Lewes District Council (202107984)

A picture containing logo

Description automatically generated

REPORT

COMPLAINT 202107984

Lewes District Council

8 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

The complaint is about the landlord’s response to:
1. The resident’s reports of an infestation of bed bugs.
2. The resident’s request for compensation.

Background and summary of events

The resident was heavily pregnant with her second child when the family moved into the property in August 2020, via a mutual exchange. She has stated that her partner has serious mental health issues, and she has also suffered due to the complaint issue.

The tenancy agreement

The introductory/secure tenancy agreement states at Section 5.29 and 5.30 that the tenant is responsible for personal property and for taking out insurance to protect them, and that this is strongly advised by the landlord.

Tenants Handbook

The Tenants Handbook section 2.2 covers the tenant’s liability for personal property and insurance. Section 5 covers mutual exchanges and section 5.3 says that a ‘full moving out inspection is completed prior to exchange’.
Section 9 covers repairs and maintenance, but there is no specific mention of pests.
Section 3.7.1 relates to insurance and says that if a liability claim needs to be made against the council, this should be dealt with by the insurance team, and is outside of the complaints process.

Complaints Policy

The landlord’s Complaints Procedure says that stage one complaints will be responded to in ten working days and stage two complaints within 20 working days

Compensation Policy

The landlord’s Compensation Policy, sections 2.1 and 3.0, set out how compensation may be paid when fault is found but does not provide examples of amounts or ranges of suggested compensation payments.
Section 3.3.1 details compensation that may be justified due to rooms being unusable and is based on a scalable payment depending on the number of rooms in total, and those unusable by the resident due to fault by the landlord. Compensation would be paid as a refund of rent due for the affected period.

