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Midland Heart Limited (202229468)

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REPORT

COMPLAINT 202229468

Midland Heart Limited

9 February 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:
    1. The landlord’s response to the resident’s concerns about the condition of the property when let, and outstanding repairs.
    2. The landlord’s decision not to amend the tenancy start date.

Jurisdiction

  1. 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 this Service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
  2. Paragraphs 42(f) and (o) of the Housing Ombudsman Scheme state that the Ombudsman may not consider complaints which, in our opinion:
    1. 42(f) – concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal or procedure;
    2. 42(o) – concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide.
  3. The resident’s concern about the landlord’s decision not to amend the tenancy start date, and his request for this to be amended, is not within the Ombudsman’s jurisdiction to consider in line with the paragraphs above. The tenancy agreement is a legal document and the resident accepted the terms of the agreement upon signing.
  4. It is not within the remit of this Service to decide whether the property was uninhabitable during the period the resident was not living in the property and whether he is liable for the rent due during this period, or order the landlord to amend the tenancy start date as this is a legal document. The resident may wish to seek independent legal advice on pursuing this further.

Background

  1. The resident is a tenant of the landlord. The tenancy began on 24 June 2022. The property is a house. The resident has advised that he has a disability which impacts his mobility.

Scope of investigation

  1. The resident has advised that the issues reported impacted his health and wellbeing. While the Ombudsman does not doubt the resident’s comments, it is beyond the remit of this Service to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident. The resident may wish to pursue a personal injury claim if he considers that his health has been affected by the landlord’s actions. This is a legal process and the resident should seek independent legal advice if he wants to pursue this option.
  2. In his communication with this Service, the resident has advised of continuing issues with damp in the property and the condition of the kitchen. Other than works to the kitchen floor covering and drawers, the Ombudsman has not seen evidence that issues of damp in the kitchen were raised until 6 February 2023, after the landlord’s stage 2 complaint response. In addition, while the resident had asked that the bathroom flooring was replaced as part of the complaint, the other concerns in relation to the bathroom did not form part of the formal complaint under consideration.
  3. These issues are separate to those raised and responded to under the landlord’s formal complaints process. This Service cannot investigate aspects of a complaint which have not exhausted a member landlord’s complaint procedure, because the landlord needs to be given the opportunity to formally respond. A recommendation has been made below for the landlord to contact the resident regarding his ongoing concerns and escalate the matter formally through its complaints process if requested by the resident.

