Islington Council (202003808)

REPORT

COMPLAINT 202003808

Islington Council

7 June 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 the landlord’s response to reports of large cracks in the walls of the property and the associated repairs.

Background and summary of events

The resident is a tenant of the landlord, which is also the local authority. The tenancy commenced in September 1981. The property is a converted flat with two floors, the resident lives in the ground floor flat. The resident complained of years of cracks in the walls and ceiling, and the walls outside of the house. The impact was years of dust falling everywhere, according to the resident. He said that he was unable to enjoy his home as he was embarrassed to have visitors. He said it affected his wellbeing and enjoyment of his home. At the close of the complaint, remedial works were planned but had not been completed yet.
The resident’s reports stem from 2014 – 2021. The scope of the internal complaint process was from 2016, but the landlord made reference to the notes it had on record about the earlier reports from 2014. The Ombudsman has considered the repair issue from 2014. Events after the internal complaint process are not within the scope of this investigation but have been referenced to give a background.

2014

The landlord said it was reported on 5 August 2014 that the external rendering of the property required repairs due to cracks. The out of hours contractor attended and concluded that an inspection was required. This is evidenced in the repair records (“Front brick wall has crack from top to bottom. also front path/steps to front door has dropped …inspection required”). An operative attended on 24 August 2014 and concluded that a tree in the front garden needed to be removed before jobs could be booked in. An appointment was set for 30 October 2014. According to the landlord there was no access and no further contact from the resident after that.

2015

The resident reported cracks again in December 2015 (cracks in the bedroom, living room and kitchen).

2016

The landlord attended on 8 and 21 January 2016 following the reports from December 2015 to repair the plaster work in the living room and kitchen walls.

2017

There was a job to “make safe the pathway” raised on 20 March 2017. There was another job raised on 21 March 2017 to assess the path, after it had been made safe. This was completed on 23 March 2017; the landlord “carried out inspection to front garden and path, (operative) from drains/ to decide how to excavate to remove tree growth”. The landlord’s complaint letter states that it considered this work to be the first signs of issues that it later identified as subsidence.
On 14 September 2017 the resident reported further cracks which were inspected on 6 October 2017 and a need for a structural survey was identified. It then raised the job for a structural survey in November 2017.

2018

In February and April 2018 the structural survey carried out, followed by a CCTV drain survey to look at how the tree roots affected the drains for the property. The landlord was sent a copy of the structural survey for the property where subsidence had been reported, this was directed to the insurer.
The survey said that “there has been movement to the front left hand corner of the main building likely to be associated with tree root related subsidence movement”. It recommended:
1. further soil and drain surveys
2. monitoring for 12 months (for insurance purposes)
3. if residents were leaseholders, they should tell their insurer of possible subsidence
4. an arboriculturist be appointed to seek advice on the tree if it is implicated as a cause of movement
5. the concrete slabs to the front of the path be levelled to prevent any trip hazard
The landlord’s records state that work was carried out in April 2018; there was a CCTV survey of the drain system and the report subsequently informed the landlord of the effect of the roots on the drain network beneath the property. Works were carried out in October 2018 with the drains.
There has not been evidence to show that the work to the path was carried out, the resident had expressed to the Ombudsman that this was a hazard and his mother had almost tripped.
The repair records show that an emergency repair was raised on 6 December 2018 due to the cracks, with a description to make this safe.

2019

In January and March 2019 external works were carried out, which the landlord acknowledged in its complaint correspondence were not the remedial internal works which the resident had been enquiring about. These were temporary structural works to make the property safe. The scaffolding was put up to prevent movement. The landlord said that due to the movement of the wall, internal repair works had stopped “if the movement is not stopped and internal works are carried out, further cracks could develop in the course of time to render the works null and void”.
In July 2019, the landlord visited the property to do an inspection for remedial works. The landlord later acknowledged a service failure in that it did not communicate the remedial works to the resident in the July 2019 visit (11 July 2019).
In August 2019 a structural report was being produced. The landlord said in September 2019 this report will inform the works that needed to be done. Also in September 2019 the resident raised his formal complaint. On 13 September 2019 the resident’s complaint email said:

The property was in disrepair due to the landlord’s failure to address years of reports of cracks in wall and ceiling. Inspectors had visited and said that the house was “badly damaged” and “in danger of toppling over”. The resident said that there was dust everywhere, falling into the lounge and affecting his health. The outside of the house had cracks in the walls and scaffolding was put up. No information given to the resident about the scaffolding and if works had been carried out. The resident said this had caused him psychological discomfort and he was unable to have visitors due to the embarrassment. He asked for when the work would be carried out and compensation. The resident attached images of the cracks.

