Kingston upon Thames Council (202100533)

REPORT

COMPLAINT 202100533

Kingston upon Thames Council

8 December 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:
1. The condition of the property at the time of letting and the landlord’s response to the resident’s subsequent request for repairs to the property.
2. The resident’s concerns that the landlord did not take her disability into consideration when offering the property.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 39(a) and 39(m) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
Paragraph 39(a) of the Housing Ombudsman Service states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure”. A landlord should have the chance to consider and resolve a matter complained of within its complaints procedure before this Service can assess how it dealt with the matter complained of. In line with paragraph 39(a) this investigation has focussed on the matters raised within the complaint that exhausted the landlord’s complaints procedure on 21 February 2020.
This Service understands that identified repairs have since not been completed at the resident’s property, and this has culminated in the resident employing a solicitor to commence legal action. Whilst the Service recognises the resident’s frustration, the resident’s concerns about how the landlord has handled repairs since 21 February 2020 have not been considered and responded to within the landlord’s complaints procedure. This Service cannot therefore investigate and make findings on the landlord’s actions during this period. However, events occurring since the final complaint response of 21 February 2021 have been summarised to put the resident’s complaint in its full context and to inform the orders and recommendations made on the complaint.

The resident’s concerns that the landlord did not take her disability into consideration when offering the property in its condition

Paragraph 39(m) of the Housing Ombudsman Scheme states “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body”.
The Local Government and Social Care Ombudsman (LGSCO) will consider complaints that concern the handling of an allocation under Part 6 of the Housing Act 1996. All local authorities are required to have a published allocation scheme which sets out how they assess and prioritise applications for housing. Local authorities are required to give ‘reasonable preference’ to certain categories of people:
1. Applicant has become homeless (for example because it is no longer reasonable for the tenant to continue to reside at the property).
2. Applicant is occupying unsanitary/overcrowded housing, or living in unsatisfactory housing conditions.
3. Applicant needs to move on medical, welfare grounds or due to disability or needs to move to a particular area to avoid hardship.
The allocation scheme should set out how these groups will be given ‘reasonable preference’ as well as any local priorities i.e. under occupiers. The LGSCO will therefore consider complaints concerning:
1. Direct applications to a local authority for housing.
2. Applications from a tenant for a transfer if they fall within one of the ‘reasonable preference’ categories (see above)

This includes complaints about the operation of choice-based lettings schemes and the suitability of accommodation offered under those schemes.

The landlord has confirmed that assessments of a resident’s needs are initially made by the Council’s Housing Options team / Independent Medical Adviser to the Council based on the information supplied to them by the resident when they apply for housing. The resident’s complaint about the allocation of her property, in particular that the Council did not take into account her disability, concerns the Council’s actions under the Housing Act 1996 Part 6. This complaint therefore falls under the jurisdiction of the LGSCO, and consequently in accordance with paragraph 39(m) of the Housing Ombudsman Scheme, it is outside the jurisdiction of this Service to consider.

Background and summary of events

Policies and Procedures

The landlord’s Repairs Policy confirms its statutory responsibilities. The policy states that the: “Royal Borough of Kingston Council is responsible for maintaining the fabric and structure and outside of the property and any communal areas. We will repair:
1. Structure – the structure of the property, for example walls, roofs, joists and beams…
2. Other internal and external fittings
  1. Plaster work to walls and ceilings
  2. Drains, gutter, down pipes, chimneys and flues
  3. Communal areas such as …balconies…”.
The Repairs Policy confirms that the resident is responsible for “internal decorations, including any minor cracks to plasterwork.”
With regards to the timeframe for repairs, the Repairs Policy states that “Routine Orders – all other repairs [to Emergency and Urgent] orders will be carried out within one to 20 working days.”
The Repairs Policy sets out the behaviour expected of contractors, including stating that “our contractors will tidy up at the end of the job or end of the day”.
The landlord also offers a Handyman service whereby its repairs contractor can carry out jobs for residents that would ordinarily be their responsibility. The landlord’s Handyman flyer confirms that the service provision is “a maximum of 2 hours for a single operative and a maximum of 3 orders in a 12-month period per dwelling”.
The landlord’s Complaints Procedure confirms it has two formal stages:
1. Initial Contact Resolution – where the landlord aims “to resolve the dissatisfaction quickly in 5 working days or less”.
2. Stage 1 – where “a response [should be] provided within 15 working days” (unless there are exceptional circumstances).
3. Stage 2 where a “definitive response [should be] provided within 15 working days” (unless there are exceptional circumstances).
The resident’s Tenancy Agreement confirms that she “is responsible for decorating the interion of the Property/Your Home. You are also responsible for keeping it, your belongings… clean and well maintained.”

