London Borough of Hackney (202230472)

REPORT

COMPLAINT 202230472

London Borough of Hackney

31 October 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:
1. The landlord’s handling of the resident’s concerns about the remedial works completed and those still outstanding in the property.
2. The landlord’s handling of the resident’s decant.
3. The landlord’s handling of the resident’s complaint.
4. The landlord’s record keeping with respect to the issues.

Background

The resident is the secure tenant of the property owned by the landlord. She occupies the flat with her grandchildren.
The resident had experienced historical problems with damp and mould at her property since she moved in. Outside specialists determined that the underlying cause of the defect within the property was the high-water table and the location of the property in relation to it. The neighbouring property was also affected.
The landlord identified an extensive program of works, which included tanking the property, to resolve issues with the damp course. In November 2021, the resident and her family were temporarily decanted for a 4-month period while the required works were completed. The works over-ran for a further 3 months. Prior to moving out the landlord had agreed to pay the resident £10,000 for time and trouble and her experience whilst occupying the flat since moving in.
The resident returned to her property on 10 May 2022 and made a formal complaint on 30 November 2022. She said that she had moved out for 7 months, but when she returned, the work had not been completed properly. This included a damaged fluepipe which was dangerous and resulted in the boiler being condemned. A number of works had to be redone, and some were still outstanding. She wanted the works completed as soon as possible and £8260 compensation for materials, labour and personal compensation.
The landlord responded to the stage 1 complaint on 16 January 2023. It acknowledged that additional repairs had to be arranged following the original works carried out by its contractors and not all works had been completed to the correct standard. This issue had been escalated with both its Senior and Contract Management, who had attended the resident’s property to discuss the outstanding repairs and agree a way forward.
The landlord also said it had made its best efforts to rectify any repair issues raised as soon as possible. It listed approximately 10 other works orders for a variety of trades that had been agreed and completed between May 2022 and January 2023. It offered the resident £760 for paint and flooring but declined to pay the labour costs as it could supply the labour itself. It also agreed to £1500 personal compensation.
The resident was not happy with this outcome and escalated her complaint on 21 January 2023. She said she had remained in temporary accommodation for an additional 3 months with no explanation. The locks were changed on her property without consent, the boiler was condemned twice, putting her and her grandchildren at risk of poisoning. She provided details of several other issues with the property. All of the poor workmanship should have been picked up earlier by the landlord. The compensation offered, was not reflective of what she had experienced.
The landlord issued its final stage response on 20 February 2023. Its position on the matter remained the same. It had accepted and apologised for the distress and inconvenience caused by the poor quality of the repairs carried out. It had worked with the resident to resolve the issues, only 2 jobs were now outstanding. It felt the amount of compensation offered at Stage 1, was appropriate, because the resident had already been awarded substantial compensation (£10,000), for “full and final settlement for disrepair”.
The resident approached this Service because she was dissatisfied with the outcome. She said her home was still not finished, and the landlord’s offer of £2260 was not reflective of the stress and anxiety she had been put through or what still needed to be done.

