Torus62 Limited (202105491)

REPORT

COMPLAINT 202105491

Torus62 Limited

14 October 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 concerns about a proposed decant and repairs to her property.

Background and summary of events

2. The resident has held an assured tenancy for her house, which has been treated for damp problems twice before, since 2004. The resident has two children, one of whom has autism and the other unspecified sensory needs.

The tenancy agreement

3. The tenancy agreement sets out the rights and responsibilities of both the resident and the landlord.  Only the front page of the tenancy agreement for the address has been provided. The landlord’s tenancy policy (not submitted but online, dated 2016) does not mention refund of rent for loss of use of rooms.

The repairs policy

4. The landlord’s responsive repairs and maintenance policy outlines the landlord’s responsibility. Section 4.b.iii covers the confirmation of the exact nature and extent of the repair with the resident, including any vulnerability-related or other special arrangements required to facilitate the repair. Section 4.d.iv covers ‘programmed repairs’ which can be complex in nature which may also require a higher degree of customer consultation of planning.  Per Section 4.d.v says that subject to conditions, the landlord will aim to complete all works classed as ‘programmed repairs’ within 60 days of reporting.
5. Section 4.e.iv says that the landlord will work with residents with disabilities or specific requirements sensitively and in line with their individual needs.
6. Section 6 covers contractors. Section 6.b states that all operatives will be polite and courteous at all times, take care not to damage resident’s possessions or property by using dust sheets/covers as required and give an explanation if the repair is going to be delayed.
7. Section 7 refers to the landlord’s decants policy (not seen).

Complaints Policy

8. The landlord’s complaints policy states that stage one complaints will be responded to in writing within ten working days, or no more than ten additional days. Stage two complaints will be responded to within 20 working days.

Compensation Policy

9. The landlord’s compensation policy says that calculations will be based on what is considered fair and reasonable in the particular circumstances of the case.

