Westminster City Council (202001172)

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REPORT

COMPLAINT 202001172

Westminster City Council

19 January 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 response to the resident’s reports of repairs to:
1. The front door.
2. The bath and pipework.
3. The intercom.
The Service has also considered the landlord’s complaint handling.

Jurisdiction

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.
The landlord noted in the Stage 1 response that the resident had reported a repair to her intercom system at a home visit. However, the resident did not raise a complaint with the landlord about its handling of the repair. Paragraph 42(a) of the Housing Ombudsman Scheme states that “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion 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.”
In accordance with paragraph 42(a) of the Scheme the resident’s complaint about the landlord’s handling of intercom repairs is outside the jurisdiction of the Service to investigate. This is because the landlord needs to be given a fair opportunity to investigate and respond to any reported dissatisfaction with its actions prior to the involvement of the Service. Any new issues that have not been subject to a formal complaint can be addressed directly with the landlord and progressed as a new formal complaint if required.

Background and summary of events

Legal and policy context

The resident is a leaseholder of the landlord having exercised the Right to Buy in November 2022. Her property is a 2-bedroom maisonette in a high-rise block. The landlord’s housing stock was previously managed by CityWest Homes (CWH), an Arms Length Management Organisation.
Under her lease the resident is obliged to:
1. …keep in good and substantial repair and condition and properly cleansed … the Demised Premises and all fixtures and fittings therein and all additions thereto and whenever necessary.
2. … permit the Lessor with or without workmen and all other persons authorised by it at reasonable times and upon reasonable notice (except in emergency) … to enter upon and view and examine the condition of the Demised Premises and prepare a schedule of all landlord’s fixtures and fittings therein and for any other purpose and of all defects and wants of repair on any such view.
Under the lease the landlord is obliged to:
1. keep in good and substantial repair and condition … All cisterns tanks sewers drains gutters pipes … ducts and conduits and any other thing installed in the Property for the purpose of supplying water…and for the purpose of draining away water and soil … save only such … other things as a solely installed or solely used for the purpose of any particular flat and for which the owner thereof is responsible under any provision in his lease.
2. insure and keep insured … the Property (including the Demised Premises) against loss or damage by fire and such other risks.
The Demised Premises is the resident’s flat whilst the Property is defined as the block of flats within which her flat lies.
The landlord has a 2 Stage complaint process. At both stages, the landlord aims to provide a response in 10 working days.
The landlord’s Compensation Procedure has the following bands:
1. Low Impact (Awards of up to £250) – “Compensation in the range of these amounts may be used for instances of service failure resulting in some impact on the resident. The council recognise that there has been service failure which has had an impact on the resident but was of low impact, short duration and caused minimal, low inconvenience, distress. Overall, the circumstances have not significantly affected the outcome for the resident.”
2. Medium Impact (Awards of £250 to £700) – “Compensation in the range of these amounts may be for cases where we recognise that there has been service failure which has had an impact on the resident but was of medium impact, short duration but caused a moderate degree of inconvenience or distress. A repeated failure of the council or contractors to address the shortcoming, even of a low impact event, could also give rise to consideration of a medium impact level of compensation.”
3. High Impact (Awards of £700 and above) – “Compensation in the range of these amounts are used in recognition of maladministration / severe maladministration that has had a severe long-term impact on the resident including physical or emotional impact, or both.”