Summary of events

  1. The landlord’s records show that extensive works were raised on 23 May 2022 during the void period prior to the resident accepting the tenancy. These included works to repair areas of plaster on walls and ceilings, renewing some floorboards and refitting others, cleaning and renewing the kitchen worktop, overhauling existing kitchen units and adjusting doors and drawers among other works. These were reported as completed on 8 June 2022.
  2. The landlord has provided a copy of the void post inspection report of the property on 20 June 2022. The property was signed off as meeting the landlord’s quality standard and was ready to let. The report also signed off a decoration allowance card of £210. The tenancy was then signed by the resident and began on 24 June 2022.
  3. Several repair issues were reported and raised between 11 July 2022 and 11 October 2022 which included:
    1. An emergency repair raised on 11 July 2022 following the resident’s reports of an uncontainable leak from the passageway into the living room. This was attended to on the same day but the operative reported no access.
    2. A further repair on 12 July 2022 in relation to the uncontainable leak from the upper hallway into the living room ceiling. This was reported as rectified on the same day and was found to be caused by a nail through a pipe.
    3. A follow-on work order on 19 July 2022 to refit or renew the upstairs hallway floor slabs following the leak, which was completed on 26 July 2022.
    4. A work order raised on 27 July 2022 following reports that the toilet flush was loud and did not fill, which was completed on 9 August 2022.
    5. A work order raised on 7 September 2022 following the resident’s reports that the downstairs walls were wet to the touch and that mould was beginning to form. The records show that the resident had advised that the issue became apparent when decorating the wall but he believed this had been an issue before he accepted the tenancy. The resident advised the landlord at the time that he had yet to move into the property. The landlord’s records show that there was no access to the property on 26 September 2022.
    6. 3 work orders were raised on 28 September 2022 following reports that the living room ceiling was bulging following the previous leak, the kitchen flooring was damaged due to excessive wear and tear and that the radiators were old and were not heating the property sufficiently.
    7. An appointment was arranged for 3 October 2022 in relation to the radiators. The kitchen flooring was assessed on 7 October 2022 and another work order was raised following the resident’s reports that the front external gate would not close on the same day. The front gate latch was renewed on 19 October 2022.
    8. An appointment took place on 11 October 2022 to inspect the resident’s reports of damp following the previous no access appointment. Work was then passed to a surveyor to hack off the plaster and allow the bricks to dry. This was initially booked for 27 October 2022 but was delayed as works were needed to isolate the electricity supply to the outlets on the wall.
  4. The resident raised a formal complaint and clarified his reasons for dissatisfaction between 14 and 24 October 2022. He explained the following:
    1. He was being put under financial pressure as he was paying for the property but was unable to move in as he was unable to finish decorating or lay carpet. He was living at a different address due to the issues of damp and mould. He asked that the tenancy start date was changed to show when the property was ready for occupancy.
    2. He believed that all work should have been completed before the property was let, including work to replace the bathroom and kitchen floors, changing the outdated radiators, ensuring the property was energy efficient and clearing the alleyway outside the property which was a hazard. He felt this was unacceptable and that the landlord had not fully considered his disability when he needed to stand in an empty property waiting for workmen.
  5. The resident called the landlord on 27 October 2022 as he had not moved into the property and wanted a surveyor to meet him on site. The landlord issued its stage 1 complaint response to the resident on 28 October 2022 and explained the following:
    1. The resident had reported a leak through the living room ceiling. After being unable to gain access on the same day, the leak was then resolved on 12 July 2022. Following the resident’s reports of damp in the walls on 7 September 2022, it had visited on 11 October 2022 and identified that it needed to take the plaster away and allow the wall to dry out. This had been booked for 27 October 2022 but was postponed as it needed to isolate the sockets in the living room. Both repairs, along with a repair to the external pointing of the property, had been booked for 15 and 17 November 2022. It was arranging for a surveyor to visit and complete a further inspection.
    2. The resident had raised concern about the condition of the kitchen flooring on 28 September 2022 and a surveyor recommended that the flooring was replaced following an assessment on 7 October 2022. It acknowledged that there had been miscommunication and administrative errors, and this had not been logged. It apologised for the delay in getting the matter resolved.
    3. In relation to the resident’s reports that he had not been living at the property, it had reviewed its inspection report that was completed before the tenancy was signed. The property was deemed habitable at the time. It explained that some repair issues only become apparent once a resident began to live in the property.
    4. It acknowledged delays in addressing works and said it had otherwise acted in line with policy and procedures when dealing with the repair issues. It confirmed that the resident could escalate his complaint if he remained dissatisfied with its response.
