Cheshire Peaks & Plains Housing Trust (202010072)

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REPORT

COMPLAINT 202010072

Cheshire Peaks & Plains Housing Trust

28 May 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 the landlord’s response to the resident’s reports:
    1. that it breached its contractual agreement regarding improvements to his property;
    2. of damage caused during the removal of loft insulation by its contractors, and the subsequent amount of compensation offered.

Jurisdiction

  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. Paragraphs 39(a) and (i) of the Housing Ombudsman Scheme note as follows:

39. 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;

i) concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.

  1. The resident has advised this service that he entered into a contractual relationship with the landlord for improvement works to his loft space. This service has not been provided with a copy of any contractual agreement. The resident has further advised that he considers the landlord to be in breach of the terms of this agreement due to missing timescales for completion of the works.
  2. While the Ombudsman has not seen any agreement about the works, a determination that a contractual term has been breached is beyond the scope of the Ombudsman’s powers. Such a determination is better suited to the courts. In addition, the resident’s concerns about the terms under which the work was done and whether these were in accordance with any agreement made are not matters which have been considered under the landlord’s complaints procedure, and exhausted that procedure.
  3. After carefully considering all the evidence, in accordance with paragraphs 39(a) and (i) of the Housing Ombudsman Scheme, the complaint regarding the landlord’s response to the resident’s reports that it breached its contractual agreement regarding improvements to his property is outside of the Ombudsman’s jurisdiction.

Background and summary of events

Background

  1. The resident has been an assured tenant at the property of the landlord since 15 April 2013. The landlord is a registered provider of social housing.
  2. The landlord operates a two-stage complaints policy.
  3. The landlord operates a repairs policy. The policy relates to repairs, maintenance, and improvements. The policy notes it has a 24-hour emergency repair service but will otherwise complete repairs within timescales discussed with residents, while taking any risks into account.
  4. The landlord operates a compensation policy. The policy notes it will consider goodwill compensation where there has been distress caused to a resident. The policy notes where a resident’s possessions are damaged due to the actions of the landlord or its contractors, the landlord will pass the details to its insurers for investigation. The policy further notes that “all loss or damages claims will also be subject to investigation by insurers.” Regarding loss or damage claims, the policy notes that residents “should provide details in writing of the loss or damage and the sum they wish to claim in compensation,” and that residents “should keep any item that is damaged until the claim has been settled to their satisfaction.” The policy also notes that “in the event a contractor has caused damage through insufficient care the [landlord] will pass on the details to the Contractor to action with their own Insurers.” The policy notes that where evidence of the loss cannot be provided, the landlord will not pay compensation.

