London Borough of Hackney (202102823)

REPORT

COMPLAINT 202102823

Hackney Council

4 October 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 response to the resident’s concerns about windows being renewed during Covid-19 lockdown.

Background and summary of events

Background

The resident is a leaseholder of the landlord. The property is a flat in a block on an estate.
The lease sets out the contract between the landlord and the resident. The leaseholder covenants to pay a proportion of the landlord’s estimated and actual incurred costs for the block, which includes amounts the landlord considers necessary for future block major works. The leaseholder’s repairs responsibilities includes items installed in respect to electrics and supply of air. The landlord’s responsibilities, at leaseholder’s expense, includes to renew communal windows in the main structure of the block. In addition, where the landlord undertakes major works, these ‘may’ include replacement of windows inside individual flats.
The Government issued guidance to landlords in the course of the pandemic and in December 2020, the Government issued revised guidance to reflect introduction of tier 4 restrictions. The guidance advised that if not self-isolating, tenants could allow contractors to carry out ‘planned maintenance’ activity inside and outside the home. The guidance advised that extremely vulnerable people could permit contractors to carry out inspections provided the latest guidance on social distancing and working safely in people’s homes was followed. The guidance advised that an employer could help stay ‘Covid secure’ by carrying out a risk assessment; have cleaning, handwashing and hygiene procedures in line with guidance; taking reasonable steps to help people work safely; taking reasonable steps to maintain a 2m or 1m distance in the workplace; and taking reasonable steps to provide adequate ventilation.

