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Waltham Forest Council (202007804)

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REPORT

COMPLAINT 202007804

Waltham Forest Council

18 June 2021


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 condition of the property following a mutual exchange. 
    2. The landlord’s response to reports of a missing window following the mutual exchange.
    3. The landlord’s response to the resident’s reports of mice infestation, missed bin collections, and ASB.

Jurisdiction and Focus of Investigation

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. This Service can only consider complaints about housing issues which have been considered under the landlord’s complaints process. The complaint brought by the resident to the landlord concerned missing windows, missing internal doors, rubbish and furniture left by the previous tenant. The complaint exhausted the landlord’s process on 19 May 2020.
  3. Since bringing their complaint to this Service, the resident has raised further issues concerning bin collection, mice infestation and ASB. As these were not part of the complaint brought to the landlord under its reference CU 194101485, this Service cannot consider them as part of this investigation.
  4. Paragraph 39 (a) of the Housing Ombudsman Scheme sets out that:

The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion (a) are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale                           

  1. The resident has also raised concerns about the landlord’s treatment of the previous tenant who had originally raised the window repair 3 years ago, following alleged damages caused to the window during roof repairs. This investigation will not look into the circumstances of the previous tenant or the landlord’s repairs handling while they were occupying the property, because this issue has not been through and completed the landlord’s internal process and this Service can only look at the resident’s current complaint. If the previous tenant had experienced any issues with repairs handing, they should have raised them directly with the landlord at the time.
  2. This investigation will focus into the landlord’s responsibilities and the obligations in relation to rubbish left by the previous tenant, internal doors not being fitted, and the repair handing of the window after the resident moved in.

Background and summary of events

Tenancy agreement 

  1. The tenancy agreement states: 1.13 At the start of your tenancy, or where you have succeeded to a tenancy or assigned to a tenancy in circumstances permitted by these terms and conditions, you accept your home in its present condition, (excluding any repairs which are the responsibility of the Council under clauses 2.2 to 2.4) including the garden.
  2. In part 2 of the Tenancy agreement are included the obligation of the landlord in relation to repairs: 2.2 In accordance with Section 11 of the Landlord and Tenant Act 1985, the Council has a number of repairing obligations which are outlined in the Clauses 2.3 to 2.5 2.3 The Council must keep in repair the structure and exterior of your home (including drains, gutters and external pipes).

Repairs policy 

  1. In part 6 of the repairs policy an emergency repair is considered to be faults or disrepairs that constitute a safety hazard. It should be dealt with – [a] within 24 hrs to the next working day when raised on workdays [b] within 2 hours when raised with the Out-of-Hours Service at all other times. General repairs will be deal with within 21 working days.

Mutual Exchange Policy and Guidance

  1. The landlord’s mutual exchange policy is in Appendix 9 of its Allocation Policy. As per the Appendix…2.0 All permanent secure Council tenants have a legal right to exchange accommodation with another permanent secure or assured tenant (Council or other registered social landlord) within England, Scotland, Wales, & Northern Ireland. 3.0 An exchange of accommodation may take place between two or more tenants and relies on each party taking up permanent residence of the exchange partner’s property.
  2. The landlord provided the following guidance on mutual exchange to both parties while signing the mutual exchange application form at the start of the mutual process: …” When exchanging accommodation, a tenant is required to accept the property as seen vacated by the existing tenant. There must be no cost incurred by L.B.W.F. It is therefore important that you thoroughly inspect your exchange partners property and ensure that you are fully aware of the condition that it is in.  L.B.W.F will not carry out general repairs for a new tenant until a period of at least 6 months has elapsed from the start of a new tenancy.  Each tenant should therefore report any repairs that are necessary in their current properties as soon as possible before moving out”.