Summary of Events

The landlord is a local authority. Where the local authority has been dealing with the residents outside of its landlord function, reference shall be made to the “Council”.
The resident submitted a homeless application to the Council in 2017. On 19 July 2019 the Council responded to a complaint about disability discrimination in terms of the handling of the application and the temporary accommodation provided. Within the response the Council stated that the resident’s homeless application had been accepted and she would need to complete a Housing Register application.
On 30 October 2019 the Council allocated the resident, from the Housing Register, her property. The landlord has provided a Void Habitable Certificate confirming the void building works were completed by the landlord’s contractor on 11 November 2019. The certificate also confirms that the “Final Inspection of the property has been carried out [by a surveyor on 12 November 2019] and [the] Property is considered Ready for Letting having reached the required Habitable Standard in ALL areas”, with photos taken.
On 25 November 2019, the resident’s tenancy began, as an Introductory Secure Tenant. On 27 November 2019, the landlord raised orders to install a cabinet for the corridor and an office desk for the bedroom. These works were completed in 10 December 2019 according to the landlord’s repair records. The landlord’s records also confirm that the Handyman service assembled a bed for the resident on 6 December 2019 although it noted the bed was of “poor quality and had screw holes missing to begin with and our operative also had to make extra support to keep bed together”.
On 1 December 2019, the resident wrote to the landlord stating that the floors in the property required levelling, the balcony required levelling so as to allow water to drain, the walls required levelling, mould needed to be removed from three built-in storage wardrobes, the window fans in the bathroom and kitchen were not working and she had not received kitchen keys.
On 2 December 2019 the landlord logged work orders to repair an uneven floor and “small” cracks in the wall. On 27 December 2019 the landlord agreed with the resident to attend on 10 January 2020. The works were then put back to 17 January 2020 as an operative was sick. The landlord raised an order on 9 December 2019 for the Handyman service to assemble a bathroom cabinet then arranged for it to do so at the visit of 17 January 2020.
On 10 December 2019, the resident submitted a complaint form raising a number of points including that her property required further works before it could be decorated, and that her request for her bathroom cabinet to be assembled by the Handyman service had been refused. The resident subsequently sent an email listing concerns about repair issues, including: shower rod not holding showerhead, loose/damaged flooring, holes and cracks in walls, a crack in the balcony where the front side met the floor, rain water falling and flooding the balcony, missing kitchen window keys, mould in “storages and window” and a damaged electrical socket.
The landlord inspected the resident’s property on 19 December 2019 then on 31 December 2019 sent an informal response to the complaint. The landlord advised that having inspected on 19 December 2019:
1. It was of the opinion that the property was suitable for habitation for any resident and met the standards used under the void process.
2. Whilst there were some areas within the flat which did need decoration, the actual preparation has been left in a condition which could be decorated by the resident; major works were not required before decoration.
3. The resident was eligible for the Handyman service and it apologised for incorrect advice provided; however, she had already used the service three times recently to assist with the assembly of a desk, the assembly of a bed and the assembly of a shoe cabinet.
The landlord further advised that at the visit of 19 December 2019:
1. The shower head fixing had been tightened.
2. Flooring in the hallway was found to be finished to a suitable standard that could be overlaid with appropriate underlay and floor covering.
3. It had raised an order to repair damage to the front entrance door threshold.
4. It had raised an order to fix a section of wooden parquet flooring around the balcony door area to prevent a trip hazard and would ask the contractor to similarly secure an area of flooring in the bedroom.
5. There were various holes that had been filled in with white filler which was the usual standard of finish for void works as it allowed new residents to carry out decorations themselves; however, it would raise an order to remove a high-level rail running around the lounge walls as this was not part of the structure.
6. It agreed that there were visible signs of cracking to the render around the balcony walls so it would raise an order to repair.
7. It would raise an order to clear the drainage outlet on the canopy/roof of the balcony to ensure that rainwater flowed correctly into the drainpipe so as prevent flooding.
8. The window key for the lounge window worked for the kitchen window.
9. It would request that areas of mould within the bedroom and kitchen larder cupboards were cleaned and surfaces treated but that the resident should follow the landlord’s guidance on preventing mould and condensation.
