Islington Council (202213028)

REPORT

COMPLAINT 202213028

Islington Council

25 April 2023

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 the landlord’s handling of the:
   1. Cyclical interior and exterior redecorating work of the communal building.
   2. Associated complaints.

Background

2. The resident is a secure tenant of the landlord. The property is a maisonette, comprising of three flats. This complaint centres on the actions of the landlord and its contractor. They are referred to in this report both collectively (as ‘the landlord’) and separately, depending on the context. The landlord has overall responsibility for any actions taken by the contractor.
3. The contactor wrote to the resident on 23 October 2019 explaining that scaffolding would be erected around her home from 30 October to allow for cyclical redecorating works.
4. The contractor wrote again on 30 October 2019. It explained that a resident had asked that the external paint colour for the building be changed in the redecorating work from the current magnolia (a white variation) to white. It asked the resident to “sign this disclaimer form letter that you agree for these works not to be carried out”, and to return it within seven days.
5. The resident and landlord exchanged emails about the scaffolding on 4 and 5 November 2019. The resident explained she had talked to an officer about when the scaffolding would be raised, who had told her 31 October, but they had not attended on that day. In an email to the resident dated 31 October the contractor confirmed they would be starting on 1 November.
6. The resident has explained that she returned from holiday in January 2020, and discovered that decorators were painting the exterior property magnolia, rather than the white that she thought had been agreed. She contacted the landlord, who said that its letter in October 2019 had asked residents to respond in writing saying that they agreed to changing the external colour to white. In an email dated 14 January 2020 the landlord explained that it had not had any responses agreeing to the colour change, so had painted the property “like-for-like” with the original magnolia. It said the painting was complete, and it would not repaint it.
7. The resident disputed the landlord’s explanation, saying that the notification letter had asked residents to respond if they did not want to change the colour to white. She said all the residents in the three properties in the building had been in agreement about the change to white, which is why the landlord did not receive any responses.
8. Around this time, in March 2020, the landlord informed the resident of its plans to redecorate the internal communal areas. This included painting the walls white, which is what the resident had requested.
9. No evidence of further correspondence has been provided until the end of January 2021, when the resident reported to the landlord that contractors had recently been working to redecorate the internal communal areas, and had left dust from sanding the woodwork, and paint marks on the floors. She said she had asthma, and the dust was affecting her health. She asked the landlord to clean up immediately. The landlord responded on 2 February, saying that the contractors had said they had vacuumed the dust. The resident continued to report dust and paint on the floors over the next several days.
10. On 5 February 2021 the resident reported that the contractors had painted the internal areas in magnolia, rather than the white the landlord had agreed to in 2020. At this point she re-raised the issue of the external painting colour in 2019/2020.
11. The landlord responded to the resident on the same day. It apologised, and said that it had agreed in error to paint the internal areas white, and they needed to be magnolia, as per the relevant work specification. It explained again that the external areas had been painted magnolia because no responses had been received agreeing the change to white.
12. The resident raised a formal complaint on 24 February 2021. She complained about the colour issues with both the external and internal areas, that she had not been notified of there being scaffolding at the time she was on holiday (in January 2020), and about paint marks on the ground following the internal communal area painting.