Summary of events

The family moved into the property on 10 August 2020. A memo on the landlord’s records states that a ‘new tenancy call’ was made on 23 September 2020 when the landlord was advised that the resident’s partner had moved into the property a few weeks earlier, the resident requested permission to lay slabs in the garden, and that all was well with the flat.
The first report of bed bugs in the property was on 20 October 2020. A specialist contractor visited the next day, as well as to the neighbouring property where there had also been reports of bed bugs. Further visits were made on 30 October and 2 November 2020 and the landlord said that it paid for multiple visits and treatments to be undertaken.
The landlord’s notes, dated 23 October 2020, discussed treatment in the neighbour’s flat who had reported issues after the resident’s call. The contractor reported one of the worst cases he had seen. An internal landlord email on 3 November 2020 discussed that the landlord had been unable to reach the neighbour. The following day access was agreed for the next week.
An email on 14 January 2021, discussed that the neighbour’s flat was where ‘the bed bugs appear to originate from’. Another records a conversation with the resident’s partner who said that there were issues since the mutual exchange four months previously, his stepdaughter had moved in with in his in-laws, his partner and new baby were sleeping downstairs, the ceiling in the bedroom had collapsed, with bed bugs falling out of the ceiling and from the lights and they wanted to be moved as soon as possible.
A response on 14 January 2021 said that the advice was to get the family moved and that it may be easier to treat once the flat was empty and the furniture removed. The following day, internal emails showed the landlord discussing moving the resident and the potential for grants to replace items that needed to be disposed of.
The resident wrote to her MP on 21 February 2021 and stated that the family had to leave a new sofa and bed and, although the landlord initially said that it would compensate them, it then changed position. The resident’s baby had been in hospital with a heart murmur and breathing difficulties. She stated that they had to throw away children’s games and toys and the baby’s brand-new pushchair due to the bugs. The resident stated that the family was on universal credit, they could not afford to replace the furniture, and would have nowhere to sit or sleep. The baby was struggling and was born early due to the stress.
The resident submitted a complaint on 27 February 2021 and stated:
1. The landlord’s tenant in the next-door property had bed bugs which came through into their home.
2. They were being asked to leave all their possessions from over the years when they left the property.
3. This was very stressful, they had children and suffered with mental health issues and needed their belongings replaced.
4. They wanted rent returned from when they moved into the unfit property due to various issues including that the ceiling fell, and there were rats, mould, and the boiler leaked.
5. They wanted their belongings replaced due to the landlord’s tenant next door.
6. They wanted a refund of rent as the house was never fit to live in and they were left for 18 weeks after the landlord was told it was unfit to live in.
The complaint was acknowledged on 1 March 2021 and the resident was informed the response would be issued within 10 working days.
The resident’s MP emailed the landlord on 2 March 2021 to say the residents were in the process of moving and were told a grant or help would be available to compensate them to replace furniture that was infested with bugs.
Internal landlord emails on 4 March 2021 discussed the response to the complaint including that the resident had been advised to limit what they brought to the new property and had not followed instructions from the contractor at the start of treatment and had ‘loads of items in the home’ i.e., soft toys etc. The residents were advised to put in a claim for compensation to the landlord.
A stage one complaint response of 10 March 2021 stated that:
1. The residents had been advised to limit what they took with them, and the landlord would be paying for removal costs when they moved on 29 March 2021. The property was currently free of bed bugs, and it would be for them to decide what to take but the contractor who reviewed the infestation advised that there may be a risk of infestation if they were to take certain household items with them. The landlord appreciated this would cause upset and apologised. The landlord had paid for the bed bugs to be treated.
2. The landlord understood that a charity was considering a grant towards household items as they were contemplating leaving the sofa, bed and wardrobes at the property.
3. The landlord understood that the resident advised the baby’s pushchair was infested but that no supporting evidence had been provided.
4. The landlord apologised for any impact this had on the resident’s mental health and wellbeing and that of her family.
5. The request for a refund of rent would need to be agreed by the accounts team which may consider a pro rata reduction. The resident should provide details of what rooms – and dates from and to – and this would be passed to the accounts team.
6. Any claim for compensation for damaged goods could be considered upon receipt of details and costs, with receipts or equivalent and would be considered by a manager.
7. The residents should be claiming on their own insurance, albeit the landlord was aware they did not have any, and the council could not be held responsible for damage by pests that were clearly out of its control.
8. It was important that any compensation claim was supported by specific information.
9. The repair issues were reviewed by the landlord’s repairs contractor, works initially raised on 6 December 2020 regarding the ceiling were attended to on the same day and it was reported that there was some flaking, and the ceiling was ‘unbonded’. A work order was raised the next day and attended to by a contractor who ordered an asbestos test. The contractor attended on 18 December and completed the works to remove the ceiling, reboard and plaster. This aspect of the complaint was not upheld as work was carried out in line with the landlord’s repairs policy
10. The issue regarding rats has been resolved and the landlord was not aware of any rats being inside the property
11. The 13-year-old boiler was replaced with a new one on 14 October 2020. A heating contractor then attended on 16 December 2020 in relation to an alarm on the boiler, not a leak.
12. The landlord felt that it had taken appropriate action to resolve the issues, it was sorry for any distress but did not uphold the complaint.
13. Further appeal rights to stage two of the landlord’s internal complaints procedure were given.
The resident responded the same day, stating as follows:
1. She did not believe that the property was not infested before they moved in, and it felt like the last tenant left because of this and that the landlord did not tell them. She believed the bugs were from next door, where the landlord’s tenant had refused to have them treated.
2. The landlord had not carried out its legal obligations to check that the property was up to the exchange guidelines.
3. She felt that the landlord was implying that she was lying about the infestation which was so bad that her daughter had to stay with her grandparents for four weeks, and the family had to sleep downstairs for six weeks.
4. She had been advised to leave personal items behind to avoid moving the problem to the new house and felt that it was unfair that landlord would not help fund the costs of moving to new property. There had also been issues regarding the ceiling which had collapsed.
5. The resident just had a new baby and her partner had been in hospital due to mental health issues, as well as her own issues after the ceiling collapse while she was pregnant, as well as having no boiler for a week.
6. The family were vulnerable, and the council failed in its duty of care. No gas or electrical certificates had been given which was a legal requirement.
7. The family had suffered multiple issues, it affected their health and life during the already difficult pandemic. They had considered taking legal action for compensation and had contacted their MP. The wanted £3,400 to replace their belongings, refund all expenses on redecorating the property as a goodwill gesture, as well as part refund on rent. The family had lost everything due to the landlord’s lack of care for its property next door.
The landlord acknowledged the email as a request for a stage two response on 11 March 2021.
On 9 April 2021 the landlord issued its stage two complaint response as follows:
1. The complaint had been reviewed but was not upheld, as the landlord had found no fault in its approach in dealing with the issues raised.
2. It had supported her in a permanent move, paid for removals and cleaned the carpets at the new property.
3. It referred to the tenancy agreement; section 5.29 which provides that the tenant is responsible for taking insurance to protect their own property, the landlord only being responsible if damage or loss were caused by its negligence. Section 5.30 provides that the landlord strongly advised tenants to take out content’s insurance.
4. The operative who dealt with the infestation was unable to say definitively from where the infestation emanated.
5. The Covid lockdown, on top of the new baby and Christmas necessitated non-invasive treatment of the property which meant that more treatment was required over a longer period.
6. The ceiling work was raised and completed in a timely fashion and in line with the repairs policy.
7. The boiler issue was addressed in the stage one response and no further information had been supplied.
8. Appeal rights to this Service were provided.

