Peabody Trust 2018 (202001565)

REPORT

COMPLAINT 202001565

Peabody Trust 2018

25 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 leaseholder 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:
1. Handling of the leaseholder’s request for window repairs and/or replacement.
2. Complaint handling.

Background and summary of events

Background

The leaseholder has a lease with the landlord that started in 2010. The property is a one–bedroom flat.
The Ombudsman has not seen the lease but photocopied extracts of it were included in the stage one complaint response. This said that, under the terms of the lease, the landlord “shall maintain, repair, redecorate and renew …. all external parts including the windows and doors on the outside of the flats within the building”.
The landlord has a two stage complaints procedure. It aims to respond to complaints within ten working days at stage one and within 15 working days at stage two.
The landlord’s compensation policy says that it will make a payment up to £400 for the time, trouble and inconvenience. It defines “moderate disturbance “where payments should be made in the region of £101 to £300 as “low impact but high effort to resolve or high impact but low effort to resolve”. This policy also notes that up to £100 can be paid for poor complaint handling.
In July 2020 the Ombudsman issued a new Complaint Handling Code which set out good practice that allows landlords to respond to complaints effectively and fairly. The revised Housing Ombudsman Scheme allows the Ombudsman to issue a complaint handling failure order where a landlord is failing to comply with its membership obligations. Examples of when this may happen include failure to progress a complaint through the complaint procedure.