13. In its first complaint response the landlord acknowledged that it had originally agreed to the residents’ request to paint the internal areas white, and apologised for the error. It agreed to repaint the internal areas white. It repeated its earlier explanation about the external colour – that it had not received any agreement from residents, and so had repainted using the like-for-like magnolia. It said it would not repaint the external areas. It confirmed that it did not have a copy of the original letter asking residents to agree to the external colour change (it was taking its understanding of what the letter said from its standard template wording), but referred to having asked the resident for her copy and said it would reinvestigate if she could provide it. It explained that the resident had been informed of the plans for the scaffolding in October 2019, and referred her to the information provided at that time.
14. The resident asked to escalate her complaint on 18 March 2021. She repeated the same issues, which she said she did not believe the landlord had properly addressed. She added that the landlord had not notified her about the internal redecorating, and also explained that previously not all the external areas were magnolia, some of them were originally white, but had then been painted over with magnolia by the contractors. So, if the intention was to redecorate “like-for-like”, then at least parts of the external areas should have been kept white. She disputed the information and correspondence the landlord said she had been sent about the start dates for the redecoration and scaffolding. She alleged that some of the correspondence must have been falsified.
15. The landlord sent its response to the resident’s escalated complaint on 6 April 2021. It repeated its previous explanations, but agreed that part of the external area may have previously been white. It said it would investigate, and repaint if that turned out to be true. It asked again for the resident to provide her copy of the 2019 letter about the external colour change, and explained that it had changed its processes to ensure that copies of all correspondence would be kept in future. It explained that it had visited to assess the internal communal area following the resident’s reports, but had not found it to have been left in a poor state. It explained in detail the information it held showing that the scaffolding had been erected at the end of October 2019, including photos of the site in November 2019, and said that the resident had been informed of the internal decorating in original scaffolding letter in October 2019. The landlord concluded by apologising for the potential error with parts of the external colour, and for the internal painting. It offered the resident £50 for the inconvenience caused, and confirmed it would start arrangements for repainting. It explained how the resident could escalate her complaint further through its own complaints process if she remained dissatisfied.
16. The resident wrote to the landlord on 17 April 2021 repeating her dissatisfaction with its responses. An internal email at the time confirms the complaint being escalated to the “chief executive stage”.
17. There is no indication of any updates to the resident from the landlord until it sent its third complaint response on 29 September 2021. The landlord acknowledged and explained the delay, apologised, and offered £75 compensation. It then responded to the issues raised, providing largely the same information it had provided previously. However, it acknowledged it could not prove that it had sent the information about the decorating in October 2019, apologised for that uncertainty, and offered £25 compensation in light of it. Including the compensation previously offered, the total compensation it offered amounted to £150. The landlord referred the resident to this Service if she remained dissatisfied.
18. The resident raised her complaints again with the landlord in November 2021. The issues of complaint were the same as previously. The landlord responded at the end of November. Most of its responses repeated its earlier explanations, but it also concluded that some photos the resident had provided in March supported her complaint about paint marks left after the internal redecorating. It said it would ask its contractor to reinspect and remedy the issue if the marks were still present.
19. In the resident’s complaint to this Service she explained that she remained dissatisfied, and wanted the landlord to paint the whole exterior white. She said she had spent significant time and trouble pursuing the complaint and the landlord had not addressed it in full. She wanted additional compensation in recognition of what she said was poor communication and for the distress she experienced.

