Lewisham Council (202321470)

REPORT

COMPLAINT 202321470

Lewisham Council

6 September 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:
   1. The resident’s request to be rehoused due to overcrowding.
   2. A pest problem.
   3. The resident’s reports of a leak.
2. The Ombudsman will also be considering the landlord’s complaint handling.

Background

3. The resident is an assured tenant under an agreement dated July 2007. She lives in a 2-bedroom flat in a purpose-built block with her husband and 6 children.
4. According to its records, the resident suffered a leak from her roof as early as November 2021. The landlord also raised work orders for the resident’s home in February 2022 to make safe the electrics following water leaking through the ceilings. In May 2023, the landlord’s contractor reported that scaffolding would need to be put in place to determine the cause of further leaks at the time.
5. The resident raised a complaint on 2 August 2023. She said that water was still leaking into her flat, and that scaffolding had been put up in July 2023 but she had received no updates since. She also explained that the ceiling in her toilet had a large hole due to water entering the property when it rained, and she was worried it was going to collapse on her and her children. In addition, on or around 17 August 2023, she also said:
   1. She felt ‘ignored’ by the landlord.
   2. There was black mould at the flat.
   3. The situation was impacting her and her family’s mental health.
   4. She wanted to be moved to a different property because of its condition, and because of overcrowding.
   5. Due to the leak, in the winter it was extremely cold at the property, and with the increase in energy costs she was concerned about her family’s wellbeing.
   6. Glass in the block’s main entrance door was broken, and the landlord had not responded to a previous complaint she had made about it.
   7. The block had been ‘neglected’ and there were serious damp problems.
   8. To resolve the complaint she wanted the landlord to carry out repairs needed to fix the leak.
6. The landlord responded at stage 1 of its complaints process around 17 August 2023. It said it was upholding her complaint due to the delays in getting the leak resolved, and that it had asked its contractor to carry out a roof survey and fix the leak. Once a fix was done, it confirmed remedial works would be completed. It also asked the resident to get in touch with its contact centre to request a same-day emergency repair appointment, so its contractor could assess her ceiling and carry out any required repairs to make it safe.
7. The resident was dissatisfied with the landlord’s response, and escalated her complaint on 14 November 2023. She said that the property was “flooding yet again”, and that the landlord was “ignoring her.” She reiterated that she was scared to use the toilet in case the ceiling collapsed and that a board the landlord had put in place over her ceiling was starting to collapse. She also explained that while scaffolding had been put up, she felt nothing was being done to fix the issue. In addition, she reiterated that the property was overcrowded.
8. The landlord responded on the same day and explained that it had faced problems accessing her neighbour’s flat and that this was needed to carry out roof repairs. It also said it would send out a contractor to refix the ceiling board as an emergency repair. The resident responded reiterating that the roof needed to be fixed and that she wanted to be rehoused due to overcrowding.
9. The landlord provided its final response on 18 December 2023. It said:
   1. A work order had been raised for the roof in April 2023, but it had been unable to gain access to her neighbour’s property to complete the order until 18 August 2023. When it attended on that date, it set up scaffolding and identified what repairs were needed.
   2. It had agreed with the neighbour a follow-up date of 23 August 2023 to carry out the necessary repairs, but they did not give the landlord access on that date.
   3. A new date of 23 November 2023 had been agreed with the neighbour, and repairs on the roof had been completed.
   4. It would contact the resident within 5 working days about her toilet ceiling.
   5. The resident’s complaint was not upheld.
10. When the resident contacted the Ombudsman in May 2024, she said that the roof was still leaking, and that she was still in an overcrowded property. To resolve her complaint, she wanted the landlord to move her and her family to a different property.

Assessment and findings

Jurisdiction

11. The Housing Ombudsman Service is not free to investigate every complaint referred to it. What the Ombudsman can and cannot investigate is called our jurisdiction and is set out in the Scheme. Paragraph 42j of the Scheme states that the Ombudsman may not consider complaints that fall properly within the jurisdiction of another Ombudsman.
12. This Service is unable to consider whether the resident should or should not have been moved as a result of the property being overcrowded. This is because the Ombudsman is unable to comment on complaints that relate to the council’s operation of the housing register and the Choice Based Letting (CBL) scheme. These are matters that properly fall within the remit of the Local Government and Social Care Ombudsman (LGSCO).
13. Under paragraph 42j of the Scheme, the Ombudsman will not investigate complaints that fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body. Therefore, should the resident wish to pursue this aspect of the complaint, she will need to make contact with the LGSCO.
14. Additionally, when the resident contacted this Service in March 2024, she said that she was also complaining about a pest problem. There is no evidence, however, to show that she raised a formal complaint with the landlord about this in her formal complaint in August 2023. There is also evidence that she raised a complaint about damp and mould in a previous stage 1 complaint, but did not ask to escalate it. Therefore, this investigation will not be able to consider the issue.
15. This is in accordance with paragraph 42a of the Scheme, which states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, were made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.