Summary of events

  1. It is not disputed that the landlord arranged for its contractors to remove loft insulation from the resident’s property on 10 January 2020 as part of agreed improvement works. It is also not disputed that the removal works were carried out negligently and that, as a result, a large amount of unknown dirt was left throughout the resident’s property. The landlord has advised that at this time its contractor offered to clean the property, but that the resident declined the offer.
  2. The resident made a formal complaint to the landlord on 13 January 2020. It is not disputed that the landlord attended the property on this date and that it offered to clean the property. It is also not disputed that the resident requested that prior to any cleaning works, the dirt be tested to determine if it presented any danger. The resident subsequently contacted the landlord’s ‘Customer Service Manager’ on 17 January 2020 and it arranged for ‘Airborne Environmental Consultants’ to attend the property. It is additionally not disputed that on or around this time, the landlord offered to temporarily decant the resident to another property whilst testing and cleaning occurred, which he declined.
  3. On 29 January 2020, the landlord contacted the resident and advised him that an environmental surveyor had attended the property on 17 January 2020 and conducted “initial tests,” and that the “tests came back clear.” It further noted that it had arranged a further test due to occur on 3 February 2020, and that it would formally respond to the resident’s complaint following the results of this test, which it anticipated to be 28 February 2020. This service has not been provided with the results of the environmental surveyor’s tests.
  4. It is evident that the resident reported a number of damaged items to the landlord including a child’s crib and bedding. On 14 February 2020, the landlord requested a breakdown of costs and advised it had agreed to pay the resident £960. It further advised that this was not a final offer of compensation, nor an admission of liability, but an “acknowledgement that service delivery has failed to meet your expectations.”
  5. It is not disputed that a second environmental test was carried out on 7 February 2020, and that the landlord arranged for initial cleaning of the property which took place on 17 February 2020.
  6. On or around 28 February 2020, the second environmental surveyor provided the landlord with its report. The report noted that as the assessment was conducted four weeks after the incident, “it is difficult to gain any definite analytical conclusions from the air monitoring process in relation to the original incident.” The report also noted that “the area was cleaned by [the resident] following the incident,” but that dirt remained on top of the door frames and wardrobes. The report further noted that “it was not possible to determine if there was any dust / debris from the loft still present on the carpets within the bedroom areas.”
  7. The results of the report noted that a ‘wipe sample’ from the bathroom “indicated that elemental carbon was present, however it is not possible to directly link this with the incident.” It further noted that the tests indicated “there is no machine-made mineral fibre (MMMF) or elemental carbon present within the airborne environment.” The report concluded that the property be “thoroughly cleaned to a high standard with any loose dust removed via the use of a vacuum fitted with a suitable filter system,” that “all carpets within the affected area should also be vacuumed and if needed washed”, and that “any loose items that are considered to be contaminated with dust should be either vacuumed or wiped down.” The landlord has advised this service that it contacted the resident with the results of the report at this time, however, a copy of this correspondence has not been provided to this service.
  8. It is not disputed that on 20 March 2020, the landlord arranged for a cleaning contractor to attend the property and provide a quote to ‘HEPA’ clean the property. The landlord has advised this service that it was subsequently unable to proceed with this cleaning as COVID-19 restrictions prevented it from carrying out non-urgent works. This service has not been provided with any correspondence relating to this event.
  9. It is evident that as part of the negotiations as to what resolution the resident wanted, he requested that he be offered a permanent relocation to alternative accommodation. The landlord advised on 21 April 2020 that it was open to this request, but that it was unable to do so during COVID-19 restrictions. Following further discussions, on 29 May 2020 the landlord clarified the resident’s preferred outcome to the complaint. It noted the resident had advised that some of his items “need to be replaced as they cannot be cleaned due to the nature of the material from the loft insulation.” These items included “all soft furnishings, furniture, carpets, and clothing.” The resident had therefore requested damages to cover these costs, however, it is not evident that the resident provided a breakdown of specific costs at this point. The landlord further noted the resident had further requested additional compensation for his stress and anxiety.