Assessment and findings

Scope of investigation

20. The resident has explained how the landlord’s failure to inform her of the commencement of works to paint the internal communal building had impacted her health. Specifically, that she had hypersensitivity to smell and her asthma was triggered by the redecorating dust. It is beyond the remit of this Service to attempt to determine whether the landlord’s actions (or lack of) resulted in any deterioration or adverse impact on the resident’s health and wellbeing. Nonetheless, consideration has been given to the general distress and inconvenience which the situation may have caused the resident.
21. The resident believed the landlord’s staff had falsified letters and requested that staff be dismissed as a resolution. The Ombudsman does not consider or comment on how a landlord should deal with service failings by individual members of staff involved, in terms of any disciplinary proceedings. This is because this Service will not consider complaints which concern terms of employment or other personnel issues. When investigating a complaint about a landlord, we will consider the response of the landlord as a whole, and will only comment on the actions of individuals in so far as they are acting on behalf of the landlord. If the actions of an individual member of staff give rise to a failure in service the Ombudsman’s determination and any associated orders and recommendations would be made against the landlord, rather than the individual. The Ombudsman would not order the landlord to take disciplinary action against individual staff members.

Cyclical interior and exterior redecorating work of the communal building

22. In accordance with the tenancy agreement, the landlord is responsible for the external decoration of the property. The tenancy does not specify responsibility for internal communal areas, but there is no dispute in this case that the landlord is responsible for those as well. Nothing in the tenancy, or the information provided for this investigation, obliges the landlord to use any specific paint colour to redecorate, or provides tenants with the option to choose a colour. Nonetheless, landlords are required and expected to give full consideration to any preferences expressed by tenants in such circumstances.
23. The central aspect of this complaint is the letter sent to the resident by the landlord in October 2019 explaining the requested colour change. The resident has provided her copy of the letter for this investigation, which confirms her account. The relevant paragraph is poorly written, and not wholly clear without careful reading. Nonetheless, the resident’s interpretation of it to mean she did not need to respond if she agreed to the colour change is understandable.
24. In its complaint responses the landlord confirmed it did not have a copy of the specific letter sent to the resident, and it was relying on its template letter wording when it said it was expecting responses from residents agreeing to the colour change. The landlord has provided its template wording, which supports its explanation, i.e. it asks residents to respond and confirm they agreed with the change. It was therefore understandable that the landlord provided this explanation consistently to the resident throughout the course of the complaint, and why the colour change was not acted on.
25. The evidence and information provided by the resident and landlord does not give any indication of how the poorly worded letter came to be. Nonetheless, it can only have been created and sent in error. It was badly written, led to confusion, and was clearly a failing
26. In her complaints to the landlord the resident alleged that not retaining a copy of the original letter was a failing. It is not always proportionate or practical for an organisation to retain copies of each and every communication it sends, especially when the correspondence is of a standard or formulaic nature. Nothing in the evidence seen here suggests otherwise. The landlord set out its process in its complaint responses, explaining that copies of template letters were not kept, but any responses to them would be. That process is not an unreasonable one, mainly because the letters sent out contained no unique information, whereas any responses were a signed record of each tenant’s agreement to the proposed change, and would need to be retained.
27. The landlord asked the resident at least twice to see her copy of the letter. There is no evidence that it was received. If the landlord had been able to see the original letter it would have been able to check it against its template and acknowledge the difference. It would then have been able to better understand the resident’s concerns, and investigate how the error occurred. It did not have the opportunity to do that, for reasons beyond its control.
28. The resident complained that after she realised the colour error she notified the landlord, who she said did not take steps to rectify the problem. The evidence shows the landlord responding to the resident on 14 March 2020, explaining why the colour had not been changed (because from its perspective no one had agreed to the change), and confirming the painting was finished and would not be re-done. That was a reasonable response in line with the landlord’s understanding at the time.
29. Now that the original letter has been provided the landlord can properly consider the basis for the resident’s frustration and complaints. However, that does not necessarily mean it should be obliged to fully repaint the exterior of the property at this point. There are three flats in the property, and while the resident has explained that all three households were in agreement to the exterior colour change at the time, there is no evidence of that in the information provided for this investigation, or that that is the wish of all current tenants. Furthermore, as explained above, a landlord is required to take into consideration tenants’ views and preferences when making decisions that will affect them, but any final decisions are the landlord’s to make, based on the wide range of factors it must account for in its operations. A recommendation is made below in regard to this.
30. The resident reported and then complained that parts of the external area were already white anyway, so to paint them magnolia was not a like–for–like change. In response the landlord acknowledged her information, investigated further, and then committed to repaint the relevant external parts white, apologising for the error. The contractors confirmed that the repainting was completed in June 2021. These were proportionate and reasonable measures from the landlord to correct its error.