10. Its electrical contractor would check the damaged electrical socket.
On 1 January 2021, the resident completed an online complaint form stating that she had been discriminated on health and disability grounds since 2017. Within her complaint the resident stated the works identified should have been completed before the flat was allocated to her. She stated that the landlord had advised that she had used up her three opportunities to use Handyman Service; however, other people could use it six times. She made a compensation request incorporating £10,000 for “racism and discriminatory action leading to my health destroy”, compensation for repairs handling and £300 for damage to her bed and shoe cabinet by the Handyman.
The resident sent emails to the resident on 3, 11 and 17 January 2020 in which she reiterated her claim for £10,000 due to the Council’s/landlord’s actions since 2017. She stated that the landlord had since 25 November 2019 forced her to stay in a “ruined and dirty” flat and raised concerns about the slow progress of repairs. She disputed that there were “small” holes in the wall. The resident also alleged that the landlord’s contractor had wrongly assembled and damaged her bed and shoe cabinet. The resident requested that the landlord clean her flat and transfer her.
On 16 January 2021, the landlord wrote to the resident confirming the following repair orders:
1. Work order = WO00853669 remove mould and flaking paint.
2. Work Order = WO00853664 fix electrical socket.
3. Work Order = WO00853667 fix parquet floor in lounge and bedroom.
4. Work Order = WO00853673 remove railing from lounge walls and make good.
5. Work Order = WO00853675 repair cracked and chipped door entrance threshold.
6. Work Order = WO00853680 repair cracked render to balcony walls.
7. Work Order = WO00853682 unblock rainwater outlet and downpipe from balcony canopy.
The landlord’s repair records and an internal email sent on 20 January 2020 confirms that the contractor had arranged to complete these works on 13 February 2020.
With regards to the orders raised on 2 December 2019 to the flooring and the walls, and the assembly of the bathroom cabinet, the landlord’s repair records mark the “Date Works Completed” as 17 January 2019, although it is not clear exactly what works were completed. The records also confirm that on 17 January 2021 the resident “requested a cleaning team to clean her flat after works carried out”…but that the landlord confirmed it would “do the works with normal dust sheets etc”, not clean the flat.
On 23 January 2020, the landlord sent the Stage 1 response to the resident’s complaint, stating:
1. The Council’s response of 19 July 2019 addressed whether it had discriminated against her since her homeless application.
2. Its inspection of 10 December 2019 (the response of 31 December 2019 indicates the inspection was actually on 19 December 2019) and response of 31 December 2019 addressed the condition of the property when the resident moved in and the several repairs the resident had later identified. It had ordered several work items, providing details on 16 January 2020, and the contractor would be attending on 13 February 2020. The landlord apologised for several repair issues that should have been dealt with before the resident moved in, such as loose parquet flooring and the removal of hanging rails, but noted these items would not render the property to be uninhabitable.
3. With regards to the Handyman service the landlord stated that its contractor would address the bedhead support that had been damaged and adjust the hinge on the full height cupboard which was causing a slight rubbing with the carcass of the cupboard. However, it would not attend to the bathroom cabinet as that had a slight warp which was a defect with the door not the assembly.
4. It would contact her to discuss her wish to be rehoused.
5. The contractor would not clean up the whole of the resident’s flat after the works of 13 February 2020; however, it would protect the areas where it was working and clean up any mess made.
On 24 January 2020 the resident wrote to the landlord advising that she did not accept its complaint response as she believed that the Council/landlord had acted discriminatorily against her disability and nationality/race since 2017, including the Council’s Allocations department forcing her to move to a “dirty and ruined” flat. The resident also advised that she did not accept the dust protective measures proposed and would not allow the contractor to carry out works on 13 February 2020 unless the landlord agreed to clean her flat. On 5 February 2020 the resident wrote further advising that the landlord would have to rearrange the appointment of 13 February 2020 due to health reasons.
On 21 February 2020 the landlord sent the Stage 2 response to the resident’s complaint stating:
1. When property was let to the resident, it met the landlord’s standard for voids and was in line with the Allocations Policy.
2. It did not believe that it had acted discriminatorily as it could find no evidence of racism and discrimination and had followed the correct policies and processes.
3. The actions identified at Stage 1 had been followed up as it had raised works orders; however, works had been put on hold as the resident had raised concerns about disruption. It was therefore awaiting the resident’s instructions.

