Newlon Housing Trust (202008945)

REPORT

COMPLAINT 202008945

Newlon Housing Trust

30 June 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

This complaint is about the landlord’s handling of the resident’s concerns about:
1. a subject access request
2. the conduct of the contractor’s staff
3. the redress awarded by the landlord
4. the related complaint

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, I have determined that the following aspects of the resident’s complaints are outside of the Ombudsman’s jurisdiction.
Under Paragraph 39 (m) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints which in its opinion falls properly within the jurisdiction of another Ombudsman, regulator, or complaint handling body. The resident has advised that she has requested a copy of her housing file from the landlord and it has not been received. Complaints regarding the handling of a subject access request fall within the jurisdiction of the Information Commissioner’s Office. Therefore, this aspect of the complaint will not be considered under this investigation.

Background and summary of events

The resident has an assured tenancy which commenced on 10 March 1997. The landlord’s records show that the property is a three – bedroom basement flat.
The landlord has advised that the resident has a medical vulnerability which prioritises her for heating repairs and the resident has provided further information to this Service by advising that she has a long term chronic medical condition and disability.
The tenancy agreement obliges the resident to provide access to the landlord to carry out repairs to the property and obliges the landlord to keep the structure and exterior of the property in good repair.
The landlord’s repair policy sets out that emergency repairs will be carried out in 24 hours and urgent repairs within 20 working days. It sets out that it will agree mutually convenient appointments with its residents to carry out repairs.
The landlord’s complaint procedures set out that it will deal with informal complaints within 48 hours with agreement from the resident, within 10 working days at its first stage and within 20 working days at its final stage. In addition, before a final complaint response is issued, the resident will be given the opportunity to provide their representation before the final decision is concluded.
In addition, the complaint procedure advises that it will not consider complaints about:
1. members of its staff, however, it will provide its residents with an outline of Its findings
2. issues that are subject to active legal proceedings where it has received a letter of claim, including the commencement of the pre-action protocol.
The landlord’s compensation policy recognises that on occasion, services fail to meet its published standards and in those circumstances an award of compensation may be payable. The policy also sets out the different levels of compensation awards that are payable to residents.

Scope of investigation

It is noted that the resident complained to the landlord following a leak into her property in July 2019 and its complaint panel considered the complaint at the final stage of the complaint procedure on 6 December 2019.
The resident received the complaint panel’s determination on 31 January 2020 and has accepted that the substantive matters related to the water penetration into the kitchen and bathroom have been resolved and those matters were not brought to the Ombudsman for review.
The landlord’s complaints panel recommended that the landlord complete works to make good the decoration to the kitchen and bathroom. The resident subsequently made a disrepair claim to the landlord in January 2020 which included all claims and damages that arose from the complaint made in July 2019 regarding the kitchen and bathroom works to the resident’s property. The landlord communicated with the resident’s solicitors and agreed a Part 36 Settlement in January 2021 which has been accepted by the parties. It is not the role of the Ombudsman to comment on the legal claim or the award arising from this. The resident has accepted this settlement offer and it was reasonable to expect the resident to raise any concerns with the settlement offer with her solicitors at the time. Any reference to these matters in the report is therefore for context only.

