Nuneaton and Bedworth Borough Council (202121687)

REPORT

COMPLAINT 202121687

Nuneaton and Bedworth Borough Council

16 August 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

The complaint is about the landlord’s:
1. Response to the resident’s reports of repairs required at the property.
2. Response to the resident’s request to be rehoused.
3. Complaint handling.

Background and summary of events

The resident is a secure tenant of the local authority landlord. The property is a one bedroom first floor flat. The flat is in a two storey building that forms the left hand side of a pair of semi-detached dwellings. The tenancy began in 2017. The landlord has no recorded vulnerabilities for the resident.
Under the tenancy agreement the landlord is responsible for repairing and maintaining the structure of the property. The tenancy agreement says that the landlord will carry out repairs it is responsible for within a reasonable time, giving priority to urgent repairs.
The landlord’s management move procedure says that the purpose of the procedure is to enable it to act appropriately and with consideration, in the event of a tenant needing to move house urgently. Priority for housing will be primarily assessed on a critical housing need basis and after one offer of suitable and similar accommodation has been offered, the landlord will then review the priority.
The landlord introduced a new council housing complaints policy in October 2020. The complaints policy says that the landlord will respond to a complaint at stage 1 and stage 2 within 10 working days.
Section 3.15 of the version of the Housing Ombudsman Complaint Handling Code (the Code) in use at the time of the resident’s complaint says that at the completion of each stage of the complaints process the landlord should write to the resident advising them of the complaint stage and how to escalate the matter if dissatisfied.
Section 5.1 of the Code says that landlords must respond to the complaint within 10 working days of the complaint being logged. Exceptionally, landlords may provide an explanation to the resident containing a clear timeframe for when the response will be received. This should not exceed a further 10 days without good reason.
Section 5.2 of the Code says that if an extension beyond 20 working days is required to enable the landlord to respond to the complaint fully, this should be agreed by both parties.
On 16 January 2018, following concerns raised by the resident about cracks in the property, structural engineers instructed by the landlord carried out a structural appraisal of the property. In their report the structural engineers noted the following:
1. Cracks on the front elevation of the building that had been previously filled or repointed had slightly reopened.
2. There was evidence of some rotational lateral outward movement within the left hand gable wall.
The structural engineers made the following recommendations:
1. A CCTV survey be undertaken on the drainage around the property to check on its condition and water tightness. Subject to the result of that survey it might be necessary to excavate a trail hole adjacent to the front left hand corner of the building and determine the suitability of the subsoil on which the building was founded.
2. Strapping to the left hand gable wall back to the roof structure behind should be undertaken.
The landlord’s records show that the recommend works from the survey were carried out and a handover inspection completed on 17 May 2018.
On 14 September 2018, the landlord’s drainage specialists carried out a CCTV survey to assess the general condition of the drainage system. The survey revealed a large open joint in the drainage and the drainage specialists recommended various remedial work which was completed on 1 October 2018.
Following further concerns from the resident the landlord attended the property on 9 October 2020. On 12 October 2020 the landlord sent an internal email saying that there was “still movement at the property.”
On 23 October 2020 the landlord’s contractor visited the building and noted in an email to the landlord that “upon initial outside inspection I believe that we will need a crack repair system to be implemented and rebuilding of the canopy supports and investigations into what effects the two huge trees are having on the ground around that area. I feel I will need to get our specialist contractor down to access and advise on a course of action.”
The contractor sent a further email to the landlord on 28 October 2020 saying that it had spoken to the resident and the resident of the downstairs flat. It had booked in structural engineers to attend the property on 12 November 2020.
The structural engineer attended the property on 12 November 2020 to carry out a site appraisal of the damage noted both externally and internally.
On 21 December 2021 the landlord sent an email to its contractors saying that it had carried out another drain survey at the property which had identified “some defects”. However the drains were the responsibility of the water authority as they were shared drains. The landlord had notified the water authority and was awaiting feedback.
