Lewisham Council (202224509)

REPORT

COMPLAINT 202224509

Lewisham Council

20 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. A repair to the living room window.
   2. The associated complaint.

Background

2. The resident is a secure tenant of the landlord. She occupies a 2-bedroom flat on the 8th floor with her two sons. Her tenancy commenced in October 2018.
3. On 9 February 2020, the resident reported to the landlord that her living room window was smashed by high winds during a storm. The next day the landlord attended and made this safe by boarding up the window. A further repair was completed on 2 October 2020 to make safe the living room window. In December 2020, an MP contacted the landlord on behalf of the resident explaining the smashed window had not been replaced. On 22 December 2020, the landlord replied and apologised for the failures in service and awarded the resident £100 to her rent account for the delay in completing this work and requested its contractor to contact the resident directly to arrange an appointment for reglazing.
4. A family support worker contacted the landlord on behalf of the resident on 16 December 2021 as the window remained boarded up. They added it was unacceptable to have left the window in this state for 22 months. The landlord issued its stage 1 response on 11 January 2022. It said it attended on 10 February 2020 and made safe around 5.30pm following report of an emergency repair. It added that on 23 June 2020 the resident was advised the landlord would only make the window safe, as the responsibility for arranging and paying for reglazing falls to her. It apologised for this misunderstanding and noted it should have made the true position, which was that it was responsible for reglazing, clear when its operative attended in October 2020.
5. The resident referred the complaint to the Ombudsman on 13 January 2023 as the window was still boarded up. The Service referred the complaint to the landlord on 25 January 2023. The landlord provided a further stage 1 response on 6 February 2023. It upheld her complaint and said it had since accepted liability for the reglazing. It apologised that it had failed to action the repair in a timely fashion. It said it would arrange for contractors to attend to measure and replace the window in the living room and that they would contact her to advise an appointment date and time.
6. In late May 2023, the resident asked to escalate her complaint to stage 2. She said the landlord had sent a text message saying it would attend, but did not. She reiterated that there was only a board on the window which kept coming away. On 20 June 2023, the landlord issued a stage 2 response. It said there was an initial delay due to scaffolding being required. It explained that while it had scheduled its contractors to attend on 15 June 2023, on arrival they were unable to physically access the window from the scaffolding as there was an obstruction caused by the scaffolding itself. It added its contractor would meet the scaffolding operatives on 22 June 2023 and they estimated their availability to install the window would be on 28 June 2023 provided the obstruction issue was resolved. It apologised that its service had fallen below the expected level and offered £200 compensation for the delay in pursuing the works and its failure to communicate with the resident about delays.
7. Around mid-July 2023, the landlord replaced the window glass in the living room window. On 23 August 2023, the resident asked to escalate her complaint to stage 3. She felt that as it took more than 3 years for the window to be replaced, she should have been compensated for the additional cost of heating to keep her property warm in the winter when cold air was entering the flat through the sides of the board. She added that the boarded window had prevented natural daylight in the living room, and her children had suffered throughout.
8. The landlord issued a stage 3 adjudication on 9 October 2023. It identified learning, namely to review the Repairs Guide in order to make the policy on replacing windows clearer, and to make it clear that the cost of the work should fall to the resident only if they are directly responsible for the actual damage. It upheld the complaint as it acknowledged the resident waited 3 years for the repair. It said its previous offer of compensation was insufficient and added that it was not possible to do an exact calculation of additional heating costs. The stage 3 adjudication recommended that the landlord apologise and pay a total of £1,000 (inclusive of the £200 awarded at stage 2) to reflect financial loss for heating, lack of control over the temperature in the room, loss of natural light, embarrassment, risk of harm from the boarded window, and the distress and inconvenience for the time it took to resolve.
9. The resident remained unhappy as she did not feel sufficiently compensated for the length of delay in repairing the window and felt that the cost of additional heating during winter months, for which she had to purchase more heaters, was not fully taken into consideration. As a resolution, she would like additional compensation.

Assessment and findings

The scope of the Ombudsman’s investigation

10. It is very concerning that the resident has explained she has had a boarded window since February 2020 which was only reglazed in July 2023. The landlord treated correspondence from the family support worker dated 16 December 2021 as a formal complaint and it provided a stage 1 response on 11 January 2022. However, it is noted the resident did not pursue the complaint in a reasonable time after this point. She then raised a further complaint about the window over a year later in January 2023. In accordance with paragraph 42c of the Scheme, we may not consider complaints that were not brought to the landlord’s attention as a formal complaint within a reasonable period, normally within 12 months of the matters arising.
11. In view of the time periods, this investigation will consider the landlord’s handling of the matter from December 2021 until its final response of October 2023. With that said, the Ombudsman has not completely discounted the date that the issue was first report to the landlord, and when it could have reasonably been expected to undertake replacement. Although we will not comment on how this was managed, the length of time the window was out of repair may feature in our overall conclusion.