Summary of events

10. The landlord’s records show that severe damp was logged as a repair via the web portal on 4 November 2019. An Internal email on 19 December 2019 lists mould treatment for the bedrooms, as well work in the kitchen and that the damp treatment completed twice before had possibly failed. It said that work had been raised following a surveyor’s inspection. 
11. On 17 January 2020, and email from a contractor to the landlord confirmed a clean/inspection was carried out at the property. It said that a traditional damp-proof course (DPC) had been inserted previously, the cavity had no blockages so the operative removed insulation above the DPC level to prevent permeating damp. It explained that the resident had damp issues mainly to the chimney breast backing the kitchen where there had once been a downstairs bathroom. A roof survey was done and found no defects on 23 January 2020.
12. On 9 September 2020, the landlord made an offer of a decant property for the resident to move to while work was undertaken. The resident viewed the property on 10 September 2020 but asked if she could view a second property as she would prefer one closer to home. The first property was declined and a second offered the next day, which was viewed by the resident on 30 September 2020 and accepted. 
13. Arrangements were made for the disconnection and reconnection of the cooker and washing machine at the permanent and decant properties for 5 October 2020, but this was postponed when the resident advised that her son was self-isolating due to Covid. The disconnection and reconnection were re-booked for 19 October 2020, but on 9 October 2020, the second decant was refused by the resident.  She said that having spoken to family she was not happy to move to the decant property as it had no carpets and her children had ASD and spent a lot of time on the floor. She had previously been told that there would be carpets but then not. The damp in her property had first been mentioned in May 2019, and the decant house would be cold due to having no carpets and with the Covid pandemic there was no guarantee how long the decant would be for. The situation was causing her stress and anxiety. 
14. On 10 March 2021, a complaint was logged by the landlord (not seen). 
15. On the same day the resident approached this Service and stated:
    1. A damp course and other jobs were recently done after waiting since May 2019. Because of closures due to the Covid lockdown, the resident had to chase this, and work was booked for October 2020.
    2. The resident requested a decant property due to her son having autism and her daughter having sensory needs. The properties offered were not suitable, including having exposed carpet grips and being dirty. She was told that any decant property would not have carpets.
    3. She was told that she could leave items upstairs in her property and that rooms would be locked but was then told this would not happen.
    4. The job was then delayed due to her son self-isolating, so the resident asked if the jobs could go ahead without a move, to avoid further delay.
    5. Rooms were not sealed up, so dust got everywhere.
    6. The flooring was damaged by workmen and covers were removed by the plasterer before work was completed.
    7. The resident felt the workmen acted as if it was a building site, not her home. She was left without a kitchen for two weeks and the old sink was removed despite being told she would be able to use it.
    8. Electric sockets were not made safe, and the washing machine could not be used. It was a struggle, with children, to cook and wash clothes.
    9. Landlord staff continued a phone call although the resident was having a panic attack.
    10. There was no alternative point of contact when landlord staff were on leave.
    11. There was poor communication between the landlord and contractors.
    12. There were other snagging issues still outstanding.
    13. The work ran over time and the resident’s son’s behaviour deteriorated due to the changes and anxiety.
    14. The workmen spent more time chatting on phones than working, and jobs had to be re-done.
    15. The workmen were swearing and shouting and there were up to five workmen in the property at a time, with no masks or social distancing. 
    16. The grass was ruined by the workmen.
    17. Further jobs were needed, but due to her son being upset by the noise and strangers, she did not want them done.
    18. The resident wanted compensation for damage to the flooring and garden.
16. A discussion on 23 March 2021 by the landlord confirmed that a snag list was completed and that the resident confirmed this before they left. It was confirmed that a van had been parked on the grass verge, but that the resident’s daughter had also parked there. 
17. The landlord called the resident on 24 March 2021 and advised that the complaint response would be issued by the end of the week, which the resident agreed to. 
18. The complaint response was issued on 1 April 2021:
    1. It outlined the basis of the complaint being a delay in the work being completed, the two decant properties not being suitable, a list of snagging issues, problems with the landlord contractors’ attitude/not wearing face masks and damage to the grass.
    2. The landlord acknowledged the problems with having major work completed when living in your home, which was why the landlord had recommended a decant, particularly given the family’s particular needs.
    3. Work was delayed due to the Covid pandemic, which was beyond its control, and the resident had to chase this. Once the landlord opened its service again there was a backlog to work through.
    4. Against the landlord’s advice, the family remained in situ, but the landlord said that it worked to try and support the resident.
    5. The resident had removed the wallpaper in the hall and wanted this re-inspected to see if the hallway could be replastered. The landlord felt that this could have been delayed to a more suitable time given the more pressing work in the kitchen and living room.
    6. Similar damp works had been carried out in previous years and the resident was frustrated that it was needed again.
    7. The resident wanted the kitchen units replaced rather than repaired, and as parts were out of stock, this delayed the kitchen returning to normal.
    8. The landlord had photographs and videos showing that flooring was protected and had been in contact with the resident throughout the works. It was accepted that there were communication problems particularly around the stopping of works.
    9. Operatives started after 9AM to accommodate the resident and often worked late to finish, but the landlord recalled two operatives having a heated discussion about work which was raised with their line manager.
    10. The landlord felt that on reflection it would have been advisable to have drawn up a detailed written plan stipulating what rooms would be unavailable, although the discussion was had but it was accepted that there was a lot going on so it would be easily forgotten. It would also have been advisable to walk the resident through the plan, although the landlord kept in contact with the resident and her mother during the works.
    11. The landlord did not have spare properties for decant, only voids waiting to be re-let as there was a long waiting list for properties.
    12. Rugs would normally be used in decant properties when there is no carpet but the resident’s comments regarding the properties were noted.
    13. The operatives did have other properties to attend but the resident’s kitchen was booked in at the earliest available date once in stock.
    14. The landlord appreciated that the resident did not have use of the kitchen which is why alternative limited facilities were set up in the living room.
    15. An apology was made by the site manager for the confusion over a plasterer working upstairs. He was also sorry that the resident felt the staff were unprofessional and rude. He felt things could have been done better and would take a lot of learning from the situation at the resident’s home and the extent of the repairs.
    16. In conclusion, there was damage to lino due to white goods being moved and the landlord would reimburse or arrange a replacement of the flooring.
    17. The garden would be re-turfed, or £100 compensation paid for damage.
    18. The laminate flooring would be repaired or compensation of a further £100 paid for the damage.
    19. Compensation of a rent refund totalling £396.28 was offered to reflect the disruption.
    20. A ‘lessons learned’ review had taken place and further apologies made. The contractors had advised all snagging work had now been finished. The landlord asked the resident to advise if this was not to her satisfaction.
    21. Appeal rights were given, including to this Service.
19. The resident contacted the landlord for an update on 27 April 2021. The landlords’ internal emails indicate that it was unsure what the resident was waiting for as the snagging had been done, and payment of compensation would be made when accepted. On 30 April 2021 the resident told the landlord that she felt that the response was flippant, and that she was left without a point of contact when two staff members were off at same time. She said that she would not be responding to further emails from the landlord.  Accordingly, on 4 May 2021 the landlord escalated the complaint to stage two of its internal process and a visit to the resident’s property was arranged for 11 June.
20. On 16 June 2021 a stage two response was issued:  
    1. Apologies were given by the landlord. 
    2. The resident had been asked to get lino priced but stated that carpet fitters said there was still damp and quoted £420 plus the cost of lino. 
    3. There was confusion over whether the complaint was complete.
    4. A manager had visited on 11 June to discuss the issues. The resident explained she was unhappy with the communication between the landlord and contractors and that contractors had an argument which was unacceptable.
    5. The manager had viewed the lino, which was ripped, but he did not consider there to be a problem with dampness.
    6. The manager apologised for the staff issues which had been raised with the contractors.  
    7. The complaint was upheld, and the landlord offered £750 compensation to include £350 for kitchen floor damage and £400 for the inconvenience and disruption.
    8. Appeal rights to this Service were given.

