Lewisham Council (202229024)

REPORT

COMPLAINT 202229024

Lewisham Council

31 July 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 response to the resident’s concerns about:
1. the length of time scaffolding was in situ.
2. the costs associated with the scaffolding.
The Ombudsman has also assessed the landlord’s:
1. complaint handling.

Background

The complaint was brought to this Service by the leaseholder of the landlord. At time of the complaint he had a tenant in his 1-bedroom ground-floor flat. The leaseholder will be referred to as the “resident” in this report, although it is noted that he was not residing at the property at the time of the events complained of.
In June 2022, the landlord erected scaffolding to carry out roof repairs. Around this time it repaired the front of the roof. It is unclear what transpired over the following months.
The landlord’s records show that around 28 September 2022 it received a report that the front of the roof was leaking again. It said that it attended and repaired the roof on 10 October 2022. However, later that month, the landlord received a further report that the roof was leaking. Within internal correspondence, the landlord stated that it had carried out an inspection and its contractor had requested a joint visit to agree on next steps to resolve the matter.
On 22 November 2022 the resident made a formal complaint to the landlord. He said:
1. scaffolding had been in place at the building for approximately 6 months and no work had taken place. It was a safety concern as it had been up for a long time without being inspected.
2. he was concerned he would be liable for the costs of the scaffolding, and that it had been in place for longer than necessary as the landlord had not been carrying out works.
3. as a leaseholder, the landlord should have provided him with notice and consulted him about the works. As it did not, he should not be liable for any costs above the relevant threshold.
On 12 December 2022 the landlord issued its stage 1 complaint response. It said:
1. there was an ongoing roof leak that was affecting a neighbouring property. Scaffolding had been erected and repairs had been carried out to the gutters earlier in the year.
2. however, residents of the neighbouring property were still experiencing leaks. Further inspections were carried out and its contractor had provided a report that detailed further works needed to resolve the matter. It was reviewing the report and it would update the resident with the outcome of the review within the following week.
3. the resident would be charged a proportion of the costs of the repairs and scaffolding as he was a leaseholder.
4. it apologised for any delays and failure in service and the inconvenience and distress that it had caused.
5. it apologised for the delayed response.
On 13 December 2022 the resident escalated his complaint to stage 2 of the landlord’s complaint process. He said the landlord’s response did not answer his concerns. He requested:
1. a copy of the contractor’s report.
2. an explanation as to why the landlord had not claimed under its insurance if a neighbouring property was involved.
3. a timeline for when the work would be completed.
4. an explanation as to why the roof works had not been completed yet.
5. explanation of costs incurred and his proportioned costs.
6. a copy of notification of the works as he had not received notice documentation.
On 13 January 2023 the landlord issued its stage 2 response. It said:
1. it apologised for the ongoing issues with the erected scaffolding and lack of works carried out. The initial leak had been rectified, however, there had been another leak since.
2. a specialist contractor attended on 9 January 2023. However, the information provided did not give it a level of details required to specify works needed. It apologised for the additional delays.
3. it was working on the specifications for the works. The works would start on 23 January 2023. It said once it had received the relevant information that the resident had requested it would send it him.
4. it upheld the resident’s complaint because the scaffolding had been erected for a long time without works being carried out.
On 19 January 2023 the resident told the landlord that he was dissatisfied with its response as it did not address his concerns. He said:
1. the landlord said that the works would start on 23 January 2023 but it did not offer a “path to completion and resolution.”
2. he needed to understand timescales and also associated costs. He was concerned that the landlord’s lack of action with the roof repair meant that he had occurred additional costs. He said that he should not be liable for additional costs due to the delays in the landlord’s action.
3. he “expected” to be financially compensated for the inconvenience caused.
On 23 April 2023 following communication from the resident, we contacted the landlord and asked it to respond to the resident’s escalated complaint.
On 22 May 2023 the landlord’s independent adjudicator issued their stage 3 response. They signposted the resident to the First-Tier Tribunal (FTT). They also recommended that the landlord:
1. apologise to the resident.
2. provide the information that the resident had requested or an explanation of why it was not available so the resident could decide whether to proceed to tribunal.
3. compensate the resident £25 in recognition of the time and trouble spent pursuing the matter.
On 12 June 2023 the landlord issued its apology. It also:
1. offered the resident £25 compensation.
2. said it was “looking into” gathering the information that the resident requested.
The resident referred his complaint to this Service as he remained dissatisfied with the landlord’s response. He said:
1. he was dissatisfied with the compensation offered by the landlord.
2. as a leaseholder the landlord should have carried out a consultation about the roof works.