Summary of events

In November 2019, a stock condition survey of the resident’s block was completed which identified extensive repairs were required which included for windows.
The landlord advises it held a consultation with residents in 2020 about the works required, and in November 2020 a risk assessment was completed for the works. This detailed measures being taken to minimise the risk of Covid-19 to contractors and residents, which included residents self-isolating in separate rooms during window replacement works, and people being sent home if they displayed signs of having Covid-19.
From November 2020, the information provided advises that the landlord wrote to the resident on several occasions to request access to carry out a ‘window and pre-condition survey’ at the property. It advised this would take 45 minutes and that staff would work with the resident in a safe manner and in accordance with government guidelines around Covid-19 and social distancing.
In December 2020, the information provided advises that the landlord held remote meetings for residents about the approach for the works. The meetings set out that there would need to be an in-flat window and pre-condition survey to measure windows and confirm replacement was needed. The meetings set out that a resident liaison contact was a point of contact to raise health issues; that there would be Covid-19 control measures; and that the windows replacements were aimed to be completed between February and June 2021.
The information provided advises that the same month, reminder notices were placed in communal areas for residents to book their window survey. The notices advised face coverings must be worn for pre-booked appointments. The landlord’s records note around this time that the resident did not want works done before Christmas as he lived with his vulnerable mother.
On 8 December 2020, the landlord received a complaint from the resident. The landlord has not supplied the original complaint it received. The resident has supplied a letter dated 7 December 2020 which said:
1. He had received two letters asking him to provide access to inspect his windows. He queried someone carrying out an inspection in his home for 45 minutes and said he did not understand why he was being asked to ignore current government guidelines which said he was unable to visit and spend time in family and friends’ homes.
2. He was unhappy that the landlord planned to renew windows in the middle of winter during a pandemic. He queried why they could not be done in better weather when a vaccine was in use and noted that they were not essential works.
3. He was unhappy that the landlord was going to wire up automatic air vents on the windows it would install for tenants, but was going to leave leaseholders to wire these up themselves. He felt this left him and his property worse off and said he intended to withhold payment because of this.
4. He was unhappy with the fairness of being asked to pay towards communal windows. He felt that the condition of these were due to the impact of people’s behaviour in the communal areas, and he was unhappy about paying for new windows that would treated in the same way.
5. He asked it to confirm :
  1. why residents were being encouraged to ignore government guidelines for their protection so windows can be inspected, which he felt treated residents with contempt and showed an uncaring attitude.
  2. why windows were being changed in the middle of winter during a pandemic, when they could have been done at a later date.
  3. why vents in windows would be connected for tenants but not leaseholders, when it would be safer for them to be done to the same specifications, and when the impact on the charges for the works would be nominal.
  4. there would be no charge for the communal window replacement, given he felt the cause for their replacement continued.
On 7 January 2021, the landlord issued its stage one response to the complaint.
1. It said it understood the resident’s complaint to be dissatisfaction that its contractors were visiting residents’ homes as part of the works, as this contravened government guidelines.
2. It acknowledged that residents were concerned about the current pandemic, and it said it had decided to continue with the works but had changed delivery of the works to keep residents safe. It had suspended face-to-face interaction. It would not carry out works in a household where members were isolating with Covid-19 symptoms or shielding. Its contractor would take precautions in line with public health guidance when visiting properties. Its contractor would contact him before visits. He would be given the opportunity to reschedule appointments for a convenient date and time.
3. It provided contact details for the resident to discuss the matter further.
The following day, the resident contacted the landlord via the details it provided in its stage one response. The resident has not supplied the full email but part of this said:
1. The response did not really address the issue at all and he had to ask for a stage two.
2. His concern was with the timing of the works during a pandemic and now a full lockdown. The works could have been done at a later date when vaccines had been given out.
3. He was concerned about providing contractors access to homes when they were not following guidelines, social distancing or wearing facemasks. The contractor had knocked on his door without a mask when trying to book the survey. He was currently shielding his elderly mother.
On 2 February 2021 the resident emailed the landlord to request escalation of his complaint.
1. He said that the response bore no relation to the complaint he had made, and he pasted the contents of the letter dated 7 December 2020.
2. He said he was currently shielding his elderly mother, and his partner had ended up in hospital on a ventilator.
3. He said he had observed contractors not socially distanced and not wearing facemasks. He stated concerns about allowing access to contractors and about the works being done at that time.
4. He said he accepted building works could take place, but queried if this was applicable to residential abodes with contractors not socially distancing and not wearing masks.
