Brockley Tenants Co-operative Limited (202102834)

REPORT

COMPLAINT 202102834

Brockley Tenants Co-operative Limited

21 March 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s response to the resident’s concerns about the planned window replacement works at her property.

Background and summary of events

The resident is a tenant of the landlord and has a one-bedroom flat.
The Ombudsman understands that the resident has a physical and cognitive disability that limits her mobility. At the time of the complaint events the resident had been out of hospital for just a few days following an operation on her foot.

Policies, procedures, and agreements

Tenancy agreement:

This sets out the repair obligations on the landlord in respect of keeping the exterior and structure of the property in good repair and condition, which includes the front door and the windows.

Repairs policy:

This sets out the general repair categories and timeframes e.g. non-urgent (routine) repairs are to be completed within 28 days.
The policy also states that a repair may be given a higher priority if the tenant is deemed vulnerable e.g. elderly/infirm or has a disability.

Compensation policy

This sets out the landlord’s view on compensation, which is that it will only be paid in exceptional circumstances where there has been severe inconvenience. The policy recognises that tenants may experience distress and inconvenience where the landlord fails to provide a good service, but rather than pay the tenant compensation, it would prefer to use its funds to improve its service provision.
The policy sets a limit of £50 for compensation (with any payment adjusted for inflation).

