LiveWest Homes Limited (202100646)

REPORT

COMPLAINT 202100646

LiveWest Homes Limited

1 April 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 decision to recharge the resident for the repair works following the end of the tenancy.

Background and summary of events

The resident was an assured joint tenant and lived at the property with her partner, three children and a dog for approximately six years. The property is a three-bedroom mid-terrace house. The tenancy commenced in February 2015 and ended on 31 January 2021 following the resident giving notice.
The tenancy agreement states that on moving out the resident must remove all personal belongings including furniture, carpets and laminate floor coverings and leave the property and all fixtures and fittings in a clean and lettable condition.
The resident must leave the property ‘in the same condition as it was in at the start of the tenancy agreement except for fair wear and tear and any improvements which we have made or paid for or for which we have given permission’.
The resident must also ‘carry out any repairs that are your responsibility under section D of this agreement. If you do not, we may charge you the cost of putting these things right’.
Section D states that the resident is responsible for reporting repairs, taking reasonable care of the property and keeping the inside in good repair, except for fair wear and tear.
The resident must also keep the internal parts in good decorative condition and is responsible for minor repairs (such as internal doors, broken glass, minor cracks in the plaster and so on).
The resident must repair damage except for fair wear and tear and will be liable for costs incurred for the landlord’s remedial work if the repairs are not carried out or if they are carried out to an unsatisfactory standard.
The notice to vacate states the conditions for vacating the property include:
1. To remove all furniture and personal possessions from the loft, the garden and any sheds and leave the property in a clean and lettable condition.
2. To carry out any repairs as may be agreed at a property inspection.
3. Any work necessary to clear the property or complete the repairs are (the resident’s) responsibility and may be recharged to (the resident), and anything that is left behind and disposed of (signed by the tenant on 30 December 2020).
The accompanying letter addressed to the resident states:
1. Under the terms of your tenancy agreement a property inspection must be carried out before your tenancy ends. The inspection will identify any repairs and alterations which are your responsibility as tenant.
2. If things are identified which are then not carried out you will be recharged for the work, so it is important the inspection takes place.
3. At the end of the tenancy, it is important the property is left in a clean and tidy state ready for reletting. Any items left remaining will be disposed of and you will be recharged for this.
The pre-void inspection took place on 15 January 2021 and sets out a list of pre-filled requirements which were all ticked.
1. All sheds belonging to the resident have been removed.
2. All wallpaper has been removed and all walls made good. Any dark coloured walls have been painted in neutral colour.
3. Any other alterations you have made have been removed and returned to standard.
The form also has ticks beside ‘replace internal door’ for two internal doors (kitchen and hall) and a comment about the room decorations. Under the box ‘tenant alteration and returned to standard’ there are three items (tidy garden, basin outside, possibly firepit). No additional works were identified.
Under the box stating ‘items to be gifted’ it states none. The resident and inspector both signed the form.
According to good practice and relevant caselaw (Warren v Keen, 1953) the resident is responsible to use the property in a ‘tenant like manner’ and not to damage the house ‘wilfully or neglectfully’. If the house falls into disrepair through ‘fair wear and tear’ or ‘lapse of time’ or for any reason not caused by the tenant, then the tenant is not liable to repair it.
The records show that the landlord exchanged correspondence throughout January and February 2021 with its team about various jobs. The resident was then sent an invoice for £5346.22 (11 March 2021). This was reduced after the resident disputed things like the double glazing. The landlord considered that it lacked evidence to support the higher costs.
The resident disputed the costs further and the landlord queried the charges with the voids team, who provided images and a list of repair works to the landlord:
1. Paint the property
2. Remove and clear built in wardrobes and make good
3. Remove wallpaper and make good
4. Take up and remove the laminate flooring in kitchen and hallway
