Wolverhampton City Council (202102875)

REPORT

COMPLAINT 202102875

Wolverhampton City Council

5 October 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

1. The complaint is about:
   1. The landlord’s response to the resident’s request for re-plastering walls in the property.
   2. The landlord’s handling of the resident’s complaint.

Background

2. The resident signed an introductory tenancy for the property, where she lives with her children, in November 2020. The landlord is a local authority and has not advised of the tenant having any vulnerabilities, although she has said she suffers from asthma.

The tenancy agreement

3. The tenancy agreement sets out the rights and responsibilities of both the resident and the landlord.  The introductory tenancy agreement issued to the resident on 6 November 2020 covers the first 12 months of tenancy.
4. Section 10 states that the landlord is responsible for the exterior of the building. Section 31 states the tenant must keep the property in good decorative order, and Section 35 that the tenant is responsible for internal decoration.

The repairs policy

5. The landlord’s repairs policy Section 2.7 lists ‘plaster patches’ as being a routine repair which is not urgent, and that the landlord aims to complete repairs within 20 working days. Section 2.8 lists plastering complete walls as ‘programmed repairs’ which the landlord aims to complete within 90 working days.
6. Section 2.12 states that internal decoration is normally the tenant’s responsibility. If decorations have been substantially affected by repairs works, the landlord will provide decorating vouchers or undertake works.
7. Section 2.15 states that all new homes will be ‘in a reasonable state of repair’.

Complaints Policy

8. The landlord’s complaints policy, states in section 6.0 that the landlord has a two-stage complaint policy. Section 7.0 states that stage one complaints will be responded to within 10 working days, and stage two within 20 working days. In both cases this can be extended by a further ten working days with notice.
9. Section 8.0 advises that complaints about council or housing association landlords can be referred to this Service.

Compensation policy

10. The landlord’s compensation policy sets out how the landlord seeks to ‘resolve complaints to the satisfaction of the customer by providing a flexible and proportionate remedy’. Section 9.1 states that where there has been a failure to meet a service standard or incorrect information has been communicated, the landlord can award up to £50 for each service failure, up to a maximum total of £100.

