Peabody Trust (202323991)

REPORT

COMPLAINT 202323991

Peabody Trust

20 August 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 handling of the resident’s:

Reports of window repairs and queries relating to replacement windows.
Reports of antisocial behaviour (ASB).
Complaints.

The Ombudsman has also assessed the landlord’s record keeping.

Background

The resident moved into a 1-bedroom flat in 1997 and has an assured tenancy. The resident has multiple mental and physical conditions.
The resident told the Ombudsman about a window replacement programme which she stated the landlord planned in 2014 but did not complete. The Ombudsman has seen evidence the resident raised queries in 2016 about when the landlord would replace the windows in her flat. The landlord told the resident it was completing window replacement programmes in the pre-war blocks in her area. It planned to replace windows in the post–war blocks, including her block in the next wave in 7-10 years.
The landlord opened an expression of dissatisfaction case on behalf of the resident in October 2021. The landlord said it would carry out a window survey on the resident’s property. On 7 December 2021 the landlord wrote to the resident to say it would be carrying out a window replacement programme in her block during 2022/23, although the date was subject to change, and it would contact her closer to the time. The landlord advised her to report any essential repairs through to it. The resident did not consider the landlord’s response satisfactory as it did not explain why the works had not been completed in previous years and what happened to the funds allocated to the previous programme.
On 30 November 2022, the resident contacted the landlord to say her windows needed replacing as they did not close properly. She said this meant there was no soundproofing and made her flat costly to heat. The resident advised the landlord she was ill and needed a warm flat. The resident said other people in the block have had their windows replaced. The landlord responded in early December 2022 to advise it would be conducting a window replacement programme in her block during 2023/24. The landlord said it would send a letter early in the new year explaining the process and the timescales for this. It requested a visit to the resident’s property to try to repair the windows as best it could. The resident told the landlord that it had previously advised her that the parts for the metal frames were unavailable.
The landlord wrote to the resident on 5 January 2023 and advised that it would be carrying out a window replacement programme in her block during 2023/24, although the date was subject to change and it would contact her closer to the time. The landlord advised her to report any essential repairs through to it.
The resident contacted the landlord on 24 August 2023 as she had not received a response regarding the window replacement and the concerns she had raised. The resident supplied the landlord with a supporting letter from her clinical psychologist on 5 September 2023. The supporting letter asked the landlord to replace the windows, 1 of which did not close. The windows let in noise and disruption from the neighbours, creating additional stress for the resident and affected her sleep. The constant noise and disruption affected the resident’s mental health and hindered the progress to improving it.
The resident chased the landlord for an answer on 16 and 18 September 2023. The landlord sent its stage 1 response on 20 September 2023 where it reiterated the contents of the letter dated 5 January 2023. The resident requested to escalate her complaint on 27 September 2023.
The landlord sent its final resolution letter to the resident on 27 October 2023 confirming the window replacement programme had been authorised and the work would go ahead. It should be started in early 2024. The landlord said it could not comment on the replacement of other people’s windows due to data protection. The landlord recognised its lack of adherence to its complaint process and that it had responded with basic information to the resident’s queries. It offered the resident £300 in recognition of its failings and £100 for her time and trouble.
The landlord has confirmed to the Ombudsman that it has not carried out any window repairs at the property and at the date of this report the resident still has her old windows.
The resident was dissatisfied with the landlord’s response and brought her complaint to the Ombudsman to investigate. As a resolution the resident would like her windows to be replaced.

Assessment and findings

When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only 3 principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes.
2. Put things right.
3. Learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Scope of the investigation

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Scheme. In deciding whether a complaint falls within jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.
The landlord did not investigate the resident’s ASB concerns in this complaint. In accordance with paragraph 42.a of the Scheme as this has not been through the landlord’s complaint process, we will not consider it in this report. The Ombudsman understands the resident has raised a subsequent complaint and if still dissatisfied she can refer this to us once considered by the landlord.
42.c of the Scheme outlines that we may not consider complaints which were not brought to the landlord’s attention as a formal complaint within a reasonable period which would normally be within 12 months of the matters arising. The landlord has investigated from October 2021, this report will focus on the same timeframe. While the resident’s queries about the window replacement programmes in 2014 and 2016 can provide background, these will not be addressed in this report.
The resident raised concerns that this situation has affected her health. The Ombudsman does not have the expertise to determine whether there was any causal link between the landlord’s actions or inactions and any reported health concerns. The resident may therefore wish to seek independent advice regarding this if she has not already done so.

