Royal Borough of Kensington and Chelsea (202215807)

REPORT

COMPLAINT 202215807

Royal Borough of Kensington and Chelsea

21 June 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. Response to the resident’s reports of antisocial behaviour at the block.
2. Response to the resident’s request to be moved to alternative accommodation.
3. Response to the resident’s reports of outstanding repairs causing damp and mould to an external wall at the property.
4. Complaint handling.

Background

The resident is a secure tenant of a 1 bedroom, ground floor flat in a 2 storey block. The tenancy started in January 1999. The landlord is a local authority. The landlord’s records state that the resident has health conditions, which includes arthritis and anxiety.
The resident said that her external living room wall had experienced damp and mould since 2017. When it rained, this situation would make the property cold, damp, and hard to heat. The resident said this was made worse due to the cost of living fuel price increases. The resident explained that she had previously sought legal advice due to internal structural issues. While these repairs had been dealt with in or around July 2021, she was concerned that she was facing a similar situation.
On 24 October 2022 the resident raised a formal complaint to the landlord via the Ombudsman. We informed the landlord of the complaint. The landlord telephoned the resident and acknowledged the complaint on 31 October 2022. It recorded her dissatisfaction that ongoing damp to the external wall of the property, was affecting her living conditions. She considered there was issues with the guttering and downpipes at the property.
The landlord provided a stage 1 complaint response on 14 November 2022. It acknowledged the inconvenience caused by the damp on the external wall, and the delay to identify a permanent solution. However, it was satisfied that visits were completed out and recommendations were made for the necessary repairs to take place. It advised that its team would remain in contact with its surveyor and provide the resident with further updates. It offered £150 compensation for the delay in completing repairs to the external wall and for the inconvenience caused.
On 2 December 2022 the resident escalated her complaint to stage 2 of the landlord’s internal complaints procedure (ICP). She said the landlord’s attempts to dig a drainage channel outside the external wall of the property had not resolved things. On 6 December 2022 the landlord advised the resident that her escalation request had been referred to a senior member of staff. It said it would discuss her request at a meeting on 12 December 2022. The landlord acknowledged the resident’s request following its meeting that day.
The landlord provided its stage 2 final response letter on 5 January 2023. It apologised for the distress and inconvenience the resident had experienced while it completed repairs. It acknowledged lessons learned prior to her raising a complaint and explained the steps it would take to put things right. The landlord increased its offer of compensation to £450.
On 20 January 2024 the resident informed us she remained dissatisfied with the landlord’s complaint responses. She said due to her health, she wanted to be rehoused.

Assessment and findings

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to us, 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 42 (a) of the Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
1. The landlord’s response to the resident’s reports of antisocial behaviour issues at the block.
2. The landlord’s handling of the resident’s request to be moved to alternative accommodation.
Paragraph 42 (a) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion have been made prior to having exhausted a landlord’s complaints procedure.
While we recognise the distress new complaints can cause, these matters were raised to the landlord after the Ombudsman accepted the resident’s original complaint for investigation. Therefore, the landlord should be given a fair opportunity to investigate the issues raised and provide a response to the resident in line with its complaint handling procedure.

Scope of investigation

The Ombudsman notes that although not raised as a specific complaint point, the resident’s correspondence said that the landlord’s handling of her repair requests and complaint, had affected her physical and mental health. We do not dispute the resident’s comments.
Although we are an alternative dispute resolution service, we are unable to establish legal liability on whether a landlord’s actions or lack of action have had a detrimental impact on a resident’s health or finances. Nor can we calculate or award damages. The Ombudsman is therefore unable to consider any personal injury aspects of the resident’s complaint. Such decisions require an assessment of liability and are decided by a court or insurer.
In reaching a decision about the resident’s complaint, we consider whether the landlord has kept to the law, followed proper procedure and good practice and acted in a reasonable way. Our duty is to determine the complaint by reference to what is, in our opinion, fair in all the circumstances of the case. Where the Ombudsman identifies a failure by a landlord, we can consider the resulting distress and inconvenience.
The resident may wish to seek independent legal advice if she wants to pursue a claim for damages for any adverse effect on her health.
In January 2024 the resident informed us that she remained dissatisfied with the landlord’s final complaint response on 15 February 2023. Furthermore, she was unhappy with its handling of other complaints since. To resolve these matters, she said she wanted to be moved.
A key part of the Ombudsman’s role is to assess the landlord’s handling of the resident’s original complaint through its ICP. This is to ensure that the landlord takes reasonable steps to resolve complaints within its 2 stage process. Therefore, while we recognise the upset any dissatisfaction would cause, this investigation will be based on whether the landlord’s formal complaint responses provided reasonable redress, up to its stage 2 complaint response on 15 February 2023.

