’s home loss payment.

The landlord’s complaint handling.

The resident submitted a stage 1 complaint on 1 November 2021, which it acknowledged within its prescribed timescales and advised that it would respond by 15 November 2021.
It is clear that both parties were communicating following the landlord acknowledging the resident’s complaint. Nevertheless, the landlord failed to respond formally to the complaint until 28 November 2021, which was 20 working days after the resident submitted the complaint and 10 working days outside of the landlord’s prescribed timescale.
In its formal response, the landlord advised the resident that it would not usually investigate complaints regarding issues occurring more than 6 months earlier. However, it agreed to investigate issues dating back one year. Nevertheless, it only responded to repairs issues dating back to August 2021 and failed to respond at all to the resident’s complaint regarding a pest infestation.
The resident escalated the complaint on 30 November 2021, which was well within the landlord’s guidelines for escalations. However, despite both this Service and the resident contacting the landlord on at least 4 occasions between 17 January 2022 and 24 February 2022, the landlord failed to respond to the resident’s escalated complaint.
The Complaints Handling Code is clear that a landlord must not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons for taking that course of action. Reasons for declining to escalate a complaint must be clearly set out in a landlord’s complaints policy and must be the same as the reasons for not accepting a complaint. In addition, if it declines to escalate a complaint it must notify the resident of their right to approach the Ombudsman.
The landlord failed to respond to the resident’s stage 2 escalation and failed to notify her of the reasons for declining her request. Furthermore, it failed to notify her of her right to approach the Ombudsman. The landlord has failed to follow its own policy position which was not only unacceptable but also of detriment to the resident. The resident spent time pursuing a response and was also delayed from bringing her complaint to this Service. In addition, the landlords failure to respond to the resident’s complaint at stage 2 of its complaints process was further detrimental to the landlord resident relationship.This Service finds maladministration in the landlord’s complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme this Service finds a service failure in the landlord’s handling of repairs at the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme this Service finds a service failure in the landlord’s handling of reports of pest infestation.
In accordance with paragraph 52 of the Housing ombudsman Scheme there was no maladministration in the landlord’s decision to offset rent arrears from the resident’s home loss payment.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord failed to respond to a report of a repair within the prescribed timescale.
The landlord failed to provide appropriate evidence regarding its handling of the resident’s reports of a pest infestation consequently preventing this Service from carrying out an effective investigation.
The landlord was within its rights to offset rent arrears from the home loss payment.
The landlord failed to respond to the resident’s stage 2 complaint and failed to provide a reason for this. Therefore, causing significant detriment to the resident who was unable to escalate her complaint to this Service for 5 months.

Orders and recommendations

Orders

Within 4 weeks of the date of this determination the landlord is ordered to:
1. Provide a written apology to the resident for the failings highlighted in this report.
2. Pay directly to the resident a total of £350 as follows:
  1. £50 for the inconvenience to the resident in relation to the delays in completing repairs.
  2. £300 for the landlord’s failure to respond to the resident’s stage 2 complaint and the time and inconvenience to the resident pursuing a response as well as the detriment it caused her in being able to escalate her complaint to the Ombudsman.
3. Provide to this Service, evidence of compliance with the above orders.

Recommendation

This Service recommends that within 4 weeks from the date of this report, the landlord self-assesses against the recommendations set out in the Knowledge and Information Management report to ensure it has adequate systems in place for storing and retaining information.
The Ombudsman acknowledges that the landlord has completed a self-assessment of the Complaints Handling Code. Nevertheless, it is recommended that the landlord deliver appropriate complaint handling training, taking account of the failures highlighted in this report, to relevant employees within 4 weeks of the date of this report, and provide evidence of compliance to the Ombudsman within the same timescale.