The landlord’s handling of the resident’s reports of window repairs and queries relating to replacement windows.

The landlord has a responsibility under the Housing Health and Safety Rating System (HHSRS), introduced by the Housing Act 2004, to assess hazards and risks within its rented properties. Issues with windows can pose potential hazards and therefore the landlord must consider whether any window issues in its properties amount to a hazard that may require remedy. Landlords should be aware of their obligations under HHSRS. Landlords are expected to conduct additional monitoring of a property where they have identified potential hazards.
Section 11 of the Landlord and Tenant Act 1985 holds the landlord responsible for keeping the structure and installations of the property in good repair.
The landlord’s responsive repairs policy has 2 classifications of repairs, these are responsive and planned. Responsive repairs are where the landlord restores a damaged, faulty, or worn item back into good condition. Planned repairs are a maintenance activity usually part of an annual programme to maintain the structure or safety of a building and/or to replace a major component.
The landlord’s responsive repairs policy states it will make sure its residents’ homes are safe. It will complete routine repairs in 28 days. Where there is a repair which may require more time to resolve or needs specialist work, the landlord’s repairs policy allows it 60 days to complete it. The example used in the policy is a window replacement.
The Ombudsman has recently written an open letter to all social landlords concerning windows. There are 4 core lessons saying landlords should:
1. Ensure a risk assessment where appropriate based on the individual circumstances of the household and the landlord being able to demonstrate it has recognised, responded, and recorded its actions.
2. Ensure appropriate expertise, including independent surveyors, are engaged and that the landlord’s actions in response to recommendations are reasonable, clear, and consistent.
3. Ensure decisions to defer repairs or respond with more limited repairs where major works are planned are reasonable, justified and based on the landlord’s obligations under the Landlord and Tenant Act, and not primarily on cost.
4. Ensure information provided to residents on the operation of windows is clear, comprehensive, and accessible.
The landlord was aware of the resident’s dissatisfaction with the windows as she had repeatedly advised they did not have any thermal break properties, and some did not close. In response to this the Ombudsman would have expected to see evidence from the landlord that it had assessed the windows to see if it could repair them. This would have been in line with HHSRS and the Ombudsman’s guidance, and the landlord’s repairs policy.
If the landlord could complete a repair, it should have done this in 28 days, in accordance with its repairs policy. If the landlord could not complete a repair, then the landlord should have assessed whether it was necessary to bring forward the plan to replace the windows. If so, according to its repairs policy the landlord should have completed this within 60 days.
There is a considerable amount of organisation, disruption, and costs associated with any window replacement. It would be efficient for the landlord to complete these as part of a larger programme of works. However, the landlord has an obligation to ensure the property conforms with HHSRS, its legal duties, and policies while waiting for the programme of works to begin. If the windows do not meet the landlord’s obligations, it may need to complete repairs, or if the windows cannot be repaired then the landlord will need to consider its options to provide ad hoc window replacement.
The landlord has not supplied the Ombudsman with any evidence of the condition of the windows, despite saying it completed a survey in 2021. The landlord told the Ombudsman it had not completed any window repairs at the property.
The Ombudsman cannot be sure whether this means the landlord has not completed visits to assess the windows, or it did and deemed the windows are functional so do not require repair, or that windows repairs cannot be completed as the necessary parts are obsolete. The Ombudsman notes the landlord does not have to improve any fixtures or fittings where it deems them to be functional.
The resident has been clear in communication with the Ombudsman that the landlord told her it cannot repair the windows as the parts are obsolete. The landlord has not supplied any assessment of whether the windows are repairable to the Ombudsman. As such the landlord has not been able to evidence its adherence to its repair policy. Therefore, an order of this report will be for the landlord to conduct a window survey and if it cannot repair them, to clearly identify its next steps to expediate any window replacement. If the windows are functional, the landlord should incorporate them into the programme of window replacement as it has been.
By including the windows on the replacement programme and through communicating with the resident on the subject, the landlord appears to accept that it needs to replace the windows as part of the programme.
The resident told the landlord it had replaced other windows in the block. She said these are not uniform in design and had not received planning permission. In the landlord’s final resolution, it said it could not comment on the reasons other people had new windows due to General Data Protection Regulation (GDPR). The Ombudsman acknowledges the landlord must ensure it adheres to these regulations, however it may have been able to help the resident understand why these have been replaced, without compromising its obligations. For example, there can be different tenure types in a block of flats, possibly some within private ownership, or leased to a 3rd party. The Ombudsman is not aware of the reasons other windows in the block have been replaced but has seen GDPR used as a blanket reason for not addressing concerns, which can be frustrating especially when the resident believes the landlord is not treating her fairly.
The resident does not believe conservation consultation would be necessary as the block does not sit in a conservation area and flats around her have had windows replaced which have not required this. The landlord should ensure it satisfies itself that it adheres to planning rules and it can be good practice to request consent even where it may not be strictly necessary.
The Ombudsman has not seen evidence the landlord updated the resident when it realised it would not be able to carry out the window replacement in the timeframe it had advised. This would be likely to lead to frustration and a loss in confidence in the landlord. This will form a recommendation of this report.
To fulfil its obligations under the HHSRS, the Landlord and Tenant Act, and its repairs policy, the landlord should be able to evidence survey reports which highlight the condition of the windows. These would identify if there was anything wrong with them and any required action to rectify this. The landlord has not supplied any evidence to illustrate it met its obligations.
The resident has repeatedly requested information about the window replacements. She has highlighted her concerns about the sound proofing and thermal protection, and how this affected her finances and health. The landlord has not supplied evidence it adequately responded to these concerns. This was likely to have made the resident feel she was not being listened to or treated fairly, adding to her frustration.
If the landlord agreed the windows were unable to close, it would be reasonable to consider the resident had consumed more energy because of this. The landlord could have offered compensation, either based on a nominal figure or the amount an average person would use versus the resident’s meter readings.
The Ombudsman cannot assess the resident’s health concerns, however we can assess the landlord’s response. As the resident raised her health concerns, it would have been appropriate for the landlord to provide the details of its insurance company. The resident could then decide whether she wished to make a claim.
The resident requested the landlord address her concerns over the functionality of the windows prior to the scope of this investigation. The resident has been clear about the affect this is having on her. The landlord has not evidenced that it has adhered to its obligations, meaning the resident has been living without a resolution to her concerns for an unreasonable length of time. As such the Ombudsman finds there was maladministration in the landlord’s handling of the resident’s reports of window repairs and queries relating to replacement windows.