5. Replace the plinths and end panels in the kitchen due to damage
6. Replace 4 fence panels and posts
7. Replace 3 internal doors (1 April 2021).
The resident formally complained to the landlord and said:
1. The resident completed the checklist of repairs in good faith. The resident asked for evidence of the repairs and had not received breakdown of the charges. The matter caused significant stress.
2. She was charged for work not on the checkout list and was not given the opportunity to rectify it beforehand (24 April 2021).
The landlord acknowledged the complaint (27 April 2021) and it subsequently issued a stage one response (4 May 2021):
1. The home inspection took place on 15 January 2021 following receipt of the resident’s notice to end the tenancy. The visit was intended to inspect the property and discuss any works required to bring it in order. The checklist was a guide to the discussion and any works which remain outstanding at the time of vacation would be recharged.
2. It revised some of its charges.
On 6 May 2021 the landlord investigated the resident’s queries further.
1. The landlord considered that the work carried out by the resident was not to a suitable standard.
2. There was exposed skirting board and timber architraves which were ‘particularly bad’.
3. The doors had at one point been altered where there had been flooring put down and so they needed to be restored to the original state (and replaced).
4. The landlord considered that it was the resident’s responsibility to reinstate the boundary and the one left was not sufficient.
5. In response to the resident’s comments (that the kitchen plinths did not look damaged in photographs) the landlord considered the repair diagnosis which said that they were damaged (swollen with exposed chip-board) and not suitable for re-letting.
6. It also considered that the relevant part of the form for gifting had not been marked and the form was signed by the resident and the inspector, so it did not have evidence that the wardrobes could be left in situ, and it did not look to reduce the charges associated with their removal and making good of the area.
There were further discussions about this with the resident and the landlord subsequently issued a final response (14 June 2021) which responded to the resident’s comments.
1. The pre–void inspection was carried out on 15 January 2021 to advise on how the property should be left and to identify remedial works required before vacating. This was a guide only and residents were given a leaflet advising the conditions expected of vacating residents to avoid recharges.
2. The void team inspect damage to the property in the dwelling or garden and if anything other than standard void works (including reasonable wear and tear) are carried out at the property, then this repair will be raised as a recharge to the former customer.
3. The original recharge had been reduced to £1775.42. The landlord reviewed the photographs and comments of the team leader and the resident’s original complaint and provided a response on the items.
  1. The resident said that she asked about the upstairs rooms and were told that they were fashionable and the wallpaper could be left. She said marks and scratches would be normal wear and tear following 6 years of occupation with young children and a dog. The banister was mentioned as needing painting due to being bare wood but these were stripped, sanded and oiled so not just bare wood and they were in a good decorative state as the tenancy stipulates. The resident did not believe she was liable for the decorating costs (£324.12)
  2. The landlord replied that the majority of the property was left in a poor decorative condition and required repainting. The photographs showed more than wear and tear and the property required a refresh after 6 years. The bare wood skirtings and architraves required painting to preserve it and doors were painted in multi-colours and a bedroom in bright pink (the landlord later amended this and said one door was multi-coloured). The literature (as referenced in the background section of this report) required colours to be returned to neutral. The landlord removed built in wardrobes and made good what was done. It deducted the cost of wallpaper in one room due to miscommunication.
  3. The resident disputed the cost of reinstating the fence panels (£328.35) as there was no fence up when they took over the tenancy. The resident paid for and erected a fence and removed her shed when she moved which left a gap in the fence. The resident considered that the charge for the fence was betterment so she was not liable for this.
  4. In response, the landlord said it found no record that there was no fence at sign up nor a completed tenant improvement form for the shed. It explained that there had been a makeshift fence which was not fit for purpose so it had to replace it.
