West Northamptonshire Council (202124314)

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REPORT

COMPLAINT 202124314

West Northamptonshire Council

29 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

The complaint is about the landlord‘s handling of the resident‘s reports of suspected subsidence causing damage and unlevel flooring.
The Ombudsman has also considered the landlord‘s complaint handling.

Background

The resident has a secure tenancy that commenced on 25 July 1988. The property is a three-bedroom house. The landlord does not have any vulnerabilities listed on its systems for the resident but is aware that she is an older person.
The resident lives with her son, who has acted on her behalf to communicate with the landlord about the complaint. Where events have been discussed in this report, this will include her son‘s involvement and will be referred to as ‘the resident.‘
The resident explained to this service that she had been reporting that she had structural concerns as early as 2008. She said that the landlord had delayed in carrying out a survey to assess the repairs and when it did she disagreed with the landlord‘s stance that there was not any subsidence in the property.
From October 2019, the landlord noted repairs for the vinyl flooring and blocked drainage system based on contact from the resident. It agreed to clean and replace parts of the kitchen floor and fix the internal cracks.
In October 2021, it conducted a structural survey and carried out the recommended investigations set out in the findings of the surveyor about the drainage and cracking in the property. It made a referral to realign the flooring in April 2023.
The resident raised 5 formal complaints between 22 January 2020 and 12 June 2023. These were for:
1. Damage to pipework raised on 22 January 2020.
2. Not receiving a copy of the surveyor‘s report raised on 11 August 2021.
3. Poor standard of work raised on 20 December 2021.
4. The flooring not being level and not resolved raised on 3 April 2023.
5. Lack of communication and actioning of repairs raised on 12 June 2023.
In response, the landlord dealt with two of the complaints informally. In the written responses, it did not uphold the resident‘s complaints. It made repair appointments or promised to follow up on the complaint before closing the cases. One of its later responses included an apology for the lack of communication and the delay in starting the work.
The landlord declined the resident’s escalation requests. The landlord explained on 23 August 2022, that it had done all that could be “reasonably expected“ to address her concerns and had answered her concerns raised in her original complaint. The resident remains dissatisfied because she would like the floor to be levelled and replaced.

Assessment and findings

Scope of investigation

The resident notified this service that she had repeatedly reported worries about her property’s structure since 2008 and requested an investigation into this matter as part of her complaint.
Paragraph 42(b) of the Scheme states “the Ombudsman may not consider complaints which, in the Ombudsman‘s opinion: were brought to the Ombudsman‘s attention normally more than 12 months after they exhausted the member‘s complaints procedure.“
The Ombudsman is unable to look at historic complaints from 2008 that the resident raised. This is because this service was not made aware of those complaints within 12 months of them being raised. In the interests of fairness, because the landlord did not issue formal responses to the resident for complaints in connection with the issues this service is investigating, we have used our discretion to group the complaints. The investigation will therefore consider the first formal complaint made on 22 January 2020 and the subsequent complaints for appropriateness. For clarity, this service will be looking into all the complaints raised to the landlord between 22 January 2020 and 12 June 2023.