Response to the resident’s reports of outstanding repairs causing damp and mould to an external wall at the property

Under Section 11 of the Landlord and Tenant Act 1985, the landlord must keep in repair the structure and exterior of the property, including the roof, gutter, drains, and pipes. This obligation is acknowledged in the landlord’s repairs policy.
The landlord’s relevant repairs policy has pre-assigned categories for prioritising repairs. The response times for each category is determined by the severity of the problem and the likely impact and risk to the resident. The categories are as follows:
1. Within 4 hours for a critical repair.
2. Within 24 hours for an emergency repair.
3. Within 5 days for an urgent repair.
4. Within 20 days for a routine repair.
5. Within 90 days for a planned repair.
The landlord and resident exchanged correspondence in November and December 2021. On 11 November 2021, the resident reported issues with damp and mould. The landlord raised a job on 17 November 2021 to wash the property’s internal walls. This was a reasonable response and in line with its routine repair timescales. However, as the mould was on an external wall, the landlord cancelled the job as there was no mould inside the property. This was a reasonable decision in the circumstances.
On 23 November 2021 the resident repeated her concerns that there was damp and mould on her external living room wall. The landlord’s surveyor completed an inspection on 6 December 2021. Photographs confirmed that moisture was present on the external wall of the resident’s property. The landlord’s inspection was a reasonable response and demonstrated it responded to the resident’s concerns. However, it is unclear at this stage what repairs, if any, the landlord completed to remedy the situation. Furthermore, there is no evidence that it communicated any updates to the resident at this stage.
There is further evidence that the resident repeated her concerns about external damp and mould on 16 February 2022. She expressed dissatisfaction that surveyors would attend but no work had been completed. She informed the landlord that her property would become damp and cold, and hard to keep warm when it rained. It is unclear at this stage what action the landlord took, if any, to assess the resident’s reports that the property was cold. Given that the landlord had health vulnerabilities recorded for the resident, this did not demonstrate it acting on a vulnerable resident’s concerns. It is reasonable that the landlord’s inaction at this stage would have caused her distress and inconvenience.
The landlord previously completed structural repairs, in or around July 2021, to reduce the risk of damp inside the property. This commenced following the resident seeking legal advice. Therefore, it is unclear why knowing of this history, the landlord did not complete external repairs promptly following its inspection. The resident reported external issues in November 2021. Therefore, by 16 February 2022 the landlord had exceeded its 90 day timescale to complete a planned repair. This was not appropriate and a failure to adhere to its repair policy.
On 10 March 2022, 1 July 2022, and 24 October 2022 the landlord raised jobs to clear the gutters at the resident’s block. There is also evidence it considered installing a soakaway trench for pooling water. These actions demonstrated the landlord considering solutions to improve the identified external damp problem.
However, the resident had by October 2022 waited approximately 11 months for the landlord to provide a lasting remedy. This was not appropriate and not in line with the landlord’s planned repair timescales. Furthermore, there is no evidence that the soakaway trench was completed when first considered in July 2022.
Following the resident’s formal complaint in October 2022, the landlord inspected the resident’s property again. On 9 November 2022 the landlord recorded damp to the external wall was caused by rain water not draining. It further considered the need for a French drain and requested a quote from its drainage contractor. There is evidence that the landlord raised further guttering work and a brickwork pointing repair as a precaution at this stage.
The landlord’s actions generally demonstrated that it responded to the residents reports within its responsive repair timescales. However, it failed to evidence that it took action to provide a lasting repair until the resident raised a formal complaint. Its communication prior to her complaint was often absent and the resident left uncertain what action, if any, the landlord planned. These failures required time and effort by the resident as she tried to progress matters. This would not have helped to improve the landlord and resident relationship and caused her distress and inconvenience.
When there are failings by a landlord the Ombudsman’s role is to consider whether the redress offered by the landlord (acknowledgment of failings, an apology, and compensation) 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 our dispute resolution principles; be fair, put things right and learn from outcomes.
It was fair the landlord acknowledged that the situation would have been distressing for the resident and apologised for its repair delays within its stage 1 and stage 2 responses. This was appropriate as it recognised that it had failed to deliver to its expected service standards, which may have caused further inconvenience.
