London & Quadrant Housing Trust (202007908)

REPORT

COMPLAINT 202007908

London & Quadrant HT

13 July 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 resident has complained that the landlord has offered insufficient compensation after upholding their complaint about the condition of the property when let, and about the handling of the resulting repairs.

Background

2. The resident moved into the property in November 2019 after their tenancy started in September 2019. They ultimately moved out in September 2020. They have complained that the landlord was aware that the property was not suitable to be let before it was offered to them. They have also complained about the time then taken by the landlord to investigate and resolve the repair (subsidence) issues.
3. The resident has explained they could not continue living at the property due to the impact the situation had on their life and their health. Therefore they declined a temporary decant and moved permanently to another property. Therefore their formal complaint focused on the compensation that the landlord offered as they no longer lived at the property.
4. In August 2020 the landlord offered the resident £2000 direct, plus £750 towards removal costs (including appliance removal and installation). The £2000 was calculated from:
   1. £800 for carpets for 3 rooms.
   2. £400 decorating contribution.
   3. £250 for a fridge/freezer.
   4. £120 for a service charge refund.
   5. £430 for a new sofa.
5. The resident has not disputed any of these figures or complained that some of their costs have not been covered. They have complained that the offer does not include any compensation for the distress/inconvenience or ‘injury to feelings.’ In particular they have highlighted:
   1. That the landlord knew they were a disabled, vulnerable resident but continued with the inappropriate let.
   2. The time they had to live in an unsuitable property due to the handling of the repairs.
6. The landlord explained in July 2020 that discretionary payments covering “goodwill gestures and compensation payments – made to acknowledge impact, inconvenience, distress, and time/effort” were suspended from April 2020. However compensation for expenses had continued. The landlord also responded in October 2020 to say that it could not compensate for ‘injury to feelings’ as this was not quantifiable. Therefore the landlord did not offer any further compensation.

Summary of events

7. The landlord’s internal emails in June/July 2019 discuss an ongoing subsidence claim, as well as the need for contractors to access the property to plan a schedule of works related to the subsidence.
8. The resident’s tenancy began on 16 September 2019.
9. A June 2020 preliminary engineer’s report related to the landlord’s subsidence insurance claim listed ‘clay shrinkage subsidence’ as discovered in September 2019 when cracks were seen when the resident moved in.
10. For the time before the resident’s tenancy the landlord’s repair history records:
    1. Wall cracked and leaning reported November 2017.
    2. Cracks in whole property reported January 2018.
    3. Loose tiles due to cracks reported August 2018.
11. The landlord’s internal email (July 2020) notes that there was a subsidence insurance claim in August 2018 for clay shrinkage. It also notes that a number of trees were removed from the garden as a result in November 2019. The email also notes that the landlord repaired internal cracks during the void period.
12. The resident referred the condition of the property to the local council in May 2020. The council then remained in contact with the landlord about the repair issues at the property until the resident moved out. In July 2020 the council highlighted that a July 2020 site inspection report stated the cracks were caused by seasonal clay shrinkage and required tree removal. The council also highlighted a September 2018 report which also identified ‘root exacerbated clay shrinkage subsidence’ and that the landlord had taken over a year to remove some trees.
13. The landlord’s engineer’s report notes that the wall crack issue (and associated damp and cold issues) was first reported by this resident when they first moved in in September 2019.
14. The landlord’s repair log notes that the resident was considered ‘vulnerable’
15. The repair log also notes:
    1. A sewer drain issue reported in December 2019.
    2. That a bathroom crack ‘came back’ in January 2020.
    3. A report of possible subsidence from the council in May 2020.
16. The repair log states that a supervisor visited in March 2020 in response to the January bathroom crack report. The operatives requested a supervisor’s visit in case there were structural issues.
17. The landlord’s call notes in March show the resident chasing the landlord for the surveyor and then structural inspections. They also record how the resident had highlighted how long the issues had been ongoing. On 25 March the landlord called the resident to explain that all inspections had been cancelled due to the national ‘lockdown’ restrictions introduced in response to the Covid-19 epidemic. This was the earlier stages of the Covid-19 epidemic therefore all parties had to respond to the unprecedented and developing situation.
18. A telephone note in April states that a follow up appointment in April 2020 was also cancelled due to Covid-19.
19. In May 2020 a building surveyor from the landlord visit and reported a number of internal cracks and requested an independent inspection. The internal emails discussed how the issue was ongoing; that the removal of the tress in November would allow greater investigation; and that an up to date review was needed.
20. The landlord’s engineer visited in June. This is the report by the same engineers that visited in September 2018, and which the local council had highlighted as both reports pointed to roots and clay shrinkage causing subsidence.
21. The landlord arranged for a specialist contractor to complete an inspection and CCTV survey in July 2020.
22. The resident viewed a property on 24 July that they then accepted as a permanent decant. Various repairs were required to the new property, garden and communal areas, as well as a request for some adaptations. Therefore the emails in August focused on the progress preparing the new property for the eventual transfer in September 2020.