After the complaints procedure

In response to a letter from the landlord’s contractor on 25 February 2020, the resident responded on 28 February 2020 stating she would not allow access to her property unless it confirmed it would repair the crack on her balcony, loose floor panels, panels on the wall, “panels around the room area with the sharp needles” and the damage to her possessions. The landlord subsequently advised the contractor to write to resident asking her to make contact when she was ready to make appointments for the completion of works.
In an exchange of correspondence in May 2020 about the damage to items damaged by the Handyman service, the landlord advised that the shoe cupboard was not damaged but just needed a hinge adjusted, the bathroom cabinet was in working order and its contractor would attend to the bedhead when attending to the works ordered from December 2019. A photograph provided by the resident indicates a chip in the wooden bedhead stand.
On 1 July 2020 the landlord asked the resident if she would allow its contractor to complete the outstanding works including works to the bedhead; however, the resident refused again disputing that she should clear up after the contractor and also reiterating her view that the contractor had “destroyed” her shoe cabinet, bed and bathroom cabinet.
Following another email to the landlord on 3 December 2020 where the resident asserted that her property was unsuitable, making reference to water pooling on her balcony, the landlord confirmed it would clear a blocked balcony outlet, but the repair of cracks on the balcony formed part of the works ordered in January 2020 that she had not allowed access for. On 11 December 2020 the landlord advised that the plumber had attended and would need to get access to the roof and the flat above to clear the blocked balcony outlet. The resident has advised this Service that the contractor made further visits on 14, 16 and 18 December 2021 but has not completed the works identified, and has in fact stated that they are her responsibility.
The landlord on 25 January 2021 advised that its maintenance team needed to investigate the cracking of the balcony walls further in order to raise the correct order for the contractor. Otherwise, further investigation of the structure may be required to understand the nature and cause of the cracking.
On 21 February 2021 a Councillor referred the resident’s complaint to this Service.
The resident has also advised this Service that she is currently pursuing a legal claim against the landlord for disrepair which includes all the works contained in the landlord’s email of 16 January 2021, apart from the removal of the railing from the lounge wall. She has confirmed the claim incorporates mould and damp in the bedroom and the flooded balcony.