Reports of subsidence causing cracks and unlevel flooring

Section 11 of the Landlord and Tenant Act 1985 places a statutory obligation on landlords to keep in good repair the structure and exterior of properties. Landlords are responsible for ensuring repairs are lasting and effective in all cases. The repairs should also be completed promptly to avoid impacting the resident’s enjoyment and use of their property.
The landlord did not provide a repairs policy detailing its categorisation of repairs and the associated timeframes for dealing with repairs. Therefore, the default position of the Ombudsman is that repairs must be made in a reasonable time.
Between 22 January 2020 and 3 August 2023, the resident contacted the landlord on at least 21 occasions. She made the following reports:
1. Subsidence had impacted the kitchen floor which made it unlevel.
2. There were cracks in the walls and brickwork of the property.
3. There was a damaged external drainpipe that was leaking water into the soil.
4. She had not received a copy of the structural report and the landlord‘s findings.
5. That the repair issues had been ongoing for a prolonged period and remained unresolved.
The landlord responded by:
1. Arranging for the vinyl tiles in the resident‘s kitchen to be cleaned and replaced on:
  1. 19 October 2019.
  2. 5 July 2021.
  3. 6 February 2022 and 10 January 2023. On both occasions, it was noted that the resident was absent and the landlord could not carry out the repairs.
  4. 30 January 2023.
2. Arranging to clear and make repairs to the blocked gully on:
  1. 4 December 2019.
  2. 20 December 2019. It said that the resident was absent for this appointment, and it could not carry out the repairs.
  3. 11 November 2021.
  4. 1 September 2022.
3. Arranging for a plasterer to attend the property on or around 1 December 2020 to fill in the internal cracks.
4. Arranging an appointment on 24 May 2021 to assess and repoint the brickwork.
5. Conducting a structural survey of the property on or around 19 October 2021. The contractor found there was minor subsidence of the bearing stratum below the perimeter of the wall foundation. It said this was likely to be caused by the adjacent drainage leak. It recommended a CCTV survey to assess the drainage below the ground.
6. Conducting a CCTV drainage survey on 23 March 2022. The contractor said the pipes were in an acceptable structural and serviceable condition.
7. Arranging for the structural surveyor to assess the property again on or around 7 April 2022 to include to CCTV drainage survey. The surveyor found that there were defects in the drainage system that had been repaired and recommended:
  1. Internal cracks to be re-plastered.
  2. To re-inspect the property 12 months later to confirm there had been no further movement.
8. Assessed the flooring with a spirit level on 3 August 2022 which confirmed that the flooring was within the NHBC tolerance for a flooring finish. This meant that no further works were required.
9. Conducting a damp survey on or around 3 March 2023. The recommendations were to remove the loose floor tiles, and clean and refix them to the floor with adhesive.
10. Conducting a further CCTV drainage survey on 3 March 2023 that found multiple defects to one of the drainage stacks.
11. Referring the resident‘s property for major works on 28 April 2023 to level the kitchen flooring.
12. Re-assessing the structure of the property on 16 August 2023 which stated that the cracking to the superstructure of the property had not increased and that meant there was no movement of the structure.
The evidence shows that between 2019 and 2021 the landlord carried out initial repairs that were to treat the symptom, not the cause of the damaged gully and flooring. This was inappropriate as it was not an effective and lasting repair. The Ombudsman considers the landlord missed an opportunity to survey the property at an earlier stage. If it had done this, it could have mitigated the time and trouble of the resident in pursuing the repairs through to their conclusion.
The evidence showed the resident re-reporting the same issues with the cracks in the property, the damaged drainage system and the unlevel flooring. However, the landlord took over 2 years to thoroughly survey the structure of the property. The Ombudsman considers the landlord unreasonably delayed in carrying out a sufficiently detailed survey of the structure of the property.
This was maladministration because this service expects landlords to respond to reports of repair promptly and in line with its statutory obligations. It would have been reasonable and proportionate for the landlord, based on the frequency of the contact from the resident, to have investigated the issue more thoroughly at an earlier stage than it did.
The failure resulted in the resident feeling that her reports were not being taken seriously and the need to continuously report the issues. This also impacted the landlord‘s ability to allocate its resources effectively because it was taking a high volume of communication from the resident across its departments because she was re-reporting the same issue.
The Ombudsman notes that the landlord did allocate a single point of contact to the resident on or around January 2022 and this was reasonable. However, this was also something that it could have done much sooner than it did to mitigate the reports of the resident.
The recommended investigations from the structural survey in October 2021 took the landlord a further 5 months to arrange. The Ombudsman considers that the landlord could have acted more promptly to ensure the investigations recommended by its surveyor were carried out at an earlier stage. This is evidence of further delays on the part of the landlord in carrying out the necessary investigations to resolve the issues present in the property.
The landlord took over two and a half years from when the resident notified it that the flooring was not level to assess whether the gradient of the flooring was within the required building guidelines. This was a failure because it would have been fair and of negligible resources to have conducted this assessment at a much earlier stage.
Therefore, the Ombudsman considers this delay to be inappropriate and avoidable. This impacted the resident because had the landlord conducted this assessment earlier, her expectations could have been managed more effectively and this would have mitigated the distress and inconvenience of the resident.
The Ombudsman notes that the landlord has carried out a 12-month structural survey in line with the recommendations of the surveyor in August 2023. However, this was 4 months outside of the recommended timeframe. Although the surveyor stated there had been “no progressive structural movement,“ this is evidence of further delay by the landlord to make good on its undertakings to the resident.
This service notes that when the landlord was aware of the scope of the structural works required, it carried out reasonable actions and listened to the findings of its surveyors. However, overall, it consistently failed to undertake its investigations and follow on repairs in a reasonable time. It is also unclear whether the landlord intends to level the flooring in the kitchen as it said it would in its major works referral form in April 2023.
The Ombudsman considers that based on the failures noted above, there was maladministration in how the landlord handled the substantive repairs. This is because of a pattern of persistent, unreasonable delay by the landlord to:
1. Identify the resident was re-reporting the same issues and that its initial repairs between 2019 and 2021 were not providing a lasting repair.
2. Undertake recommendations from surveyors and/or contractors.