Summary of events

11. The resident signed an introductory tenancy for the property on 6 November 2020 and on 16 November 2020 asked her tenancy officer (TO) for permission to get the hallway and stairs plastered. The resident said that the walls were in bad condition; she could see where switches had been removed in the aertex coating above the dado rail and when she removed the wallpaper below the rail, she could see where the original staircase had been. The resident asked if there would be any grant available for this, as she had been quoted £600 to plaster the area.
12. The TO replied on 19 November 2020 and said that the inspector had advised that the walls and ceiling were negative to asbestos, and the tenant could re-plaster if she wished. The landlord would not contribute towards any costs and the tenant had accepted and signed for the property as it was. There are no contemporaneous notes from the inspector to confirm what was discussed with the resident at that time.
13. On 20 November 2020, the landlord’s records show an entry for a job raised as ‘plaster on hallway in poor state behind wallpaper’. Further notes indicate that it   required ‘approx. 30sqm of Unibond and skim to hall stairs and landing’. In reference to a telephone conversation, it stated that there was ‘no follow-on work as per inspector regarding plastering as new tenant for six months’. The job was shown as completed on 30 November 2020.
14. The resident emailed her TO on 2 December 2020 and said that while the landlord said that she accepted the property as it was, she was not aware until she removed the wallpaper, what the condition of the walls were. She had not yet moved into the property and her belongings were in storage. She had bad asthma and could not move in while there was dust from this work. She and her children were sleeping on other people’s sofas. A plasterer had been to inspect on 30 November and agreed the work to be done. She wanted to know when this would be, as she would not be getting her things out of storage or getting the floor done until this work was finished.
15. The TO replied that day to say it had ‘just been confirmed that its being put on a program, due to how big the job is. This [has] a target date of 90 days.’
16. The resident called the landlord on 5 February 2021 to clarify what work would be done. A further call was logged on 10 February when the resident said she was unhappy with the delay and would put in a complaint. This was followed the same day by a formal complaint from the resident regarding the condition of the property she was given. The resident said she had believed since 2 December 2020 that the work would be done within 90 days.
17. The resident said that she had then called the landlord and was told by an advisor that she was not on a plan, and they could not understand the notes made. The resident felt this should have been put right before she moved in, and that aertex was used to cover up moved sockets. She stated that, on removing the wallpaper, she found that the walls were bad.
18. A complaint acknowledgement was issued on 11 February 2021 when the resident was told a response would be sent by 23 February 2021.
19. No response was sent by the landlord, following a further inspection of the property on 10 March 2021. The resident chased a response on the complaint on 15 April 2021. She also asked for permission to remove the stairway to make the room open plan. The landlord’s repairs log for this date showed an inspection of the guttering but made no mention of internal work being considered. There are no contemporaneous notes from the March 2021 inspection to confirm what was discussed.
20. The landlord sent a further acknowledgment on 22 April 2021 and advised that the resident would get a response by 5 May 2021.
21. The same day, internal landlord emails discussed that photographs showed the property to have been in ‘good decorative order’ on completion of the previous void period. The property supervisor advised that the resident wanted the landlord to remove all the textured coating above the dado rail on the hall, stairs and landing, and they had said that the landlord would not replaster for aesthetic reasons. The resident had been advised that she could remove the aertex in the future if she wished, and work was raised to ‘patch the lower part of wall’ as a goodwill gesture.
22. A complaint response was issued on 5 May 2021. It confirmed that the complaint was about the appearance of the hall, stair and landing walls, and her request to remove the stairway wall.
    1. The landlord apologised if the service had not been what she had expected.
    2. The supervisor who carried out the inspection had confirmed that the landlord did not carry out repairs for aesthetic reasons, and as per the tenancy agreement, internal decoration was the tenant’s responsibility.
    3. As a gesture of goodwill, plastering had been authorised for the lower section of the wall.
    4. Permission was not granted to remove the stairway wall as the wall was a fixed part of the building which created a fire barrier to comply with building regulations.
    5. Further appeal rights were given to contact the landlord for a review within 28 days if the resident remained dissatisfied.
23. The resident responded on 6 May 2021 and said that she wished the complaint to be escalated to stage two of the complaints process. She declined the offer to replaster the lower part of the wall as this would be half the job. She said she was not asking for redecoration, which she could do herself, but to correct the damaged and artexed walls. She said she was told it would be done on a ’90-day plan’, but this was cancelled without her knowledge. In respect of the removal of the wall, she would need to show what she meant as she wanted to return the staircase to its original state and other houses in the area were already like this.
24.  A stage two complaint response was sent on 2 June 2021. The landlord stated as follows:
    1. Having reviewed photographs of the property prior to the resident taking possession, it was in a good state of repair with a dado rail fitted. The landlord appreciated that it may not be to the resident’s taste, but the current state of decoration was due to the dado rail and wallpaper having been removed.
    2. Internal decoration was the resident’s responsibility as per the tenancy agreement. The landlord noted that the resident refused an offer to replaster the lower section of the wall to remedy the issue and made this offer again.
    3. If the resident wished for the complete walls to be skimmed over, this would be chargeable. A quote could be obtained from the landlord’s contractors if required, or if the resident wished they could obtain their own quote and progress this themselves. Appeal rights to the Local Government and Social Care Ombudsman (LGSCO) were given.
25. On 30 June 2021 the resident approached this service and confirmed the terms of her complaint being that after she moved into her property in November 2020, there were old sockets visible, and she wanted the hallway to be re-plastered to remedy this.