Summary of events

  1. On 12 November 2019, the resident submitted a mutual exchange application to move from their previous property to their current property.
  2. On 12 November 2019 the resident signed the mutual exchange agreement which includes the following declaration: … “I have inspected my exchange partners property and I am fully satisfied with its condition. Furthermore, in the event that this exchange is approved and the tenancy transferred to me I agree to accept the property in its existing condition as vacated by the outgoing tenant(s)”.
  3. The landlord wrote to the resident on 19 November 2019 to acknowledge receipt of the Mutual Exchange application and advised the resident to view the exchange partner’s accommodation very thoroughly and preferably on more than one occasion (ideally at least 2 or 3 times).
  4. On 25 November 2019, the landlord visited the property and completed a Mutual Exchange Inventory Form. On the form, it noted that two bedroom doors had been removed from door frames, but were present in the property. There was no information about missing window. The landlord stated that at this stage the outgoing resident had been advised to fit the doors before they left the property and the note on the form stated, “doors to be put back on”.
  5. On 18 December 2019, the landlord approved the mutual exchange and on 6 January 2020 issued an Assignment by Way of Exchange. In this document the landlord stated that the occupation of the accommodation would be in line with the conditions of the tenancy as described in the Tenancy Agreement. It also confirmed that the resident was required to accept the property in its existing condition as vacated by their exchange partner, and no decorative repairs would be carried out by the landlord as a result of the exchange. It stated that the Assignment of Tenancies between the exchanging parties would take place on 13 January 2020.
  6. On 13 January 2020, the resident’s tenancy began and on the same day, they reported to the mutual exchange team that the window in one of the bedrooms was missing.
  7. On 23 January 2020, an operative attended the property to replace the glass, it is not clear what took place during this appointment, but the job remained incomplete. The resident chased the landlord again on 27 January 2020 when a work order was raised.
  8. The landlord’s surveyor visited the property on 06 February 2020, took pictures and confirmed the frame was missing. A landlord’s operative attended the property on 10 February 2020 and made the window safe.
  9. Following this visit the resident raised a formal complaint.
    1. The resident explained that they were dissatisfied with the landlord’s handling of the repair to the windows stating that their initial report made it clear that the whole window frame was missing. The resident confirmed they contacted the landlord on 23 January 2020 to provide full details of extent of repairs. They believed that the surveyor who attended on 6 February 2020 should have reported the missing frame, however, the resident believed this had not happened as the contractor who attended on 10 February 2020, seemed unaware of this, and was only able to make safe the window.
    2. The resident also raised issues about two internal doors not being fitted and other internal doors being damaged. The resident reported the property was not left clean and the previous tenant left behind some furniture which they had to remove at their own expense. The resident stated that the landlord should have secured the repair of the doors as part of the mutual exchange checks.
    3. The resident explained that, they had not moved into the property as they believed it was inhabitable. They wanted compensation for the rent they had been paying whilst not living at the property.
  10. The window was replaced on 25 February 2020 and the resident stated that they moved to the property on the same date. The landlord responded to the formal complaint on 09 March 2020.
  11. In its response, the landlord made the following findings: 
  12. The landlord explained that it had identified that the window in one of the rear bedrooms was missing a pane of glass. The landlord explained that it did not make the property uninhabitable as usually a repairs issue would have to affect the entire property to prevent someone from being able to live there. 
  13. The landlord admitted that the repair should have been completed swiftly and upheld the resident’s complaint about the handling of the repair. The landlord explained that a window repair qualified as an emergency repair and this included making it safe. It stated that it took 4 weeks from 13 January 2020 to 10 February 2020 to make the window safe and an additional 2 week until 25 February to replace the window. For the delay between 13 January 2020 and 10 February 2020, the landlord awarded £25 per week for the delayed repair, and an additional £25.00 for the inconvenience, amounting to a total of £125.00. 
  14. In relation to the condition of the property and the rubbish left, the landlord quoted the mutual agreement which put the onus on the incoming resident to make sure they were satisfied with the condition of the property before accepting it. The landlord explained that this meant that the internal doors were the responsibility of the tenant to repair and maintain.
  15. The resident escalated their complaint on 08 April 2020. They stated that whilst they understood that doors were the responsibility of the outgoing resident, they believed that the landlord should have inspected the property before authorising the exchange to ensure the doors have been fitted. The resident was dissatisfied that checks of the property were not conducted by the landlord.
  16. The resident was also dissatisfied that during the inventory check the landlord had not identified the missing windows. At stage 2 discussions with the landlord, the resident reported that they understood that the landlord had been made aware of damage to the window by the previous resident.
  17. In their escalation request the resident also expressed their dissatisfaction with the handling of the window repair. They explained that when operatives attended to complete repairs they were not provided with the correct information and this led to delays and further inconvenience. They were also dissatisfied with the landlord’s position on the repair, which they understood to be that a home with ‘no window’, during winter, was considered fit to live in. The resident stated that until the windows were fitted, they had not lived in the property.
  18. The landlord responded at stage 2 of its complaints process on 19 May 2020, stating the following:
  • It did not have any obligation to carry out an inspection in relation to repairs as part of the mutual exchange process. It had been the resident’s responsibility to bring any repairs issues to the attention of the previous tenant who would have been responsible for resolving these before the mutual exchange took place.
  • The landlord explained that the mutual exchange application form, which the resident had signed, made it clear that it did not have an obligation to carry out general repairs for six months after a mutual exchange.
  • The landlord stated that following a check to its repair records, there were no reports of any recent roof works. Therefore, it has considered the missing window as a repair reported following the mutual exchange.
  • The landlord admitted that the repair to the window was delayed due to the time it took for the landlord to verify whether the repair was its responsibility. The landlord confirmed that it recognised the inconvenience caused. The landlord further stated that property had not been considered uninhabitable as only one room was affected and the damage involved one small window. The landlord rejected the resident’s request for a rent refund and found the compensation of £125.00 offered at stage one to be reasonable and sufficient.  
  1. On 26 October 2020, the resident brought their complaint to the Housing Ombudsman and provided a copy of their correspondence to Councillors clarifying further the outstanding issues:
  • No checks were caried out at the property prior to the mutual exchange,
  • The resident did not move into the property until window repairs were completed on 25 February 2021 and believed it was unfair to pay their rent and council tax from the start of tenancy.
  • The resident was dissatisfied with the landlord’s findings that there were no recent roof works and stated that the window had been reported by the previous tenant 3 years ago when during roofing repairs a tile fell from the roof and damaged it. The resident felt that the landlord by accepting that the issue arose following its visit in November 2019 and prior to the resident reporting it in January 2020 suggested that the resident had removed the window. The resident asked this Service to investigate the repair reports from the previous tenant. As stated above this investigation will not look into any issues reported or raised by the previous tenant as they have not exhausted the landlord’s complaint process and are not brought to this service by the previous tenant.