31. Similarly, the landlord acknowledged that it had agreed to paint the internal areas white following the tenants’ request, and that it had mistakenly painted it magnolia. It was appropriate and reasonable for it to apologise, repaint the interior white, and offer £50 compensation. The landlord was not specifically obliged to repaint, and this remedy returned the resident to the position she would have been in but for the mistake. The resident has explained in her complaint to this Service that she had to spend a large amount of effort and go through all stages of the complaint process to get the landlord to repaint the internal areas. However, the landlord did not dispute this aspect of the complaint, acknowledged its mistake and committed to the repainting in its first complaint response. Its internal correspondence states the repainting was done in May 2021.
32. The resident complained that scaffolding was erected without notice while she was away from the property on holiday in January 2020, leaving her open to burglary or other risk. The landlord explained in response that the scaffolding had been erected towards the end of 2019, and that notification had been sent at that time. It has provided a copy of a letter dated 23 October 2019 which explains the planned start date for the scaffolding was 30 October 2019. The resident said she had not received the letter, which she alleged may have been fabricated. Emails at the time show that by her account she had been told of the October start date by a “building manager”, and emails from the contractor to the resident confirmed a slight delay from the 30 October start to 1 November. In support of its explanation the landlord gave the resident photos of the scaffolding in place. Internal correspondence from the contractor to the landlord states that the scaffolding was signed off on 1 November after its installation, and work started in early December. The landlord’s explanations and response to this aspect of the complaint were reasonable, and reflected the evidence seen in this investigation.
33. The resident also complained to the landlord that the internal painting and redecorating had started without notification. She explained that she was sensitive to paint smells and her asthma was affected by the dust created in the process. She said the lack of notification meant she was unable to make arrangements to be elsewhere. The evidence shows the contractor emailed one of the resident’s neighbours on 10 March 2020 saying that the internal decoration was planned to start “in the next few weeks”, and that a letter would be sent confirming the dates nearer to the time. There is no further evidence of activity until emails between the contractor and resident at the end of January, and early February 2021, about the interior decorating that was being done at that time. In response to the complaint the landlord explained that “records indicate that you were communicating with our Cyclical Team about the internal and external communal decoration works, and were aware that these works would be undertaken”, and that information about all of the decorating – internal and external – had been sent to the resident along with the scaffolding letter in October 2019. The resident denied receiving that information, and the landlord acknowledged it could not prove it was sent (and gave a further £25 compensation on that basis).
34. The landlord has provided a copy of the information it says was sent. It comprises a detailed leaflet about the contractor’s cyclical redecoration process, and explains that the work, from start to completion, could take up to approximately four months. That is the only evidence seen which provides time frames for the work. We have no reason to think the information was not sent, but even if the resident had received it, it would understandably have led her to believe all work would be completed by the first months of 2020. The emails in early 2021 show that the internal work, at least, was not completed in that time frame, and there is no evidence of any correspondence or updates to the resident explaining the delay, or any new time frames. Accordingly, the landlord’s responses to this issue are not supported by the evidence, and this aspect of the complaint remains unresolved.
35. The last primary point of complaint made to the landlord concerned the contractor not cleaning paint marks left in the communal areas after the redecoration. In response the landlord explained that both it and the contractor had inspected and not been able to find evidence supporting the resident’s concerns. The resident had provided photos of some of the alleged marks, which the landlord considered, and explained that it could not see the same problem she saw. It offered to visit and inspect accompanied by the resident, so she could show them what she was referring to, but the resident declined, due to Covid risks at the time. However, in its final complaint response the landlord reviewed again the photos the resident had taken in March 2021. It acknowledged that some of the photos did appear to show minor paint marks, and apologised that this was not addressed in previous complaint responses. It noted that there had been further painting work done after the photos had been taken, and it was not apparent if the marks were still present, but said it would ask the contractors to inspect again and take action if necessary.
36. The evidence shows that this matter caused the resident frustration. However, it is not wholly unusual for redecorating and painting to leave unintended marks, even with the best of precautions. The landlord’s response to inspect the property following the resident’s reports was appropriate and reasonable, and, while the final complaint investigation concluded there may have been some missed paint marks, nothing in the evidence suggests they were of a scale or nature which could reasonably or proportionately be called a service failure.
37. Intertwined with the resident’s complaints and correspondence were her concerns about specific members of staff potentially acting fraudulently by altering records or correspondence. The landlord responded to this specific point, explaining that it had considered her concerns and the basis for them, but had not found any evidence to substantiate them. Nothing has been seen in this investigation which could be said to contradict the landlord’s conclusions.
38. Overall, while the original letter explaining the request to change the exterior colour was poorly written and obviously a mistake, the landlord did not have a reasonable opportunity to investigate fully using all the available evidence. Its responses to the resident’s concerns about the start date for the scaffolding were supported by the evidence, and it provided appropriate remedies to its mistakes with the interior paint colour and the like-for-like exterior parts. The landlord reasonably addressed the resident’s concerns about the actions of some staff, and its responses to the reports of paint marks was reasonable and proportionate to the apparent scale of the issue. However, the landlord’s explanation about the internal decorations start date is not supported by any evidence seen here, and is therefore an unremedied service failure.