Assessment and findings

The remedial works

The landlord has statutory repairing obligations for its rented properties, which are set out in section 11 of the Landlord and Tenant Act 1985. It requires that landlords must keep in repair and proper working order: the structure and exterior of the property, the installations for the supply of the utilities, sanitation, space heating and heating water. The landlord has set out its repairing obligations in its tenancy agreement.
The landlord had decanted the resident and carried out a major programme of works on her property to resolve a historical damp problem. This was appropriate and in accordance with its responsibilities under section 11 of the landlord and tenant act.
The resident stated in her complaint that she was unhappy that once she had been decanted from her property, the landlord changed the locks. This is not an uncommon practise. To determine a decant is required usually involves a risk assessment. If a decant is agreed, there is a high risk to the residents being in the property while works are completed.
Once decanted, residents are not usually allowed to return on health and safety grounds. This should, however, have been fully explain to the resident. Her reaction to the locks being changed and her view the subcontractor was conspiring to keep her away, suggests it was not, and this was a failing.
Within 2 days of the resident moving back into the property, she reported a significant leak from the boiler. The landlord’s repairs policy commits to attend to emergency repairs such as uncontrollable water leaks, within 24 hours. The landlord’s records show it raised an order for an operative to attend the same day, in accordance with its policy response times.
The landlord said its gas engineer found faults with the boiler pipework, fitted by the subcontractor who had completed the programmed remedial works. In response, the engineer isolated the boiler from the mains and gas and then drained it down. A warning notice was issued, and a gas inspector was called to attend that day, who condemned the gas boiler as unsafe.
All the actions the landlord said its gas safety staff had taken at this point were not disputed by the resident and appeared timely and appropriate. However, there were shortcomings in the repair records supplied to this Service relating to the boiler and pipework issues, which are discussed later in the record keeping section of this report.
Between May 2022 and January 2023, a significant number of faults with the work carried out at the resident’s property were identified. All gas and water pipes had to be ripped out and replaced. Cupboard doors had to be taken away to get the paintwork rectified. A significant amount of internal decorating was needed. Once completed, none of the internal doors had been primed as ordered and the paint had yellowed and was peeling off. The leak from the boiler had damaged her laminate flooring. In total, 11 separate works orders were raised, some of which had multi-trade requirements.
This was clearly disappointing and upsetting for the resident, she had experienced the upheaval of moving out for 7 months while this work was completed and then returned to have a significant amount of the work re-done while she was in situ.
It was evident that the landlord responded appropriately when the faults were brought to its attention. The resident herself has confirmed that surveyors, managers and the head of service have all attended her property and did not dispute that a number of works had not been completed to standard. As a result, the landlord did apologise to the resident, which was reasonable.
The landlord appropriately raised works orders, to rectify the substandard works, as and when they were identified. It also used an alternative workforce where it could, due to the resident’s understandable loss of faith in the previous subcontractor. This included using the direct labour organisation (DLO), which the resident has acknowledged, did their best to put things right, which was reasonable.
As part of the resolution to her stage 2 complaint, the resident wanted the landlord to pay for the cost of a labourer to sand down and prepare all the paintwork, for her brother to do the painting. It would not however agree to pay for her labour. Its complaint response said that this was because it could supply the labour itself.
How the work is completed is a decision for the landlord. Considering the resident’s request and agreeing to pay for the paint for the resident’s brother to do the work, was reasonable. The landlord, however, has an obligation, to make the most effective use of its limited resources as a social landlord, for the benefit of all its residents. If the landlord deemed the payment for labour requested by the resident, was less cost effective than providing the labour itself, it was within its rights to refuse the request. The stage 2 review determined that this decision would remain, which was not unreasonable.
The landlord had also agreed to pay for the resident to supply her own laminate flooring, following the damage caused by the leak from the boiler. The resident said the landlord’s previous subcontractor had laid the flooring incorrectly; she wanted the landlord to pay her the sum of £1000 for her own choice of floor fitter. The landlord refused the request but offered to bring in a local carpet and flooring company to do the work.
Again, it is for the landlord to decide who carries out the work in its properties. It had offered a different floor laying contractor to the one whose work the resident considered was faulty. As with the decorating, if its supply of labour for the flooring was more cost-effective than paying the sum requested by the resident, it was within its rights to refuse the resident’s request. The stage 2 review determined that the decision not to pay the resident £1000 remained, which was not unreasonable.
Internal decorating is the responsibility of the resident under the terms of the tenancy agreement. However, caselaw indicates that, where a landlord has an obligation to repair, there is also an obligation to make good any damage to decorations as a result of the repair work.
The original programme of works to address the damp issue in the property included the landlord decorating the property internally throughout. This was appropriate and complied with its obligations to make good. When some of the decorating work was determined to be sub-standard, the landlord arranged for the work to be re-done. In doing this it had again met, its legal obligation to make good.
The resident, however, was still unhappy with some of the internal decorating. She was of the view that the woodwork had not been primed before undercoating and painting, as the works order specified. The landlord listened to her concerns and continued to try and negotiate a solution. This included paying for the resident’s own paint and laminate flooring, which was reasonable.
In February 2023, the resident had started to experience water pooling behind the cooker in her property. The landlord diagnosed this as “interstitial condensation”. This was building up behind the tiles due to multiple layers of new materials (which included the membrane and fixings that were added to resolve the rising damp issues), combined with the heat from the back of the electric cooker.
This was not a fault in the workmanship, rather an unforeseen consequence of the solution to the previous damp issues. The landlord identified a course of action to resolve the issue and raised a works order for the previous sub-contractor to return, which was appropriate.
The resident was not happy about this and refused access. Her lack of trust in the sub-contractor, and unwillingness to have them do any more work in her home, was completely understandable in light of the amount of work they had carried out that was identified as substandard.
Until this point the landlord had made every effort to use an alternative workforce. However, it was obliged on this occasion to allocate the job to the subcontractor. This was to protect the warranty provided for the damp proofing works the subcontractor had previously undertaken. To use a different contractor would have voided the warranty. This would have been a significant problem as it would mean that any further issues would cost more to resolve.
Although the resident has concerns about the subcontractor, she is obliged by the conditions of her tenancy agreement, to give them access to carry out the works. If she fails to do so, the landlord has the ability to take legal action against her to gain entry.
It was clear that the events in this case had been very distressing for the resident. She had the inconvenience of being decanted from her home for many months and returned to find a significant amount of the work completed in that time was substandard. It was also concerning to find that she and her grandchildren were potentially put at risk because of faulty workmanship to the boiler at her property. The landlord acknowledged this, and by way of redress offered the resident £1500 for the personal impact that its failings had had on her.
The Ombudsman’s awards of compensation are not intended to be a punishment, and we do not award damages in the way that a court might. In assessing an appropriate level of compensation, this Service takes account of a range of factors including any particular distress and inconvenience caused by the issues, the amount of time and effort spent on pursuing the matter with the landlord and the level of detriment caused by the landlord’s actions.
In line with the Ombudsman’s remedies guidance, this figure (£1500) is in a range that is considered proportionate where there have been failures which had a significant impact (including an emotional impact), and the redress required to put things right is significant.
As far as possible, remedies should put a resident back in the position they would have been in had the maladministration not occurred. The landlord’s efforts to put this matter right, amounted to providing a sincere apology, putting in a plan of action that led to the works taking place and offering compensation totaling £2260 (including paint and flooring). This Service concludes that this amount sufficiently resolves the failings by the landlord and its impact on the resident with respect to this aspect of her complaint.