  5. The resident disputed the property clearance charge (£195) as she was told she could leave the wardrobes. She disputed the charge for the wooden flooring downstairs. She said that she did not remove the wooden floor due to cracked asbestos flooring beneath and the risk associated with removal. The resident decided not to remove the flooring after a previous inspection about asbestos.
  6. The landlord said there was no record of this with the asbestos department so invited the resident to give more details. It also said that there was no mention of it on the pre-void inspection document which would have been the time to flag this. It said that there were asbestos tiles throughout (the property) yet the resident removed the lounge carpet and if the resident was concerned about damaged tiles then it would have expected her to highlight this at that point so that it could advise. Due to the safety element it would overlook the omission and uphold this part of the complaint.
  7. It said it removed non standard wardrobes and internal doors.
  8. The resident said that she asked for photographs of the replaced plinths and kitchen end panels and of the reported damage to this. She said this would be classed as wear and tear and not damage due to mistreatment or neglect.
  9. In response the landlord referenced photographs it had provided. It also detailed the damage that had been caused to the items, from the ‘poorly fitted’ kitchen flooring which allowed moisture to sit in between the floor and plinths where sealant had perished. It said that once the floor had been removed the plinths and end panels were found to be damaged and left a scar around the perimeter, so they required replacement.
On 15 June 2021 the landlord revised the final response with adapted costs. It also confirmed its ongoing position.
1. Decorating
  1. The majority of the property was left in poor condition and required painting; it was more than wear and tear and required a refresh after 6 years.
  2. Doors were multicoloured and the bedroom was bright pink.
  3. There was a misunderstanding with the wallpaper communication so the cost of this was removed.
  4. The removal of wardrobes meant that there was make good work required.
2. Fencing
  1. There was no record that there was no fence at sign up and when a shed was removed the temporary fencing in place (where the shed had been) was not fit for purpose and had to be removed.
3. Property clearance
  1. Both wardrobes were removed.
  2. Internal doors which had been replaced were disposed of.
  3. It acknowledged the asbestos issue in respect of the removal of flooring even though it was not mentioned in the pre-void inspection.
4. Plinths and end panels
  1. It provided photographic evidence that these were replaced due to damage because of poorly fitted flooring. Once it removed the flooring, the plinths and panels had been damaged and left a scar around the permitter. These required replacement.
The landlord reduced the recharge to a final sum of £1,130.74 including VAT. It had explained previously to the resident that she could repay this in instalments. Its correspondence stated that the following items had been reduced:
1. The cost of decoration to the walls, ceiling, woodwork, doors were reduced due to miscommunication over wallpaper. This was reduced from just over £600 down to just over £300.
2. The internal door replacement charge was reduced as one of the doors were credited by the landlord; the cost was now for two internal door replacements (£251.10).
3. The cost of the floor work was reduced due to the resident’s comments about the risk of removing this with asbestos in the tiles underneath.
The resident queried the ‘bright’ pink room and how many multicoloured doors there were and the landlord said that there was one multicoloured door, three doors were changed but only two were charged and it considered that the pink bedroom was not neutral.
The landlord reviewed the case again following the resident’s MP intervention but it did not reduce the charge further.
The resident told the Ombudsman that:
1. The whole house had not actually been painted as the landlord said, since the bathroom was left painted teal colour.
2. The bare wood architraves and banister was said to require painting but they were not painted.
3. The cost of the downstairs decorating was deducted due to the neutral colours and paint being newly applied but the complaint investigation said that the cost of the upstairs was deducted due to the misunderstanding about being told they could leave the rooms as they were. This was inconsistent.
4. The resident disputed that there had been damage to the kitchen plinths as the pictures supplied by the landlord ‘showed no damage’.
5. The wardrobes were removed but shelves that the resident put up was kept in.