Summary of events

The resident complained to the landlord on 19 December 2019 about the behaviour of the operative who attended her property to carry out the remedial work to the kitchen and bathroom which were recommended from the previous complaint to the landlord. The resident complained that the appointment had been arranged for the full decoration of her kitchen to be carried out. The operative advised that his works order detailed that he was required to carry out decorative work to make good certain areas of the kitchen. This led to the attendance of the supervisor who clarified that the works order given to the operative was incorrect. It was agreed that the decorative works to the kitchen would take place the following day and that the operative would carry out decorative works to the bathroom that day.
Whilst the operative was carrying out the decorative works to the bathroom, the resident advised that she informed the operative that the method he was using had caused damage to her bathroom cabinet. She asked whether he wanted to leave her address, which he did. She later disputed that she had “thrown the operative out of her home” and advised that she was informed by a member of the landlord’s staff that its contractor had stated that “if one more incident occurs, there will be repercussions”.
As an outcome to the complaint, the resident requested that the landlord:
1. provide an action plan stating the outstanding repairs that were required
2. provide reasons why the operative who had attended her home in November 2019 to carry out repairs, was now unwilling to reattend
3. prioritise and complete the outstanding repairs before the end of the month
4. provide compensation for the damage to her bathroom cabinet
5. give assurance that operatives would behave with respect in her home
6. provide a written response to her complaint.
The landlord acknowledged the complaint on 20 December 2019.
In response to the complaint, the landlord wrote to the resident on 21 January 2020 regarding the conduct of the contractor’s staff who had attended her property. It recommended that a supervisor attend with the operative to complete the outstanding works to the kitchen and the bathroom. In response, the resident advised that she was not happy with the offer made by the landlord.
On 23 January 2020, the landlord received notification from the resident’s solicitor that the resident wished to make a disrepair claim about the kitchen and bathroom work to the property.
The landlord contacted the resident on 24 January 2020 to obtain an update on its proposal to complete the outstanding works in the property.
The landlord received a disrepair claim on 28 January 2020 regarding the ceiling collapse to the resident’s bathroom and kitchen. The claim stated that the workmanship of the landlord’s contractor had been completed to a poor standard, that the conduct of the landlord’s contractor was poor and the length of time to conclude the repairs was unacceptable
The complaints panel provided its outcome on 31 January 2020 regarding the complaint made in July 2019. The key findings were:
1. it apologised for the delay in providing its complaint response and for the service failures that the resident had experienced.
2. it acknowledged that both the resident and the contractor had raised concerns regarding the visit that had occurred on 19 December 2019
3. it offered a compensation award of £400
4. the complaint would not be closed until the outstanding works were completed or the landlord had taken reasonable steps to complete the repairs.
The landlord responded to the resident’s solicitor on 4 February 2020 advising that the matters complained about had been already dealt with through its complaint procedure.
The resident contacted the landlord on 4 June 2020 to chase her complaint response. She advised that she was shielding as a result of the Covid 19 pandemic, however she wanted the complaint resolved before allowing the landlord’s contractor access to her home.
On 22 June 2020 the landlord advised the resident that the complaint response had been delayed as its staff were working from home due to the Covid 19 pandemic.
The landlord responded to the resident’s complaint on 6 July 2020. The key findings were:
1. it recognised that there had been a miscommunication between it and its contractor as the works order issued to the operative should have stated that full decoration was required to the kitchen
2. it apologised for the confusion and for the inappropriate comment made by its contractor
3. that the contractor would visit to take photos and resolve the damaged cabinet
4. in future, two operatives would attend her property – a supervisor would be present so that there would be clarity about the work to be carried out
5. the operative was uncomfortable during the visit and advised that he was not willing to attend her property, on his own
6. there was an ongoing disrepair case
7. it recommended a social distanced conversation in light of the pandemic with its contractor to resolve the outstanding issues
8. it awarded compensation of £75: £25 for its communication error and £50 for its complaint handling failure.
The resident escalated her complaint on 17 July 2020 advising that its response had lacked empathy, was judgmental and did not consider her point of view. She explained that the complaint had been ignored for six months and questioned whether the investigation regarding her concerns about the conduct of the contractor’s staff had been carried out. In addition, she complained that the complaint response lacked attention to detail, that the facts of the case were incorrect and that she did not feel safe in the property with the contractor’s staff present.
The landlord acknowledged the escalated complaint on 20 July 2020.
The landlord contacted the resident on 27 October 2020 to apologise for the delay in responding to the complaint. It explained that it was aware that it had two active complaints and a disrepair case to be reviewed before it could supply an answer to her concerns.
The landlord contacted the resident on 30 October 2020 to obtain clarification of the outstanding complaints. It stated that:
1. the current outstanding complaint concerned the conduct of the contractor’s staff
2. the previous complaint regarding the ceiling collapse was resolved and an award of compensation had been made
3. it was waiting for the resident to make a convenient appointment regarding the outstanding works resulting from that complaint
4. it had received a disrepair claim on 23 January 2020 regarding the ceiling collapse, workmanship and staff conduct.

It requested that the resident confirm that it had correctly understood the position.