  6. Between 3 and 7 November 2022, a surveyor established that there had been poor workmanship on previous repairs, the alley at the back of the property had rubbish which was blocking access to the rear, radiators were rusting, the gas meter was installed close to the floor (which meant that the resident was struggling to top up the meter due to his disability) and the floorboards needed to be refitted (as the gap at the side of the floorboards was large and some were sticking up which was a tripping hazard to the resident who used walking sticks).
  7. A work order was raised on 9 November 2022. This included works required to:
    1. Clear rubbish within the alleyway, remove the rotten front gate, remove timber fencing in the front garden and add a row of slabs under the front window.
    2. Renew the trim to the UPVC doorstep.
    3. Swap all rusty kitchen unit hinges and renew 4 drawer boxes.
    4. Replace an outlet in the living room, take down the existing section of ceiling in the living room, install plasterboard and plastering, hack off plaster above the floor level in the living room and return to apply 2 layers of waterproof render and plaster after damp works.
    5. Repoint external brickwork that was missing mortar.
  8. The majority of works were reported as completed on 7 December 2022 which also included work to replace 3 radiators and raise the gas meter. On 19 December 2022 a further work order was raised to renew the kitchen floor covering and clean mould from inside the toilet cistern. This work was reported as completed on 20 December 2022. 
  9. The resident asked for his complaint to be escalated on 4 January 2023 as he was dissatisfied with the lack of communication from the landlord, the poor management of repairs, and the length of time the issues had been ongoing. He noted that the issues had impacted him mentally and financially and he did not feel that the landlord had considered his disability. He said that the alley was still blocked and he had now been informed that some works agreed by the surveyor were not the landlord’s responsibility. He wanted the tenancy start date to be amended and noted that he had previously decorated, and this would need to be re-done as a result of the works.
  10. The landlord’s records from 6 January 2023 show that the resident had asked for the bathroom floor covering to be replaced that week. Its notes show that this had not been discussed previously. Its records from the same day show that it authorised a £70 voucher to be sent to the resident. It is assumed that this was for additional decoration costs.
  11. The landlord’s records confirm that the rear alley to the resident’s property was reported as clear on 9 January 2023 and supporting photos were provided.
  12. The landlord issued its stage 2 complaint response on 1 February 2023 and explained the following:
    1. It had determined that its inspection report from before the tenancy was signed found that the property was ready to let but it accepted that some of the issues the resident had raised could have been addressed prior to him moving in. The repair issues would not have prevented the property from being habitable and it was for this reason that it would not “restart” the tenancy as requested.
    2. All works had been completed as of 7 December 2022. It acknowledged that there had been service failures in its handling of repairs in the property prior to the complaint being logged. It confirmed that it had reviewed its reports following the resident’s request for the bathroom flooring to be renewed and had not found any issues which would require a renewal.
    3. In relation to the resident’s request for the property to be made energy efficient, it explained that the property currently had an EPC rating of D. It was in the process of updating all properties to a C rating by 2030 and it was unlikely to plan to upgrade the D rated properties before 2025.
    4. It had known that a number of radiators in the property required renewing in September 2022. It understood that the radiators in the bathroom and bedrooms were renewed on 7 December 2022 and acknowledged the delay in completing the renewals.
    5. It also acknowledged that while the works were completed, there was a delay in providing its concluding letter. It offered £619 compensation, comprised of:
      1. £166 for the number of days repairs were outstanding between 26 June 2022 and 7 December 2022.
      2. £83 for the administrative error in relation to the kitchen flooring between 28 September 2022 and 20 December 2022.
      3. £200 for the inconvenience caused.
      4. £170 for its communication failures.
  13. The resident initially referred his complaint to the Ombudsman in February 2023 as he was dissatisfied with the outcome of the complaint. He had not yet moved into the property and wanted the landlord to start the tenancy agreement from the date he was able to move in as he was paying rent elsewhere and was in arrears with his council tax payments. He confirmed that contractors were due to attend on 24 February 2023 to replace floorboards on the top floor landing and the bathroom sink. He also noted that the landlord’s final complaint response did not mention some of the repair issues that had been addressed.
  14. The resident called the landlord on 6 February 2023 to express concern that the issues, including plastering to the living room wall, damp in the kitchen, replacing the kitchen drawers, damp and mould in the bathroom, and the ceiling that needed to be replaced, had not been acknowledged in its response. Following a further inspection, several works were raised to replace the bathroom floor covering, replace several floorboards, fix new bathroom tiles and renew the basin.
  15. The resident has confirmed to the Ombudsman that they moved into the property on 31 March 2023 following further works to the property. He has since advised the Ombudsman that he continued to experience damp and crumbling plaster in his kitchen and wanted the landlord to replace the bathroom and kitchen.