Events after the final response

21. The resident contacted this Service on 17 June 2021 and stated that the complaint was not investigated fully at stage two as the landlord rushed it, and she was offered less compensation than at stage one. On 28 June 2021, the landlord asked the resident what it could do to resolve the complaint.
22. The resident responded the same day: 
    1. She felt that the stage one response was biased and from a person involved with the complaint.
    2. There was a failure to consider her disabled children, so she ended up in situ, so they did not have to struggle.
    3. She had to chase works and was given conflicting information.
    4. Flooring was marked and this had not been considered.
    5. Jobs overran and this caused stress, her son who has autism struggled with the situation.
    6. She was left unable to use rooms and disruption was caused by workmen.
    7. She felt some issues were disregarded by the landlord.
    8. She had been offered lower compensation than the first offer, which she did not understand. She felt that the offer too low; her children’s needs were not taken into account and the complaint not properly investigated. She was suffering with stress so wanted the matter dealt with quickly.
23. The resident emailed the landlord on 4 July 2021 and said that a teacher had noticed a deterioration in her son’s behaviour during the works and he had said that it was the work upsetting him. She stated that her vacuum cleaner broke due to all the dust she had to vacuum up. Her children’s chests were affected by the damp in the home, and they struggled due to only using upstairs for a period and the anxiety caused her son to be excluded from school. The resident wanted:
    1. £431.70 for new stair carpet which the manager said would be replaced as it was not always covered.
    2. £750 compensation per HOS guidance, for her children’s disabilities not being accommodated.
    3. £372.38 for new vinyl to the kitchen which was previously agreed.
24. On 5 July 2021, the landlord advised that the previous email had been sent in error, and that the complaint was closed. 
25. On 20 August 2021, the contractor emailed the landlord and said that once all repairs were complete, he met with the surveyor to ‘walk off the job’. Snagging issues were identified and it was arranged that a technician and joiner would attend. Snagging was carried out on17 and 18 March 2021 and the resident confirmed that nothing was outstanding and thanked them for their service. The list of snagging included kitchen tiling/cracks/hinges and living room and hall making good.
26. On 27 August 2021, the landlord told this Service that it would have preferred to do the work with the resident decanted.  