  10. The landlord provided its initial offer on 12 June 2020. Regarding the resident’s claim for damages, it advised that it would need to arrange for its contractor’s insurer to consider the losses incurred. It advised this would require the resident to provide access to the insurer and to demonstrate his losses. Regarding compensation for the resident’s stress and anxiety, the landlord apologised for the delays to its communications, which it attributed to the impact of the COVID-19 restrictions. It noted that the resident had initially declined cleaning of the property, and that the subsequent environmental assessments had found “no significant amounts of… substances injurious to health were present at the premises.” It further noted it had already paid compensation of £960 as a “goodwill gesture,” but advised it would offer a further £500 “as a full and final settlement of this part of your claim.”
  11. The resident replied on 14 June 2020 and advised he was not satisfied with the landlord’s offer. He also advised he was dissatisfied with the landlord’s requirement that he had to prove his losses to the contractor’s insurer, noting that the landlord had already carried out tests of the property, and that the incident had occurred six months ago. He noted that he considered the landlord responsible for its contractors and therefore the landlord should compensate for the damages. The resident also noted that the property was still yet to be professionally cleaned using HEPA vacuum cleaners.
  12. On 19 June 2020, the landlord advised that following the resident’s rejection of its offer, it was seeking legal advice. The resident noted on the same date that he was not rejecting the whole resolution, just the amount of £500, and that he also wished to clarify the need for the contractor’s insurer to assess his property.
  13. The landlord provided a further offer on 6 July 2020. It offered £2,210, inclusive of the £960 already paid, in “full and final settlement of your claim for damages arising from this incident, including the damage which is said to have been caused to your possessions, the stress and anxiety you say this matter has caused to you and any other losses claimed to have been incurred as a result of this incident.” The resident replied on the same date and advised he was not satisfied with the offer and that he did not consider the amount to cover the damage to his possessions. He subsequently advised his intention was to report his complaint to the local press and seek legal advice.
  14. On 8 July 2020, the resident reiterated his complaint to another employee of the landlord and advised that the cleaning contractor arranged by the landlord to provide a quote had informed him that “every item of soft furnishing would have to be removed.” He further disputed that the landlord’s compensation policy allowed it to require him to make a claim through the contractor’s insurers. He further reiterated his intention to report his complaint to the local press.
  15. On 10 July 2020, the landlord requested the resident provide it with “full particulars of your alleged losses, with supporting evidence of the same.” It further noted that the HEPA cleaning had been delayed due to the COVID-19 restrictions, but that it would now seek to arrange it. On 15 July 2020, the landlord noted it had not had a response from the resident and repeated its request for information about the damaged items, and its offer to arrange professional cleaning.
  16. The landlord contacted the resident again on 24 July 2020 and advised that he could either accept its offer in settlement of the claim or provide the information about the damaged items so it could assess further damages. It also reiterated its offer to arrange professional cleaning. Regarding the resident’s comments that the cleaning contractor had advised him to replace his possessions, it advised that it had not commissioned the cleaning contractor to carry out any reports, and that it did not consider the cleaning contractor to have “sufficient qualification to make comment.” It further advised that it had a duty to mitigate its losses, and as such, it was reasonable for it to seek to arrange for the initial contractor’s insurers to assess the loss. It also advised that it considered the resident’s complaint to have now completed its internal complaints procedure.
  17. On 25 July 2020, the resident replied and disputed that the cleaning contractor was not qualified to comment on the damaged items. He further clarified he had initially delayed the deep clean as he wanted to know what the dirt was by way of an environmental test, in order to understand how it should be cleaned. He further clarified that he had declined the offer to temporarily decant to another property as his wife was pregnant and the landlord had advised there were no suitable properties in the local area.
  18. The resident reported his complaint to his local MP, who sought clarification from the landlord. The landlord subsequently provided the MP with an outlined of the steps it had taken and reiterated its position. On 25 September 2020, the resident provided his MP with a breakdown of the items he wished to claim damages for, including carpets, clothing, a sofa, and other soft furnishings. The resident has also advised this service that he considers the cost to replace all his damaged possessions to be approximately £12,000. The resident’s MP subsequently provided this breakdown to the landlord on 23 October 2020. It is not evident that the landlord responded to this communication.
  19. On 4 November 2020, the landlord’s solicitors contacted the resident to advise him of the landlord’s intentions should the resident report any personal information about the landlord’s employees to the press. It also advised the landlord still wished to arrange the HEPA cleaning. It is not evident if the professional cleaning has subsequently been arranged.