Assessment and findings

The parties have disagreed about the extent of disrepair in the resident’s property. For instance, the resident states her walls are in disrepair whilst the landlord considers them to be in suitable condition for decorating. The resident also considers that there is extensive disrepair to the floor. In assessing this complaint, it is not the role of this Service to make technical assessments of disputed repair and maintenance issues. This Service has considered the appropriateness and reasonableness of the landlord’s handling of the resident’s reports of disrepair and her subsequent formal complaint, taking into account the legal framework, its policies and procedures and good practice.
Prior to allocating the property the landlord took steps to ensure that the property was in a suitable condition for letting insofar as its contractor carried out void works. Following this, its surveyor with responsibility for authorising the condition of the works inspected and ascertained that the property was suitable for letting, producing a Void Habitable Certificate, with supporting photographs. Ultimately, the landlord is entitled to rely on the professional opinion of qualified members of staff. However, the Certificate does not confirm that the landlord assessed the property on a room-by-room basis or by reference to the measures within its void standard.
Soon after her tenancy commenced, on 1 December 2019, the resident reported repairs to her property. The landlord on 2 December 2019 raised repairs to the walls and a floor. Under the Repairs policy the works should have been completed within 20 working days, taking into account the Christmas/New year holidays. The scheduled date for completion of the works, 10 then 17 January 2021, was outside this timeframe; however, the landlord advised the resident of the dates, therefore managed her expectations about the timeframe for the works.
However, the outcome of the visit of 17 January 2021 is not clear. The fact that the landlord raised and kept open another order for the landlord under the reference WO00853667 to “fix parquet floor in lounge and bedroom” indicates that flooring works were not completed on 17 January 2021, but the record for the order made on 2 December 2021 does not confirm this. A recommendation has therefore been made in this regard.
Following the resident’s complaint about repairs in her property on 10 December 2019, the landlord arranged for a surveyor to inspect her property. This was appropriate as surveyors have the authority to assess whether there is disrepair in a property and what exactly works, if any, are required. As stated above, the landlord is entitled to rely on the professional opinion of qualified members of staff. The landlord also advised the resident of the outcome of the inspection in its response of 31 December 2019, making clear what works it had identified and confirmed the orders that had been raised in its email of 16 January 2020. It therefore managed the resident’s expectations about how it intended to resolve the repair issues she had raised. However, the landlord missed an opportunity to explain why it took four weeks to raise the repair having inspected on 19 December 2021.
The target date for the repairs raised on 16 January 2020, 13 February 2020, was in line with the 20 working day timeframe for routine repairs. However, the landlord did not carry out repairs at the resident’s property on 13 February 2020. This was due to the resident not being able to provide access at that time. The contractor also checked, shortly after the final complaint response, whether it could proceed with completing works on 25 February 2021. Taken together, there was no service failing on the part of the landlord in this regard. (The resident has advised from December 2020 the contractor has attended her property on several occasions but not carried out works, except to the resolve the leak to her balcony and these works have not been successful. As noted above in paragraphs 2-5, this Service can make no findings on the handling of repairs at this time and the resident may wish to make a new formal complaint or pursue her legal claim).
The landlord could not gain access to complete works partly because the resident wished for the landlord to clean the whole of her property. However, the tenancy agreement confirms that the resident is obliged to clean her property, not the landlord. The landlord’s advice that its contractor would clean up the mess it made was in line with Repairs Policy which states that contractors “will tidy up at the end of the job or end of the day”.
Regarding the Handyman service provided to the resident, it is evident that the landlord followed its procedure as it attended to assemble furniture on at least three occasions – to assemble a desk, bed, shoe cupboard and bathroom cabinet. After the resident stated that the contractor had damaged the latter three items, the landlord also inspected these items, thereby taking appropriate steps to ascertain what further action was needed. It also managed the resident’s expectations by advising it would seek to repair the bedhead and make adjustments to the cupboard whilst explaining why it did not think it was responsible for the defect to the bathroom cabinet. However, it is not clear what advice the resident was provided at the time the Handyman service attended so a recommendation has been made in this regard.
In its responses to the resident the landlord advised of its view that the property met its standards for void properties and was habitable, but did not provide details of its void standards or explain how it had established that the property was suitable for letting. As such, its statements were unsupported. Given the disagreement over the general condition of the property, and this was a missed opportunity for the landlord to provide clarification on its position, reassure the resident and possibly resolve the complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord.

Reasons

Prior to allocating the property the landlord took steps to ensure that the property was in a suitable condition for letting insofar as its contractor carried out void works which were inspected by a surveyor. After the resident reported disrepair in her property, the landlord took appropriate steps to ascertain what repairs were necessary as it arranged a visit by a surveyor. The landlord subsequently confirmed what works it had identified and the orders that it had raised, thereby managing the resident’s expectations about how it intended to resolve the repair issues she had raised.
Although the landlord did not carry out repairs at the resident’s property on 13 February 2021, this was due to the resident not being able to provide access at that time. The contractor also checked, shortly after the final complaint response, whether it could proceed with completing works. Taken together, there was no service failing on the part of the landlord. The landlord’s advice that its contractor would only clean up the mess it made was in line with Repairs Policy.
Regarding the Handyman service provided to the resident, it is evident that the landlord followed its procedure as it attended to assemble furniture on at least three occasions. After the resident stated that the contractor had damaged three items, the landlord also inspected the items, thereby taking appropriate steps to ascertain what further action was needed to resolve this aspect of the resident’s complaint. It also managed the resident’s expectations by advising of the action it intended to take.

Recommendations

The landlord takes steps to ensure that it maintains records of all visits/appointments by its contractor and the outcome. Such records should be linked to the original repair order.
If when assembling furniture when carrying out the Handyman service, an issue arises such as finding a defective part or causing cosmetic or functional damage to the item, it is recommended that the contractor make a note of the issue an any advice given to the tenant at the time. It is also recommended that the contractor takes photos of the issue.
When dealing with enquiries and complaints about the condition of a property at the start of a tenancy, it is recommended that the landlord provides details of its void standard and how it established that the property was suitable for letting.
The landlord contacts the resident to confirm what repairs are outstanding and to make appointments to carry out works.