Royal Borough of Kensington and Chelsea (202219520)

REPORT

COMPLAINT 202219520

Royal Borough of Kensington and Chelsea

30 July 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 handling of the remedial repairs in the resident’s property following a leak.

Background

The resident is a secured tenant at the property of the landlord. The landlord is the local authority. The property is a fourth-floor flat, situated in a block of flats.
The resident experienced a leak into her property from a neighbouring flat in June 2022.
On 4 August 2022, the resident reported mould in her kitchen and bathroom.
An inspection was undertaken on 5 August 2022, which found the property dry and free from leaks. The landlord’s records show that remedial works were raised at this point, but it was agreed that these would not begin until after the resident’s surgery. The works agreed were as follows:
1. WC pan is loose and needs securing.
2. Replace the bathroom flooring.
3. Fit backboard to kitchen sink base unit.
The below additional works were also agreed. The exact date when these were added is not apparent, but the evidence suggests that it was following the commencement of the works in October 2022:
1. Paint bathroom and kitchen.
2. Fit non-standard worktop and sink.
The resident raised a formal complaint on 22 August 2022. She was dissatisfied with what she considered to be unnecessary calls and appointments relating to inspections for the leak. She noted she had been told on 5 August 2022 that there were no issues in the property as a result of the leak. She explained that it was the neighbour’s flat that was leaking and needed to be inspected, not hers, yet the landlord continued to call her and book appointments for her property. She also raised concerns about staff conduct.
The landlord provided its stage one response on 5 September 2022. It did not uphold the complaint because it said that the repeated visits to the resident’s property were necessary to trace the leaks and find a solution. Moreover, it said that although no leaks were present in the resident’s property following the appointment in August 2022, further repairs were necessary to prevent potential leaking into the properties below. Therefore, it said it would monitor the situation and contact her in the next few weeks to arrange these repairs.
In an email dated 26 September 2022, the landlord confirmed that the works would begin on 10 October 2022, with operatives working at the property daily over a two-week period. The works began a day later than scheduled on 11 October 2022, due to an operative’s illness, and were completed on 26 October 2022.
In an email to the landlord dated 3 November 2022, the resident made a further complaint because she was not happy that the remedial repairs to the kitchen and bathroom took three weeks instead of the agreed one week. She said she was left in unbearable conditions for the duration, living in a small living space, not being able to open her sofa bed, with no cooking facilities. She contended that she should have been temporarily decanted, but the landlord showed a lack of care for her predicament. The resident therefore requested £1,500 compensation for emotional distress. She also sent an expenses list of the costs incurred whilst the works were being completed. This totalled £574.66, made up of the following:
1. Temporary boarding for pet parrot (£105 @ £5 a day).
2. Travel expenses to and from pet boarding (£20.66).
3. Broken cabinet (£20).
4. Food delivery/takeaways (£200 approx.).
5. New shoes as the old ones were full of mould (£165).
6. Nearly-new sandals as old ones also had mould (£54).
7. 8 storage boxes (£10)
The resident later added the cost for a new shower hose (£16.99).
On 10 November 2022, the landlord provided a supplementary stage one complaint response. It explained that the delays in completing the remedial works were due to a contractor’s illness, so the work could not begin as scheduled on 10 October 2022, and also because the contractors had to order the necessary materials, as the resident had added further works because she was not happy with the initial specification. Regarding compensation, the landlord deemed it reasonable to compensate (£155.66) for the following:
1. £105 for parrot boarding.
2. £20.66 for travel expenses.
3. £20 for the broken cabinet.
4. £10 for the 8 storage boxes.
However, the landlord did not deem it reasonable to compensate for the following:
1. For takeaway food because, although repairs were ongoing in the kitchen, the resident’s kitchen was not in a state whereby it could not be used and the cooker was never disconnected.
2. For shoes and sandals, because this would normally be claimed on the resident’s home contents insurance policy.
The landlord provided its insurance policy details, so the resident could submit a liability claim, if she did not have home contents insurance. It also said that it would not compensate £1,500 for emotional distress because, while it was necessary to carry out repairs, this was because of leaks that originated from a leaseholder’s flat. Furthermore, it said it had done everything possible to accommodate the resident’s additional repair requests, which included changing the scope of works to her kitchen and bathroom. It did, however, accept that she was inconvenienced by the leaks and as such considered it reasonable to offer her £150 compensation for this. The total offered therefore was £305.66 (£155.66 plus £150). Finally, as a goodwill gesture it agreed to put up some shelves, fit a shower hose, and resolve a toilet leak.
In an email dated 10 November 2022, and also in a telephone call on 17 November 2022, the resident explained her dissatisfaction with the landlord’s response. In short, she wanted an increase in the compensation amount because she had been living in what she considered to be uninhabitable conditions for three weeks, with no option of alternative accommodation. She considered that £500 to £600 would be a more reasonable amount of compensation.
In the landlord’s final complaint response, dated 24 November 2022, it did not uphold the complaint. It did not identify any service failure in terms of how it dealt with the faults identified within the resident’s property. It said that, having reviewed the sequence of events, it considered that the £150 offered in recognition of her time and trouble, plus the reimbursement of expenses totalling £155.66, was reasonable and in line with its compensation policy. It reiterated it was reasonable to decline her request for reimbursement of the cost of purchasing takeaways, and it considered that it was appropriate that her damaged belongings were dealt with via its insurer rather than being assessed under its compensation policy.
The resident brought her complaint to this service because she remained dissatisfied with the compensation amount offered. She explained that she had taken five days off work to facilitate the agreed works but they instead took three weeks to complete. She also felt she should have been decanted while the works were being completed, as she said the property was not in a habitable condition for the duration. As an outcome, she wanted an increased amount of compensation.