The scope of the Ombudsman’s investigation

16. The resident has said that some of the issues complained about have been going on for over 16 years. However, there is no evidence to show that she raised a formal complaint with the landlord about these issues until her formal complaint on 2 August 2023.
17. Under paragraph 42c of the Scheme it explains that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within 12 months of the matters arising. With this in mind, this investigation will only consider the events that took place from August 2022 onwards, being 12 months prior to the resident’s complaint.
18. Further, because the landlord did not address a number of issues the resident raised in August 2023, this Service has not been able to consider how it managed these problems. We have, however, reviewed this oversight in the complaint handling section of this report.
19. The resident also mentioned the effect the repair issues were having on her and her family’s physical and mental health, which is very concerning. While the Ombudsman is sorry to hear of these health problems, it is beyond the expertise of this Service to determine a causal link between the landlord’s action (or lack thereof) and the impact on the resident’s health.
20. Often, when there is a dispute over whether someone has been injured or a health condition has been made worse, the courts are able to rely on expert evidence in the form of a medico-legal report. This will give an expert opinion of the cause of any injury or deterioration of a condition. This would be a more appropriate and effective means of considering such an allegation and so should the resident wish to pursue this matter, she should do so via this route. This investigation will only consider whether the landlord acted in accordance with its policy and legal obligations, and fairly in the circumstance.
21. It is noted that the resident raised a disrepair claim with the landlord for numerous repairs required inside the property, but her formal complaint to the landlord concerned its handling of the leak in her roof only. Therefore, for the avoidance of doubt, this report will not be commenting on the other issues raised in the disrepair claim.

The landlord’s handling of a leak

22. The landlord was under a duty to trace and remedy the leak within a reasonable time of being given notice that it was occurring. This is set out in the written tenancy agreement and the implied terms in s.11(1)(c) of the Landlord and Tenant Act 1985.
23. What is a reasonable time will depend on all the circumstances of a case. Most landlords will have repair policies which set out target timescales within which they aim to complete the repairs. In this case the policy states:
    1. Emergency repairs are repairs that remove immediate danger to people, avoid flooding or major damage to the property; and restore total failure of water supply. The landlord aims to attend these within 24 hours and complete a repair if it can. If it cannot, it will make the situation safe and carry out any follow up work as an urgent or routine repair in normal working hours.
    2. Urgent repairs are repairs that prevent damage to the property, or where there is a possible health, safety, and security risk. The landlord aims to attend these within 3 working days.
    3. Routine repairs are any other works that do not fall into the emergency and urgent categories. The landlord aims to complete these within 20 working days.
24. According to the landlord’s stage 2 complaint response, the resident reported a leak on 3 April 2023. On 15 May 2023, the landlord’s contractor inspected the leak, and noted that to fix the problem it would need to put scaffolding in place, and that it would need access to a neighbour’s property. This was not granted by the neighbour until 18 August 2023. When the contractor attended on that day, they erected scaffolding and identified what roof repairs were needed.
25. Following this the contractor agreed with the neighbour that they would return on 23 August 2023 to carry out necessary repairs, but they were again not granted access on that date. It then agreed a new date of 21 November 2023 to carry out the repairs, and completed them on that date.
26. This means it took the landlord around 8 months to repair the reported leak. While it is noted some delays were caused by it not being able to access the leak, it is unclear why it took no action to mitigate this, such as enforcing access through its tenancy agreement. This would have been appropriate given the resident’s clear distress in her communications to it about the leak and the potential hazard she felt it was causing to her and her children.
27. Furthermore, when the resident voiced concerns about the ceiling in her toilet collapsing and being ‘scared’ to use it as a result, the landlord failed to address her concerns. While it did put a temporary board in place, no permanent solution was offered within a reasonable timescale, and no reassurance was given to the resident as a result.
28. As a result of the significant delays, the Ombudsman considers this amounts to maladministration by the landlord in its handling of the leak, and therefore it should pay the resident compensation to recognise how its inability to adhere to its repairs policy impacted her and her family.
29. The resident has explained the significant frustration, upset, and distress she has faced due to the delay in the roof leak being repaired.
30. Having carefully considered the Ombudsman’s policy and guidance on remedies, a fair level of compensation would be £600. This is in line with the Ombudsman’s remedies guidance for failures where the landlord has failed to fully address the detriment caused to a resident.
31. The landlord also does not appear to have addressed the resident’s concerns about the safety of her toilet, and her worries that the ceiling might “collapse.” While it is noted it refixed a temporary board in November 2023, it is not clear what, if any, further action has been taken to reassure the resident.
32. In addition, when the resident contacted this Service in March 2024, she reported that she was still experiencing a leak in her roof. A further order has therefore been made below for the landlord to contact the resident to confirm this, discuss the status of the toilet ceiling, and put a schedule of repair works in place if necessary.