The landlord’s handling of the resident’s complaints.

The landlord’s complaint policy states it defines a complaint as an expression of dissatisfaction. Once made the landlord will give the resident a choice whether they wish to make a complaint or not. The landlord excludes first time requests for a service such as reporting a repair.
The landlord’s complaints policy states it will log a new complaint in 5 working days and provide a stage 1 response in 10 working days. If the landlord needs more time to provide its response, it will explain why to the resident. This should not exceed a further 10 working days without good reason.
If the resident is not satisfied after receiving the stage 1 response, they can escalate the complaint. This must be in 10 working days. The landlord will acknowledge the escalation request in 5 working days and after 20 working days the resident can expect the landlord’s final resolution. If the landlord needs more time to provide its response, it will explain why to the resident. This should not exceed a further 20 working days without good reason.
If the resident raises more complaints, if relevant and the stage 1 has not been issued the landlord will incorporate it into the response. Where the stage 1 response has been issued, or it would unreasonably delay the response, the landlord will log this as a new complaint. The landlord will use its discretion to manage the additional complaint points in the most efficient and pragmatic way for the resident.
The complaint policy allows the landlord discretion to accept and investigate complaints over 12 months old.
The Ombudsman’s Complaint Handling Code (the Code) says that landlords should keep residents regularly updated even when there is no new substantive information to provide. Landlords should also address all points raised in the complaint.
In its final resolution letter, the landlord highlighted its repeated failure to open a complaint when the resident expressed her dissatisfaction on 27 July 2023 and chased on 14 August 2023. It also did not request whether the resident wished to have a complaint opened. The landlord was not acting in accordance with its complaints policy.
There has been no evidence supplied to the Ombudsman that the landlord explained to the resident that it would be 24 working days late in providing her its stage 1 response. Despite the resident clearly listing how the landlord had not adhered to its complaints policy, it still did not progress her complaint. This was not in line with the Code or the landlord’s complaints policy.
In further breach of the Code the landlord failed to fully address the resident’s concerns until the final resolution letter and the resident still does not believe it has fully answered her queries. The landlord’s actions are likely to have resulted in a loss of confidence in the landlord and led to a breakdown in the relationship.
In the landlord’s final resolution letter, it chose to expand the time span of its investigation. This was appropriate and the correct approach.
The landlord clearly identified its complaint handling failings in its final resolution letter. The landlord has awarded a greater level of compensation than the Ombudsman would do, therefore the Ombudsman finds there is reasonable redress in the landlord’s handling of the resident’s complaint.