Assessment and findings

Policies and procedures

  1. The resident’s tenancy agreement states that the landlord is responsible for repairs to the structure and exterior of the property and installations for the supply of water and sanitation. The tenant is responsible for internal decoration.
  2. The landlord’s website specifies its service standards for repairs. It confirms that emergency repairs should be attended to within 24 hours, routine repairs should be completed within 28 days and major repairs should be completed within 90 days. Major repairs include those that involve a component renewal, such as a kitchen, bathroom or roof, structural works, or repairs that involve the erection of a permanent scaffold.
  3. The landlord’s Void Standard document states that the EPC of all void properties would be checked, and any property less than an EPC rating of ‘D’ will not be let.
  4. The landlord’s website confirmed that it has a 2 stage formal complaints process. At stage 1, the landlord aims to respond within 10 working days and at stage 2, the landlord aims to respond within 20 working days. In line with the Ombudsman’s Complaint Handling Code, the landlord would be expected to address each aspect of the resident’s complaint within its complaint responses.

The landlord’s response to the resident’s concerns about the condition of the property when let, and outstanding repairs.

  1. In this case, it is not disputed that there were several repair issues identified after the resident accepted the property and signed the tenancy agreement in June 2022. It should be noted that when a property is void, a landlord is obligated, in accordance with the Landlord and Tenant Act 1985, the Decent Homes Standard and the Homes (Fitness for Human Habitation) Act 2018, to ensure that when a tenancy commences it is ‘fit for human habitation’ and free from category one hazards.  During the void period, prospective tenants have the opportunity to inspect the property to see if it is suitable for their needs.
  2. In the event that a prospective tenant raised issues relating to the condition of the property during the void period, any necessary repairs and alterations should be made before the tenant moves in. Alternatively, the landlord and tenant could formally agree a timeframe in which the tenant could expect works raised during the void period to be completed, which could potentially be following the commencement of the tenancy. On the other hand, the prospective tenant could refuse the property as not being suitable for their needs.
  3. In this case, the Ombudsman has seen evidence that extensive works were completed to the property following an initial void inspection on 23 May 2022. Following this, the property was signed off as being ready to let on 20 June 2022 before the tenancy was signed. The landlord has acknowledged that while some repair issues do not become apparent until a resident moves in, some of the repair issues could have been identified and addressed before the property was let.
  4. The Ombudsman has not seen evidence that any repair issues were reported until 11 July 2022, following the resident’s reports of a leak. The landlord ultimately attended in line with its policy timescales, although it is noted that there was no access following the initial appointment which prevented the leak from being resolved sooner.
  5. Following this, despite remedial works being undertaken to renew the floorboards which had been damaged by the leak, there were delays in addressing the additional concerns the resident had raised in September 2022. These included damp in the living room, the living room ceiling, the condition of the kitchen flooring and the radiators. The Ombudsman has seen evidence of a no access appointment on 28 September 2022 which prevented the damp being assessed at the time, however, it is not disputed that the remainder of the delay in completing works was unreasonable.
  6. Within his complaint in October 2022, the resident raised specific concerns that the kitchen and bathroom flooring should have been replaced, as well as the radiators and clearing the alley, before he moved in. He added that he wanted the property to be made energy efficient.
  7. Energy efficiency of properties is assessed through an Energy Performance Certificate (EPC). The property had an EPC rating of D as of June 2022. The landlord acted reasonably by explaining that it was currently in the process of updating all properties to a C rating by 2030 and it was unlikely to plan to upgrade the D rated properties to C before 2025. This explanation was in line with the government’s target for all social homes to have a minimum EPC rating of C by 2030. The landlord would not yet be obliged to improve the energy rating of the property; however, it was reasonable for it to inform the resident of its future plans.