The landlord’s complaint handling

33. Under the Ombudsman’s Complaint Handling Code, landlords must ensure they:
    1. Acknowledge a complaint within 5 working days.
    2. Respond to the complaint within 10 working days of the acknowledgment at stage 1.
    3. Provide a final response within 20 working days of the date of acknowledging the escalation request.
34. At the time of the resident’s complaint, the landlord operated a 3 stage complaints process. The Code also said that:
    1. Two stage landlord complaint procedures are ideal. This ensures that the complaint process is not unduly long. If landlords strongly believe a third stage is necessary, they must set out their reasons for this as part of their self-assessment [against the code].
    2. Complaints should only go to a third stage if the resident has actively requested a third stage review of their complaint. Where a third stage is in place and has been requested, landlords must respond to the stage 3 complaint within 20 working days of the complaint being escalated.
35. The landlord’s policy was compliant with the Code at the time of the resident’s complaint.
36. The resident raised her complaint on 2 August 2023, so the landlord had until 9 August 2023 to acknowledge it. It then had until 23 August 2023 to provide its stage 1 response. The landlord acknowledged the complaint on 4 August 2023, and provided its stage 1 response on 17 August 2023, which was in adherence with both the Code and its own complaints policy.
37. The resident escalated her complaint on 14 November 2023, so the landlord had until 21 November 2023 to acknowledge it. It then had until 19 December 2023 to provide its stage 2 response. The landlord acknowledged the complaint on 21 November 2023, and provided its final response on 18 December 2023, which was again in line with the Code.
38. The landlord later changed its complaint policy to 2 stages instead of 3. It told the resident this and explained she could take her complaint to this Service if she wished to, which was appropriate.
39. However, the landlord’s complaints policy also says that where it finds it was at fault, it will “remedy any injustice caused.” Additionally, the Ombudsman would typically expect to see the landlord offer compensation and proposed actions to remedy a complaint in its complaint responses.
40. In its stage 1 response, the landlord upheld the resident’s complaint, and said that it had asked its contractor to carry out a roof survey and repairs. But it gave no clear timescales for when this would happen. Additionally, it told the resident to get in touch with its contact centre to request an emergency repair for her ceiling. Putting the onus on the resident to do this, when it had already acknowledged its failings, was inappropriate, and not in line with its own complaints policy. It also offered no form of compensation, which would have been reasonable, given the distress the resident told it she experienced as a result of the leaks, and its delay in resolving the issue.
41. In its stage 2 response, it told the resident it had notified its disrepair department about her complaint, and told her to contact her legal representative with any queries or concerns she had. It is unclear why the landlord was unable to liaise with the relevant department itself and give the resident details of any repairs being arranged, without returning to her solicitor. Some repairs were the subject of her complaint and a disrepair claim letter being issued should not have obstructed the resident from receiving a full and proper response to her complaint.
42. Additionally, in the same response, it acknowledged there had been unreasonable delays in its repairs to her roof, but did not uphold her complaint, which was inappropriate given the failings it had identified in its own response.
43. The landlord also failed to address a number of complaint points made by the resident in her initial complaint to it. Paragraph 6.7 of the Code says that landlords must address all points raised in the complaint definition and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate. It failed to do so, and did not act in adherence to the Code as a result.
44. Therefore, the Ombudsman finds the landlord was responsible for maladministration in its handling of the resident’s complaint, and it should pay her compensation to recognise this. A fair level of compensation would be £200. This is in line with the Ombudsman’s remedies guidance for maladministration that a landlord has not appropriately acknowledged or put right.
45. It has also been ordered to contact the resident to confirm whether she wants to open a new complaint about the issues highlighted in this report that it failed to address.

Determination

46. In accordance with paragraph 42j of the Scheme, the resident’s complaint about her request to be rehoused due to overcrowding falls outside of the Ombudsman’s jurisdiction.
47. In accordance with paragraph 42a of the Scheme, the resident’s complaint about a rodent problem falls outside of the Ombudsman’s jurisdiction.
48. In accordance with paragraph 52 of the Scheme, the landlord was responsible for maladministration in its handling of a leak.
49. In accordance with paragraph 52 of the Scheme, the landlord was responsible for maladministration in its handling of the resident’s complaint.

Orders

50. The landlord must, within 28 days of the date of this determination:
    1. Pay the resident £600 for the distress and inconvenience caused by its handling of the leak.
    2. Contact the resident to confirm the leak is fixed, discuss the status of the toilet ceiling, and put a schedule of repair works in place if necessary.
    3. Pay the resident £200 for the inconvenience caused by the landlord’s complaint handling.
    4. Contact the resident to confirm whether she wants to open a new complaint about the issues highlighted in this report that it failed to address.
51. The landlord must provide this Service with proof that the above orders have been carried out.