Assessment and findings

The Ombudsman has considered the resident’s outstanding request for the charge to be quashed. There has been a lot of correspondence and negotiation between the resident and landlord following on from the landlord’s original costs, which it has since reduced significantly. The focus of this investigation is the outstanding areas of dispute which the landlord has addressed in its complaint process and the costs which the landlord has maintained that the resident is responsible for.
After the original cost was reduced (March 2021) the remaining costs that were to be recharged to the resident were for the following works:
1. Paint the property
2. Remove and clear built in wardrobes and make good
3. Remove wallpaper and make good
4. Take up and remove the laminate flooring in kitchen and hallway
5. Replace the plinths and end panels in the kitchen due to damage
6. Replace 4 fence panels and posts
7. Replace 3 internal doors (1 April 2021).
The landlord’s final costs which were to be recharged to the resident at the end of the complaint process were for:
1. Paint the property (this had been reduced to about half of the original cost due to the landlord’s acceptance of misunderstanding about the wallpaper).
2. Remove and clear built-in wardrobes and make good (the landlord said that there was no evidence that this was gifted and charged for the removal and making good).
3. Replace the plinths and end panels in the kitchen due to damage (the resident disputed that this was damaged; the landlord relied on its repair feedback that said that this was).
4. Replace 4 fence panels and posts (the landlord said that the resident’s temporary measures were not to a suitable standard; the resident said that there was no fence when she signed up and she was also told that a boundary marker was fine).
5. Replace 2 internal doors (the landlord’s records indicate that this was required after work to alter the floor during the tenancy made the doors which were there/had been repaired by the resident to be unsuitable).
The resident’s obligations are set out in the tenancy agreement in respect of keeping the property in good repair such as by informing the landlord of repairs, taking reasonable care of the property and keeping internal parts in good decorative condition. The dispute is due to the original inspection and checklists which the landlord carried out with the resident in January 2021.
The resident has maintained that she carried out the required works in good faith and did not have the opportunity to carry out the additional works that the landlord did, or she had disputed that the works were necessary (eg to the plinths or replacing internal doors).
The terms as set out in the background section of this report state that there is a risk of extra charges, for example where the landlord does not consider that a repair has been completed properly or where it has to carry out further repairs. The inspection is highlighted as a step to mitigate this risk, because it can help to identify the relevant work.
The resident’s inspection stated that the walls should be returned to neutral, there were repairs to two internal doors and the resident should remove furnishings. The idea is that the property should be returned to the state that it was in, apart from ‘fair wear and tear’, as per the tenancy agreement which states that the resident must leave the property ‘in the same condition as it was in at the start of the tenancy agreement except for fair wear and tear’.
The landlord’s response to the resident’s complaint about the wardrobe was reasonable. As the resident had installed this, she would be liable for the cost of removing this and making good the area. When the resident notified the landlord that she was told she could leave this, the landlord referred back to the available evidence from the time to show what was agreed and it did not find that the wardrobe had been listed as a gifted item, so it did not uphold this complaint. It provided a copy of the inspection list which corroborated its decision. This was reasonable.
The landlord’s response to the resident’s complaint about the doors was also reasonable; the landlord’s records show that the doors were not suitable either due to work that had been carried out to the floor or due to the standard of the door. According to the available evidence, the resident was aware of two doors requiring attention, as these were highlighted on the inspection checklist. The literature states that the resident will be charged if the repairs carried out are not to a suitable standard. Therefore, the landlord’s response to this point was reasonable.
In respect of the costs recharged for work to the fence by the landlord, the resident removed a shed which was her own and there was a part of the fence behind it missing. The resident remedied this, but the landlord did not consider this to be suitable, and the landlord charged the resident for rectifying this (4 panels and a post replaced). Although the landlord is in principle able to recharge for work which it does not deem suitable, in this case, it is unclear what the original state of the fence was when the resident first moved in. The landlord has not been able to evidence that there was a fence, contrary to the resident’s repeated claims that there was none and that she had installed this herself during the tenancy. Although the landlord considered its repair records to see if there were any reports about the fence, this does not evidence with certainty that there was a fence in place at the start of the tenancy.
In all the circumstances of the case, it was not fair and reasonable for the landlord to charge the resident for the fence work, when she potentially installed this herself and could have removed it in its entirety to put the house back in the position it was when she moved in.