Assessment and findings

Condition of the property including internal doors not being fitted

  1. When a mutual exchange takes place, each party is responsible to check that they are happy with the condition of the property, before accepting it. This was made clear to the resident during their mutual exchange application, with the landlord advising the resident that they should make several checks of the property before accepting it.
  2. During the mutual exchange process, the landlord made it clear to the resident that it was their responsibility to inspect the property and ensure that it was in what they considered to be a suitable condition. The landlord is not responsible for inspecting the property, nor does its information to the residents or its policies set out that it will. The resident also signed a declaration, stating they were satisfied with the condition of the property. It was, therefore, reasonable for the landlord to explain that it was not responsible for repairing internal doors.

The landlord’s handling of the window repair

  1.  There is no evidence to show that the landlord was made aware of an issue relating to the windows in the property prior to the start of the resident’s tenancy on 13 January 2020. However, once reported by the resident, the landlord had an obligation to carry out a repair.
  2. The landlord’s repairs policy states that a repair to a damaged window is considered an emergency repair and should be completed within 24 hours and general repairs should be completed within 21 days. It took the landlord four weeks to attend to carry out an emergency repair, which was too long. The subsequent permanent repair was carried out within two weeks, which was within its timescales for general repairs.
  3. The resident had asked for the rent for this period to be refurbished, however, the information provided to this Service shows that the damage affected one pane of a relatively small window, as such, there is no evidence to show that the property was uninhabitable, and it was reasonable for the landlord to reject this request.
  4. In its response to the resident’s complaint, the landlord identified that it had not handled the repair within an appropriate timescale and offered £25 compensation for inconvenience, and £25 per week for the delay in making the window safe, totalling £125. This was proportionate to the delay and service failure identified by the landlord.

 Determination (decision)

The condition of the property following mutual exchange including internal doors not fitted

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there is no maladministration by the landlord in its handling of this complaint.

The landlord’s handling of the resident’s reports of missing window

  1. In accordance with paragraph 55b, the landlord has offered a reasonable redress in relation to its handling of this complaint.

The resident’s complaints about ASB, mice and rubbish collections

  1. In accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the Ombudsman cannot consider this complaint.

Reasons

The condition of the property following mutual exchange including internal doors not fitted

  1. During the process of mutual exchange, the landlord clearly communicated to the resident that the onus is on them to conduct an adequate property inspection and agree with the condition of the property prior to the exchange completion. This Service finds the landlord’s complaint response to be fair and reasonable in the circumstances and in line with its mutual exchange guidance.

The landlord’s handling of the resident’s reports of missing window

  1.  Overall, the evidence suggests that the landlord has delayed the emergency repair to the missing window. In its response to the complaint, the landlord identified this delay and, in recognition of this and the inconvenience caused to the resident, the landlord offered compensation which was proportionate in the circumstances.

The landlord’s handling of the resident’s reports of bin collection issues, mice infestation and ASB.

  1. The issues concerning bin collection, mice infestation and ASB cannot be considered as part of this investigation as these were not part of the complaint brought to the landlord under its reference CU 194101485.

Recommendations

  1.  This Service recommends:
    1. If it has not done already, the landlord to pay £125.00 compensation in relation to window repair handling and to confirm the payment with the Housing Ombudsman.