The landlord’s repairs policy includes details of planned maintenance repairs. The policy includes gutter clearance programs as an example of proactive planned maintenance. The policy states the purpose of undertaking planned maintenance is to keep buildings in good order and reduce the need for responsive repairs. The landlord acknowledged that a planned maintenance schedule was not in place for the resident’s property prior to her complaint. This acknowledgement demonstrated there had been a failure to adhere to its own repairs policy.
However, the landlord’s stage 2 response recognised that its stage 1 response did not go far enough to put things right. It acknowledged that it had previously failed to have a comprehensive planned maintenance schedule for gutters in place. It explained that its repairs teams had met following her complaint. It said her property would now be included in an annual maintenance programme for “rainwater goods” such as drains, gullies, and gutters. These inspections would be completed around the end of November every year. This demonstrated the landlord learning from outcomes and taking steps to prevent issues happening again.
There is evidence in the landlord’s stage 2 response that it had sought a second opinion regarding the external wall issues. It was reasonable for the landlord to rely on the expert opinion of its surveyor. However sending a second surveyor demonstrated the landlord’s efforts to ensure its repair solutions were suitable. It installed the French drain and provided evidence that a “sky vac” was used to remove silt and leaves from gutters. Furthermore, repairs were arranged for gullies and the guttering down pipe. This demonstrated further steps by the landlord to put things right.
There is further evidence that the landlord completed the replacement and installation of ventilation fans at the resident’s property. This was a reasonable step in the circumstances. It demonstrated the landlord’s actions to improve airflow in the property and reduce the risk of moisture internally.
The landlord’s compensation policy explains how it considers and calculates compensation awards. The landlord will award between £374.50 to £535 when it upholds a resident’s complaint in full, and service failure has caused “high impact” on the resident. An example would be when an uncontrollable leak, results in significant and avoidable damage to the property and resident’s belongings.
While the landlord’s initial delay would understandably have caused distress and inconvenience, there is no evidence that water penetration had caused significant damage. However, it was appropriate for the landlord’s stage 2 response to increase its compensation from £150 at stage 1 to £450. It recognised the high impact that its service failures had caused to the resident and took steps to put things right.
The landlord remained in contact with the resident after its final response. While the resident raised several additional complaints, which do not form part of this investigation, she said personal items had been affected by mould.
The landlord’s compensation policy states that all claims for injury or costs incurred due to alleged negligence by the landlord should be referred to its insurance team. The policy states that these cases will be dealt with outside of the compensation policy.
It is not our role to determine liability for any damage caused to the resident’s possessions. This would be dealt with as an insurance claim or through the courts. It is our role to investigate whether the landlord acted fairly and reasonably and in line with its policies and procedures. It was therefore appropriate for the landlord to provide the resident with an insurance liability claim form on 7 February 2023. This demonstrated the landlord appropriately following the guidance of its compensation policy.
The Housing Ombudsman’s remedies guidance sets out that compensation in the range of £100 to £600 should be awarded where there was a failure which adversely affected the resident. The landlord’s actions and stage 2 compensation offer of £450 demonstrates that it acknowledged its failings, recognised the detriment to the resident, and took steps to put things right.
However, while the landlord demonstrated it investigated the causes of the external issues, we note on 16 February 2022 the resident reported difficulties maintaining heat in the property. There is no evidence that the landlord responded to this or recognised this as part of its failings prior to her raising a formal complaint. As the landlord has acknowledged that there were lessons to learn from its actions prior to her raising a complaint, it is reasonable that this should also have been considered and a visit completed to assess any heat loss from the property. Particularly given the landlord was aware of the resident’s reported health vulnerabilities.
The Ombudsman considers the landlord’s response to the resident’s complaint would have been reasonable redress, but for its failure to assess the resident’s reports of cold. Therefore we find service failure and the landlord is ordered to pay a further £50 compensation and provide evidence that it has completed an inspection to assess the resident’s concerns.