Complaint handling

39. The resident complained that the landlord was not responding to her issues of complaint, and said that was partly why she had to continue pursuing the matter. Her escalated complaints were, essentially, repeats of her previous ones. The landlord’s complaint responses did address each of the issues she had raised, although not specifically in the way the resident had presented them. Many of the issues she raised involved her concerns about the actions of specific named staff, whereas the landlord responded on the basis of its own overall organisational responsibility. That was the appropriate way to respond, although it may have been helpful if the landlord had explained the basis on which it was responding.
40. The landlord’s third complaint response took approximately five months to be issued. By any standard that was unreasonable, and there is no evidence of updates to the resident, or attempts to manage her expectations in the interim. The landlord acknowledged and apologised for the delay, explained why it had occurred, and offered £75 compensation. In the circumstances, these were reasonable remedies.
41. The landlord’s complaint policy at the time of the complaint explains that it has two stages. These are stage one (comprising of a stage one response, and stage one review), and the chief executive stage. Effectively then, it has three stages, not two. In this case there was even a fourth complaint response, fully outside its complaint policy. The Ombudsman’s Complaint Handling Code was first issued in 2020, and called for landlords to be compliant with its guidelines by the end of that year. The Code called for landlords to have a two stage complaint process, unless it strongly believed it needed a third stage, in which case it could explain its reasoning in its Code compliance self-assessment. The Code makes clear that any further stages are not acceptable in any circumstances. It is not apparent now whether the landlord did justify its third stage in 2021, but the fourth complaint response was wholly unnecessary. As the resident had already been directed to this Service in the third response, when she re-raised her complaints with the landlord in November 2021 the landlord should have explained that its complaint process was complete. Not doing that was a service failure. There is no evidence that the resident’s complaint to the Ombudsman was delayed by the fourth complaint response, particularly as she had already been referred here in the third response.

Determination

42. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of:
    1. The cyclical interior and exterior redecorating work of the communal building.
    2. Its complaint handling. 

Orders

43. In light of the failings found in this investigation, and the inconvenience and frustration they will have caused the resident, the landlord is ordered to:
    1. Pay the resident £175 for its failure to provide notice for the 2021 internal redecorating.
    2. Pay the resident £100 for its complaint handling failure.
44. These payments are in addition to the £150 already offered by the landlord. The payments should be made to the resident within four weeks of this report, and evidence provided to this Service.
45. Within six weeks, the landlord must review its communal works notification processes to ensure they are currently fit for purpose, and provide its review to the resident and to this Service.
46. The landlord must also confirm to this Service and the resident, within four weeks, that its complaints policy and processes are now compliant with the Code. If they are not compliant it must provide justification, or explain what it is doing to make them so.

Recommendations

47. In light of the findings in this investigation, the landlord is encouraged to review the original colour change letter provided by the resident, consider how the error occurred, and, if relevant, take steps to address any systemic failings found. We acknowledge that the amount of time that has passed may now make this exercise difficult or inconclusive.