Assessment and findings

27. It is noted that the resident has stated that the repair work has affected her son’s health. The Ombudsman does not doubt her comments; but must clarify that it is beyond the expertise of this Service to decide on whether there was a direct link between the repairs at the property and her son’s health. The resident therefore may wish to seek independent advice on making a personal injury claim if she considers that her family’s health has been affected by any action or lack thereof by the landlord.
28. The resident’s report that the stair carpet needed to be replaced were raised after the landlord’s final response, so cannot form part of this investigation, likewise the matter of the broken vacuum cleaner cannot be considered in this investigation. 
29. The landlord had an obligation, as stated in its repairs policy, to ensure that the resident’s home was protected while work is ongoing, and that staff were polite and courteous. There were failings in these aspects, which have been acknowledged by the landlord. The stage one response also accepted that there were communication failings, including that a written plan and a physical ‘walk through’ the planned works would have been advisable. The Ombudsman recognises that there has been some reflection on the landlord’s behalf and that a review has taken place to use the learning from this incident to improve service.
30. The landlord does not deny the damage it is liable for and the failings of the contractor’s behaviour, although there were inconsistencies between the stage one and two responses, over what compensation was offered to reflect these failings. The stage one response offered to reimburse the resident’s actual costs for repairing damage to the flooring or to pay the fixed sum of £100, whereas the stage two solely offered a fixed sum, which may have been less. The stage one response offered a rent refund in respect of the unusable rooms, which did not appear on the second stage response. It also failed to include the previous offer to repair the damage to the grass in its compensation offer. Although there was a lump sum compensation offer of £400, the total offer in the stage two decision was lower than the previous offer due to the likely actual costs of repairing the damage to the grass and flooring.
31. The Ombudsman applies its dispute resolution principles in the way it considers disputes, which landlords can use as a good practice guide in complaint handling. One of the principles is ‘be fair’; to treat people fairly and follow fair process. In this case, it would seem fair that having accepted responsibility for the damage to the resident’s property, the landlord does not then reduce the compensation offered. It may be that this was an error on the landlord’s behalf, but no explanation has been provided.
32.  The landlord offered temporary accommodation to the resident ahead of the works scheduled to start in October 2020. It is noted that while the resident considered these offers of accommodation unsuitable, it was reasonable for the landlord to explain, in its stage two complaint response on 1 April 2021, that it was constrained by the availability of its housing stock.
33. However, the landlord was aware of the amount of disruption that would occur if work was done with the family in situ and has not evidenced that it did enough to explore making the decant properties more suitable for this vulnerable family (in relation to the exposed carpet grips for example). It may be that it could have cleaned the decant property and covered the flooring where necessary, rather than allow the family to remain through the disruption of damp proofing during the Covid lockdown. Thus, the landlord did not show that it did enough to support the particular vulnerabilities of this family, contrary to section 4.e.iv of its responsive repairs and maintenance policy. 
34. It should be clarified that when this Service awards compensation, it is not to punish or make an example of the landlord, nor is it to award ‘damages’ in the way that a court or insurance claim may. The purpose of compensation is to recognise the likely level of distress and inconvenience caused by its failures and award an amount that is proportionate to this.
35. The remedy relating to the damage to the resident’s property should equal the cost of replacement for the kitchen flooring, repair to laminate flooring in lounge (or £100), the damaged grass to be re-turfed or £100 paid if not already resolved, plus a refund of rent of £396.28 for loss of use of rooms. These sums were offered in the stage one response of 1 April 2021 and are fair in all the circumstances, given that the damage and loss of usable rooms is not in dispute. This previous offer fully considered the landlord’s failings in dealing with the issues and sought to put her back in the position she would have been in without its failings.
36. The amounts recommended in this Service’s remedies guidance considers and includes rebates, repairs and replacement of items, as these are payments which the landlord would ordinarily not be required to undertake but for the events in the case. The guidance states that ‘the remedies that we set out for a case should, as far as possible, put a complainant back in the position that they would have been in had the maladministration or service failure we have identified not occurred.’
37. As has already been established, the compensation initially offered by the landlord in respect of damage to the property was appropriate. It reflects the dispute resolution principles of ‘putting it right’ and ‘learning from outcomes’
38. The landlord’s later decision, however, did not appear to fully consider that the previous offer provided a more comprehensive reflection of the issues, and it is not clear whether it considered this as an improvement on its earlier offer. This Service, therefore, concludes that its later offer resulted in further distress to the resident and did not show that it had paid the same due attention to the issues which was evident in its stage one response.  

Determination (decision)

39. In accordance with paragraph 54 of the Scheme there was a service failure by the landlord in respect of its response to the resident’s concerns about the proposed decant and repairs to her property.  This is specifically with respect to it offering less compensation in its stage two review.

Reasons

40. The landlord acknowledged its failings in terms of the repairs carried out in the property, offered reasonable redress at stage one of the complaint and then made a stage two offer which represents less compensation, did not fully resolve the issues and resulted in further distress to the resident.  

Orders

41. Within four weeks of the date of this determination, the landlord should contact the resident to agree on her preferences so that it can arrange for the replacement/repair or request evidence and pay the sums as shown, if not already settled:
    1. The cost of replacement of the kitchen flooring.
    2. Repair to laminate flooring in lounge or pay £100.
    3. The damaged grass to be re-turfed or £100 paid.
    4. A refund of rent of £396.28 for loss of use of rooms.
    5. £150 in compensation for distress and inconvenience.