The landlord’s record keeping.

The landlord is expected to keep a robust record of contacts and repairs, yet the evidence has not been comprehensive in this case. It is vital that landlords keep clear, accurate, and easily accessible records to provide an audit trail. When there is a disagreement in the accounts regarding the condition of the property, the onus would be on the landlord to provide documentary evidence. This would be to show how it acted in line with its policies.
In the landlord’s final resolution letter, it referenced that the resident submitted her complaint on 27 July 2023 and chased for a response on 14 August 2023. The landlord also referenced the resident attended meetings to discuss the windows. The Ombudsman has not seen evidence of these interactions.
In evidence seen by the Ombudsman the landlord stated it surveyed the windows in 2021. The landlord has not supplied any evidence of this. The Ombudsman notes the landlord offered to complete a survey following the resident’s expression of dissatisfaction in October 2021, but we do not know the outcome. In one email conversation seen by the Ombudsman the landlord stated it installed the windows in 2000 and they are double glazed aluminium. The resident disagrees with this assessment, the Ombudsman cannot verify either way.
The landlord supplied no evidence to show what happened after it offered to try to fix the windows in November 2022 and tried to visit in October 2023. The Ombudsman does not know whether these visits took place or not.
The Ombudsman’s investigation has been hampered because of the lack of information provided by the landlord. It appears either the landlord did not properly record the information, or it did not provide it to the Ombudsman for use in this investigation. As such the Ombudsman finds there was service failure in the landlord’s record keeping.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of the resident’s reports of window repairs and queries relating to replacement windows.
In accordance with paragraph 42.a of the Housing Ombudsman Scheme, the landlord’s handling of the resident’s reports of ASB does not fall in the Ombudsman’s jurisdiction.
In accordance with paragraph 53.b of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s handling of the resident’s complaints.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s record keeping.

Orders and recommendations

Orders

The landlord is to issue the resident a written apology for the failings identified in this report.
The landlord is to pay the resident compensation totalling £600 for the landlord’s handling of the resident’s reports of window repairs and queries relating to replacement windows. The Ombudsman has used its own remedies guide to arrive at this award, the award is at the higher end of the maladministration bracket due to the length of time the resident has been reporting this issue and likelihood of detriment to the resident.
The landlord is to conduct a survey of the windows to establish if it can repair them. If the landlord cannot repair them, it will need to provide a commitment to expediating the resident’s window replacement. The landlord is to update the Ombudsman and the resident with the survey findings and what steps it proposes.
The landlord is to confirm compliance with the orders to the Ombudsman within 4 weeks of the date of this report.

Recommendations

The Ombudsman would emphasise that we have made the reasonable redress finding on the provision the landlord has either paid or offers again to pay the resident the £400 for its complaint handling. If the landlord does not do this, it would undermine the Ombudsman finding of reasonable redress and this may be revisited. The Ombudsman would like to see evidence of the landlord making the payment or offering it to the resident within 4 weeks of the date of this report.
The landlord is to consider when planned maintenance cannot go ahead in line with proposed plans, it writes to advise residents of this. This would manage expectations and allow for greater confidence in the landlord’s handling of planned maintenance.
The landlord should consider compensating the resident for increased energy use if any the windows do not close.
The landlord should ensure it addresses the Ombudsman’s window spotlight report when it is published.