The structural engineer returned to the building on 6 January 2021 to undertake a structural survey. The engineer issued a report on 22 January 2021 noting that there were cracks both internally and externally at the property. The engineer made the following recommendations:
1. That the external walls which had the most severe cracking be underpinned.
2. Once the structure had been underpinned, the cracks be repaired using proprietary crack stitching bars.
3. That the wall ties on the gable end be checked for adequacy and replaced as necessary.
4. While the defective drain, located downstream of the left hand side rear wall, was not likely to be currently affecting the property, it should be repaired as a matter of urgency to avoid future issues.
There is evidence that during February 2021 the landlord was waiting for quotes for the required works.
On 15 February 2021 the resident telephoned the landlord to report cracks and large gaps around exterior brickwork at the property.
The landlord received a quote for the structural repairs on 1 March 2021 and raised an order with its contractor to carry out the works on the same day.
On 9 March 2021 the resident telephoned the landlord saying that she was waiting for it to call her back regarding the repairs required following the survey.
On 11 March 2021 the surveyor sent an internal email to the landlord saying that:
1. He had recently been in discussion with both the residents at the building in regards to the required structural repairs.
2. The repairs have been ongoing for some time but the matter had only been passed to him in the past couple months. Since then he had arranged for a structural survey to be carried out, a specification of works to be written and a quotation to be provided which he had approved the previous week.
3. He was waiting for the contractor to confirm how long it would take it to start the works and how long the works would take.
4. Once he heard back from the contractor he could discuss with the landlord’s housing team whether temporary accommodation would be necessary whilst the works were ongoing. The contractor would need 2 weeks to review the information before he could update the residents.
5. He asked if someone could update the residents.
On 11 March 2021 the landlord left the resident a voice message.
On 28 April 2021 the landlord spoke to the resident informing her that her that the underpinning would take approximately 4 weeks to complete and it was offering to decant her to temporary accommodation during this time. The resident told the landlord that she did not want to return to the property following the works being completed. The landlord advised the resident about bidding for properties.
On 1 May 2021 the resident made a complaint to the landlord. In her complaint the resident said that:
1. The landlord had ignored the disrepair at the property for a long time and it had now become dangerous to live in.
2. The repairs had been identified by the landlord the previous year but had still not started and there had been no communication about when the works would start.
3. She felt that the landlord was ignoring her concerns and she was being forced to accept the landlord’s decisions.
On 12 May 2021 the landlord informed the resident that it needed more time to respond to her complaint and that it would respond by 28 May 2021.
On 19 May 2021 the resident and the downstairs neighbour met with the landlord. On the same day the landlord sent the resident a letter setting out what had been discussed at the meeting. In the letter the landlord said that:
1. Both residents had said that when the planned underpinning work was completed they did not want to return to the property.
2. The residents had told the landlord that the repair needs at the property had had a detrimental impact on their health, both physically and mentally.
3. The residents had been frustrated with the landlord’s communication, and felt that they had had to chase departments for updates regarding the structural report etc.
4. The landlord had explained that the usual process would be for the landlord to move the residents into temporary accommodation while the structural work was being completed and then the residents would return to the property. However due to the circumstances which the residents had described experiencing over the previous 6 years it would explore the option of a management move. The landlord would need to present the current and historic issues to the senior management team to see if the management move could be approved.
5. The landlord had explained there was no guarantee that a management move would be approved and, if it was approved, there would only be 1 offer of accommodation.
6. The resident had said that she would be willing to accept a 1 bedroom, ground floor property and that she didn’t want to be too close to the town, but she was not familiar with all the areas away from town. The resident had also informed the landlord that she drove and had access to a car.
Also on 19 May 2021 the landlord informed the resident that it would need more time to respond to her complaint and that it would respond by 18 June 2021.
On 20 June 2021 the resident sent an email to the landlord chasing a response to her complaint.
On 22 June 2021 the landlord spoke to the resident and said that its complaint response would be send by 28 June 2021.
The landlord sent the resident a stage 1 response to her complaint on 25 June 2021. In its response the landlord:
1. Apologised for the length of time taken to investigate the complaint.
2. Explained that it had responded to the resident’s concerns raised in 2017 by carrying out investigations at the property and carrying out any recommended works.
3. Said that there were no further reports of issues until October 2020 and these issues had been actioned. Whilst the property was showing signs of movement there was no evidence to support that it was in a dangerous condition.
4. Explained that it had been made aware via a structural survey that the property required underpinning in January 2021. Works have been arranged and on offer since April 2021 however, they had been on hold pending relocation of the two residents in the building.
5. Said that following the meeting with the resident on 19 May 2021 to discuss her housing options it was pleased to report that a management move had been approved. Its choice based lettings team had been made aware of this and would look for any appropriate properties prior to them being advertised. Unfortunately it could not predict how long it would take for a suitable property to become available.
6. Attached a list of the communications logged on its system of times that the resident had telephoned it and its staff had contacted her. It said that this showed that there was communication with the resident in relation to these issues, including:
  1. Voicemails being left for the resident.
  2. An in person meeting on the 19 May 2021 to discuss the ongoing situation.
  3. A subsequent meeting with the landlord to discuss the resident’s specific requirements in respect of rehousing.
  4. As stated in her complaint the resident was informed by the landlord’s housing officer of a possible start date for the works so “clearly” she “had communication in regard to this matter.”
On 26 July 2021 the landlord wrote to the resident saying that:
1. It was writing to her following her recent viewing of a property that she had refused due to the size of the bedroom saying that it was too small for her king size bed.
2. It had tried unsuccessfully to contact the resident on 19 and 20 July 2021 to clarify her property requirements for the managed move. It was therefore writing to confirm that during the meeting on 19 May 2021 the resident had said that her property requirements were for a 1 bedroom ground floor property not too close to the town centre.
3. It had tried to contact her on 21 July 2021, to offer her the opportunity to view a 1 bedroom, ground floor property but again had not been able to contact her and the property was no longer available.
4. The resident had said that her best contact method was via the telephone but it had not been able to speak to her on three separate occasions and had not received any response to its voice messages.
5. The management move procedure only required it to make one offer of suitable accommodation and if a resident did not accept the offer no further offers would be made.
6. One final offer of suitable accommodation would be made and if refused, or no contact received from the resident, it would proceed with the decant process, temporarily rehousing her whilst essential maintenance work was carried out to the property. Once the works were completed, the resident would be required to move back to the property.
On 25 August 2021 the landlord sent the resident a letter asking her to attend a meeting at its offices on 2 September 2021 to discuss the management move and the temporary decant. The resident maintains that at the meeting the landlord agreed that it would find suitable accommodation and gave her options to be housed in a bungalow for her age group or in a suitable ground floor flat. She says that the landlord again asked her about her area preferences but about a week later offered her a flat in an area notorious for drug users and antisocial elements, despite her saying at the meeting at the meeting she didn’t want to live in that area.
On 27 September 2021 the landlord left the resident a voice message asking her to call it to discuss the offer of another potential property. The resident spoke to the landlord on 28 September 2021 and said that she did not want a property in that area.
The landlord’s records show that on 29 September 2021 the resident spoke to the landlord and left a message for whoever had been trying to contact her saying that she thought she might be missing their calls as her telephone wouldn’t accept unknown numbers. The landlord made a note of the resident’s email address.
Following contact from the resident this service contacted the landlord on 27 January 2022 asking it to confirm whether the complaint had exhausted its complaints process and if not to contact the resident within 10 working days with a stage 2 response to her complaint.
On 2 February 2022 the landlord sent an email to this service saying that it had responded to the complaint at stage 1 but the complaint “was not escalated allowing a Manager to respond”. It asked this service how it wished the landlord to proceed.
On 8 February 2022 this service wrote to the landlord attaching an email that the resident maintained she had sent to the landlord on 18 July 2021 asking to escalate the complaint to stage 2 and asking the landlord to only communicate with her by post or email, not verbally. This service asked the landlord to send a written stage 2 complaint response to the resident by 24 February 2022.