Assessment and findings

  1. The landlord’s repairs policy notes that it will attend to any emergency repairs within 24 hours. Following the initial damage to the resident’s property, the landlord’s contractor, acting on behalf of the landlord, appropriately offered to carry out immediate cleaning. While the resident declined, wishing to initially have the dirt inspected, it was appropriate that the contractor made the offer, in line with the landlord’s policy. Additionally, upon being notified of the incident on 13 January 2020, it was also appropriate that the landlord immediately attended the property and also offered to carry out immediate cleaning. While not required by the repairs policy, it was also appropriate, and in line with what the Ombudsman would expect, that the landlord made an offer to decant the resident at this time.
  2. Following the resident’s request that tests be carried out on the dirt, the landlord appropriately arranged for an initial test within a reasonable time period and appropriately kept the resident informed of its findings. It was also appropriate that it arranged for a further expert test and kept the resident informed of the dates on which this would occur. Following the second test, it was also appropriate that the landlord carried out initial cleaning of the property.
  3. The landlord’s compensation policy sets out that it can make payments of goodwill compensation. The policy also notes the landlord can make payments of compensation for loss or damage where a resident provides details in writing. Given that the dirt had damaged a number of items belonging to the resident, specifically relating to his children which he considered required replacing, it was appropriate and in line with its compensation policy, that the landlord initially requested information about the damaged items, and that it subsequently made an initial payment to the resident to cover the replacement of these items. It was also appropriate that the landlord made it clear to the resident that this initial payment did not prevent him claiming further compensation.
  4. Following the results of the second test, the landlord appropriately communicated the results of the test to the resident within a reasonable timeframe. It would have been helpful for the resident, however, had the landlord provided him with a copy of the full report at this time, to help him fully understand the outcomes of the investigation, which it did not do.
  5. Given that the report indicated that all affected loose items could be “either vacuumed or wiped down,” it was reasonable that the landlord did not seek any further information about specific items of the resident at this time. As the report recommended a professional clean, it was appropriate that the landlord arranged for an initial quote for a HEPA clean of the property.
  6. During COVID-19 restrictions, the Ombudsman considers it reasonable for landlords to have only carried out urgent repairs. Given that the report had advised there was no dangerous airborne fibres, nor indicated any immediate or urgent health threat, it was reasonable for the landlord to have delayed the subsequent professional clean during the period of COVID-19 lockdown. It is evident, however, that its communication across this period was not sufficient, as it did not keep the resident updated as to its intentions regarding resuming repair works and arranging the professional cleaning. This was identified by the landlord in its communication dated 12 June 2020 and it appropriately apologised. Following its offers of compensation, discussed below, the landlord appropriately sought on a number of occasions to arrange a time to carry out the professional cleaning, in line with its expert’s recommendations.
  7. While the landlord’s compensation policy does not specifically mention that it will offer a relocation to an alternative accommodation, given the distress caused to the resident, it was appropriate that it agreed to assist the resident with an internal transfer, and it was also appropriate that it advised him that this was not possible during COVID-19 restrictions. It was also appropriate that the landlord corresponded with the resident to determine what his preferred resolution was prior to making its formal offer.
  8. The landlord operates a two stage internal complaints procedure. It is evident that the landlord considered its communications dated 12 June 2020 and 24 July 2020 to be its stage one and stage two responses respectively, however, neither response identified itself as such. It was appropriate, however, that the communication on 24 July 2020 confirmed the resident had exhausted the landlord’s internal complaints procedure. While the Ombudsman would consider it best practice to clearly identify such communications in order to allow the resident to understand how to progress his complaint, given that the parities continued to correspond and progress their negotiations, this did not constitute service failure in this instance.
  9. The landlord’s compensation policy notes that where a contractor has caused damage, it will seek to make a claim through the contractor’s insurers. Given that the resident had expressed in late May that they considered some of their personal property to have been irreparably damaged, it was reasonable for the landlord to inform the resident that it would need to involve the contractor’s insurers to assess any claim, in line with its compensation policy.
  10. Given that the resident had also expressed he wanted compensation in recognition of the stress and inconvenience caused to him, it was appropriate that the landlord set out the actions it had taken to mitigate the resident’s stress and inconvenience i.e. offering to immediately clean the property, offering to decant the resident, and arranging for multiple environmental tests in line with the resident’s request. It was also appropriate that it recognised the stress and inconvenience caused to the resident, and subsequently that it made an offer of compensation to reflect this. The landlord also appropriately articulated in its correspondence that its offer of £500, in addition to the £960 already paid, was in relation to the stress and inconvenience only, with the loss to property still to be assessed by the contractor’s insurers.
  11. It is evident that the landlord considered the resident’s correspondence on 14 June 2020 to have been a rejection of both its request for the contractor’s conveyancer to assess the property and its offer of compensation for stress and inconvenience. The Ombudsman notes that the resident subsequently clarified that he wanted a further explanation regarding the assessment by the insurers, however, the landlord did not clarify this point prior to making a further offer. Given that the further offer was in “full and final settlement of your claim for damages,” it would have been helpful had it responded to the resident’s request for clarification. Additionally, the resident had previously articulated to the landlord the items he considered to require replacing, however, the landlord’s further offer did not breakdown the amount offered. While it is not evident that the resident provided a specific costs breakdown at this point, the Ombudsman would expect a landlord to request a breakdown in order to clarify its offer of compensation, however, it is not evident it did so prior to its offer.
  12. Following the resident’s further rejection of the landlord’s second offer, the landlord appropriately requested on several occasions a breakdown of the resident’s costs for damaged items and any supporting evidence, as required for any payment under its compensation policy. Additionally, given that the resident had reiterated his concerns about the landlord’s request to arrange for contractor’s insurer to investigate, it was appropriate that the landlord outlined its position in its communication on 24 July 2020 that it had a duty to mitigate its losses by arranging for the insurer to investigate.
  13. Additionally, following the resident’s reports that the professional cleaning contractor had advised him to dispose of his possessions affected by the dirt, the landlord appropriately outlined its position that it had not instructed the contractor to make such an assessment, nor did it consider the contractor to be qualified to make such a finding. Given that its expert assessment found that the loose items required to be only wiped down, the landlord’s position that it did not consider the cleaning contractors evidence to be sufficient was reasonable.
  14. Following the landlord’s requests for a breakdown of costs and supporting evidence, it is not evident that the resident initially provided this information. The landlord’s reiteration of its offer in full and final settlement made on 24 July 2020 was therefore made on the basis that its expert report advised that loose items needed to be wiped down and carpets professionally cleaned, and the lack of evidence to the contrary. Based on the mitigating actions of the landlord to reduce stress and inconvenience caused to the resident and, at the point of making the offer, the lack of any evidence of the costs for damaged items, the landlord’s offer of £2,210 was reasonable in the circumstances and in line with what the Ombudsman would expect.
  15. The Ombudsman’s investigation is limited to the actions of the landlord as part of its internal complaints procedure. The Ombudsman notes that the parties continued to correspond beyond the landlord’s stage two response on 24 July 2020, however, it is evident that there was a breakdown in communication at this point, with each party considering legal action. It was appropriate, however, that the landlord has continued to offer to arrange the professional cleaning previously discussed. Additionally, the resident subsequently provided a breakdown of costs for damaged items via his local MP, however, it is not evident that the landlord has advised its position following receipt of the breakdown.