Summary of events

The available records are limited, but from what has been provided by both parties it is noted that in around July 2020 the landlord agreed to carry out planned works to upgrade the windows and front doors in both the resident’s flat and another flat in the building at the same time. The resident has said that the original contractor had advised that the works would take three days. However, there was a change in contractor and the new window company agreed to complete the works in two days (one day per flat).
The email exchange on 11 September 2020 between the landlord’s surveyor and the resident confirmed that the works had been booked in for 17 September 2020 for the resident’s flat. The surveyor said that he would like to be present on site to ensure there were no issues and to deal with any concerns on the day. The resident responded and said that she did not want the surveyor to attend as there would be too many people in the flat which was not ideal due to COVID concerns.
The records show that the works at the resident’s flat started on 17 September 2020. The works were due to be completed between 8am and 6pm, however, the window company did not finish until 11pm. The resident was unhappy with the general conduct of the window company staff, the late finish and the standard of some of the work and she said there were a few issues outstanding.
The emails between the resident and the window company on 21 September 2020 show that the resident was unhappy with the window company staff’s conduct and she also raised the issue of compensation for a personal injury she sustaining due to the staff leaving a power tool on the floor.
On 23 September 2020 the resident informed the landlord that the window company had replaced the glass above the front door and had removed the ventilator fan that was in this window. She also reported that the window company had not reinstated her curtain tracks and blinds, and that this meant she had no privacy in the bedroom and she was sleeping on the sofa in the living room instead.
The emails between the landlord and the window company show that the window company was agreeable to re-attending with the landlord to re-fit the curtains tracks and carry out a post-works inspection. However, the window company said that it was possible that they might not be able to re-fit the curtain tracks and blinds because of the new window trims and reveal sizes being different to the old windows.
On 29 September 2020 the emails between the landlord and the window company confirmed that the window company had agreed to pay the resident the £100 compensation she had requested to close the matter regarding its staff conduct and the personal injury issue.
The records show that on 5 October 2020 the landlord inspected the works. Subsequent emails show that the landlord had agreed to send the window company back to re-fit the curtain tracks and blinds and to also fit a new ventilator fan in the window above the front door.
A few days later, it was established that the original curtain tracks and blinds could be not re-fitted, and it was agreed that a new curtain track and blinds would be supplied and fitted by the landlord using an alternative contractor.
In its correspondence with the resident the landlord explained that the window company had said that the late finish on 17 September was due to a delay in gaining access in the morning and further delays in moving household items away from the windows contributed to the late finish time.
The emails between the landlord and the window company on 12 October 2020 showed that the window company said they finished at 9pm and that this was with the resident’s consent. They also said that they had offered to come back on another day to finish the job but the resident agreed for them to finish the job that evening.
The records show that a new contractor attended on 12 October 2020 to measure up for the new curtain rails and blinds. The resident’s correspondence also showed at this time that she had accepted £100 compensation from the window company in relation to her complaint to them about staff conduct and her personal injury.
The records show that the new curtain rail and blinds were fitted on 5 November 2020. At this point the resident says she was able to revert to using the bedroom.
On 17 November 2020 the resident logged her formal complaint with the landlord. The key issues are summarised as follows:
1. The resident was seeking compensation from the landlord for the poor handling of the window replacement works. She alleged that the landlord had breached the Equality Act 2010 and had failed to make reasonable adjustments in the works programme for her disability.
2. The ventilation fan was removed by the window company and the landlord had agreed on 5 October 2020 that it should be reinstated. However, to date this had not been reinstated, and nor had the landlord advised her of when it would do so.
3. She said that the landlord failed to include new curtain rails and blinds when agreeing the window replacement works. The window company informed the resident on the day of the works that they could not re-fit the original curtain rails and blinds due to the measurements of the new windows. As a result she had been left without any privacy in the bedroom and she could not sleep in the room. The landlord had been informed of this on 23 September 2020 but the new curtain rails were not installed until 5 November 2020.
4. The window company did not leave her property until 11pm on day the works were carried out, which she said had caused her great inconvenience given that she had only recently returned home from surgery. She also said that the landlord did not initially believe her about the late finish time and she had to provide CCTV footage to convince the landlord she was not lying.
5. The resident confirmed that she had sustained an injury to her foot and that she had accepted £100 compensation from the window company for this. However, she felt that the landlord should also bear some responsibility and compensate her for failing to take into account her specific circumstances and disability when planning the works. She suggested that the landlord staff ought to have training on the Equality Act 2010 and how to apply it to disabled tenants and make reasonable adjustments.
The resident provided the landlord with her video footage evidence to support her complaint. She said that the footage showed that the window company staff had spent approximately 14 hours at her property and only about 10 minutes was spent on them moving bits of furniture away from the windows. As such she disagreed with the assertion that she was responsible for the late finish.
The landlord formally acknowledged the complaint and the additional evidence on 18 November 2020.
On 23 November 2020 a new contractor attended to take measurements for the new window with a vent for above the front door.
The landlord issued its Stage 1 complaint response on 3 December 2020:
1. Ventilator fan – the landlord accepted that the fitting of a new ventilator fan in the window above the front door had not been included in the work specification. It apologised for this oversight. It said it was looking to fit a new vent and that this job had been deemed to be a non-urgent repair as the vent was originally fitted as an improvement to aid ventilation in the hallway during the summer. It had instructed its contractor to fit a new vent as soon as possible.
2. Curtain rails and blinds – the landlord explained that the work specification included taking down the original rails and blinds and re-fitting them. However, when the bedroom window was replaced, the contractor could not re-fit the rails/blinds due to the change in the window ‘reveals’. An initial appointment was made for 7 October for a new contractor to take measurements for new blinds. The resident rearranged this appointment for 12 October and the new blinds were due to be fitted on 2 November but due to a mix up by the landlord, this had to be rescheduled for 5 November.
3. It accepted that ‘this issue was not properly addressed at the time of the works leading to a delay in fitting the new blinds which meant you were unable to use your bedroom’. The landlord said it recognised the inconvenience and distress caused.
4. Late finishing time – it explained that the window company had agreed to complete the works within one day from 8am to 6pm. The landlord surveyor had offered to be in attendance on the day but the resident had declined this as she did not want too many people in her property. It explained that it had not intended to infer that the late finish was due to the resident and it accepted that she had not been kept informed of how long the window company would take to finish the work on that day.
5. Conduct of window company staff – it accepted that contractor had not met its required level of service and it apologised for this. It noted that the window company had already compensated the resident directly for £100.
6. Equality Act 2010 – the landlord accepted that further training would be beneficial for its staff and it would ensure this was undertaken and its communications improved so as not to repeat the failings seen in this case.
7. The landlord accepted that it had fallen short of its high level of service on this occasion and it apologised for this. It offered the maximum compensation under its compensation policy, which was £50.00 (this limit was from 2003 and it was adjusted for inflation, to give a final figure of £82.04).
On 5 December 2020 the resident requested that the complaint be escalated to the final stage. She reiterated her dissatisfaction with the handling of the works, the late finish, the insinuation that she was lying about the late finish, and the lack of training of the landlord staff in dealing with vulnerable tenants. She was also unhappy about the level of compensation, which she said did not reflect the time she was unable to use the bedroom.
The landlord held its panel hearing to review the complaint on 22 December 2020. The minutes of this meeting showed that the resident addressed the panel and confirmed the details of her complaint. The panel were of the view that the landlord surveyor had offered to be on site on the day of the works and had the resident not declined this offer, the outcome may have been different in respect of the health and safety issues and the late finishing time. It was acknowledged that the resident was vulnerable and needed extra support and that staff needed to be more aware of individual circumstances of tenants. The panel did not accept that the bedroom had been rendered uninhabitable due to a lack of curtains/blinds. It was agreed that failings had been acknowledged and compensation had been offered in line with the compensation policy. However, the panel did have the discretion to revise the compensation. It was also accepted that additional training was more important than compensation.
The panel concluded that the majority of the issues were due to the window company and not the landlord itself. As such, the panel agreed that changes needed to be made to avoid similar problems in the future, and the complaint remained upheld and the compensation offer was deemed to be reasonable and in line with its policy.
On 15 January 2021 the landlord issued its Stage 2 final complaint response:
1. It recognised and acknowledged the distress experienced by the resident and that complaint had been upheld at Stage 1 and compensation offered in line with its compensation policy.
2. The landlord acknowledged that the window above the door needed replacing and a new vent fitted. It explained that the delay with this was due to difficulties in sourcing a new vent and manufacturing a bespoke piece of glass. It said it was actively working on resolving this issue. It was of the view that no compensation was warranted for this delay because the lack of a vent was not a form of disrepair.
3. In respect of the loss of use of the bedroom because the curtains were removed when the new windows were fitted, the landlord said that a temporary solution should have been found to enable the resident to continue to use the bedroom whilst the new blinds were ordered. This could have included putting up a sheet or temporary curtain at the window. It recognised that the resident would not have been able to do this without assistance and it should have helped facilitate this. It apologised for this but remained of the view that the lack of curtains could not be classed as disrepair so as to make the room uninhabitable.
4. The landlord acknowledged the works were disruptive and the late finish had caused inconvenience and distress. It also noted that its surveyor had offered to be on site and the resident declined this. It also acknowledged a lack of communication by the surveyor and the window company meant that the resident was not fully informed how long the works would take and as such she could not make an informed decision about them returning the next day.
5. In relation to the handling of the complaint, it was satisfied that the resident’s concerns had been addressed in a timely and polite manner and action was taken to arrange for the appropriate remedial works to take place. The landlord apologised for the failures in communication in relation to the works.
6. It disagreed with the resident’s view that it had disbelieved her about the late finish and it had not intended to accuse her of lying, and it apologised for any distress caused.
7. It recognised that staff would benefit from additional training in relation to the Equality Act and this would be arranged by a Manager.
8. The complaint was upheld and compensation had been offered up to the limit under the policy. Upon further review it was satisfied that the amount awarded was proportionate in the circumstances and adhered to the terms of the compensation policy.
On 28 January 2021 the window above the front door and the ventilation fan were replaced.
On 23 April 2021 the resident referred the complaint to her MP and then subsequently referred the matter to this Service.