Decant

It was agreed that the resident should be decanted from her property in November 2022, for a period of 4 months while the landlord carried out major works to address the damp and mould.
The resident returned to the property in May 2023. She complained to the landlord that she had spent a further 3 months in her temporary accommodation than originally agreed without explanation.
It is not unusual for major works to over-run, but the resident should have been kept informed about the works and any reasons for the delays to its completion. The landlord’s decant policy commits to the Estate Officer keeping the resident appraised on progress with the works, which should include any delays.
This aspect of the resident’s complaint was completely overlooked during the landlord’s complaint process. This was not reasonable because, as a result, it did not acknowledge the delay, identify the failings in communication, or consider any redress. This Service finds that this was unreasonable and a failing by the landlord.

Complaint handling

From December 2020, all member landlords were required to complete an annual self-assessment against the Housing Ombudsman’s newly published Complaint Handling Code (the Code). It became statutory in April 2024, which means that landlords are now obliged by law to follow its requirements.
The landlord has recognised that it did not meet the Ombudsman’s requirements to self-assess against the code from 2020. At the time of the resident’s complaint, it did not have a prescribed complaints policy in place. It has, however, since introduced a complaints handing policy since 1 December 2023, which is publicised on its website.
The Code sets out acceptable response times for dealing with complaints. Stage 1 complaints should be responded to within 10 working days and Stage 2 complaints within 20 working days unless an extension of not more than 10 days is agreed with the resident.
The resident sent in her stage 1 complaint on 30 September 2022, the landlord responded on 16 January 2023, which was a response time of 73 working days. This significantly exceeded the Code’s recommended 10-day timeframe, which it did not acknowledge or apologise for. This was not acceptable and was a complaint handling failing.
The landlord also apologised for a delay in its stage 2 response. The resident requested escalation of her complaint on 17 January 2023, but its response was sent on 28 February 2023 (31 working days).
A consistent failure to adhere to timescales throughout the process, could be seen as the landlord placing a lack of importance on the process, increasing the risk of damage to the landlord tenant relationship and a lack of trust in the landlord’s handling of complaints.