Determination (decision)

  1. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its service failure in respect of its response to the resident’s reports concerning damage caused during the removal of loft insulation by its contractors.

Reasons

  1. Following the initial damage, the landlord appropriately offered to immediately clean the resident’s property and temporarily decant the resident, in line with its obligations under its repairs policy. Following the resident’s request that the dirt at the property be tested, the landlord appropriately arranged for an initial air quality test and subsequent environmental test, and it appropriately articulated the results to the resident.
  2. Based on the expert’s report, it was reasonable that the landlord did not seek any specifics of the resident’s damaged items, given that the report stated they only required to be wiped down. It also appropriately arranged for a quote for a professional clean of the resident’s property, in line with the recommendations in the expert’s report. While the cleaning was subsequently delayed due to COVID-19 restrictions, the Ombudsman considers it reasonable to not carry out non-emergency works during this period, and it was appropriate that the landlord apologised for its subsequent poor communication. It was also appropriate that the landlord has continued to offer the professional cleaning throughout its later formal responses.
  3. Given that the resident had later advised he considered some of his items to be irreparably damaged, it was reasonable for the landlord to request for the contractor’s insurer to make an assessment, in line with its compensation policy. While it would have been helpful had the landlord requested the resident provide a breakdown of costs prior to making its full and final settlement offer on 6 July 2020, given that it subsequently requested this information which it did not then receive, it was reasonable that it reiterated this offer on that basis on 24 July 2020, and in the Ombudsman’s opinion, the amount was reasonable in the circumstances.
  4. Following queries from the resident, while the landlord initially did not clarify its position regarding the need for the contractor’s insurers to make an assessment prior to its communication on 6 July 2020, it appropriately did so in its stage two response on 24 July 2020. Additionally, it also appropriately advised its position regarding the resident’s reports of comments made by the cleaning contractor.

Recommendations

  1. The landlord to contact the resident within four weeks of the date of this determination (if it has not done so already) and include the following:
    1. its position on compensation for the resident’s damaged possessions with reference to the breakdown of costs provided by the resident’s local MP on 25 September 2020;
    2. reiterate its offer of compensation made in its stage two response dated 25 July 2020;
    3. reiterate its offer for the cleaning contractor’s insurer to assess any compensation, if still possible.