Complaint handling

The landlord’s relevant complaints policy defines a complaint as an expression of dissatisfaction, however made. This can be about the standard of service, actions or lack of action by the landlord, its own staff, or those acting on its behalf, affecting an individual resident or group of residents. This is appropriate and in line with the Housing Ombudsman’s Complaint Handling Code (the Code).
The landlord operates a 2 stage complaint procedure. At stage 1, it will provide a response within 10 working days and within 20 working days at stage 2. The landlord’s complaint policy dated October 2022; states changes were made after April 2022 to remove a third complaint stage. This was to ensure the landlord’s policy was complaint with the Code.
While this change is noted as a positive step, the policy is silent on the specific number of days the landlord would take to acknowledge a complaint. To be complaint with the Code published in April 2022, this would have been within 5 days. The Code became statutory on 1 April 2024, meaning that landlords are obliged by law to follow its requirements. As part of the landlord’s required annual self-assessment, it is encouraged to ensure that its policy is now fully aligned to the Code.
The resident raised a stage 1 complaint to the landlord on 24 October 2022. It was therefore reasonable for her to expect an acknowledgement by 31 October 2022 and a stage 1 response by 7 November 2022. There is evidence that the landlord acknowledged the resident’s complaint within the timescale expected, however its stage 1 response was 5 working days late. This demonstrates a service failure and a complaint handling training need.
While the detriment of this delay would have been low, this was not appropriate and not in line with the Code. Paragraph 5.1 of the Code (1 April 2022) states landlords must respond to the complaint within 10 working days of the complaint being logged. Therefore, as the complaint was made on 31 October 2022, staff involved at this stage failed to evidence using the landlord’s correct complaint handling procedure.
The resident escalated her complaint to stage 2 of the landlord’s ICP on 2 December 2022. It was therefore reasonable for her to expect an acknowledgement by 9 December 2022 and a stage 2 final response by 4 January 2023. These dates were both missed by a matter of days. While the detriment of these short delays would be minimal, it was not appropriate. It was a further service failure and demonstrated a failure to adhere to the landlord’s complaint handling policy.
The landlord’s complaint handling responses demonstrated it investigated the resident’s concerns. This was particularly evident and improved at stage 2. However, while there is evidence the landlord apologised for its late responses, compensation offered was made for identified failings with its handling of the resident’s substantive issue. Therefore, it did not fully recognise the need to put right the reoccurring complaint handling failures.
In view of this, we find service failure and compensation is warranted. The landlord has been ordered to pay the resident £50. This is in accordance with the Ombudsman’s remedies guidance which provides for awards of compensation between £50 and £100. This is where the landlord’s apology alone is not quite proportionate to put things right.

Determination

In accordance with paragraph 42 (a) of the Scheme, the landlord’s response to the resident’s reports of antisocial behaviour issues at the block is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 42 (a) of the Scheme, the landlord’s handling of the resident’s request to be moved to alternative accommodation is outside the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure with the landlord’s response to the resident’s reports of outstanding repairs causing damp and mould to an external wall at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure with the landlord’s complaint handling.

Orders and recommendations

Orders

The landlord is ordered to take the following action within 4 weeks of the date of this report. The landlord must provide the Ombudsman with evidence that it has complied with these orders in this time:
1. Pay directly to the resident a total of £550. The compensation is broken down as follows:
  1. £450 offered by the landlord at stage 2 can be deducted from this total, if already paid.
  2. A further £50 for the distress and inconvenience caused by the landlord’s response to the resident’s reports of outstanding repairs causing damp and mould to an external wall at the property.
  3. £50 for the resident’s distress and inconvenience caused due to the landlord’s complaint handling.
2. The landlord is ordered to demonstrate that it has provided relevant officers with complaint handling refresher training within the last 6 months. If it is unable to do so, it is ordered to provide training to ensure complaints are handled in accordance with its complaints procedure. The landlord may benefit from the free resources available via the Ombudsman’s Centre for Learning. This is available on our website.
Within 6 weeks the landlord is ordered to arrange a visit with the resident. It should complete an assessment of the resident’s reported heat loss and cold and determine if any repairs remain outstanding. The findings from the visit and any evidence of improvement works completed since the landlord’s final response letter should be communicated in writing to the resident and the Ombudsman.

Recommendations

The landlord is encouraged to ensure that the resident’s current housing needs are accurate and that she is aware of her housing options.
If it has not already done so, the landlord is encouraged to provide the resident with the proposed date within this calendar year that it will complete its annual check of the property’s gutters, gullies, and drains.