5. He asked the landlord to address the issues in the complaint, which he said concerned the need for the works in the current climate.
The same day, the landlord noted that the resident called its major works contractor and refused access for a windows survey, due to stated concerns about Covid-19. It noted he did not agree with the works going ahead during a pandemic and it noted he referred the complaint he had made.
On 10 February 2021, internal correspondence noted that the complaint dated 7 December 2020 90 was different to the one that was originally made. The resident’s questions were considered and on 18 February 2021, the landlord issued its final response.
1. In regards to why residents were being encouraged to ignore government guidelines for windows to be inspected, it said it was able to continue with the works by following government guidelines. It noted he had declined access due to concerns about health and said it may reschedule the window replacement works to a later date, but was unable to commit to a timeframe due to the pandemic. It advised that the decision to proceed with the programme was not taken lightly, but it noted that the work was much needed and the majority of residents had expressed wishes for the works to go ahead. It assured the resident that keeping him and his family safe was a priority; its contractor was in compliance with government guidelines; and all work and procedures were ‘Covid-19 secure.’
2. In regards to why the windows were being changed in winter, it explained that the contract for the project was scheduled to run until September 2021, which meant some properties would inevitably have work done during winter months. It said the situation would be monitored and works would be halted such as if weather conditions became extreme.
3. In regards to why window vents were not being connected for leaseholders, it said that the internal wiring was his responsibility under the terms of his lease. It advised that this was reflected in the service charges, which would be higher if the wiring was included.
4. In regards to the request not to charge for communal windows, it advised that the communal window works were considered appropriate and necessary at that time, and leaseholders were required to contribute a share of the costs in accordance with their lease terms.
On 15 April 2021, the resident emailed the landlord, which seems to have been in response to correspondence not seen by this investigation.
1. He said he would not be bullied or frightened into doing anything during the pandemic. He said he remained dissatisfied as many points and issues in his complaint were not addressed.
2. He noted that the landlord had chosen to commence works during a lockdown and demanded that residents let someone not in their support bubbles to enter their home for 45 minutes. He noted that he was familiar with another housing provider, whose approach was to postpone similar works rather than to force residents into situations they were not comfortable with.
3. He said that the works were planned works, not essential, and could have been carried out at another time. He stated that if his windows were not done he would not make any payments towards the works. He stated that he was prepared to take the matter to court as he felt the request was unreasonable.
4. He was unhappy that his reports of contractors not socially distancing and not wearing masks had not been addressed. He noted that another property had booked an appointment which was cancelled as a member of staff had caught Covid-19, which he was unsurprised by. He felt that the landlord’s request to let strangers into homes while the government said it was unsafe to visit family was contradictory, and felt it had not considered a ‘Covid safe’ way of doing matters.
5. He noted that it was the landlord’s choice to remove him from the works programme but he advised he was taking his complaint to this Service.
The landlord notes it spoke to the resident the following day. It noted that he intended to take his complaint to this Service but that it advised him of its responsibility to follow internal property management procedures.
The landlord subsequently wrote to the resident on 26 April 2021. It noted that access had not been gained to survey his property after several requests over the past few months. It noted that access had been gained to the majority of properties at the block, with the exception of a few properties that included his own. It advised that it had identified additional works required at the block, so it was able to facilitate installation of new windows within his home. It asked him to book an appointment by 12 May 2021, otherwise the property would be removed from the works programme.
The landlord noted that following this, the resident still refused access due to his ongoing complaint, and it sent another letter in which it added that it could take five years or more for the new window programme to return.
Between August and November 2021, the resident contacted this Service. He said he wanted the landlord to install new windows now lockdown had ended, and raised concern he would be charged for works even if new windows were not installed. In August 2021, he reported he had been removed from the programme, windows works were currently being done to a flat opposite, and queried if he was being treated the same as other residents “who clearly had the same concerns” he did. He copied this correspondence to the landlord. In October 2021, he reported that scaffolding was being taken down and raised concern his windows would not be replaced. In November 2021, he advised that a property had windows installed after the occupant had proved they had made arrangements for access in June 2021. He indicated this was applicable in his circumstances as he had informed the landlord that he would be happy to provide access after lockdown was ended, but was ignored even when he wrote in August 2021. He advised that there were blocks on the estate where windows were done outside lockdown restrictions, and queried how this was treating residents all the same.

