Royal Borough of Kensington and Chelsea (202212713)

REPORT

COMPLAINT 202212713

Royal Borough of Kensington and Chelsea

8 May 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 landlords handling of the resident’s reports about:
   1. Repair issues at the property, including with windows and ceilings.
   2. Damp and mould at the property.
   3. The cleaning of the common parts of the building.

Background

2. The resident is the secure tenant of the property, a flat in a house with shared common parts, owned by the landlord. The resident was diagnosed with cancer in late 2021 and was receiving treatment from 2022 to 2023.
3. The landlord is responsible for the upkeep of the building. The resident pays a weekly “caretaking and cleaning” service charge of 23 pence.
4. The resident says that she has raised concerns with the landlord about the property’s windows, and about the state of the building for many years. In October 2021, she told it that her bathroom ceiling needed replastering. On 26 February 2022, her councillor approached the landlord on her behalf about her concerns about her windows, which she said needed repair, and a lack of cleaning of the common parts. In April 2022, the landlord said it would deal with these concerns and would investigate installing secondary glazing.
5. On 13 September 2022, the resident complained formally to the landlord about a lack of progress with dealing with her concerns. She said it had failed to carry out repair works. She repeated that she should not have to pay a service charge for cleaning as the property was never cleaned.
6. In the landlord’s stage 1 response, on 28 September 2022, it said it had no records to support the resident’s claim of requesting for repairs for many years but accepted that she had asked for repairs to the bathroom in September 2021 and that it had communicated with her about that in early 2022. It apologised for a failure to take action. It said a surveyor would visit the property on 30 September 2022 and, if the windows required repair, it would repair them without delay. Otherwise, it would replace them in – 2023 to 2024. The service charge she paid was not for cleaning of the common parts but for a caretaker to visit each week. If the resident wanted, it would write to other tenants in the building to see if they wanted to share a cleaner.
7. A surveyor attended on 30 September 2022 and found the windows were in adequate condition but that they did not provide good thermal protection. It therefore proposed investigating secondary glazing. It also recommended repairs to the bathroom ceiling, the installation of new fans in the kitchen and bathroom and a new kitchen door.
8. The landlord made some efforts to visit the resident over the winter of 2022 but was unable to gain access. The resident escalated her complaint to stage 2 of the landlord’s internal complaints procedure on 30 January 2023, stating that the delay was unacceptable, particularly given her illness. She said there was significant damp and mould in the property because it was so cold. The landlord arranged for the installation of the fans and for the repairs to the bathroom ceiling to take place in February 2023.
9. The landlord provided a stage 2 response on 20 February 2023. It said it had been delayed over the winter because the resident did not allow its operatives to enter the property, but it would install secondary glazing in March 2023. It offered the resident a refund of the service charge she had paid for the caretaking service as there was no evidence she had ever received it.
10. The landlord’s contractors fitted the secondary glazing in March 2023. The resident remained unhappy with the landlord’s response to her concerns and asked this Service to investigate. She said the works had significantly improved her situation, but she should not have had to wait when she was so ill.

Assessment and findings

Scope of the investigation

11. The resident says she regularly made reports of problems at the property for over 20 years which it ignored. Those historical reports are not considered in this report. This investigation focuses on events between September 2021, when, the records show, the resident made her first report of repair issues for 2 years and February 2023, when the landlord issued its final complaint response. This is because the landlord’s policy at the time did not require it to consider complaints about issues that occurred more than 6 months before a complaint was made. Furthermore, the Housing Ombudsman Scheme says in paragraph 42(c) that we may not look at complaints that were not brought to the landlord within a reasonable time. This reflects the fact that it becomes more difficult to effectively investigate complaints as time passes.