Events after the final response

On 14 April 2021, the resident advised the landlord that she had solid proof of where bed bugs started and would not stop until the issue is resolved. The landlord replied on 20 April to remind the resident that the matter could now be referred to this Service.
The landlord wrote to the resident’s MP on 21 May 2021:
1. It advised that it did not conduct a physical inspection of the property due to the Covid restrictions, but the resident visited before the move on 10 August 2020. The landlord had reviewed photographs of the property, which did not raise any concerns.
2. The first report of bed bugs was on 20 October 2020 and a visit was arranged the next day by specialists as well as to the property next door where there had also been reports of bed bugs.
3. The landlord explained that due to the Covid lockdown and the family having a new baby, a less invasive treatment was required over a longer period. The contractor was unable to establish where the bedbugs originated, both properties had been treated, and there was no information the landlord was aware of to suggest the previous tenant had experienced bedbugs.
4. The family were advised that for the treatment to be most effective, someone would need to sleep in the bedrooms. However, understandably, the family chose to sleep downstairs, which would have extended the treatment period. The problem was eradicated before the family moved to their current property.
5. The landlord explained that tenants were advised to take contents insurance, as per section 5.29 and 5.30 of tenancy agreement
6. The contractor who managed the infestation advised the resident that there was a risk of ongoing infestation if certain items were taken to the new address. The landlord apologised that the family experienced such a challenging time.
7. The landlord reiterated its stage one response with respect to her request for compensation.
On 27 May 2021, the resident confirmed to the landlord that they did not access their bedrooms from 7 October to 26 March due to the bedbugs. The MP subsequently asked the landlord to see if a retrospective rent reduction could be applied.
On 3 June 2021, the landlord told the residents that the rebate of rent for rooms that were unusable during the infestation was not granted due to the complaint not being upheld; the landlord was not deemed to be responsible for the infestation and had taken appropriate action.
The resident replied that the landlord was responsible as the next-door neighbour had the infestation and took over 8 weeks to start rectifying the problem. The residents lost all their possessions and their freedom as had to sleep downstairs. When her partner moved in, he was not advised about home insurance.
The resident updated this Service on 19 September 2021 and stated that bedbugs were first noticed at the property on 9 October 2020. They had the issue for seven months non-stop, sleeping downstairs, and it was two months before the landlord had access to property next door where they originated. The pest control people said that the problem would never be eradicated if not cleared from next door. The family lost all their possessions and were given nothing from the landlord. A charity had given them £280 for a new fridge and canvas wardrobes which ripped the first week.