The landlord’s handling of a repair to the living room window

12. In line with section 11 of the Landlord and Tenant Act 1985 (the Act), the landlord should keep in repair the structure and exterior of the dwelling-house. The landlord’s repairs guide sets out it is responsible for re-glazing windows (except those that have been previously made safe).
13. The resident initially reported the smashed window in February 2020 which was made safe the following day of the report on 10 February 2020. A family support worker made a formal complaint as the reglazing works had not been completed since the window had been made safe. The landlord’s stage 1 response of 11 January 2022 incorrectly stated that the resident was to arrange and pay for reglazing.
14. However, from the phrasing of the repairs guide “(except those that had previously been made safe)”, could be read as the landlord had already made safe and that it did not have a responsibility. In this situation, as the glass was smashed by high winds, and not by a fault attributed to the resident, the landlord should have recognised that, after making safe, follow on works were required, namely the reglazing of the missing window glass, which was its responsibility to arrange and pay for.
15. The landlord recognised its error in its stage 2 and 3 responses and acted reasonably by apologising and identifying learning to improve its services and recommending a review of its Repairs Guide. It advised it would make the policy on replacing windows clearer, namely that the cost of the work should fall to residents only when they are directly responsible for the actual damage, although the work itself must be carried out by the landlord, regardless of who or what caused the damage. As of today, it does not appear that the landlord has updated this on its website or repairs guide. In view of this, a recommendation has been made.
16. In fact, the landlord seemingly only took the issue seriously from January 2023. It remains the case that it took the landlord over 3 years (over 750 working days) given that the reglazing was not completed until July 2023. According to the landlord, there were delays due to a recruitment issue where it said it did not have enough glaziers. In any case, the landlord acknowledged that the repair took 3 years longer than it should have done and recognised the impact the boarded-up window had on the household. This was a failing on the part of the landlord as the resident had to pursue the repairs several times through multiple different support organisations to progress matters. In this regard, it was unreasonable to expect the resident to go to such lengths for the landlord to complete a repair and it did not appropriately manage expectations from the formal complaint of December 2021.
17. In the resident’s complaint, she was unhappy that the landlord’s inability to carry out reglazing in a timely manner led to increased utility bills. She said she had to make extra efforts to keep the property warm in the winter as cold air entered the property through the edges of the boarded window. The Ombudsman has not seen any evidence that the landlord sought to establish the facts about any increased heating costs or to find out if further support or financial assistance was needed by the resident. This would have been a reasonable approach, given that the resident was reporting that she was experiencing adverse temperatures perpetuated by a lack of repair, but this did not happen.
18. The landlord’s stage 3 response attempted to address this by stating it was not possible to do an exact calculation of additional heating costs. While it is appreciated it may be challenging, the landlord could have made an estimate or simply requested evidence of her increased utility bills and considered paying towards these. This would have been a sensible approach. However, the landlord took the view that its offer of £1,000 took into account any money due to the resident that had not previously been paid such as reimbursement for increased utility bills due to the landlord’s failure to resolve an issue.
19. When assessing the level of compensation, the landlord states that, in line with its policy, where the resident has suffered inconvenience and/or distress because of a serious or repeat service failure, it will award compensation of £251-£1,000. This is broadly in line with the Ombudsman’s remedies guidance which states that compensation of up to £1,000 may be awarded to remedy failures that had a significant physical and emotional impact on the resident. On the face of it, the landlord’s offer of compensation fell into these ranges. However, in the Ombudsman’s view, the £1,000 compensation offered was only proportionate in reflecting the detriment to the resident, and not any additional costs. Although the landlord said it also accounted for the resident’s increased heating bill, it should have taken a more specific approach to establish what this cost was – particularly considering that the window was boarded up for over 3 years, which included many winter months. During this time, heating costs would likely be higher as cold air entered the living room around the edges of the board.
20. Further, the resident reported no access to daylight in the living room and, in addition, her concerns about health and safety given that she had 2 children under the age of 18 living in the property. She added that the board became damaged by the weather over the lengthy period of time it was in place and so could have become dislodged or fallen away. Although it is not clear how many windows were in the living room and therefore how much the lack of daylight affected the room, the resident’s concerns about the wooden boards and nails coming loose will have inevitably caused her distress.
21. The landlord’s compensation, reimbursement and remedies procedure suggests awards of up to £50 per month for a low impact service failure. While not diminishing the effect this situation had on the resident and the household, a broken window which had been made safe and boarded up, as in this case, would be considered a low impact service failure. However, as this was not put right for such a substantial period of time, over 3 years from when it was first reported, this resulted in significant distress and inconvenience.
22. While this report has not shared a view on the events that took place prior to December 2021, the landlord’s responsibility to re-glaze the window commenced once it made the window safe. It acknowledged this length of time itself in its complaint correspondence and noted that with the COVID-19 restrictions, the earliest time it could have completed the works was July 2020. With this in mind, in the Ombudsman’s view, a reasonable amount of compensation would be £50 per month for 36 months calculated from July 2020 until mid-July 2023 when the reglazing took place. This would equate to a total of £1,800 and would be an appropriate amount of compensation as it is in line with the Ombudsman’s remedies where the landlord has repeatedly failed to provide a service which has had a detrimental impact on the resident. Therefore, the Ombudsman considers an additional award of £700 on top of what has already been paid, namely the landlord’s payment of £100 rent reimbursement in December 2020 and its offer of £1,000 in its stage 3 response. A recommendation has been made to contact the resident about the increased heating costs.
23. In this investigation, there were failures in the landlord’s handling of its repairs and record keeping, similar to those identified in case 202124577. We have not, however, made any further orders for the landlord to improve this. This is because a wider order was made as part of case 202124577 with which the landlord has now complied. We expect the landlord to take forward the lessons and improvements it shared with this service following the wider order, and will monitor its progress in doing so.
24. Moreover, the Ombudsman is currently undertaking a special investigation into Lewisham Council. This is conducted under paragraph 49 of the Scheme and allows the Ombudsman to investigate beyond an individual complaint to establish whether there is evidence of systemic failings. The findings of this report will therefore contribute to the actions needed following the completion of the special investigation.