Assessment and findings

The request for re-plastering

26. The landlord has an obligation for repairs to its properties, including under the terms of its Repairs Policy which states that all new homes will be in a ‘reasonable state of repair’.
27. The Introductory Tenancy Agreement states that the landlord is responsible for the exterior of the property, and that the resident is responsible for internal decoration. This is supported by the Landlord and Tenant Act 1985 which confirms the landlord’s responsibility for the structure of the building, including walls.
28. There is no evidence that the property did not meet these standards when the resident moved in, and the landlord has confirmed that the property was in good decorative condition prior to the resident taking the tenancy.
29. Whilst the resident may wish to remove the aertex to replace it with a different wall covering, this is a matter of personal taste and would fall under the tenant’s responsibility as decoration.
30. In respect of the area below the dado rail, there is no evidence or suggestion by the resident that the line in the plaster surface could be seen before the wallpaper and dado rail were removed.  The landlord has no obligation to repair the walls as there was no damage to the structure of the walls. The evidence provided to this Service, therefore, indicates that the work requested by the resident was decorative, and does not fall under the landlord’s remit. Thus, the landlord’s decision not to replaster the wall on 19 November 2020 was fair in all the circumstances as they have been presented to this Service.
31. Whilst the landlord was not obliged to replaster the walls, the landlord’s log opened on 20 November 2020 suggests that the plastering was initially approved, but later refused. It appears from the resident’s email of 2 December 2020 that she believed at that stage the work would be done, as stated by the plasterer who came to inspect on 30 November 2020.
32. The resident’s understanding was then confirmed by the landlord’s response on 2 December 2020 that the work would be undertaken within 90 days. This error was not corrected until the resident chased the repair and made a complaint on 10 February 2021.
33. There are no details from the landlord about what was discussed or decided in the inspection which the resident said was done on 10 March 2021. No clarity was provided on its position until the delayed stage one response on 5 May 2021, five months after being told that the repair would be undertaken by the landlord.
34. There is no explanation from the landlord as to why the work was agreed in December 2020. The resident says that the inspector in November appeared to agree to the work and it is not clear why another inspection was carried out in March 2021, albeit the landlord’s notes indicate this was in relation to an exterior issue. There was a lack of comprehensive record keeping, which may have added to this confusion.
35. The landlord offered to plaster the lower part of the wall as a gesture of goodwill in its stage two response dated 6 May 2021. As previously stated, the evidence has not shown that the plastering was required as repairs to the wall. Thus, the landlord is not obliged to do this. However, the resident reasonably believed that the landlord would undertake the plastering as she had been promised that this would be the case.
36. Further to the above, there is no doubt that a delay of five months in the landlord stating its conclusive position over the redecoration resulted in inconvenience to the resident. However, the Ombudsman has considered that an offer was made to re-plaster below the dado rail in May 2021, and that any delay since this time, if the offer has not been taken up, is not the responsibility of the landlord.
37. Given all the circumstances, this Service concludes that the landlord’s offer represents adequate compensation for its shortcomings in this case. This is with respect to the initial information that it would undertake the plastering and the delay to providing further information on its position while the resident had been led to believe that the works will be undertaken within 90 days from the TO’s communication.

The handling of the complaint 

38. The landlord’s Complaints Policy states that it has a two-stage complaints procedure with stage one complaints being responded to within 10 working days, and stage two within 20 working days. In both cases this can be extended by a further ten working days with notice. It advises that complaints about council or housing association landlords can be referred to this Service.
39. The complaint handling in this instance was poor; the 10 February 2021 complaint was acknowledged but not responded to before the resident chased this on 21 April 2021. The stage one response was not then issued until 5 May 2021, almost three months later. It appears from the landlord’s internal emails that this was not passed on by the complaint team in February 2021. There was also no acknowledgement of the delayed response by the landlord or apologies for this poor service.
40. The stage two complaint referred the resident to the Local Government and Social Care Ombudsman. This is not correct for issues relating to a local authority’s function as a landlord, which should be referred to the Housing Ombudsman Service. In this instance, the resident was already in communication with this Service, so the error did not impact on her ability to obtain a resolution but may delay or deny others the correct appeal process.
41. The request by the resident to remove the stair wall has not been considered as part of this complaint, although included on the resident’s complaint letter of 15 April 2021, as it was the first time this issue had been raised, and it was not included when the terms of the complaint were confirmed to this Service. The resident may raise a complaint about the permission being denied once the landlord’s internal complaints procedure has been exhausted if they wish.
42. Compensation of £100 is due in respect of the delay in the complaint response. This is in accordance with the landlord’s guidelines for a failure to deliver a service and within the range of remedies suggested by this Service for instances of service failure resulting in ‘some impact’ on the complainant.

Determination (decision)

43. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme (the Scheme) the landlord has offered redress to the resident prior to investigation which, in the Ombudsman’s opinion, resolves the complaint satisfactorily with respect to its response to the resident’s request for re-plastering the walls.
44. In accordance with paragraph 54 of the Scheme there was service failure in respect of the landlord’s handling of the resident’s complaint.

Reasons

The request for plastering

45. The landlord wrongly informed the resident that the redecoration would be completed and then delayed considerably in correcting this error. However, it offered to undertake the plastering to the lower wall, which falls outside its obligation and the term of her tenancy agreement.

The handling of the complaint

46. The landlord failed to apply its own complaint procedures by the delay in its response to the resident’s initial complaint.

Orders

The handling of the complaint

47. Within four weeks of the date of this determination, the landlord should pay the resident the total sum of £100 with respect to its delay in responding to her complaint.

Recommendations

48. The landlord should contact the resident to repeat its offer of plastering the lower wall as the finding on this aspect of her case is in recognition that, by this offer, it fully considered the impact of its shortcomings in dealing with the issue.
49. The landlord should consider issuing a reminder to all relevant complaint handlers to direct residents to the correct Ombudsman service in respect of complaints relating to its function as a landlord. It should consider a process whereby complaints referred by the complaints team are properly monitored to ensure they are not lost internally.