Summary of Events

On 14 December 2016 the resident wrote to the landlord about a damage to her front door in 2014 after a leak from the upstairs flat. She said that she had sent Stage 1 complaint letters in 2014.
On 12 July 2017 the resident wrote to the landlord about damage to her front door and on 19 July 2017 the landlord inspected it. It noted in its repair records “FED (front entry door) has split to bottom, intumescent strip not fully present, bottom lock missing. Lessee advises that forced entry was conducted by LFB (London Fire Brigade) a year ago in order to remedy a leak, no information available on repairs history indicating CWH involvement. Lessee to be advised that replacement of FED falls under their lease and would be their responsibility. Called resident 20/7/17 am but no answer of voicemail, letter to be sent to resident.”
The landlord’s repair records indicate that the resident reported a back surge to her bath on 25 August 2017. The landlord attended on the same day but did not gain access. The landlord raised another job order on 1 September 2017 to clear the stack affecting the resident’s property. Its repair records noted that its contractor attended that day and needed access to the roof to clear the stack pipe. At a further visit on 11 September 2017, it noted that a rotary machine did not clear the waste pipe, and that the bath waste and sink waste needed to be replaced. Furthermore, the stack pipe needed to be cleared from the roof.
The resident has sent this Service photographs dated 1 September 2017 of operatives in her bathroom. The photographs show that the bath trap was removed. It is not clear that these photographs have been provided to the landlord.
In the landlord’s complaint response of December 2019, it noted that it had sent a previous complaint response about the front door issue on 28 August 2017. That response asked the resident to provide the proof or correspondence that confirmed it had agreed to carry out door repairs.
An MP enquiry on behalf of the resident about bathroom repairs noted that the resident had claimed that repairs to her bathroom arose because of damage caused by the landlord’s contractor, therefore the landlord should take responsibility. The MP stated that the resident could provide relevant job numbers. The landlord on 26 July 2019 in response advised it had no evidence of carrying out works to the bathroom and that it last attended the resident’s property on 12 July 2017.
The resident wrote to the landlord on 26 July 2019 stating that she had not been able to use her bathroom for 2 years. On 5 August 2019, the landlord asked her to explain what had happened and how she was impacted.
On 6 December 2019, a legal advice centre sent a letter to the landlord on behalf of the resident stating the following:
1. The landlord had not rectified damage following a forced entry in 2014 to attend to leak from the upstairs flat.
2. Dirty water was backing up through the bath in 2017. The landlord attended and denied the problem came from the roof; instead, it dismantled her bath including pipes in order to remedy the problem. The landlord finally accepted that it needed to gain entry to the roof to clear the stack but did not do so.
On 19 December 2019, the landlord inspected the resident’s property. Its record of the inspection stated the following:
1. The mortice deadlock with snib turn was missing due to a forced entry in 2014 according to the resident.
2. The bath waste trap had been removed. The waste trap and the hot and cold water services needed to be reconnected. It could not ascertain whether there were any blockages. It was the resident’s responsibility to reconnect the waste trap and overflow hose pipe, reinstate the hot and cold water supply and rod the waste pipe back to the stack.
3. The resident could claim the cost of repairs from its insurance.
On 30 December 2019, the landlord responded at Stage 1 of its complaints procedure.
1. It noted that the front door was sound and secure at the inspection of 19 December 2019. The only damage sustained was a drilled-out lock mechanism which could easily be replaced, and which was the resident’s responsibility to arrange. There was no evidence that there was a leak, a forced entry or a mistaken forced entry related to the resident’s home in 2014.
2. The complaint response letter of 28 July 2017 advised the resident to provide proof that it agreed to carry out door repairs. During its investigations at the time, it noted that at the visit of 19 July 2017, the resident confirmed the fire service had carried out the forced entry.
3. The resident had the option of making a claim on the landlord’s Building Insurance
4. It had checked the 2 job reference numbers mentioned by the resident. The first reference number had “no access” on 25 August 2017 recorded against it. The second job number suggested that the contractor could not clear the waste pipe from inside the bathroom and that the stack pipe would need cleaning from the roof. The notes went on to say that the bath and sink waste pipes needed replacing; however, there was no information to suggest that the contractor damaged the bathroom pipes or bathtub.
5. At the inspection of 19 December 2019, it noted that the bath waste trap had been removed, the bath was not in use and the waste trap and the hot and cold water service needed to be reconnected. These repairs were the resident’s responsibility. It would only be able to check for blockages and also to check the stack pipe after the repairs due to the risk of damage or flooding.
6. At the visit the resident mentioned a fault with her intercom system. It would raise a job order for an engineer to come.
On 6 January 2020 the resident sent a letter to escalate her complaint.
1. She denied that she had advised that the fire service had forced entry. She stated the landlord was responsible and should repair damage to her door. The leak in 2014 causing the forced entry came from new water pipes installed at that time.
2. With regards to the bathroom and toilet, she disagreed with the landlord’s version of events and suggested that it look at her previous letters. She also stated that she had “witness from my building, images/videos in relation to this matter”.
The resident asked the landlord to respond withing 14 days, or alternatively that it consider her letter as Pre-Action Protocol before a disrepair claim.
On 23 January 2020, the landlord informed the resident that as she had raised a legal disrepair case, it would not deal with her case as a complaint. Instead, its solicitor would contact the resident. On 4 February 2020 the landlord’s solicitor asked the resident if the landlord could inspect her property to prepare a schedule of works.
Between May 2020 and August 2020, the resident referred her complaint to the Service, sending copies of the correspondence. The Service did not respond further at the time. The resident again contacted the Service in December 2021 and after a further exchange of correspondence she confirmed that she had not proceeded with legal action. On 24 August 2022 we asked the landlord to send a Stage 2 response by 8 September 2022. We contacted the landlord again after it did not respond by this date.
On 28 October 2022 the landlord sent the Stage 2 response to the complaint.
1. The resident thought her front door was not secure in 2017. However, during the last inspection of her home, which took place on 19 December 2019, it found that although there was no mortice deadlock, the resident had two existing locks fitted to her door.
2. There was no evidence that it damaged the front door to the flat, but even if this was the case, it was the resident’s responsibility to complete the door repair. She could make a claim on the building’s insurance if necessary.
3. There were no records that it forced entry in 2014 after a leak; this was carried out by the Fire Brigade. No contractor would carry out works without a repair order number and it had not been invoiced for any forced entry to the resident’s property or a neighbouring one.
4. There was no evidence that its contractor caused any damage to the resident’s bathroom pipes of bathtub. The Stage 1 response letter explained that the required bathroom repairs were the resident’s responsibility to arrange, and it provided her with details of works that she should undertake.
5. It offered £100 compensation for the delay in providing the Stage 2 response caused by incorrectly closing her complaint on the ground that there was a legal disrepair case. It also offered £50 in view of the extended delay in responding to the resident’s complaint escalation, and her time and trouble.