The resident responded on 2 November 2020 requesting time to respond to the landlord’s communication.
The resident advised the landlord on 11 November 2020 that:
1. she agreed the original complaint about the leak was closed
2. she did not agree that the disrepair complaint included her concerns about the conduct of the operative on 19 December 2019 as it did not address her concerns about comments made about her character
3. confirmed that she did not feel comfortable with the landlord’s contractor attending her home to carry out repairs.
Following contact from this Service on 13 November 2020, the landlord provided its position on the complaint that it was waiting for the resident to supply access for the outstanding work to be completed.
On 1 December 2020, the landlord contacted the resident requesting a response to its communication of 30 October 2020 and 13 November 2020 regarding the outstanding work to the property. It confirmed that the original complaint would be closed.
In response, the resident informed the landlord on 4 December 2020, that once the disrepair claim was completed, she would be in contact regarding allowing access to her home for the outstanding repairs to be completed.
The resident contacted the landlord on 29 March 2021 to escalate her complaint about the staff conduct following the contractors visit in December 2019. She requested a copy of the contractor’s complaint procedure and said she would not allow access to its contractors as she had concerns regarding her safety. She requested as an outcome, compensation for her damaged furniture, that the landlord provide a full repairs service, an action plan of how it proposed to deliver repairs and a copy of her housing file.
This Service contacted the landlord on 13 April 2021 and 12 May 2021 confirming that the resident wished to escalate her complaint to the final stage of the complaint’s procedure.
The landlord provided its final complaint response on 12 May 2021. The main findings were:
1. it had originally dealt with her concerns about the conduct of the contractor at its informal complaint stage; these concerns were escalated to the first stage of the complaint’s procedure in June 2020, and it offered a compensation award of £75: £25 for poor communication and £50 for the delay
2. an appeal was requested of its decision, however as this was considered as part of the disrepair claim, this was closed on 1 December 2020
3. it had considered new facts from 29 March 2021 as part of this complaint
4. complaints regarding staff conduct are dealt with outside the complaint’s procedure as part of the human resources framework
5. considered that the original complaint about the collapsed ceiling and disrepair claim related to the outstanding works and the resident had not provided access for the work to be carried out
6. apologised as the operatives who had attended her address on 12 March 2021 and 25 March 2021 were involved in the original complaint, and should not have done so
7. the resident had not received a reduced service but had access to the full repairs service
8. it had requested that its contractors provide a breakdown of the outstanding work required to the property and the time required to undertake the work
9. it apologised for its complaint handling and service failures and offered a compensation award of £200: £75 already offered at the first stage of the complaint’s procedure, £50 for further delays; £50 for sending the same operatives, £25 for poor communication.
The resident contacted this Service to advise that she was unable to communicate directly with the landlord and requested that we request a time extension on her behalf. The landlord agreed to this on 21 May 2021.
The resident supplied her representation to the final stage complaint response and the landlord confirmed on 25 June 2021 that:
1. its database had been updated to reflect the operatives that should not be attending the resident’s address
2. in line with the Covid-19 legislation, operatives wear protective protection equipment when attending its properties
3. investigation of staff and its contractors are dealt with outside the complaint’s procedure
4. it had not disputed her version of events – it did not have independent evidence to corroborate the information she had provided, and it could not take disciplinary action without evidence
5. in future, two operatives would attend her address, when repairs were required
6. its apology for its service failures was genuine
7. the resident had not supplied access for the repairs to be carried out
8. considered that the staff issues complained about were the same as those outlined in the disrepair claim
  1. its complaint response dated 13 May 2021 was its final response.
The resident remained dissatisfied and escalated the complaint to this Service.

Assessment and findings

It is apparent that the situation has caused the resident distress and she is concerned about the future attendance of the landlord’s contractors at her property to carry out repairs. The resident has advised that because of her medical conditions, the experience of using the complaints procedure, has caused her medical and emotional harm. It is not the role of the Ombudsman to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts.
It is the role of the Ombudsman in such situations to consider the landlord’s response to the resident’s concerns and the formal complaint. This investigation will consider whether its response was reasonable in all the circumstances of the case, in accordance with its policies under the tenancy agreement and any relevant legislation.
The report will not be addressing each specific issue or incident, rather it will reflect the key points and will provide a view on the landlord’s overall handling of the issues.

The conduct of the contractors’ staff

Having considered the available evidence, the resident complained to the landlord about the conduct of the contractors who attended her property in December 2019 and advised that she wanted the landlord to outline the action it would take to resolve her concerns. The landlord was resolution focused as it was aware of the resident’s concerns regarding the contractor’s staff it offered for a supervisor to attend to her address with the operative in January 2020 to complete the outstanding work. In addition, in its initial complaint response, it apologised for the mistake in the works order that led to the incident at the property and for the inappropriate comment that was made by the contractor.
From what can be seen, the landlord acknowledged the resident’s concerns by suggesting that a virtual meeting occur with the contractor. This was a reasonable approach in light of the Covid 19 restrictions and its awareness that the resident was shielding. In addition, it accepted that there was the possibility of damage to the residents bathroom cabinet and offered for the contractor to visit for an assessment of the damage to take place.
In its final complaint response, the landlord reviewed its overall handling of the resident’s concerns about its contractor’s staff and concluded that an error had occurred when it sent two operatives to carry out repairs to her property, which it should not have done. It provided clarity on its process of handling complaints that it had received about its staff and that it had considered her concerns about staff conduct, but it had sufficient evidence to take formal action.
In considering whether the landlord offer of redress is appropriate, regard is had to the landlord’s compensation policy and the Ombudsman’s Dispute Resolution Principles which are: be fair, put things right and learn from outcomes. The landlord has acknowledged and apologised for the mistake in the works order that was given to the operative and for the same operatives attending her address, made an award of compensation of £75 for these errors and made changes to its operating procedures. In addition, the landlord has decided that in future, two operatives would attend the resident’s property to reduce the possibility of error which represents proportionate and reasonable redress.