Reports of repair issues at the property

12. The landlord is responsible for making repairs to the structure of the property including windows. It also has a statutory duty under s.9A of the Landlord and Tenant Act 1985 to ensure that its properties are fit for human habitation.
13. The landlord’s repairs policy says that, on receipt of a report of disrepair, it will visit within a reasonable time to investigate. It should attend after reports of urgent problems within 5 days and for routine problems within 20 days.
14. While the law imposes duties on landlords to repair their properties and to keep them fit for habitation, it does not require them to make improvements once a property is let. The installation of secondary glazing is an improvement as the property did not have this feature at the time it was let to the resident and there is no requirement in the terms of the tenancy agreement for this to be undertaken.
15. The landlord has adopted a “net zero” policy under which it considers installing secondary glazing to reduce emissions and costs to residents. It also says it will consider making adaptations to its properties such as changes to the structure and fixtures and fittings to meet the needs of infirm or disabled residents.
16. The landlord’s repairs policy states that it is not required to carry out redecoration in its properties unless it is responsible for the need for redecoration. It is responsible for repairs.
17. The landlord’s complaints and compensation policy says that it will offer compensation for a wide range of issues. It will provide full answers to each point of complaint and offer reviews of policies and actions to ensure that similar problems did not recur. Matters which would affect the level of compensation would be the length of time the problem persisted, a resident’s particular circumstances and vulnerabilities, the level of inconvenience caused, and whether it failed to identify the issues correctly or carry out required repairs. Where its failures caused increased heating bills, it would consider compensating for the expense.
18. Having received the resident’s report that the ceilings and windows required repair on 26 February 2022, the landlord responded 2 days later and said that it would take action. As the resident had made reports of repairs required at the property, it should have attended within 20 days according to its policy but did not do so.
19. The landlord said, in its email of 28 February 2022, that it was aiming to become carbon neutral and was therefore looking at “ensuring better insulation and replacing windows”. This raised the resident’s expectations of receiving secondary glazing. In the event, it took no action until she complained 7 months later, and it offered her no updates in the interim. By any reasonable standards, this was an unacceptable delay and its failure to communicate with her was poor customer service. 
20. Following the resident’s reports of works being required to the windows; the landlord should have surveyed the property within 20 days. It could then have decided whether repairs and/or secondary glazing were required. It failed to do so until after the resident complained about a lack of action in September 2022. At this point, it discovered that, while no repairs were necessary as the windows were basically structurally sound and they were scheduled to be replaced in 2023, the property was drafty and secondary glazing would be appropriate, particularly given the resident’s poor health. The failure to act promptly delayed this process for 7 months. While this delay took place over the warmer months of the year, it resulted in the secondary glazing not being installed until after the winter of 2022 to 2023. This would likely have caused the resident higher heating bills during the waiting period.
21. The resident instructed a solicitor to pursue the landlord about the repairs in October 2022 and, the evidence shows, this led her to refuse to admit the landlord and its contractors to the property for a period in the winter of 2022/23. Unfortunately, this seems to have delayed the installation of the secondary glazing. The first delivery of secondary glazing units was also faulty, adding a further delay of 10 days. These delays were beyond the landlord’s control.
22. In its stage 2 response, the landlord committed to installing secondary glazing but failed to make any offer of compensation for its failure to resolve her concerns sooner. An offer of compensation would have demonstrated that the landlord considered the resident’s ongoing health situation at the time and that this should have mean that it took more timely action following her reports. The secondary glazing was installed on 11 March 2023.
23. The resident told the landlord in August 2021 that ceilings at the property needed repair.  She raised the issue again in her email of February 2022 and mentioned them again in her original complaint to the landlord in September 2022. As with the windows, the landlord failed to address these points at all until after the complaint. This was a failure on its part as it is contrary to the provision of its complaints policy which requires it to consider all points raised in a complaint. This provision also accords with the Ombudsman’s statutory Complaints Handling Code.
24. The available evidence does not clearly show the actual condition of the ceilings and whether any works to them would have amounted to repairs or redecoration. The survey report produced after the survey of 30 September 2022 stated that there were water stains on the bathroom ceiling. It did not state what works were required to deal with them. The report made no mention of the living room ceiling.
25. In February 2023, the landlord arranged for redecoration and other works to be done in the bathroom. There is no record of any work being done to the living room ceiling and, in July 2023, the resident told this Service that a family member had done the works for her.
26. Overall, the landlord’s response to the resident’s reports of repair issues with the windows and ceilings was inadequate. It failed to take any action for 7 months about the windows and for a year about the ceilings. It failed to provide any updates to the resident to explain the delay and it later failed to acknowledge the failure with a payment of compensation or to explain it, as its policy said it should. Overall, its response was inadequate and inappropriate. 
27. On the evidence, the landlord failed to communicate with the resident adequately about her concerns about the living room ceiling. This Service cannot say whether the landlord should have repaired the ceiling as the survey did not mention their condition. However, the landlord should have clarified its findings to the resident and explained what works, if any, were required. For that reason, the landlord’s response to her concerns about the living room ceiling was inadequate.