Legislation, policies and procedures

The landlord’s repair policy stated that it was responsible for the “management of the internal and external common parts of a residential building.”
Its major works policy stated that:
1. leaseholders were required to pay for major works provided to the building and estate where their property is situated.
2. it would consult with the residents about these charges where applicable.
3. it would “follow the legislation and Section 20 requirements” in conjunction with its “approved major work and service charge collection procedures.”
At the time of this complaint, the landlord operated a 3-stage complaint process. Its policy stated that it:
1. would respond to complaints at stage 1 within 10 working days, and within 20 working days at stage 2 and 3.
2. at stage 3 the adjudicator would acknowledge the complaint within 2 working days.
3. “in many cases,” it would include “next steps” in its response, which included actions that would happen in the “period ahead. It would “always” tell the resident about the proposed actions and their timescales.
4. at stage 3 the independent adjudicator would consider complaints about the actions of landlord. It said their role was to “consider if something went wrong, and whether the person had suffered as a result.” If so, the adjudicator would recommend a suitable remedy.
The Landlord and Tenant Act 1985 (LTA 1985) states under section 20 landlords should consult with residents where the cost of the works would be over £250 for any resident contributing to the cost of the works.

Assessment and findings

Scope of investigation

Parts of the resident’s complaints relate to whether the landlord failed to carry out a consultation regarding the roof repairs. Section 20 of the Landlord and Tenant Act 2985 outlines when landlords should consult with their residents before carrying out “qualifying” works. The appropriate body to consider such complaints is the FTT. The FTT deals with residential leasehold disputes between leaseholders and their landlords.
The resident also raised concerns that the landlord’s lack of progress to complete the roof repairs meant that he would be unreasonably charged for the length of time the scaffolding was erected. As this is a dispute over the reasonableness of charges, the FTT would also be best placed to determine this matter.
While these matters fall outside of our remit, we have considered the landlord’s response to the concerns that were raised by the resident.

The scaffolding

The length of time the scaffolding was in situ

The landlord told this Service that scaffolding was erected on 21 June 2022 and the evidence suggests that repairs were carried out to the front of the roof around that time. However, the specific date is unknown, due to the lack of contemporaneous records. It is also unclear what transpired in the following months until September 2022, when the evidence suggests that the landlord identified further roof leaks. However, the absence of entries suggests that no further works were carried out between June and September 2022.
In November 2022 the resident raised a complaint about the length of time the scaffolding had been erected without any apparent works taken place. In its stage 1 response, the landlord told the resident that there were ongoing leaks affecting the neighbouring property which meant further works were needed to resolve the matter. It is noted that further leaks had been identified in September and October 2022. However, as detailed above, there is a lack of evidence demonstrating that any issues were reported or repairs completed between June and September. In the circumstances, it would have been reasonable for the landlord to have acknowledged this within its response. That the landlord did not was a failing.
Within its response, the landlord also stated that it would update the resident the following week. The evidence available does not demonstrate that it did so, which was unreasonable. It also was not in accordance with its policy that stated that it would “always tell the resident about the proposed actions and their timescales”. The failure to update the resident caused him distress and inconvenience and undermined the landlord’s commitment to resolving the matter.
When the resident escalated his complaint to stage 2, he asked the landlord for a timeline for when the works would be completed. In response the landlord told him that works would start on 23 January 2023. It said that it was working on specifications and would provide the resident with the relevant information once it received it. The evidence suggests that the landlord failed to deliver on its commitment to provide the resident with this information, which was a further failing and departure from its own policy.
The resident escalated his complaint to stage 3 of the landlord’s complaint process on 19 January 2023. He raised his concerns that although the landlord stated the roof repairs would start on 23 January 2023, it had not told him how and when the roof works would be completed. He reiterated his concerns again at the beginning of February 2023. There is no evidence to suggest that the landlord responded which was unreasonable. In the circumstances, and given the concerns that had already been raised, it would have been reasonable for the landlord to ensure that it was keeping the resident updated, and to be transparent in its communication. That the landlord failed to respond to the resident was a further failing in its handling of the matter and a missed opportunity to try to resolve his ongoing concerns.
The landlord told us that it removed the scaffolding on 16 March 2023. It advised that works to the roof were completed around this time. However, it did not provide this Service with a specific completion date nor a contemporaneous record setting out the works that were undertaken.
The landlord stated that it would provide the resident with a response as to why the scaffolding was erected for a prolonged period of time, as recommended by the stage 3 adjudicator in May 2023. The evidence available demonstrates that despite the resident chasing the landlord at least twice, it has failed to do so. It is unclear why the landlord has failed to provide the resident with the necessary information. However, this is a significant failing on its behalf.
Overall, the landlord’s response to the resident’s concerns about the length of time the scaffolding was in situ was poor. Although the landlord acknowledged in its stage 12 response that there were periods where the scaffolding was in place but no works were being carried out, it failed to provide the resident with a reason as recommended by the adjudicator. It also failed to keep the resident updated about the progression of the works. We have therefore found maladministration in the landlord’s response to the resident’s concerns about the length of time that the scaffolding was in situ.