In respect of the plinths and side panel in the kitchen, the landlord explained that these were damaged and needed to be replaced. However, it has not been evidenced that the resident failed in her obligations to keep this in repair during the term of the tenancy. She disputed that these were damaged. It seems that this was only established during the removal of the floor when the landlord observed scarring around the permitter of the base of the plinth. Although the landlord may reasonably rely on the feedback of its team and it ascertained that this required repairing/replacing, it cannot be shown that this was not ‘fair wear and tear’. This is especially if there were issues such as water damage or damage to the sealant, which was referenced in the repair report. Therefore, it was not reasonable to require that the resident be charged for the cost of this.
In respect of the decorating of the walls which were not a neutral colour, the landlord initially charged for this to be remedied. The checklist states that the rooms will be put back to neutral colours and this was ticked, but it was not completed. It was therefore reasonable for the landlord to initially charge for this.
However, the resident explained that she discussed the wallpaper with the inspector who said it was ‘fashionable’ and the landlord subsequently removed the charge for this. This was a resolution focused approach.
The outstanding issue was a pink room and a multi-coloured door; it was reasonable for the landlord to charge for this to be put back. This is because the resident was made aware of the need to restore the property to neutral colours. In principle, the resident is responsible for restoring alterations such as the colour of the rooms and putting the property back into the position it was (excluding wear and tear). If the resident does not do this, then it would be reasonable for the landlord to charge to do this.
In respect of the general decorations in the rest of the property, the landlord said that this had not been done in 6 years and needed a refresher. The resident considered that this was wear and tear. The landlord said that it was not, but it failed to evidence an assessment to substantiate this conclusion. For example, it did not consider the circumstances of the resident and inhabitants or the term of the tenancy, which could all play a part when deciding if repairs constitute fair wear and tear. In the circumstances of this case, there was also no evidence which showed that there had been damage caused by the resident which the landlord had sought to restore, in the decoration. Therefore, it was not reasonable for the landlord to pass on the cost of general decoration to the resident.
In respect of the bare wood/timber of the banister and architraves, the landlord had said that these were left bare and so they needed to be sealed. The resident disputed that they needed to be sealed. There is no evidence to suggest that this was identified in the inspection or discussed with the resident. Therefore, in theory, they would need to be restored to the condition that they were in when the resident moved in. This is not known. Referring to the standards set out in the background section of the report, the standard is that that ‘woodwork will be clean and free of defects, ready for painting by incoming customers’ (Empty Homes Standard). The landlord did not identify a repair/defect which the resident had failed to complete and the standard states that this can be left bare ready for painting by the next tenant, so it was not reasonable to charge the resident for this.
The landlord’s decision in respect of reducing the charges for the flooring, due to the asbestos issue, was reasonable. The resident would be responsible for removing the flooring or laminate which she installed during the tenancy but the landlord took into account the implications of asbestos beneath the flooring, so it used its discretion to address this charge and this was resolution focused.
The landlord did not offer the resident any redress for time and trouble or distress and inconvenience which she experienced. The resident had to query and challenge the charges several times and although the landlord did revise the charges on some occasions it did not recognise the impact of the delays caused to the resident in calculating the correct charges.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord’s decision to recharge the resident for the repair works following the end of the tenancy.

Reasons

Some of the recharges have not taken into account fair wear and tear such as the repairs in the kitchen or general decorations. The landlord did not demonstrate its assessment of this, it only said that it was not wear and tear, which was not reasonable.
The landlord’s decision in respect of the rooms which were not a neutral colour were reasonable. It was also reasonable in its decision in respect of the doors and wardrobe, as the resident had an obligation to restore the property to the condition that it was in when she moved in (excluding wear and tear) and she was aware of the terms of the tenancy agreement and relevant literature which the landlord sent to her on leaving her property.

Orders and recommendations

Within four weeks of the date of this report, the landlord is ordered to:
1. Pay the resident £150 for time, trouble, distress and inconvenience due to the miscalculation of the charges.
2. Update the current recharge sum to reflect the appropriate deductions for the following:
  1. The cost of the fence panels and post.
  2. The repair cost to the kitchen plinth and side panel.
  3. Wear and tear in the general painting and decorating (including to the wooden banister/architraves)