Assessment and findings

The landlord in this case is a Co-Operative, and as such, the Ombudsman has taken into account its unique status as a community-led housing organisation, and its relatively small size and resources when considering its handling of the resident’s concerns and complaint and the compensation award.
The Ombudsman’s role includes an assessment of whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case. When considering the landlord’s handling of the matter, the Ombudsman is guided by the landlord’s policies and procedures and our own Dispute Resolution Principles, which are, ‘be fair – treat people fairly and follow fair process; put things right and learn from outcomes’.
Looking at the facts and the available evidence, the underlying issue in this complaint is the resident’s dissatisfaction with the window replacement works. Whilst the majority of the work was completed within the day (albeit at 11pm) there were outstanding matters which were not dealt with in a timely manner.
With regards to the late finishing of the work at 11pm, the available evidence shows that the contractors continued with the job after the original finish time of 6pm with the resident’s knowledge and consent. It is however also noted that the resident was not made fully aware of exactly how long it would take to complete the job that evening. The landlord has responded appropriately by recognising this failing and it has apologised for the lack of communication about the likely finish time. It has also appropriately acknowledged that the late finish time would have caused the resident some distress and inconvenience and it has taken this into account when considering compensation.
The resident has said that the landlord did not initially believe her about the late finishing time and she was made to feel like she was lying about this, and the landlord did not truly believe her until she provided her CCTV footage showing that the contractors were still at her property until just before 11pm. Whilst the resident’s comments are duly noted, there is nothing within the correspondence seen by the Ombudsman that would suggest the landlord disbelieved the resident about the late finish time. It appears that correspondence between the landlord and the window company shows that the window company informed the landlord that the job had been completed by 9pm and this was later corrected by the resident’s video evidence. There is nothing to show that the landlord disbelieved the resident or dismissed her concerns about the late finish time.
With regards to the curtain rails and blinds, the records show that these were removed on 17 September 2020 and could not be reinstated by the window company due to the change in the ‘reveals’ of the new windows. This was brought to the attention of the landlord on 23 September 2020, and the replacement curtain rails and blinds were not installed until 5 November 2020 (six weeks later). The landlord has acted appropriately and recognised that the initial error was with the window company failing to re-fit the original curtain rails and blinds. However, it also acknowledged that it had not been able to establish why, and it accepted that this should have potentially been foreseen at the outset. The landlord has apologised for this and has included this in its compensation offer.
The resident has said that as a result of the lack of curtains/blinds in the bedroom, and a lack of privacy, she was unable to sleep in the bedroom from 17 September 2020 until the new blinds were fitted on 5 November 2020. The resident has said that she had to sleep on the sofa in the living room instead.
Looking at the facts and the available evidence, the Ombudsman is satisfied that the lack of curtains would not have rendered the bedroom unusable. However, the landlord has failed to take any reasonable steps to mitigate the problem caused by the lack of curtains in the room. This was brought to its attention on 23 September 2020 and whilst it acted appropriately by taking steps to have new curtains/blinds fitted, it did not consider if any temporary measures could be taken in the interim to ensure that the room had some level of privacy, so as to allow the resident to sleep in the room. Furthermore, the landlord was aware of the resident’s disability and vulnerability and it failed to provide appropriate support and assistance in this instance.
It must be noted that the landlord has recognised and apologised for its failure to offer support to the resident to put up some temporary window coverings. This was rightly acknowledged in its complaint responses and was taken into account when considering compensation.
The landlord has offered a total of £82 compensation but it has not provided a breakdown for this figure. Given that the resident was left without window coverings for about six weeks, and the landlord has also accepted that this issue was not properly addressed at the time of the works, and this lead to a delay in fitting the new blinds during which time the resident was unable to use her bedroom. The landlord has recognised that the resident was put to inconvenience and distress, but the Ombudsman considers that the compensation offer does not properly reflect the level of distress and inconvenience caused. As such, the Ombudsman considers that the compensation should be increased.
With regards to the ventilator fan, this was removed on 17 September 2020 and the landlord acknowledged shortly after that this needed to be re-fitted. The new piece of glass and the ventilator fan were not replaced until 28 January 2021 (19 weeks later). The landlord has accepted that it failed to include the replacement of the vent in its work specification agreed with the window company. It has recognised that this was an error on its part and it has apologised for this, which is appropriate.
The landlord has also explained that the delay with fitting the new vent was due to difficulties in sourcing a new vent and manufacturing a bespoke piece of glass. However, landlord has not provided any evidence to demonstrate this, and nor is there any evidence that this outstanding repair was proactively dealt with.