Record Keeping

Clear record keeping is a core function of a repairs service, not only so that evidence can be provided to the Ombudsman when requested, but because this assists the landlord to monitor outstanding works and enable the provision of accurate information to residents.
There was a significant amount of activity following the completion of the major works at the resident’s property, concerning faulty workmanship and a potential health and safety issue with the boiler. The complaint responses referenced multiple inspections, with various technical staff both pre and post completion, as well as meetings with the resident and her brother.
With issues of safety and contract management, the Ombudsman would expect that the landlord’s record keeping would be of prime importance. Detailed findings and actions would be thoroughly documented, and all matters discussed at meetings and inspections well recorded. This however was not evident in the records provided.
The landlord did have some repair records which adequately explained some of the works that were identified and carried out. However, the evidence to support what it said had happened following the resident’s return to the property was lacking. Outside of the complaint investigation, there was an absence of file notes, inspection reports or minutes from meetings that had taken place.
The only record relating to the condemned boiler was a repair order raised on 12 May 2022, which mentioned a “very bad leak on the boiler, leaking into hallway flooring”. There was no evidence of the make–safe works, the gas safety officer’s findings, or the agreed remedial works set out in its complaint responses, which was not acceptable.
The landlord has said in its complaint responses that the original sub-contractors were called to reattend, the pipework was re-installed, and the problem rectified.
The resident however had disputed this. She said she was caused further detriment, the sub-contractors did re-attend, but the pipework was condemned for a second time by the landlord’s gas safety staff, including further faults with the copper pipework to the radiators. She said this resulted in the landlord’s contractor, having to bring in a new sub-contractor, who ripped out and replaced all the incorrect pipework to the gas and water throughout the property.
Due to the absence of any file notes, follow up works orders or gas safety reports on this issue, it was difficult for this Service to conclude what or when actions took place, or whether the landlord had followed its own policies and procedures, which was not reasonable.
The landlord’s complaint responses noted that a joint meeting took place between the landlord and the resident, where the landlord had agreed to pay the resident £1500 personal compensation and £760 towards the cost of paint and laminated flooring. There were no records provided that supported this.
There was one real-time record of events from the landlord’s technical inspector, an email report sent immediately following his visit on the 2 February 2024. This appropriately set out in detail the findings and actions to be taken in response to the water pooling behind the resident’s cooker. This was a good example of the type of record keeping this Service would expect to have seen provided for this case.
In a further email 9 February 2024, the same inspector confirmed that all snagging works had been completed by the DLO and in his view to a good standard. There was also reference to discussion with the resident, about her ongoing dissatisfaction with the internal decs, which he noted was fit for purpose, and any further decorations work should be considered the tenant’s responsibility.
It is reasonable for the landlord to rely on the opinion of its qualified staff to determine if work is completed to the appropriate standard. This report however conflicts with information in the complaint responses on the internal decorating, which agreed to compensate for paint, but not labour as the landlord could supply the labour.
Although the officer’s email was an improvement in record keeping, it raised further questions for the investigation, as to what basis the landlord had previously negotiated the internal decorating on. There were no records available on this, which was unhelpful and not appropriate.
While the landlord’s poor record keeping was not of detriment to the resident, the investigation was not as easy as it should have been as a result.
In December 2023, following record keeping failings identified in case 202102368, the landlord wrote to the Ombudsman setting out that it had set up a knowledge and information (KIM) working group which devised an action plan to improve its record keeping. Therefore, the Ombudsman has not made further orders concerning the above but expects the landlord to take all relevant learning from this case into account. The landlord should consider providing this Service with either an update to the progress on that action plan or a self-assessment against the KIM report.

Determination

In accordance with paragraph 53.b of the Housing Ombudsman Scheme, the landlord has made an offer of reasonable redress prior to investigation regarding its handling of the resident’s concerns about the remedial works, which in the Ombudsman’s opinion, resolves the complaint satisfactorily.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was service failure in the landlord’s handling of the decant.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was service failure in the landlord’s handling of the resident’s complaint.
In accordance with paragraph 52 of the Housing Ombudsman’s Scheme, there was service failure in the landlord’s record keeping with respect to the issues.

Orders

The Ombudsman orders that within 4 weeks from the date of this report the landlord:
1. Apologises to the resident in writing for the failings identified in its complaint handling and communication (decant).
2. If there are any outstanding remedial works, provide an update to the resident on actions and timescales for completion. (copy to this Service).
3. Pays the resident an additional sum of £200 broken down as follows:
  1. £100 for its complaint handling service failure.
  2. £100 for its decant communication failings.
4. Provides this Service with evidence of compliance with the above orders.

Recommendations

The landlord should reoffer the resident the amount of £2260 offered for its failures with respect to handling of the resident’s concerns about the remedial works completed, as this recognised genuine elements of service failure, and the sufficient redress finding is made on that basis.