Reports of damp and mould at the property

28. This Service has issued a report: Spotlight on Damp and Mould. In it, the Ombudsman stated that landlords must adopt a “zero tolerance approach” to damp and mould.
29. There is no record of the resident mentioning damp and mould in her communications with the landlord until September 2022. At this point, she said, in an email, that there was damp on the bathroom ceiling. The resident did not raise the issue of damp and mould in her stage 1 complaint. After the stage 1 response, the landlord arranged for a surveyor to visit the property. The survey report made no mention of damp or mould.
30. The resident said, in her stage 2 escalation in January 2023, that the cold conditions in the flat had led to “significant problems with damp and mould”. The landlord arranged for a damp contractor to survey the property in early February 2023. It recommended the installation of 2 new fans, one in the kitchen and one in the bathroom to help prevent condensation. These were installed in mid-February 2023.
31. In summary, the landlord’s responses to the residents reports of damp and mould were proportionate and timely and in line with its policies and this Service’s guidance on the subject.

Reports of a lack of cleaning in the common parts of the building

32. The landlord charged the resident 23p weekly for “caretaking and cleaning”. The resident told the landlord in February 2022 that she had never seen a cleaner at the property and thus should not have to pay the charge. The landlord undertook to address these concerns in its email of 28 February 2022 but then failed to do so for 7 months until she complained.
33. In its stage 1 complaint response, it said that the charge was not for cleaning but for caretaking. It said the building received a “weekly health and safety check of the communal areas to ensure they are safe and report any communal repairs”. It offered to ask the other tenants if they wanted to employ a cleaner.
34. This Service has seen no evidence that the landlord is required to provide a cleaning service at the property. It offered to ask the resident’s fellow tenants if they wanted to share a cleaning service, but this would have been a charged service. There is no record of the resident asking the landlord to do so.
35. The resident was not satisfied with the stage 1 response and said in her escalation letter that she had never seen a caretaker either. She repeated that she should not have to pay the charge. In its stage 2 response, the landlord said that it had, in fact provided the caretaking service but said the visits were brief and its records were incomplete. It said it could not prove that the resident had received the service she had paid for, so it offered to refund the charges paid for 2021 to 2022which totalled £11.96. This was a proportionate and reasonable response to the resident’s concerns.
36. The landlord has provided this Service with a spreadsheet of caretaker visits for the year 2022 to 2023. This shows that there were caretaker visits during that time and that, therefore, the landlord provided a service as it said and is justified in imposing a small fee. For that reason, this Service has found that the landlord complied broadly with its obligations.

Determination

37. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s:
    1. Reports of repair issues at the property.
38. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s:
    1. Reports of damp and mould at the property.
    2. Reports of a lack of cleaning in the common parts of the building

Orders

39. Within 4 weeks of the date of this report, the landlord must:
    1. Provide the resident with a letter of apology for the failures identified in this report.
    2. Pay the resident £250.
    3. Write to this Service to confirm that it has done the above.
40. Within 8 weeks of the date of this report, if the resident shows heating bills which show that her expenditure was higher before than after the works were done, the landlord must pay her a sum to compensate her for this expense.