The landlord sent the resident its stage 2 complaint response on 23 February 2022. In its complaint response the landlord:
1. Said that it had not received the resident’s email dated 18 July 2021 asking to escalate the complaint.
2. Said that it had reviewed the stage 1 complaint response and there were no changes to make to the information and explanations that it had provided in that response.
3. Said that its decision to offer a management move to alternative accommodation on a permanent basis had been agreed and confirmed in its letter to the resident dated 27 July 2021. It confirmed that any offers of accommodation were made following its allocations policy.
4. Said that it had made attempts to contact the resident to offer alternative accommodation on 21 July 2021 and 27 September 2021, and had left messages requesting call backs to discuss potential offers. As it had not received the resident’s email dated 18 July 2021 it had not received her request for communication to be via email or letter. It confirmed that it had now recorded her email address on her account as her primary method of contact.
5. Said that the situation has been a drawn out process and it had:
  1. Attempted to resolve the initial issues with strapping work to the roof following the surveyor’s report dated 16 January 2018.
  2. Carried out a drainage survey on 17 February 2018.
  3. Investigated with a further structural survey in January 2021, following structural issues noted in 2020.
  4. Raised an order in March 2021 for the underpinning work to be completed. As the resident did not wish to return to the property following the works, this had created a delay in the work being completed whilst suitable permanent accommodation was sourced.
6. Confirmed that the order to complete the underpinning work had been passed to its contractor in March 2021, but the work remained outstanding. It was willing to complete the work while the resident was temporarily moved, but as the resident had not accepted an alternative property, the resident was unwilling to agree to the work being completed. The time delay in the work being completed would explain the continued issues she was encountering.
7. Said that at every stage it had attempted to remedy all issues raised concerning the structural movement of the property. However, it was unable to proceed with the remedial works required whilst she remained in the property.
8. Explained that the options for the resident were for her to move out whilst the works took place and then return to the property or to take an offer of alternative accommodation on a permanent basis when a suitable property became available.
9. Said that due to the length of time since the last structural inspection and the resident’s concern that the subsidence had worsened it would arrange for its surveyor to visit the property within the next two weeks.
10. Apologised that the situation had been lengthy and for any inconvenience this may have caused the resident.
11. Informed the resident that if she remained dissatisfied with its response, or with how it had dealt with her complaint, she could escalate the complaint to the Local Government Ombudsman.
The landlord’s letter dated 23 February 2022 was its final response to the resident’s complaint.
The landlord attended the property on 18 March 2022. On 24 March 2022 the landlord sent an internal email concerning the visit and recommended the following action:
1. That the landlord fit tell tales to the property so that movement could be identified.
2. That a full CCTV survey of the drains around the property be carried out.
3. That the landlord meet with its landscape contractor to look at the tree at the property and assess:
  1. Whether the tree could be a contributing factor to the subsidence, depending on the root structure and height.
  2. Whether the tree should be reduced down to a more manageable height as it was affecting the telephone lines adjoining the neighbouring property.
4. That the residents be decanted or moved so the internal cracking and works could be fully identified and rectified.
The landlord carried out a further drainage CCTV survey on 5 April 2022 and then contacted the local water authority to co-ordinate the recommended works as some might be the responsibility of the water authority.
On 9 December 2022 the landlord wrote to the resident concerning the required works saying that it had planned to complete the works but “A complaint raised with the Housing Ombudsman about the handling of the remedial works has delayed these commencing whilst we wait for their feedback.” The landlord said that it had not received feedback from this service and so was writing to set out what interim works it would carry out and what it had done so far. It said that it would be fitting tell tales to the property to monitor ongoing movement. Its contractors had carried out a drainage survey and some interim remedial works and revised their quote for the underpinning works as it was some time since that had been previously costed. In the New Year the landlord would visit the resident to discuss moving her to suitable alternative accommodation.