On 4 October 2019 the landlord responded to the stage one complaint and said that:
1. Its practice was not to carry out internal works until the movement was stopped.
2. An inspection was booked for 8 October 2019 to identify remedial works to improve the situation until a permanent solution could be found.
3. On completion of the inspections any agreed remedial works will be raised and carried to improve the situation as best as possible until a permanent resolution was in place. The attending surveyor will also be able to provide greater detail in person on the specific works being planned.
4. It said that the scaffolding was put up in December 2018 to stop movement, it apologised for the inconvenience caused whilst it followed its subsidence process.
In November 2019 the landlord received the final report for the permanent fix (27 November 2019). However, it did not communicate this to the resident, for which it later apologised in its complaint correspondence.
1. The report by the engineer set out the scope of its investigation, the items it assessed and its view that the property sustained “significant structural damage” caused by ground movement.
2. It summarised the outcomes of the soil and drainage investigations. It observed the state of the cracks in August 2019 stating that this was significantly worse when compared with a visit of February 2018 (one crack had grown to 33mm wide from the 3-5mm recorded the previous year).
3. It recommended that an underpinning scheme be developed as a permanent solution to stabilise the property.
4. It set out the work required (additional strapping of the flank wall to the floors will be required, including partial rebuilding of a corner of the property, superstructure repairs and decoration required). It said that it would complete the appropriate repair scheme shortly.
5. It considered the movement to the front left hand corner of the building to be likely associated with tree root related subsidence movement.
6. It recommended further investigations (soil and drain survey) to determine the cause of subsidence and movement.
7. It set out its detailed list of work specifications for internal and external remedial works (internal and external underpinning).
Some works (unidentified) were complete on 23 January 2020. In March 2020 (13 March 2020) the resident raised a formal complaint. This would be the escalation of the original complaint, but it was considered by the landlord as a new stage one complaint:
1. The resident explained that since the letter of October 2019 no action was taken.
2. Scaffolding had been erected in April/May 2019 and continued to be up with no works undertaken.
3. No proposals had been made for remedial works, he continued to live with the cracks, dust and debris falling into the property. He asked for a copy of the final report of August 2019 and the surveyor’s structural reports.
4. He asked for a copy of the specification of works that was arranged to be drawn up in October 2019 (the letter referred to the works being drawn up following the August 2019 survey). He asked why the remedial works had been offered and also asked why scaffolding was up for the duration of a year with no works, also he asked what decision had been made for the permanent remedy for the subsidence.
5. He iterated that he had reported the cracks four years ago and continued to be embarrassed to have visitors which he explained affected the quality of his life. He requested the landlord’s proposal for compensation.
The landlord contacted the resident on 6 April 2020:
1. It apologised to the resident and explained that the complaint was a continuation of the original one from September 2019 in which it had committed to providing an aditional response following an inspection in October 2019.
2. It provided a copy of the engineer’s report, and said that “no urgent remedial works were recommended. Had there been any works deemed necessary or required on health and safety grounds, they would have been noted and action taken”.
3. It presented the recomendation to the insurer team whose approval was required to fund the works, which included the removal of trees and underpinning the building.
4. It was awaiting a meeting with the local authority to confirm that the trees can be removed, in mid February 2020, but then pandemic restrictions came into play.
5. It apologised for not updating the resident about the report of November 2019.
6. It said the report did not mention the remedial works in the property which is why they had not taken place, but it invited the resident to report any suspected health and safety risks so it can assess this.
7. It said the scaffolding was there to prevent movement .
8. It identified a service failure in communication from 4 October 2019 and awarded £100 for the inconvenience (£10 per month for each of the communication failures, under the complaint route from its asset management team (the report), totalling 5 months x £20).
9. It declined compensation for the lack of remedial works as it said that none were identified, due to the issue being a structural issue.
10. It agreed to provide bi-monthly updates to the resident on the progress.
The resident escalated the complaint on the basis that he was unhappy with a compensation offer and requested £10,000 and a reasonable date for when the works will be carried out.
On 22 April 2020 the landlord wrote to the resident with its complaint response.
1. The landlord explained the requested compensation was not in line with its guidance.
2. It acknowledged that there was a defect in the property which was having a direct impact on the resident; it agreed to apply its loss of room provision and it identified a service failure in not communicating the possible remedial works to the resident in a visit of July 2019.
3. It said that its compensation assessment would date to 7 December 2018 when “an inspection documented your concerns”.
4. It explained how it assessed the extent of the damage, that it considered its pictures from 7 July 2019 and concluded that a quarter of the room was affected.
5. In terms of the compensation it offered for the defect, it offered a breakdown comprising weekly rent/habitable rooms x lost room x number of weeks loss, counting the loss from 7 December 2018. The weekly rent was £127.67, the total compensation for the loss of room amounted to £723.46 plus an additional £100.
6. It also said it would arrange remedial works once restrictions are lifted but that these would be impacted by movement in the property, until the building had settled.
7. In regard to the permanent fix, the landlord said that it received the final report on 27 November 2019 and apologised for not updating the resident.
8. It set out the actions that it planned to take: the report was presented to the insurer to approve funding; the recommendation included removing street trees in addition to the underpinning of the building.
9. It said its insurer was reluctant to approve the underpinning works without the removal of street trees. It was waiting on the local authority to confirm when/if street trees can be removed. This was in February 2020, a visit was planned but then restrictions were in place. Until then its asset management team was providing bi-annual updates on the progress, not clear to whom. It said “once able remedial works will be offered”.
The resident responded on 23 April 2020 and said that:
1. He first reported the cracks in the property several years ago, he phoned to complain but nothing was done.
2. Over the years he put up with the ugly cracks and his sleep was disturbed due to dust and cement dropping. It affected his wellbeing.
3. Other rooms had less severe cracks.
4. The uneven paving stones approaching the front door were dangerous to him and his mother and the scaffolding was unsightly.
5. He requested ten thousand pounds for the years of “totally unacceptable living conditions”.
On 8 July 2020 the landlord offered a final (chief executive) response:
1. It apologised that it was responding at the chief executive stage of the complaint process and outside of its corporate timescale; it explained that this was due to an increase of complaints.
2. It outlined the background of the complaint starting from 2014, set out above.
3. It explained that there had been repair works in January 2016 to fill in the cracks in the living room and kitchen and then following further reports of cracks in September 2017 it identified the need for the structural survey on 6 October 2017 which was then carried out in February/April 2018.
4. While it carried out some external work in December 2018 and January/March 2019, it did not carry out internal remedial works as the property needed to be stable.
5. Scaffolding was arranged in December 2018 to make the property safe.
6. In respect of the permanent remedy to the subsidence and underpinning the landlord said that previously the insurer was reluctant to approve underpinning works without the removal of trees (communicated to the resident on 6 and 22 April 2020). Then, one tree was removed and another was reduced (14 March 2020). The tree service was told about the underpinning plans due to the damage, the landlord concluded that there was no need to fell the tree. The landlord said the tree service said that once a decision to underpin the building was taken there was no need to remove the tree because “the underpinning will be designed to accommodate the vegetation”.
7. In regard to the resident’s concern about the landlord’s communication to him about the development, it said that its response of 22 April 2020 contained details of the status of the case (the asset team gave their report to the insurer and awaited a joint meeting with the engineer and insurer to agree remedial works, this was delayed due to the lockdown), the expected meeting to discuss the remedial works will be taking place in 20 days.
8. It said the works could proceed but would be in Jan/Feb 2021, due to the extent of the works, residents of the block would need to be moved into temporary accommodation for the duration.
9. The landlord revised its compensation offer. It said:

“I note following a review, (it) awarded £823.46 in full and final settlement of your complaint. However, due to the length of time in resolving this matter I am awarding a further £500 for the interior damage caused to the walls in your home, affecting you, your family’s quality of life, and the enjoyment of your home. A further £450 was awarded for distress and inconvenience caused. In addition to this, the £100 awarded for failure to carry out an inspection and subsequently causing no remedial works to take place in July 2019 has been increased to £375. I note your complaint was investigated at stage 1 on two occasions in October 2019 and March 2020. The lack of communication from (the landlord) calculated as £10 per month for 5 months (October 2019 to March 2020) has been increased to £25 a month, 5 x £25 = £125 plus £250 for time and trouble making it £375. In total, a sum of £2,048.46 (£723.46 + £500 + £450 +£375) is offered in full and final settlement of your complaint.”

After the internal complaint procedure

On 27 July 2020 the landlord emailed the resident about the engineer’s visit on 20 July 2020 to the property, and updated him on the status of the repairs:
1. The loss adjustors agreed that underpinning work was required, when this was completed, the cracks would be repaired and internal damages made good.
1. The works would take 4-6 months and would start after February/March 2021.
2. It offered to do temporary measures to fill the larger cracks in the front living room to prevent dust and draughts.
3. On 17 November 2020 the landlord offered another update; that the proposed works (underpinning and structural repairs) had been referred to the insurers and it set out the tender process and timescale for when the works were expected to start (May 2021). The resident explained that he had experienced a rat problem due to the cracks and that he was suffering from further inconvenience having to move out temporarily.