Assessment

23. The resident has requested compensation for ‘injury to feelings.’ The landlord stated in its final response (21 October 2020 email) that is does not offer compensation for this. However, setting aside the phrasing used, it is common for landlord to offer compensation for distress and inconvenience. The Housing Ombudsman encourages landlords and residents to discuss all possible ways of resolving a dispute. Where there has been a failure the issue itself can normally be rectified, however this does not then also resolve the inconvenience of having to pursue the complaint, or the impact the failure may have already had. As such compensation, or another offer in kind, can then be made to acknowledge this.
24. The landlord has explained that in response to the Covid-19 pandemic it also suspended some types of compensation from April 2020.

“3.2 Discretionary compensation payments that are paused:

Fixed awards for service failure – £10 for failure to respond to a query within 10 working days; failure to respond to a formal complaint within the timescale in our Complaints Policy; £20 for a missed appointment.

Goodwill gestures and compensation payments – made to acknowledge impact, inconvenience, distress, and time/effort.

Rent refund – compensation for loss of facility – the compensation will be based on the customer’s weekly rent and the number of days/weeks without the facility.

Compensation for loss of communal amenities/service – Where repair takes longer than right to repair service timescales or our service level agreement. Impact, inconvenience, and distress.

Note that payments to residents for out of pocket expenses, is a reimbursement, not a compensation payment, so will continue.”

25. Therefore, while the reason for not offering compensation given in the final response (21 October 2020 email) was incorrect, there was some policy basis on which the landlord could consider whether and compensation for distress and inconvenience should be paid given the amended policy quote above.
26. The Ombudsman recognises that the pandemic has had a major impact on a range of services provided by social landlords and would not expect landlords to offer compensation for any delays in service that were solely due to the Covid-19 restrictions over which they had no control. However, the Ombudsman’s guidance note issued in July 2020 confirms that the Ombudsman expects remedies to continue to be applied appropriately to situations where any delays are due to the actions or omissions of a landlord.
27. The landlord upheld the resident’s complaint about the condition of the property. In recognition of how long the issues with the property would take to resolve it prioritised the resident’s request for a permanent move away from the property, and offered significant financial assistance to do so.
28. However the need to move away from a home the resident had recently moved into was further inconvenience for them (as well as it being part of the solution). Plus the landlord has itemised how the costs it has compensated are all costs that would have been avoided if the resident had not had to move.
29. Most importantly, the subsidence issue was ongoing when the property was offered and let to the resident. The local council has highlighted how the trees were flagged in 2018 but only removed in 2019, after the resident’s tenancy had started. There was therefore an issue with how the landlord’s insurance, housing and void teams had shared information to ensure the property was appropriate for letting at that time.
30. Following the November tree removal, the resident re-raised concerns in January about the cracks they had first raised in September. However the landlord’s response was overdue, with a visit only in March 2020. After this time there is then a period where the delays could not be avoided given the first national Covid-19 lockdown. This will have limited any visits in March-June, and the landlord did update the resident when cancelling and re-arranging appointments. After this period the landlord did then begin to arrange the necessary specialist investigation and the discussion with the resident moved on to their transfer.
31.  Therefore the period from September to March was a period of delay that resulted in distress and inconvenience for a resident the landlord had flagged as vulnerable. This was in addition to having let the property when the recommended actions from the 2018 survey had not all been completed.
32. Furthermore these issues arose prior to the Covid-19 epidemic and the landlord’s interim policy suspending compensation payments. Therefore it should not have been applied in this particular case.
33. The applying of a blanket policy on the payment of discretionary compensation during the pandemic has led to an unfair outcome for the resident and the landlord has failed to put things right in accordance with the Ombudsman’s dispute resolution principles. Furthermore, the interim compensation policy confirms that there may be occasions where a degree of flexibility should be employed on a case by case basis. The policy did therefore afford the landlord some discretion in this matter but the landlord failed to exercise its discretion appropriately in this case.

Determination (decision)

34. I can confirm in accordance with paragraph 54 of the Housing Ombudsman Service Scheme there was maladministration in the landlord’s response to the complaint that it has offered insufficient compensation after upholding the complaint about the condition of the property when let, and about the handling of the resulting repairs.

Reasons

35. The overdue investigations in this case repeated the issues identified in the reports commissioned before the landlord the landlord decided to offer the property to the resident.
36. Therefore the landlord should have considered compensation to acknowledge the distress and inconvenience the resident experienced when: moving into a property with ongoing subsidence issues; waiting for the required investigation; pursing the complaint with the landlord and the local council; having to move to another property within a year.
37. The landlord’s blanket suspension of compensation for distress and inconvenience is unreasonable. While the impact of Covid-19 will feature in any assessment of a landlord’s services, it must continue to redress any failures it has caused and that are not the result of Covid-19.

Orders and recommendations

38. As a result of the determination above I have ordered that the landlord, within 4 weeks:
    1. Pay the resident a further £500, consisting of:
       1. £250 to acknowledge the inconvenience caused by letting the property with cracks caused by ongoing subsidence issues.
       2. £250 to acknowledge the inconvenience of the time taken to respond to the resident’s reports with the required investigations. This includes the inconvenience of having to raise the matter through the local council.
39. I am also recommending that:
    1. The landlord review the April 2020 policy suspending compensation payments, if it has not already. The landlord should also consider reviewing any complaints where it has relied on this policy to decline compensation payments to check that it has not been used inappropriately as it was in this case.