Assessment and findings

The landlord’s response to the resident’s reports of repairs required at the property.

There was severe maladministration by the landlord in its response to the resident’s reports of repairs required at the property as:
1. Although the structural engineer recommended on 16 January 2018 that a CCTV survey be undertaken on the drainage, this was not done until 14 September 2018, 8 months later.
2. Although the structural engineer carried out its survey on 6 January 2021 the resident had to chase the landlord for an update on the outcome of the survey on 9 March 2021.
3. The landlord identified on 1 April 2021 that the works would take 4 weeks to complete and the resident would need to be decanted or permanently moved whilst the works were being carried out. However the works have still not started. Although the delay is because of the lack of availability of a permanent property to move the resident to there is no evidence that the landlord considered whether it needed to alleviate the resident’s living conditions whilst awaiting the move or if the situation had deteriorated until it inspected the property on 7 March 2022.
4. The landlord incorrectly informed the resident in December 2022 that the delay in commencing the remedial works was because it was waiting for feedback from this service about the resident’s complaint. The resident’s referral of her complaint to this service to be investigated does not have an impact on the landlord’s tenancy and repair obligations and should not be used by a landlord as a reason to delay complying with these obligations.
5. Although the landlord recommended on 24 March 2022 that tell tales be fitted to the property so that movement could be identified, the landlord did not contact the resident to arrange this until 9 December 2022.

The landlord’s response to the resident’s request to be rehoused

The landlord acted appropriately and in line with its management move procedure by:
1. Considering a permanent move for the resident, rather than a temporary decant.
2. Informing the resident that it would make one offer of suitable accommodation.
There was therefore no failing in the landlord’s response to the resident’s request to be rehoused.

The landlord’s complaint handling

There was maladministration by the landlord in its complaints handling as:
1. The landlord did not respond to the resident’s complaint made on 1 May 2021 until 25 June 2021, 36 working days later and 26 working days outside the 10 working day response time set out in the landlord’s complaints policy.
2. Whist the landlord did inform the resident that its response would be delayed, initially until 28 May 2021 and then to 18 June 2021, it failed to respond by these dates, causing the resident to incur time and trouble in having to chase it for a response.
3. The landlord’s stage 1 response was delayed by more than 20 working days. However, in breach of the provisions of the Code, this delay was not agreed by both parties.
4. In its complaint response dated 25 June 2021 the landlord did not advise the resident of the complaint stage and how she could escalate the matter if she remained dissatisfied. This was in breach of the provisions of the Code.
5. The landlord’s stage 2 response to the complaint dated 23 February 2023 incorrectly referred the resident to the Local Government Ombudsman if she wished to escalate her complaint.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was severe maladministration by the landlord in its response to the resident’s reports of repairs required at the property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in its response to the resident’s request to be rehoused.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its complaints handling.

Reasons

There were significant delays in carrying out remedial works required to the property.
The landlord acted in accordance with its management move procedure in responding to the resident’s request to be rehoused.
There were delays in complaint handling, the landlord did not advise the resident how she could escalate her complaint and incorrectly referred her to the Local Government Ombudsman.

Orders

The landlord is ordered within 4 weeks of the date of this report to arrange for a senior member of its staff to apologise to the resident for the failings identified in this report, in person (or in writing if preferred by the resident).
The landlord is ordered within 2 weeks of the date of this report to contact the resident to discuss whether she would accept moving to a temporary property whilst the landlord continues to search for a suitable permanent management move property to become available.
The landlord is ordered within 4 weeks of the date of this report to inspect the property to consider whether any works need to be carried out to alleviate the resident’s living conditions whilst awaiting the move to an alternative property. If works are required the landlord should send the resident and this service details of the works, together with a time table to the resident within 2 weeks of inspecting the property.
In making an order for the landlord to pay compensation the Ombudsman recognises that some residents’ circumstances mean that they are more affected by landlords’ actions or inactions than others. This might be due to their particular circumstances or vulnerabilities.
The landlord is ordered within 4 weeks of the date of this report to pay the resident £850 in compensation made up as follows:
1. £700 for the distress and inconvenience incurred by the resident as a result of the landlord’s response to her reports of repairs required at the property.
2. £150 for the time and trouble incurred by the resident as a result of the landlord’s complaint handling failings.
3. The compensation is to be paid direct to the resident and not to be off set against any arrears of rent owed by the resident to the landlord.