The cost of the scaffolding

In his original complaint, the resident raised concerns that he may be liable for the cost of the scaffolding that had been in situ. He advised that he was concerned about this as he considered it had been in place for an unreasonable period of time as the landlord had failed to progress works. In response the landlord said that as the resident was a leaseholder, he would be liable for a proportion of the cost of the repairs and scaffolding. The landlord’s response was correct in terms of setting out the resident’s obligations under the lease agreement. However, this did not answer the resident’s concerns that the landlord’s inaction was likely to inflate the costs payable by him. Therefore its response was unreasonable and caused him further distress and inconvenience.
The resident reiterated his concerns about the costs in his escalated complaint in December 2022. In response, the landlord said that it was still working on specifications of the works and would provide the resident with the relevant information as soon as it received it. It is acknowledged that the landlord may not have had all the information to hand to provide a response around costs at that point in time. However, given that it was not disputing that the scaffolding had been in situ during periods where no works were being carried out, it would have been reasonable for the landlord to provide the resident with some reassurance that it would be reviewing the costs and considering in full what amount should be apportioned to residents given any delays or failings on its behalf. That no such assurance was provided was a failing and a missed opportunity to allay some of the resident’s concerns.
Despite the landlord’s commitment to respond to the resident’s concern about costs following the adjudicator’s recommendations in May 2023, the evidence available demonstrates that the landlord still failed to do so. Furthermore, the resident chased it for a response in July and September 2023. The evidence available demonstrates that the landlord did not respond and while it is unclear, it also shows that its response remains outstanding. This is concerning and unacceptable. We have therefore found maladministration in the landlord’s response to the resident’s concerns about the costs associated with the scaffolding.