Assessment and findings

The landlord acknowledged a service failure in its response to the resident’s report of cracks in the property, which transpired to be subsidence due a defect, in accordance with the findings of the structural surveys that were carried out in 2018 and 2019.
The landlord’s final offer of compensation was set out in its response of 8 July 2020. The landlord offered compensation for the failure in the complaint handling, communication, loss of a room as well as compensation for the distress and inconvenience and the internal damage to the walls, affecting the quality of the resident’s life. The landlord’s response was resolution focused because it identified the service failure as well as the adverse effect which the resident experienced as a result of the service failure. The landlord’s offers of redress were clearly broken down so that the resident could understand how it came to the amount which it offered.
However, the Ombudsman identified service failures which the landlord did not. Therefore, though its offer of redress was resolution focused, it did not offer a reasonable level of redress in all the circumstances of the case. The landlord’s operative identified the need to remove a tree in the front garden in 2014 before remedial works could be raised. Though the landlord said that it visited the property in October of that year to carry out an inspection and had an access issue, it failed to pick this up again when the resident subsequently reported the issue to it in December 2015. It carried out some internal works before it identified the need for a survey in October 2017. There was a service failure because the landlord did not identify the need for the survey in a timely manner, having already been aware in 2014 of the risk which the tree posed.
There was then an unreasonable delay between when the inspection was raised (October 2017) and when it was carried out (February/April 2018). The landlord’s investigation notes identify this delay, but it has not been demonstrated that it then addressed this within its complaint response which would have been appropriate to do. Therefore, there is a service failure in the missed opportunity to put things right.
There was then a failure to evidence that it carried out one of the recommendations issued under the structural survey (the concrete slabs to the front of the path be levelled to prevent any trip hazard, February 2018). It would have been reasonable for the landlord to engage with this aspect of the recommendations, even on a temporary basis, in light of the resident’s reported concern about it being a trip hazard. Instead, the landlord insisted that there were no urgent works identified by the survey.
Once a further structural engineer survey/inspection was issued, there was a delay in communicating it; this was being created in August 2019 and issued to the landlord in November 2019, the resident was updated on 6 April 2020. The landlord acted appropriately in its final response as it acknowledged its communication failures and calculated redress for the complaint handling communication failure and that of its asset management team. This was explained as £20 per month for 5 months, which was £10 per month for 5 months doubled for each set of the communication failings (total £100). This was fair as it reflected the landlord’s resolution focused approach having identified that it did not offer a reasonable service due to the delays in its communication.
In respect of the scaffolding, the landlord explained the reason why this had been put up; its explanation was supported with the third-party evidence (that this was to stop the movement). Therefore, its response to this was reasonable.
Overall, the landlord offered redress for its identified service failures in the delays of its communication and the timeliness of its response to the reports of cracks in the property. It provided a clear breakdown of its redress and demonstrated its attempts to put things right. However, it did not recognise the delay from 2014 when it was aware of the possible implications of the tree on the cracks in the house until it ordered an inspection in 2017 and then a delay between when it recognised the need for the inspection and when this was carried out. There was also a failure to evidence action taken following the initial inspection of 2018 to the pathway, although the landlord said this was not identified as being urgent, it could have used its discretion to make this safe especially as the resident had concerns about the trip hazard. The detriment to the resident was that the landlord missed the opportunity to address the matter sooner and there was an unreasonable delay which caused the resident distress and inconvenience.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was a service failure by the landlord’s response to reports of large cracks in the walls of the property and the associated repairs.

Reasons

The landlord acted appropriately by identifying its service failure and offering reasonable redress. However, it did not include within its offer of redress compensation for the distress and inconvenience for the additionally identified service failures, which included:
1. It did not consider in its investigation the delay in its response following early reports (from 2014) of the cracks and the tree being a possible cause, which its operative identified in an inspection.
2. There was an unreasonable delay to carry out the initial structural survey in a timely manner once it had been raised.
3. The landlord did not carry out the recommended work to the pathway and subsequently considered that no urgent work had been identified in the structural survey. It would have been reasonable for the landlord to apply its discretion to ensure the trip hazard had been addressed, even if this was a temporary measure.

Orders

Within four weeks of the date of this report the landlord is ordered to pay the resident total compensation of £2498.46, comprising:
1. Its original offer of £2,048.46
2. £300 compensation for the distress and inconvenience for the delay in identifying the need for an inspection following its early reports of 2014.
3. £100 for the inconvenience due to the delay in carrying out the survey, once it had been raised.
4. £50 for the distress due to the failure to make safe the pathway as identified in the 2018 inspection.

Compliance

The landlord is requested to confirm compliance with the orders within four weeks of the date of this report.