Assessment and findings

Scope of Investigation

For clarity, the issues raised in the resident’s initial complaint on 22 August 2022, regarding excessive appointments, unnecessary contact, and staff conduct, do not form part of the following investigation report. Any reference to these issues is for context purposes only. This is because these aspects of the complaint did not complete the landlord’s internal complaint procedure and were also not brought to this service for investigation. The below assessment is thereby specifically focused on the issues raised on 3 November 2022 in relation to the remedial repairs in October 2022.
The resident has also referenced how the delay in completing the repairs has impacted her mental health. However, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This is more appropriate for it to be dealt with through the courts as a personal injury claim. Nonetheless, consideration has been given to the general distress and inconvenience of the situation in correspondence with the resident’s specific circumstances.

Assessment

The landlord’s compensation & reimbursement policy states that it will consider a compensation claim when (this is not an exhaustive list):
1. a resident has been severely inconvenienced by the landlord’s actions;
2. the landlord’s failures in service delivery have caused a resident loss or major inconvenience;
3. the landlord’s failure to follow policies has a detrimental effect on a resident;
4. appointments are missed due to actions of the landlord, not the resident; and
5. the landlord fails to identify the correct issue or carry out repairs in a satisfactory manner, or within agreed timescales, which causes the resident inconvenience or loss.
It is not disputed that the landlord’s reimbursement of the £155.66 for the parrot boarding, travel expenses, the broken cabinet, and for 8 storage boxes was welcomed by the resident and an appropriate use of the landlord’s discretion. This demonstrates that it attempted to put the resident back in a position before the leaks occurred, recognising that, even though the leak was not its fault, the resident had incurred some cost and inconvenience as a result.
That said, this does not mean that the landlord was responsible for reimbursing every cost the resident listed. For example, the decision not to provide compensation for the resident’s damaged footwear was in accordance with its compensation and reimbursement policy, which states that residents are advised to take out home contents insurance, to insure their personal possessions and decorations against damage or loss. Thus, having been made aware that mould had damaged her shoes and sandals on 3 November 2022, the landlord’s initial response on 10 November 2022, to make a claim via her own home contents insurance, or through its liability insurance, was appropriate and in line with what the Ombudsman would expect.
The landlord’s initial decision to not reimburse the resident for the replacement of the shower hose was reasonable. The resident was responsible for fixing the shower hose as per the repairs policy, which stipulates that tenants are responsible for the replacement of sanitary fittings within the property. Nevertheless, the landlord later chose to use its discretion and agreed to replace the shower hose as a goodwill gesture, demonstrating again the landlord’s willingness to support the resident in finding a resolution. However, because the landlord attended to replace the shower hose on 11 November 2022, only to find that the resident had already replaced it, there was no further action required of the landlord. Having established that the issue had been resolved, there was no obligation thereafter to then reimburse the resident for the cost because the offer to replace was made as a gesture of goodwill, beyond its obligations.
In regard to the resident’s contention that she should have been decanted whilst the works were undertaken due to the condition of the property, the landlord’s decision to not decant was in accordance with its decant policy. Repair works that take more than a few days and involve multiple rooms will invariably cause some disruption and thus a landlord would usually establish whether a decant was necessary prior to the commencement of any repairs. The main consideration in the landlord’s decant policy is whether or not the property would be uninhabitable while the work is being carried out. To measure this, the landlord’s decant policy states that a property will be defined as uninhabitable if any one or more of the following is present (this is not an exhaustive list):
1. Major internal disruption, i.e. a collapsed ceiling.
2. The electrics are in an unsafe condition.
3. A significant damp or mould problem likely to cause an immediate health risk to the tenants.
4. Asbestos that would cause a direct and immediate health and safety risk.
5. Any significant subsidence, significant structural movement, or structural instability (as demonstrated by a structural engineer’s report).
6. A major health and safety issue(s) or environmental factor(s) that would cause a direct and immediate risk to the tenants.