  8. Within its responses, the landlord has acknowledged delays in completing repairs to the property from the beginning of the tenancy on 26 June 2022 until 20 December 2022, the inconvenience caused and its poor communication. It ultimately accepted that some of the repair issues could have been identified and resolved prior to the tenancy beginning. It offered £619 compensation, comprised of £166 for the number of days repairs were outstanding between 26 June 2022 and 7 December 2022, £83 for the administrative error in relation to the kitchen flooring between 28 September 2022 and 20 December 2022, £200 for the inconvenience caused and £170 for its communication failures within its stage 2 complaint response on 1 February 2023.
  9. Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord 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 the Ombudsman’s Dispute Resolution Principles: be fair, put things right and learn from outcomes.
  10. The landlord acted fairly in this case by acknowledging delays in repairs being completed between the tenancy start date and 20 December 2022, the inconvenience caused and its communication failures. Its offer of £619 compensation is in line with the Ombudsman’s own remedies guidance which states that amounts in this range are considered proportionate where there were failings which had a significant impact on the resident. The landlord’s offer of compensation goes some way to put right the failings in this case. However, the Ombudsman has found service failure in respect of the landlord’s response to the resident’s concerns about the condition of the property when let, and outstanding repairs.
  11. The resident initially raised concern about the condition of the bathroom flooring within his complaint communication in October 2022. There is no evidence to suggest that the landlord took steps to inspect or assess this fully until following its stage 2 complaint response in February 2023. It ultimately established that works were required to the bathroom flooring and while works were completed in early 2023, it did have the opportunity to assess this at an earlier stage.
  12. Despite the resident raising concerns about how the issues were impacting him mentally and financially, and that he did not feel that the landlord had taken into consideration his disability, the Ombudsman has not seen evidence that it sought to understand his concerns further or address these within its complaint responses. While it confirmed that it would not amend the tenancy start date, it would have been appropriate for the landlord to have signposted the resident to any support that may have been available given his concerns about the financial impact. The Ombudsman would also have expected the landlord to have commented on the resident’s concern that it had not taken his disability into consideration and confirmed its position in order to demonstrate that it had taken his concerns seriously.
  13. In addition, it is noted that the resident did not feel that the specific repair issues were acknowledged by the landlord. While the landlord acknowledged delays in repair issues being addressed, it did not specifically mention the repair issues or work that had been undertaken within its responses which was likely to cause some concern as to whether it had fully understood his experience. While its overall offer of compensation was reasonable in view of the repair issues apparent and addressed alongside the formal complaint, the landlord could have done more to acknowledge the specific issues within its complaint responses.
  14. In view of the above, the landlord is ordered to pay additional compensation to the resident. Several recommendations have also been made below.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its response to the resident’s concerns about the condition of the property when let, and outstanding repairs.

Reasons

  1. While the landlord offered redress that went some way to put things right for the resident in view of the delays in completing work and its poor communication, it failed to address each aspect of his complaint within its complaints process or demonstrate that it had fully considered his experience.

Orders.

  1. Within 4 weeks, the landlord is to write to the resident to apologise for the failings identified within this report.
  2. Within 4 weeks, the landlord is to pay the resident an additional £150 compensation in recognition of the inconvenience caused by its failure to address each aspect of his complaint within its complaint responses. This is in addition to its previous offer of £619 which should also be paid if it has not already done so.
  3. The landlord is to provide evidence of compliance with the above orders within 4 weeks.

Recommendations

  1. It is recommended that the landlord contacts the resident regarding his ongoing concerns in relation to the kitchen and bathroom and escalates these matters formally through its complaints process if requested by the resident.
  2. It is recommended that the landlord considers carrying out staff training for complaint handlers to ensure that each aspect of a complaint is considered, and that residents are signposted to support where applicable.
  3. It is recommended that the landlord contacts the resident and updates its records to ensure that any household vulnerabilities are adequately recorded to assist with its handling of any future repairs needed.
  4. The landlord is to confirm its intention in respect of the above recommendations within 4 weeks.