The landlord’s handling of the complaint

25. At the time of the complaint, the landlord operated a three stage complaints policy
    1. Stage 1 – where a written response will be issued within 10 working days.
    2. Stage 2 – where a written response will be issued within 20 working days.
    3. Stage 3 – where the complaint is seen by an independent adjudicator and a written response will be issued within 20 working days.
26. The Housing Ombudsman’s Complaint Handling Code advises that ‘two stage complaint procedures are ideal. This ensures that the complaint process is not unduly long’. The landlord’s three stage complaints process would have meant that the resident had to wait at least a further 20 working days before she was able to exhaust the landlord’s complaints process. The landlord has since updated its complaints policy and from 1 February 2024 no longer uses three stages. However, in 2023 stage 3 was a mandatory part of the landlord’s internal complaints procedure.
27. On 16 December 2021, a family support worker made a formal complaint on the resident’s behalf to the landlord about the outstanding reglazing of the window. The landlord provided a stage 1 response on 11 January 2022, this was slightly outside its published time scales. This was a shortcoming on the part of the landlord. However, it is unclear if the resident was satisfied with the landlord’s response in January 2022 and this service cannot see that a further complaint was made until the following year. The resident subsequently referred her complaint to the Ombudsman on 13 January 2023. This service contacted the landlord on 25 January 2023 asking for the landlord to provide a formal response. The landlord acted fairly by issuing its further stage 1 response on 6 February 2023. This was in 8 working days and in line with its policy timescales.
28. The resident asked to escalate her complaint in late May 2023. The landlord acted fairly issuing a stage 2 response on 20 June 2023. This was within around 16 working days and within its policy timescales. Subsequently, the resident asked to escalate her complaint to stage 3 on 23 August 2023. However, the landlord acknowledged the stage 3 complaint on 6 October 2023 which was considerably outside its aim to acknowledge the stage 3 complaint within 2 working days and it issued its stage 3 response on 9 October 2023, 33 working days after the request to escalate which was well outside its policy timescales. While this was not in line with the prescribed approach, this would not have had much of an impact as the reglazing had taken place around 3 months prior. Nevertheless, it would have offered the resident some closure, allowed her to exhaust the landlord’s complaint procedure, and to access any compensation she was due.
29. Where there are delays, landlords should endeavour to keep residents updated and inform them of extended timescales. However, this did not happen. While it briefly apologised for this delay, its handling of the complaint at stage 3 likely undermined the resident’s trust in the landlord to satisfactorily resolve matters for her. Additionally, the landlord failed to engage with formal complaints made in December 2020 and June 2021. It is considered the apology offered at stage 3 did not go far enough. In the circumstances, it would have been reasonable for the landlord to offer some compensation to reflect the delays and lack of communication during stage 3. An order has been made to remedy.

Determination

30. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration in the landlord’s handling of a repair to the living room window.
31. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the complaint.

Orders and recommendations

Orders

32. Within 28 days of the date of this report, the landlord must:
    1. Apologise to the resident in writing for the failings identified in this report.
    2. Pay the resident £800 made up of:
       1. A further £700 for the distress and inconvenience caused by the landlord’s handling of the repair to the living room window.
       2. £100 for the distress and inconvenience caused by the landlord’s handling of the complaint.
33. The landlord must provide evidence of compliance with the above orders to the Ombudsman within the above timescale.

Recommendations

34. The landlord should:
    1. Contact the resident and ask for any evidence of increased utility bills, and consider providing reimbursement where appropriate. 
    2. Update its website and repairs guide to reflect its recommendation in its stage 3 response about replacing windows clearer.