Assessment and findings

Scope of the investigation

The resident was informed that our investigation would assess the landlord’s response to the issues in his complaint and the information that the landlord had the opportunity to respond to. This means that while the resident raises events in August and November 2021, the investigation mainly focuses on events from around November 2020, when the landlord first contacted the resident to arrange a survey, to February 2021, when the landlord provided its final response to the resident. While helpful background to the complaint, events that pre and post-date this timeframe are mainly referenced for contextual purposes only.

The landlord’s response to the resident’s concerns about windows being renewed during Covid-19 lockdown

This Service recognises that the resident was concerned about the landlord’s approach to major works during the Covid-19 pandemic. When considering a complaint, the Ombudsman assesses whether a landlord has followed proper procedure, followed good practice, and responded reasonably, taking account all the circumstances of the case.
The resident felt that the inspections and progression of non-essential works contradicted government restrictions, and he raised concerns about his family’s health. This investigation understands the resident’s concerns and that he is familiar with another housing provider which handled matters differently. However, the approach seems in line with government guidance for landlords at that time. The government guidance advised that inspections involving extremely vulnerable residents and ‘planned works’ were permissible, as long as residents were not self-isolating and guidance on social distancing and working safely was followed. The information provided, and the responses, advise that the landlord was seeking to prioritise resident safety and adhere to such guidance in the progression of the works. The landlord seeking to progress planned, non-essential works was in line with the guidance at the time, and it was reasonable to programme such works in accordance with the guidance if it felt this was necessary. It is not in this Service’s expertise to decide when major works should take place, and the landlord is entitled to consider the professional opinion of its staff and contractors and other factors when making relevant decisions.
The resident reported that he had observed contractors not socially distance and not wearing facemasks. This investigation understands the resident’s concerns, and the landlord could have addressed this to provide reassurance, however the evidence does not show there were failings to make inspections and works ‘Covid safe’ for the resident. The landlord completed a risk assessment in line with ‘Covid secure’ guidance; informed residents that control measures were being taken; and detailed that precautions were being taken in its responses. The landlord reasonably conveyed that inspections and works in individual homes would observe government guidelines, and there is no evidence that these were inappropriately disregarded for the resident. He reported that someone had not worn a mask when they had knocked on his door to try to book a survey, however communal notices confirmed masks would be worn at booked appointments. The resident was entitled to request, before allowing anyone in, for a mask to be worn and sufficient distance be kept. The report that an inspection was cancelled when a contractor contracted Covid-19 suggests appropriate action was being taken to ensure resident safety at other properties.
The resident raised concern that the landlord’s responses did not address points and issues in his complaint. This Service does not consider it always necessary for a landlord to address each and every point in a complaint, but can see that it is unclear that the landlord’s stage one response responded to the complaint dated 7 December 2020. While the stage one response addressed the substantive issue of whether the works were in accordance with government guidance, and the final response set out a position on the issues raised in the December 2020 complaint, a recommendation is made in respect to this.
The resident raised concern about the landlord charging for communal windows and not wiring window vents for leaseholders, and suggested he intended to withhold service charges. It is not within the Ombudsman’s authority or expertise to make definitive determinations about the reasonableness of service charges or whether works are in accordance with the lease. However, the Ombudsman can take a view and if this is disputed, the First-tier Tribunal (Property Chamber) may be able to provide a legally binding decision. In the Ombudsman’s view, the landlord reasonably addressed the concerns and set out a position that seems in line with the lease. The resident’s lease obligates him to make a proportionate contribution to the cost of major works, including communal windows, even if the landlord did not replace windows at the resident’s individual property. The landlord was reasonable to say it would not wire window vents as this seems in line with the lease that says electrics are leaseholder responsibility.
The resident later reported that windows were installed at other properties in August and November 2021 and that he was being treated differently to other residents. These events were six to nine months after the landlord’s final response so it is not reasonable for this investigation to fully consider these. The landlord’s final response to the resident’s own complaint confirmed it may reschedule works to a later date, then in April 2021 it asked the resident to arrange a survey appointment by 12 May 2021. The earlier assessment confirms there was no failing by the landlord in it seeking to progress the works during lockdown. The subsequent invitation to book a survey in mid-May 2021 was in line with the indication that works may be rescheduled to a later date.
In the Ombudsman’s opinion, overall the landlord responded reasonably to the issues raised in the timeframe of the complaint. While this Service understands the desire for works to be done in better circumstances, this investigation sees no basis to find a failing for the timing of the works. The renewal of the windows during the Covid-19 lockdown was in line with the government guidance at that time. The information provided and the landlord’s responses shows it was seeking to adhere to government guidance and to take into account of, and provide support for, resident vulnerability. The landlord set out its position on works and charges in line with the lease. The landlord’s correspondence in April 2021 shows it gave the resident the opportunity to arrange a survey in mid-May 2021, in order for works to be carried out at some point after this date.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s response to the resident’s concerns about windows being renewed during Covid-19 lockdown.

Reasons

While the landlord did not address all the resident’s concerns, the renewal of the windows during the Covid-19 lockdown was in line with the government guidance at that time. The assurances about safety reasonably addressed the extent of the concerns that were raised. The information provided and the landlord’s responses show it was seeking to adhere to government guidance and to take into account of resident vulnerability. The landlord set out its position on works and charges in line with the lease. The resident was given the opportunity to arrange a survey and for works to be carried out at some point after mid-May 2021.

Orders and recommendations

Recommendations

The landlord to review the status of the window replacement at the property and to inform the resident in writing when it is estimated this will be done. As part of this, it should consider the condition of the windows at the property; their estimated lifespan; and the options to renew the windows before the next works programme if they are not estimated to last that long.
The landlord to review its complaint handling to ensure that responses address issues raised in a complaint.