Assessment and findings

Scope of the investigation

In investigating this complaint, the Service has not sought to determine whether the landlord caused the damage to the resident’s door and to her bathroom that she claimed. The parties have different version of events. As the Service was not present, and in the absence of corroborative evidence by independent parties, it is not possible for us to say with reasonable confidence what actually happened. The Service has considered the reasonableness and appropriateness of the landlord’s response and determined the complaint by what is fair in all the circumstances.
It should also be noted that the Service expects complaints to be raised and escalated by residents within reasonable timescales. The reason for this is that the closer in time the complaint has been raised to the act or omission by the landlord, the more likely there is to be a resolution. Furthermore, after a number of years it can be difficult to establish what happened. This is because records and individual recollection of events may not be as reliable as they were. In this case there have been significant periods where the resident has not sought to pursue her complaint. The Service has exercised its discretion to investigate this complaint in order for a resolution to be reached.

The front door

The resident’s lease confirms that she is obliged to repair the fixtures and fittings of her property, and therefore that she is responsible for front door repairs. It was in accordance with the provisions of the lease that the landlord advised the resident in 2017 that she was responsible for repairs to the front door.
The resident was claiming that the landlord had damaged her door by forcing entry to her property, therefore it should take responsibility. The landlord’s records do not show that it forced entry to her property at any time and in fact that it understood that LFB had forced entry. In the absence of evidence that it had forced entry as claimed, it was appropriate that the landlord asked the resident if she could provide any corroborative evidence. The resident did not provide any evidence.
After the resident complained again about the front door in 2019, the landlord inspected the door again. The landlord again denied liability on the basis that there was no evidence that it had forced entry to her property. In the absence of corroborative evidence, this was a reasonable position to take.
After the resident complained again in 2019, the landlord assessed the door again as she was claiming that there was still damage from the forced entry that she wanted the landlord to repair. It advised the resident, consequently, that the door was essentially secure but that the mortice deadlock should be replaced, which should be a straightforward job. It was appropriate that the landlord provided its findings as by doing so, it made clear to the resident the works that were required, should she decide to carry out the works.
The resident remained dissatisfied with the landlord’s position and remained adamant that it had forced entry to her property. Given the different views and the fact that the resident was not pursuing legal action anymore, it was reasonable that the landlord suggest she make an insurance claim. This is because the insurers can make a decision on whether the landlord is liable for door works and can meet the costs if accepting the claim.