Assessment and findings

The infestation

The complaint as raised with this Service by the resident, concerns the infestation of bed bugs. The issues relating to the ceiling and other matter are included for context where appropriate but have not been considered in this investigation.
The resident’s view that the property was already infested prior to their tenancy is understood, however no evidence of this has been seen. The landlord provided its file to this Service on 31 August 2021. The log for the property includes the records from tenancy period of the previous tenants from January 2019, but has no reports of a prior infestation, or the call of 20 October 2020 when bed bugs were first reported.
While there is some question about the landlord’s record keeping, (there is no log of the resident’s initial call reporting the bugs on 20 October 2020), a log was provided for the property prior to the residents taking occupation which did not indicate any previous infestation.
In addition, there was a memo recording a ‘new tenancy call’ made on 23 September 2020 when the resident reported that all was well with the property. The bed bugs were reported by the resident on 20 October 2020, ten weeks after the family moved in on 10 August 2020. It is, thus, reasonable to conclude that the problem would have been noticed earlier if pre-existing.
Later, on 27 May 2021, the resident advised that the bedrooms had been unusable due to bed bugs from 7 October 2020. It may be that the resident made an error with the date, given the passing of time. If that was the case, the bugs were in evidence 13 days prior to being reported to the landlord. This delay could not be said to be the fault of the landlord as it means that it was unaware of the issue.
Although there was some discussion internally that the infestation originated from the next-door property, there is no evidence that this was confirmed by the contractor who attended both properties. The resident’s concern that there was some delay in contacting the neighbour is noted. However, the contractor did attend the other property on 21 October 2020, one day after the issue was reported to the landlord and has indicated that it took reasonable steps to access and treat the property.
It is unfortunate that physical inspections by the landlord were suspended due to the Covid epidemic so that the property was not viewed prior to the resident taking the tenancy. However, the resident did view the property and given that the bed bugs were not noticed until more than two months after the tenancy began, it is reasonable to conclude that a physical inspection would not have identified the problem at that time.
The landlord’s discussion on 4 March 2021 stated that the property was clear of bed bugs, but the family had been advised to limit what they took to the new property. It also stated that the resident did not follow instructions from the pest control contractor at the start of the treatment to dispose of items such as soft toys etc. It would understandably be very difficult to throw personal items such as toys away, but the Ombudsman recognises that it was necessary for the landlord to recommend this action. If this advice was not given, there was a risk that the infestation would be transferred to the new property. There is no record of what the family were advised to leave or exactly what was left behind.
The landlord has said that the time taken to eradicate the infestation was longer than usual because of the resident having a new baby, the Covid restrictions and then the Christmas holidays. The distress caused by the infestation, and the prolonged treatment is not underestimated, particularly coming at such a stressful period for the resident and her family. However, there is no evidence that the landlord was responsible for any delays in treatment, having had to use a longer-term treatment approach. The delays in the handling of the issue could not have been avoided in the circumstances.

The request for compensation

In response to the resident’s request for compensation, including refunds for the loss of personal items, the landlord provided detailed information on its process for dealing with this aspect of her complaint. These were detailed in its stage one decision and included advice on the information it would require for the consideration of her request. It also clarified that any claim for the replacement of damaged household items should ordinarily be made through the resident’s insurers.
It was reasonable that the landlord ensured, in its response, that the resident was aware of the process and options for dealing with her request. It stated as follows: I am of course happy for you to provide that information to me and I can send it to the relevant manager to consider. The advice that it would be sent to a manager ‘to consider’ implies that her request would be assessed, and a decision made on whether she will be compensated. The evidence does not support the resident’s assertions that the landlord’s stance on paying compensation changed. However, it should have more strongly emphasised that the supply of the information it requested would not necessarily result in it deciding to pay compensation.
The landlord’s approach accords with the position of the Guidance on Insurance by this Service which states as follows: ‘A landlord should initially at least consider whether there is any evidence that it has been at fault for any claimed damage to a complainant’s property / belongings and not refer complainants straight to an insurer.’ Its request for the details of her compensation claim demonstrated its willingness to further investigate whether it had responsibility to pay for the personal belongings. Having concluded that it had no responsibility in this case, it advised that no compensation was warranted. The fact that the resident did not insure her home contents would not result in the landlord taking on the responsibility to pay for the replacement of items where it did not cause the damage.
Internal emails, on 15 January 2021, confirm that the landlord was seeking a grant to enable the resident to purchase ‘essentials.’ It assisted the resident to move to another property which it found within less than 6 months of the infestation being reported. This Service finds that the landlord took appropriate action in dealing with the issue and providing assistance to the resident.
It does not appear that the landlord has referred the resident to its insurers. However, it has not been found that there was any delay in the landlord’s response to the reports of the infestation. Thus, the Ombudsman makes no order in relation to this.

Determination (decision)

In accordance with paragraph 54 of the Scheme:
1. There was no maladministration in respect of the landlord’s handling of the infestation.
2. There was no maladministration in respect of the landlord’s handling of the request for compensation.

Reasons

The infestation

The landlord acted reasonably in treating the issues promptly once it was aware of the infestation, and given the circumstances that existed at the time, which prevented more intensive treatment.

The request for compensation

The evidence shows that the landlord provided appropriate advice about the options available to the resident on her compensation claim. There is no evidence that it was responsible for the infestation, thus, no compensation is warranted within its internal process.

Recommendations

The landlord should consider referring residents to its insurers in situations like this when they have advised that they do not have home contents insurance. It should also more emphatically advise that the invitation to supply evidence would not necessarily result in the offer of refunds or compensation.