Furthermore, the landlord has said in its final complaint response that this was not a disrepair issue as the original vent was installed as an improvement. That may well be the case, but the fact remains that (a) the vent replacement had been missed off the work specification, and (b) the window company replaced the window above the door and removed the vent and did not replace it. The Ombudsman considers that, even though it may have been a non-urgent repair, the delay of 19 weeks to get this replaced (even with the issue of having to get a bespoke piece of glass made) is unreasonable and is far in excess of its non-urgent repairs timeframe.
It is noted that the landlord’s own repairs policy states that a repair may be given a higher priority if the tenant is deemed vulnerable e.g. elderly/infirm or have a disability. In light of the resident’s concerns the landlord should have considered whether this particular repair could be given a higher priority. There is also nothing to show that the landlord acted proactively to resolve this issue. As such, the Ombudsman considers that the compensation needs to be increased to acknowledge this.
With regards to the resident’s comments about the personal injury she sustained whilst the window company was working in her property, this is not a matter that the Housing Ombudsman can properly determine. It is not for the Ombudsman to make any formal determination on matters such as legal liability and/or negligence, and nor can we determine damages for personal injury. The resident will need to seek her own independent legal advice about pursuing a personal injury claim against either the landlord and/or the window company. It is noted however that the landlord could potentially have signposted the resident to its own insurer to make a claim under its Liability Insurance cover.
The resident has raised the issue of equalities legislation and has said that the landlord has breached said legislation by ignoring her vulnerabilities and disabilities and not making reasonable adjustments for her. It is not for the Ombudsman to make a determination on equalities legislation and whether or not the landlord is in breach of its legal responsibilities in this regard. The resident will need to seek her own independent legal advice about this.
The landlord has accepted in its complaint responses that its staff could benefit from additional training on how to apply equality legislation, and this is a reasonable response from the landlord.
The evidence shows that the landlord’s surveyor offered to be at the resident’s property during the work, however the resident declined this offer. The landlord has taken into account that had the resident not declined the offer of the surveyor to be in attendance, it might have helped the situation and the concerns raised by the resident could have been dealt with at that time. Be as that may, the resident had her reasons for declining this (which were COVID-related concerns about not wanting too many people in the property due to her vulnerability) and this cannot be used to deflect from the service failures identified above.
Similarly, the panel hearing concluded that the majority of the issues were due to the window company and not the landlord. As such, the panel agreed that changes needed to be made to avoid similar problems in the future. However, the fact remains that the landlord is ultimately responsible for the repair service it provides via its appointed contractors and it cannot apportion responsibility for service failures solely onto the contractor.
Looking at it overall, the landlord’s explanations for the errors and service failures have been considered, and it is commendable that the landlord recognised its failures and has offered compensation within its complaint responses and it has also said how it could do better in the future.
The landlord has provided a copy of its compensation policy and has explained that its offer is based upon the policy limit (adjusted for inflation). In any event, the Ombudsman has the discretion to determine the most appropriate remedy given the circumstances of the complaint. In assessing an appropriate level of compensation for the maladministration, the Ombudsman takes into account a range of factors including the inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It also considers whether any redress is proportionate to the severity of the service failure by the landlord and the impact on the resident. In this case it has also taken into account that the resident has received £100 compensation from the window company.
In this case the Ombudsman has considered the landlord’s offer in light of the facts of the case and the available evidence, and it takes the view that the landlord’s offer is not reasonable redress for the service failures, and it does not fully take into account the distress and anxiety caused to the resident. As such, additional compensation would be warranted in this case.
Taking into account all the above factors, the Ombudsman considers that an additional £100 compensation (on top of the £82 previously offered) would be appropriate in this case.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its response to the resident’s concerns about the planned window replacement works at her property.

Reasons

Overall, the landlord has acted appropriately by recognising its service failures, offering compensation and considering how it could do better. However, there were shortcomings in its handling of its response and its compensation offer of £82 was not reasonable or proportionate and it did not fully take into account the impact on the resident.

Orders and recommendations

Orders

The landlord should, within four weeks of the date of this report:
1. pay the resident an additional £100 compensation in recognition of any distress and inconvenience caused by the maladministration identified in its handling of the resident’s concerns about the planned window replacement works at her property.
Evidence of the payment of compensation to be provided to this Service within four weeks.

Recommendations

Given the findings noted above, the landlord ought to consider the issues raised in this case and look at how it can improve its engagement with tenants with vulnerabilities when planning repairs and works of this kind in future.