redress awarded by the landlord

The landlord’s compensation procedure says that it must consider the duration of any avoidable distress and the seriousness of the impact and that awards of £50 to £250 are payable for service failures that are of a short duration and does not significantly affect the overall outcome for the complainant. This includes inconvenience, time and trouble payments and delays in getting matters resolved.
Following its final complaint review in May 2021, the landlord apologised for its service failures and offered redress of £200.00 to the resident. This was assessed as £75 that it had offered in its Stage one complaint response in July 2020, £50 for further delays; £50 for its failure in relation to the operatives attending her address and £25 for poor communication.
In considering whether the compensation is reasonable, regard is taken to the landlord’s action to redress this such as its own identification of the error and its attempts to put things right. In those circumstances, the Ombudsman may not require the landlord to take further action.
Looking at the compensation award, landlord has appropriately identified its service failures– the mix-up with the works order given to the operative when he attended to carry out repairs in December 2019, the operatives’ attendance at her address in March 2021 and its delay in handling her complaint. Without wishing to diminish the resident’s experiences, the investigation has not found evidence of significant service failure, Therefore, the landlord’s offer of redress is considered proportionate to the service failures that it identified.

the related complaint.

The landlord’s complaint policy states how it handles complaints and the timeframe for its responses. The landlord registered the resident’s complaint in December 2019 and dealt with initially under its informal stage. However, from the available information, the landlord did not contact the resident until a month later on 21 January 2020 after the complaint was made to organise for a supervisor to attend her home with the operative to undertake the outstanding work. This was inappropriate as its policy says that informal complaint should be resolved within 48 hours, and it’s response did not address her concerns regarding the conduct of the operative who had attended her home.
The resident contacted the landlord in June 2020 to escalate her complaint about the conduct of the operative. The landlord’s response failed to meet its published complaint handling time target as it took over a month to respond to her concerns.
It is noted that there were periods when the complaint was not progressed, whilst the landlord was in communication with the resident’s solicitor regarding the disrepair claim. Whilst this was in accordance with the landlord’s complaint procedure at the time, the Ombudsman has since issued guidance to landlords to confirm that landlords are expected to establish which issues fall within a disrepair claim and those it can resolve through the complaints process. A recommendation has been made about this later.
The landlord’s complaint procedure says that when it receives complaints about staff conduct, residents will be provided with an overview of its findings. The landlord acted in accordance with this when it apologised for the inappropriate comment made by its contractor and informed the resident of its findings – that it did not have sufficient evidence to take formal action against the operative and later provided further clarification that this did not mean that it disbelieved her account but did not have confirmation of what had occurred. It is understandable that the resident wanted the landlord’s contractor to take disciplinary action against its staff, however its explanation was fair that it did not have sufficient evidence to take such action at the time.
The landlord provided its final complaint response in May 2021 providing an overview of the issues leading up to its complaint’s response. It apologised and offered an award of compensation for its complaint handling failures. In accordance with its complaint procedures, it confirmed its final position in June 2021 after giving the resident time to make further representations before it affirmed its position.

Determination (decision)

In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, there was reasonable redress in the landlord’s response to the resident’s concern regarding the conduct of the contractor’s staff.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s concern regarding the redress awarded by the landlord.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s concern regarding the related complaint.

Reasons

The landlord recognised that there had been miscommunication between it and its contractor regarding the scope of works to the resident’s home. It also did not follow its own procedures by arranging for the operatives to attend the resident’s property in March 2021 when it had agreed that it would not do so. It apologised and has learnt from the error by updating its systems to prevent the same error occurring.
The landlord’s offer of redress to the resident conforms with its compensation policy for its identified service failure.
The landlord considered and addressed the resident’s concerns about the conduct of the operative within the complaint process.

Recommendations

If it has not already done so, the landlord to pay the resident the £200 compensation awarded in its final complaint response.
The landlord to provide to this Service within six weeks evidence that payment has been made.
Review its complaint handling procedure to bring it in compliance with the Ombudsman’s guidance regarding the Pre-Action Protocol (Disrepair).