The landlord’s complaint handling

The resident complained to the landlord on 22 November 2022. The landlord’s response on 12 December was 1 working day outside of its 10 working days response timescale. This was a slight departure from the landlord’s policy timescales and the landlord’s apology was proportionate in the circumstances.
In his complaint, the resident raised concerns about the safety of the scaffolding as it had been up for an extended period of time with no inspection. He also raised concerns that as a leaseholder, the landlord should have provided notice and consulted with him about the roof repair works, which it had not.
The landlord failed to respond to these specific concerns. The Ombudsman’s Complaint Handling Code (the Code), states “landlords must address all points raised in the complaint and provide clear reasons for any decisions.’ It also states that ‘Where a key issue of a complaint relates to the parties’ legal obligations landlords should clearly set out their understanding of the obligations of both parties.”
In this case, the resident’s concerns about the landlord’s failure to consult with him, related to its obligations under section 20 of the Landlord and Tenant Act (LTA 1985). While it is unclear whether the repairs works required a consultation, the landlord’s failure to address the resident’s specific comments meant that his concerns went unanswered. This was inappropriate and a failing in the landlord’s complaint handling.
In its stage 1 response, the landlord apologised for “any delays and failure in service” and for the distress and the inconvenience that it had caused. The Ombudsman recognises that a landlord’s apology to a resident, depending on the detriment caused, can be appropriate to put matters right. However, in this case, the landlord’s apology was vague. Given that the landlord had failed to respond to all of the resident’s concerns and to set out clearly what it considered the failings to be, the apology was lacking in meaning.
When the resident escalated his complaint on 13 December 2022, he asked the landlord for a copy of the contractor’s report. The landlord had referred to reviewing the report within its stage 1 response, and it is therefore understandable that the resident wished to be provided with a copy. The landlord failed to provide this alongside the stage 2 response or an explanation as to why it was unable to do so. This was unreasonable.
As part of his escalation request, the resident also questioned why the landlord had not claimed under its insurance for the roof works. The landlord failed to address this in its stage 2 response. This was a further departure from the Code.
The evidence provided to this Service shows that when the resident escalated his complaint to stage 3 of the landlord’s process, it failed to acknowledge his request. The landlord’s complaint policy stated that at stage 3, an adjudicator would acknowledge the resident’s complaint within 2 working days. That it did not was a further failing.
Furthermore, despite the resident chasing the landlord for a response to his escalation request in February 2023, it missed another opportunity to acknowledge and progress his complaint. This was inappropriate and it caused the resident further time, trouble and distress.
The resident contacted this Service as the landlord had failed to respond to his escalation request. In response, the adjudicator issued their review on 22 May 2023, which was approximately 65 working days passed the landlord’s 20 working days timescales outlined in its policy. While the reason for the delay is unclear, that there was one is a failing.
In the adjudicator’s response, they recommended that the landlord respond to the resident’s unanswered questions and requests. This included providing him with a copy of the contractor’s report and responding to his concerns about the lack of consultation and why it had not considered an insurance claim for the roof repairs. They said that if the landlord was unable to provide the resident with the information that he requested that it should inform him of reasons as to why.
The landlord accepted these recommendations and told the resident on 12 June 2023 that it was “looking into” gathering the information for him. This response was inappropriate and extremely concerning that after approximately 6 months the landlord was still “looking” into gathering the information for the resident despite committing to doing so in its complaint responses.
The adjudicator’s recommendation to offer the resident £25 compensation for the time and trouble spent pursuing the matter was unreasonable. Taking into consideration the cumulative failures outlined in this investigation over a protracted period of time, the level of compensation is not proportionate to the level of distress and inconvenience caused. Therefore a further award of compensation has been ordered in recognition of this in line with Ombudsman remedies guidance.
As detailed above, it is unclear whether the landlord has now provided the resident with the information as recommended by the adjudicator. Therefore, an order has been made for the landlord to do so and where it cannot, it should advise the resident with an explanation as to why.
On 8 February 2024 the Ombudsman issued the statutory Complaint Handling Code. This Code sets out the requirements landlord must meet when handling complaints in both policy and practice. The statutory Code applies from 1 April 2024. The Ombudsman has a duty to monitor compliance with the Code. We will assess landlords using our Compliance Framework and take action where there is evidence that the requirements set out in the Code are not being met. In this investigation, we found failures in complaint handling. It is noted that at the time of the complaint, the landlord had a 3-stage complaint process which is not Code compliant. We therefore order the landlord to consider the failings highlighted in this investigation when reviewing its policies and practices against the statutory Code examined under the duty to monitor remit.
Overall, the landlord’s complaint handling in this case was wholly unreasonable and inappropriate. It:
1. missed several opportunities respond to the resident’s specific concerns in its complaint responses.
2. provided a response that did not corroborate with the evidence available.
3. failed to acknowledge and progress the resident’s complaint within its own policy timescales.
All in which caused the resident time, trouble and distress over a prolonged period of time. Therefore there was maladministration in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s concern about the length of time that the scaffolding was in situ.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s response to the resident’s concerns about the costs associated with the scaffolding.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord’s handling of the resident’s complaint handling.

Orders and recommendations

Orders

Within 4 weeks of the date of this determination, the landlord should:
1. apologise to the resident for the failings highlighted by this investigation.
2. pay the resident £825 compensation, comprised of:
  1. £400 for the distress and inconvenience caused by the landlord’s poor response to the resident’s concerns about the scaffolding and the associated costs.
  2. £400 for the distress and inconvenience caused by the landlord’s poor complaint handling.
  3. the £25 compensation offered to the resident during the complaints process. If this sum has already been paid to the resident, this may be deducted from the overall total.
3. confirm with this Service that it will consider the failings highlighted in this investigation when reviewing its policies and practices against the statutory Code examined under the duty to monitor remit.
Within 6 weeks of the determination, the landlord should:
1. provide a written response to the resident’s unanswered questions and provide him with a copy of its contractor report. In doing so it should:
  1. contact the resident to ascertain what questions remain unanswered.
  2. provide him with a copy of the contractor’s report.
  3. inform the resident if it cannot provide the report or answers to any unanswered questions. It should include the reasons as to why it cannot in its response.
  4. signpost the resident to the FTT where applicable.
2. remind/train staff on its complaint policy and procedures. In particular, it should:
  1. ensure that complaint responses address all of the resident’s concerns.
  2. escalation requests are actioned within its own timescales.
  3. ensure staff are equipped to handle leaseholder repairs//major works complaints.