Summary of events

In November 2014 there was an email exchange between the landlord and leaseholder about window repairs. The landlord noted the job description “above the bedroom window on the outside – wooden fascia has cracked and lets damp in. Window frames have started rotting and warping, please repair”.
The leaseholder said that surveys were carried out in 2014 and 2017 which confirmed that the windows needed replacing.
Meanwhile in 2016 a sale of the property fell through. The estate agent named several reasons for this including the potential cost of replacing the windows.
On 28 November 2017 the leaseholder wrote to the landlord asking about replacement windows. She said that “the windows are so rotten that they do not hold the hinges correctly any more resulting in massive gaps and the handles no longer work properly”. She said she believed the cyclical works to replace them were overdue.
In December 2017 the landlord said that it had asked its investment team to carry out a survey and that it would not raise a repair until it had heard back. It asked the leaseholder to let it know if she wanted to raise a repair. In May 2018 the leaseholder contacted the landlord again asking when the work would be done as it had told her the work would be done in that budget year.
On 19 June 2018 the leaseholder made a formal complaint to the landlord about “rotten window frames, literally falling to pieces with massive gaps”. She said she had been “fobbed off and fobbed off for years trying to get this repair”. The Ombudsman has not seen evidence that the landlord responded to that complaint.
On 21 August 2018 the landlord told the leaseholder that, following the recent external survey, “investment are aiming to attend between April 2018 – March 2019, however dates are subject to change”.
In March 2019 the leaseholder contacted the landlord as the works had not been completed. She chased for a response in May 2019 and February 2020 but the landlord did not respond with a date for the works to be completed.
In May 2020 the leaseholder approached the Ombudsman as the landlord had not dealt with her complaints about the windows from 2019. She gave a timeline of events and said that she had been told the windows would be replaced in 2017-2018 and then by March 2019.
The Ombudsman asked the landlord to consider this complaint the following month and subsequently chased it on four occasions between July and September 2020.
On 1 October 2020 the landlord told the Ombudsman that it had escalated the leaseholder’s complaint to stage one and would respond by 14 October 2020. It said it was sorry that this has not been progressed previously.
The Ombudsman issued the landlord with a complaint handling failure order on 17 December 2020 because it had not responded to the leaseholder’s complaint within a reasonable timescale resulting in unnecessary delay and inconvenience.
On the following day, the landlord raised a works order for repairs to the windows. The landlord subsequently arranged a visit to assess the windows for 29 December 2020. However, it cancelled this appointment saying it had been made in error (paragraph 25).
On 21 December 2020 the landlord wrote to the leaseholder at stage one of its formal complaints procedure. The main points were:
1. It apologised that the issue of the windows had been particularly frustrating for the leaseholder.
2. It acknowledged it had provided incorrect information regarding the replacement of windows at the property. It confirmed they were due for replacement in 2023–24.
3. It had raised the condition of the windows to its responsive repairs team which would assess the windows to see if they can be repaired or whether they were beyond repair and needed replacing now. It said the repairs team would contact her regarding an appointment. It would also arrange a survey of the property.
4. It offered compensation for the time and trouble this matter has caused the leaseholder and for its failure to respond to the complaint in a timely manner. It offered a total of £300 made up of £150 for poor complaint handling and £150 for the time and trouble caused to the leaseholder in pursuing the complaint.
The landlord explained how the leaseholder could escalate the complaint.
On 31 December 2020 the leaseholder told the landlord that it was not appropriate to close the complaint until it the window repairs had been completed. She also said that she did not consider the amount of compensation offered to be realistic explaining she had been unable to sell the property and a previous buyer had pulled out citing the rotten windows. The leaseholder said she had lost money on legal fees, paying for leaseholders packs etc. She said she would also be exposed to capital gains taxes that she would not have had to pay had the repairs been done in a timely manner and she had been able to sell at that time.
On 3 January 2021 the leaseholder confirmed that she wanted to escalate her complaint. The landlord sent an acknowledgement of that the next day.
On 25 January 2021 the landlord issued its final response to the leaseholder under its formal complaints procedure. The main points were:
1. It confirmed it was responsible for the repair of the external windows under the lease.
2. At stage one it said it would carry out a stock condition survey; however, this was cancelled by the contractor due to confusion as to what repairs could be done for a leaseholder. The landlord apologised for the inconvenience caused.
3. Dates for planned maintenance projects could change as budgetary priorities and other concerns took precedence such as re-prioritising funds to fire safety works post Grenfell.
4. It apologised that the previous interim repair was not followed through to a successful conclusion and that planned improvement projects had been pushed back.
5. The windows in the property were scheduled for review and possible replacement in 2023–24. It acknowledged that that would be disappointing and apologised for any earlier information that was provided in error.
6. It was prepared to carry out interim repairs and, as a gesture of goodwill, would do so at its own cost and would not recharge the cost to the leaseholder in recognition of the shortcomings she had experienced. It asked the leaseholder to contact it within four weeks if she wanted the landlord to take such action and to provide photos of the windows.
7. It recognised it had taken too long to provide that response to the leaseholder and that it had also provided her with incorrect information previously.
8. It offered compensation of £500 to recognise the time, trouble and inconvenience caused made up of £200 for its complaint handling failures and £300 for the time, trouble and inconvenience in relation to the windows.
The landlord signposted the leaseholder to the Ombudsman. It asked the leaseholder to contact it to arrange repairs to the windows.
On 18 March 2021 the leaseholder told the landlord that she would be grateful if it could replace the windows now. She attached photos of the windows. The leaseholder chased up a response from the landlord on 19 May 2021.
On 27 May 2021 the landlord noted that “the windows are in a bad way”. In an email to the leaseholder that day, the landlord said it was prepared to offer further compensation for the delay in getting back to her. The landlord also said that it would include the window replacements in an upcoming internal meeting about the scheduled works.
On 3 June 2021 there was an investment review meeting where it was agreed that the replacement of windows at the property would be brought forward from 2023-24 to 2022-23.
On 7 September 2021 the landlord told the leaseholder that the works would be brought forward to 2022-23, which was the next available improvement plan. The landlord also offered the leaseholder a further £50 compensation for time and trouble for the additional delays in her pursuit of a response and its lack of communication. It added, in the meantime, the leaseholder should report any urgent repairs in the usual way.
When the leaseholder approached the Ombudsman, she said no repairs had been done and the outcome she wanted was for the windows to be repaired now. She said the flat was empty; her tenants had left and she did not feel comfortable getting new tenants in due to the state of the windows. She said she felt the matter was “out of her hands” and she wanted compensation. The leaseholder added that, if the windows were not going to be replaced imminently, she would be willing to pay to have them replaced herself and for the landlord to reimburse her.
The leaseholder said that she had been complaining about this matter since before 2014 and was told that the windows would be replaced as part of cyclical works, but no such works have been carried out.