The bath and pipework

The lease confirms that the resident, as a leaseholder, is responsible for the repair and maintenance of pipes, pipe fittings and traps and waste that solely serve her bathroom. Nonetheless, the landlord’s repair records confirm that the landlord, as well as raising an order to clear the stack for the building, attended the resident’s property after she reported in August 2017 a back surge to her bath. Consequently, that it ascertained that the resident’s bath waste and sink waste needed to be replaced.
In her complaint of 2019, the resident said that she had not been able to use her bath for 2 years as the waste trap had been dismantled. It is not evident why she did not raise this issue sooner. The landlord ascertained that the bath trap was indeed dismantled when it inspected at this time, also that the water supply had been disconnected. In its complaint responses at Stage 1 and 2 it decided that the resident should carry out these repairs. This advice that the resident should carry out these repairs were in line with her responsibility under the lease.
However, the landlord did not consider all the relevant circumstances and fully address the resident’s complaint. The resident had argued that the landlord should accept responsibility for the repair on the basis that it had “dismantled her bath” when attending in 2017 and not made this good. The landlord did not address this point. The resident further stated that she could provide photographic and video evidence, but the landlord did not ask to see this. It thereby omitted to consider evidence that could have informed its decision.
The Service also notes that the landlord provided an incorrect response to the MP enquiry on behalf of the resident. It overlooked that it had attended the resident’s property in September 2019. This added to the resident’s inconvenience and perception that the landlord’s version of events was unreliable. The landlord’s error was particularly unreasonable as the resident had offered to provide reference numbers which it could have checked.

Complaint Handling

Following the letter from the resident’s advocate dated 5 December 2019 the landlord registered a complaint and sent a Stage 1 response. This was appropriate as the letter did not give notice that the resident would commence legal proceedings. Moreover, the letter was addressed to the landlord’s complaints co-ordinator and asked the landlord respond to the resident directly. Although the landlord did not respond within 10 working days, there was good reason for this as it needed to inspect the property first.
In her complaint escalation of 6 January 2020, the resident asked the landlord to respond within 14 days, or should consider the letter as Pre-Action Protocol before a legal disrepair claim. Landlords should seek to resolve matters through its complaint processes in the first instance and indeed the resident asked the landlord to respond to her directly, within 14 days. Furthermore, at no point did formal legal proceedings begin. The legal disrepair claim was never stamped by the relevant court. In this case, we would expect a landlord to continue dealing with the matter under its internal complaints procedure. It was therefore unreasonable that the landlord did not escalate the complaint to Stage 2 on receipt of the resident’s letter of 6 January 2020.
The landlord offered £100 compensation for its failure to escalate the complaint to Stage 2. This offer was in line with the guidance in the Compensatuion Procedure and proportionate to the failings in its service. This is because after it advised it had opened a disrepair case, the resident did not subsequently contact it to confirm that she wished to pursue her complaint to Stage 2. When advised to escalate the complaint to Stage 2 by this Service, it did so.
After the landlord escalated the complaint to Stage 2 it did not respond by the deadline set by the Service of 8 September 2022. This necessitated the resident contacting this Service to chase the landlord again. Ultimately the response was sent 7 weeks late. It was therefore appropriate that the landlord offered further compensation of £50 in its Stage 2 response. Again, this offer was in line with the guidance in the compensation procedure and proportionate to the circumstances.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the resident’s complaint about its response to her reports of repairs to the front door.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the resident’s complaint about its response to her reports of repairs to the bath and pipework.
In accordance with paragraph 53(b) of the Housing Ombudsman Scheme the landlord provided reasonable redress for the failings in its complaint handling.

Reasons

In the absence of evidence that it had forced entry as claimed, it was appropriate that the landlord asked the resident if she could provide any corroborative evidence. After inspecting the door, it was appropriate that the landlord provided its findings as by doing so, it made clear to the resident the works that were required, should she carry out the works. Given the different views about how the need to works to the door arose, and the fact that the resident was not pursuing legal action, it was reasonable that the landlord suggest she make an insurance claim.
The landlord did not address the resident’s substantive point that it should accept responsibility for repairs in her bathroom on the basis that it had “dismantled her bath” when attending in 2017. The resident further stated that she could provide photographic and video evidence, but the landlord did not ask to see this. It thereby omitted to consider evidence that could have informed its decision. The landlord provided an incorrect response to the MP enquiry on behalf of the resident.
The landlord delayed in dealing with the resident’s complaint at Stage 2. However, it offered compensation for the delays which provided redress.

Orders and recommendations

Orders

Within the next four weeks the landlord is ordered to:
1. Apologise to the resident for the failings identified in this report.
2. Pay the resident £100 compensation for her distress and inconvenience caused by the failings in its response to her reports of repairs to her bath and pipework.
3. Obtain further evidence from the resident in respect of her complaint about her bath and pipework. It should then confirm to the resident whether it will carry out bathroom works including reconnecting the waste trap, reconnecting the overflow hose pipe and reinstating the hot and cold water supply. If the landlord does not agree to carry out the works, it should explain why and what the resident’s option are.

Recommendation

As the finding of reasonable redress in respect of the landlord’s complaint handling is contingent on its offer of £150 compensation, the Service recommends that the landlord pay this amount to the resident if it has not already done so.