Complaint handling

The landlord operates a four-stage complaints procedure in which it commits to:
1. Resolve a pre-complaint informally and respond within 5 working days. It states a pre-complaint is something that it can put right quickly.
2. Conduct a formal review at stage 1 and respond in writing within 10 working days.
3. Conduct a formal review at stage 2 and respond in writing within 10 working days.
4. Conduct an optional review through its tenant‘s complaints panel within 20 working days and respond in writing within 10 working days of the hearing.
The Complaint Handling Code (‘the Code‘) states:
1. The definition of a complaint is “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the organisation, its own staff, or those acting on its behalf, affecting an individual resident or group of residents.“
2. The resident does not have to use the word ‘complaint‘ for it to be treated as such. Third parties or representatives may also raise complaints and the landlord must still handle these in line with its complaint policy.
3. Landlords should recognise the difference between a service request, where a resident may be unhappy with a situation that they wish to have rectified, and a complaint about the service they have/have not received.
4. Landlords must provide residents with contact information for the Ombudsman as part of its regular correspondence with residents.
5. Any decision to try and resolve a concern must be taken in agreement with the resident and a landlord‘s audit trail/records should be able to demonstrate this. Landlords must ensure that efforts to resolve a resident‘s concerns do not obstruct access to the complaints procedure or result in any unreasonable delay. It is not appropriate to have extra named stages (such as ‘stage 0‘ or ‘pre-complaint stage‘) as this causes unnecessary confusion for residents. Landlords must acknowledge and log any complaints within five days of receipt.
The evidence shows that the resident had reported her dissatisfaction about the landlord’s handling of the subsidence at her property, the landlord‘s communication, and the landlord‘s lack of action over 15 years. This was dated 22 January 2020. The landlord said it dealt with this as a “quick win“ and responded to the resident informally. This was inappropriate.
Due to the nature of the complaint, this service considers that the landlord should have progressed it through its formal complaint procedure so that it responded to all the resident‘s concerns in writing. This would have provided the resident with clear expectations about the landlord‘s stance on its repair obligations as well as what it intended to do about the resident‘s reports. This failure obstructed the resident‘s access to the formal complaint procedure.
The resident made 4 further complaints as noted in paragraph 8 of this report.
The Ombudsman considers that the landlord was inconsistent and incompetent in its complaint management. It is unclear why the landlord dealt with some of the resident‘s complaints informally, while others were not. This compounded the resident‘s distress and inconvenience and drove the resident to contact the landlord over a protracted period. This resulted in time and trouble as well as distress and inconvenience to the resident in pursuing her complaints.
The Ombudsman considers that the responses that it did progress did not comply with the Code. This is because most of the responses failed to include a clear statement about whether the landlord considered the complaint upheld or not. This was a failure because the landlord was unclear about its stance on the complaint elements.
There is evidence of the landlord duplicating what was in effect the same complaint over two years. Had the landlord responded formally in the first instance, it is the opinion of this service, that the confusion caused internally and to the resident by the series of complaints would have been prevented. The landlord could have saved considerable resources by not having to undertake several investigations to respond to each of the resident’s complaints separately.
It is concerning to note that within the complaint response on 18 August 2022, the landlord told the resident that the property was free from subsidence. The surveyor’s report on 19 October 2021 noted challenges in identifying internal cracking due to external insulation but indicated minor subsidence likely caused by leaking drainage nearby.
The Ombudsman finds the landlord’s statement about the property being free from subsidence misleading. This is because the landlord did not reflect the surveyor’s report transparently and indicated that it was and had been free from subsidence altogether, which was not the case. This was maladministration. The Ombudsman would expect any information given to the resident by the landlord regarding expert opinions, to be an accurate reflection of the expertise given.
In addition, the landlord‘s current complaint policy states that residents require a representative to refer their complaint to this service. This is not compliant with the Code and is a service failure.
The Ombudsman considers that these failures taken together amount to maladministration because:
1. The landlord unreasonably delayed in progressing the resident‘s complaint through the complaint‘s procedure, despite the resident expressing dissatisfaction on several occasions.
2. The inconsistent approach to comply with the Code in its approach to complaint handling and in particular its complaint management was extremely poor.
3. Issuing a complaint response with misleading information based on what it knew about the structural nature of the property at the time.

Determination

In accordance with paragraph 52 of the Scheme, there was maladministration in the way the landlord handled the resident‘s reports of suspected subsidence causing damage and unlevel flooring.
In accordance with paragraph 52 of the Scheme, there was maladministration in the way the landlord handled the resident‘s complaints.

Orders

The landlord must within 28 days of the date of this determination:
1. The landlord should offer a full written apology for the failures highlighted in this report.
2. Pay the resident compensation of £1,400 to recognise the following:
  1. £1000 for the distress and inconvenience caused by the delays experienced in assessing and carrying out lasting repairs.
  2. £400 for poor complaint handling.
3. Schedule the works mentioned in the major works referral and notify both the resident and this service of the appointment.
4. Publish its repair policy online so it is easily accessible to residents on its website.
5. Review its complaint response templates to ensure they are compliant with the Code. The landlord should specifically focus on ensuring each response includes confirmation about which elements of complaints are being upheld or not upheld.
6. Conduct a case review to identify how it can ensure that in the future:
  1. Its staff can consistently identify expressions of dissatisfaction and service requests so that they can handle them accordingly in line with the Code.
  2. It identifies duplicate complaints and handles these effectively so that this does not confuse both staff and residents.
7. Review the complaint policy to remove any requirement for third-party referrals.
8. Arrange for relevant staff members to have refresher training for complaint handling.
9. Provide evidence of compliance with these orders to this service.