Assessment and findings

Handling of the leaseholder’s request for window repairs and/or replacement

The landlord’s handling of the leaseholder’s request for window repairs was not appropriate. The evidence shows that the leaseholder has been reporting this matter over an extended period. Surveys of the windows took place and there is evidence that the landlord was aware of the poor condition of the windows in 2014. However, despite the landlord having responsibility for maintaining and repairing the windows (paragraph 3), there is no evidence of it undertaking repairs over the period 2014 to date.
The landlord should have taken action when the repairs were reported to ensure that the windows were kept in a reasonable state of repair whilst awaiting the cyclical works to replace them. While acknowledging that the landlord had other financial commitments such as fire safety which meant the cyclical works were postponed, it was not appropriate for it to leave the windows in a poor state of repair over such a long time period. There also a lack of communication with the leaseholder about when the cyclical works would take place which – the evidence suggests – meant the leaseholder tolerated the poor state of the windows in the belief they would be replaced in the short-term.
There is evidence that the landlord is not clear on its responsibilities towards the windows, a survey was cancelled in December 2020 for which it later apologised. However, very recently the landlord reiterated that this appointment was cancelled as it did not have responsibility for the window repairs, which was incorrect.
The landlord has brought forward the replacement of the windows to 2022–23. That does not release the landlord from its repair responsibilities. However, it would be unreasonable for it to repair the windows if they were to be replaced soon after. Orders have therefore been made, below, for the landlord to explore bringing forward the date to replace the windows as close to the start of 2022–23 as possible to resolve this matter for the leaseholder. If the works are not going to be completed before the end of September 2022, the landlord should consider giving the leaseholder permission to replace the windows herself. If the landlord does not agree to that, then it should carry out interim repairs with no cost to the leaseholder (as it offered in its final response – paragraph 24.f).
In its final complaint response, the landlord recognised that it had caused inconvenience to the leaseholder and offered £300 compensation to her.
In relation to the failures identified, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the leaseholder’s complaint satisfactorily in the circumstances. In considering this, the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
It cannot be said with any certainty that the previous sale of the property would not have fallen through if it was not for the poor state of the windows as several factors were noted in the email from the estate agent. Therefore, it is not clear that the leaseholder would not have been exposed to capital gains tax when she came to sell it. Therefore, we cannot say those costs are a direct result of the landlord’s actions and they will not be considered in this report.
The Ombudsman cannot order damages; as that would be for a court to decide on. If the court found the landlord to be in breach of its repairing obligations it may order damages which may include these losses as well as any lost rental income. The leaseholder may wish to seek independent legal advice.
That said, the leaseholder has experienced eight years of owning a property with windows in a poor condition and in need of repair. The compensation of £300 does not reflect the evident distress and frustration that she faced over that extensive period which included the windows not being replaced, having to chase the landlord for progress as well as dealing with tenants who were living with windows that were in an unsatisfactory condition. Therefore, and taking all the circumstances into consideration, the sum of £1,200 better reflects the full impact on the leaseholder which includes the landlord’s failure to repair the windows over a long period along with its lack of communication about the cyclical works.
This amount is also within the range of amounts that the Ombudsman can order when he has found evidence of considerable service failure or maladministration. This includes cases where there has been poor communication and delays in complaint handling.

Complaint handling

The landlord’s complaint handling has not been appropriate. There is evidence to suggest that that landlord did not respond to a formal complaint by the leaseholder in 2018. In relation to the later complaint in 2020, it took the landlord some seven months after the Ombudsman asked it to respond to the leaseholder’s complaint to issue the stage one response. The landlord only did so after a complaint handling failure order was issued against it in December 2020 (paragraph 6). The landlord did not comply with its complaints procedure (paragraph 4).
In its complaint response the landlord recognised that its poor complaint handling had caused the leaseholder time, trouble and inconvenience and offered compensation of £200.
The landlord’s delays in responding to the complaints caused evident distress, inconvenience and frustration to the leaseholder. Its failure to progress the complaint in a timely manner meant the overall timeframe of the complaints procedure was extended. It also meant that the landlord failed to try to resolve matters at the earliest opportunity and it also missed an opportunity to improve the landlord/tenant relationship.
However, the compensation offered by the landlord reflects that impact. It is also within the range of amounts that the Ombudsman can order when he has found evidence of considerable service failure or maladministration. This includes cases where there has been poor complaint handling.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of the leaseholder’s request for window repairs and/or replacement.
In accordance with paragraph 55 (b) of the Housing Ombudsman Scheme, the Ombudsman considers that the landlord has made redress to the leaseholder which, in the Ombudsman’s opinion, resolves the complaint with respect to complaint handling.

Reasons

The landlord failed in its obligations under the lease to repair the windows over a period of at least eight years. While it offered compensation this was not proportionate to the impact this failing had on the leaseholder.
The landlord did not respond to the complaint made by the leaseholder in line with its complaints policy. It offered appropriate redress.

Orders

The landlord shall take the following action within four weeks and provide evidence of compliance with these orders to the Ombudsman:
1. The landlord shall investigate bringing forward the repairs to the windows as far as possible to the start of the 2022-23 cycle and write to the leaseholder and the Ombudsman to confirm a start date.
2. If the windows cannot be replaced before the end of September 2022, the landlord should consider giving the leaseholder permission to replace the windows herself. The landlord should confirm this in writing with the leaseholder and ensure this letter confirms who would be responsible for the cost of this work.
3. If the windows are not going to be replaced before the end of September 2022, to carry out interim repairs before then to bring them up to a satisfactory standard at no cost to the leaseholder.
4. A senior manager to apologise to the leaseholder for the failings related to the repair of the windows identified in this report.
5. Pay the leaseholder the sum of £1,200 for the distress, inconvenience and frustration caused by the failure to carry out the window repairs (minus any sums paid already).

Recommendations

It is recommended that the landlord pay the leaseholder the sum of £200 it had previously offered for poor complaint handling and the additional £50 offered after the final complaint response for poor communication (if it has not done so already).