Though clearly a cause of frustration and disruption for the resident, especially as the resident was not happy that the works took longer than she expected, there is no evidence in this case to suggest that the property was uninhabitable in view of the aforementioned criteria and therefore the decision to not decant the resident was appropriate.
As a result, it was reasonable for the landlord to decline to reimburse the resident for the cost of the takeaway food. While there may have been some disruption in the property, it is not evident that the kitchen was unusable, nor is there any evidence to suggest the parties agreed to the landlord refunding the resident prior to her incurring the expenses.
Similarly, though it transpired that the resident had to extend the amount of time off work from what she had originally thought (five days), this too was not a failing on the landlord’s behalf because, not only was the resident forewarned about the timeframe for the repairs within a reasonable period (see below), the landlord’s repairs policy stipulates that when providing access to a property for works to be undertaken, a responsible adult (over 18 years old) must be in the home while a repair is being carried out.
It is acknowledged that, depending on one’s circumstances, this can be a difficult requirement to fulfil, especially if the works extend beyond a few days. It would have been helpful had the landlord discussed potential alternatives prior to the commencement of the works, being as the resident highlighted on a number of occasions the difficulty she would have in facilitating access over a two-week period, and the fact that she explicitly said this would cause difficulty with her employer. Though not a failing – as the resident did not say that she could not provide access, and she did not expressly state that she had suffered, or would suffer, a loss of earnings as a result – proactively discussing alternative solutions, such as a neighbour providing access to the property, may have helped minimise any impact on the resident in the short term and, in turn, could have facilitated a better tenant/landlord relationship in the long term.
In relation to the timeframe to complete the works, there is a discrepancy between both parties in regard to when the remedial works should have been completed by. The resident contends that it was verbally agreed that the works should have taken three to five days to complete. In contrast, the landlord held that it had agreed to revise the timeframe of the scope of works after the resident had brought a number of additional issues to its attention.
The landlord’s repairs policy states that, once a repair has been reported, a resident will be given an appointment slot and a completion date. This should, more often than not, be agreed within the timeframes stipulated in the repairs policy, depending on the urgency of the repair. In this case, the repairs were deemed routine repairs and as such should be completed within 20 working days.
Based on the available evidence, the timescale for the remedial repairs was clarified by the landlord, prior to the start of the works, in an email dated 26 September 2022. It confirmed that operatives would be working at the property daily over a two-week period beginning on 10 October 2022. Thus, while there may have been verbal discussion initially (the resident says this took place on 6 September 2022) regarding the approximate timeframe for completion, the landlord did later confirm its actual timescale, thereby setting clear next steps and expectations in line with its repairs policy.
The correspondence at that time shows that the resident contested the validity of the revised timeframe, contending that it should be completed more quickly. However, the landlord has relied on the opinions of its qualified contractors when establishing a timeframe for completion, which it was reasonable for it to do. What is more, this clarification was given within a reasonable timeframe prior to the works commencing.
It is noted that the expectation had been set in the aforementioned email in late September 2022 that the works would commence on 10 October 2022 and be completed by around 23 October 2022. In this case, though, they were not completed until 26 October 2022, resulting in a three-day delay. However, this was not a failing as additional works had been added to the initial scope of works, which meant that more time was required to order the necessary materials. Even so, the remedial works, as well as the additional works, were nonetheless completed within the 20-working-day timescale for routine repairs, as stipulated in the landlord’s repairs policy.
Notwithstanding the above, this service has identified some minor failings by the landlord in its handling of the remedial repairs. For instance, though the landlord did acknowledge that there was a one-day delay in starting the works, this was not identified as a failing, as the landlord reasoned that this was more of an unfortunate event because it was unable to source cover for the operative who had fallen ill. The section in the landlord’s compensation & reimbursement policy concerning missed appointments states that, barring exceptional circumstances, a flat payment of £20 per appointment will be paid where its operatives/contractors fail to attend an agreed appointment. It is the Ombudsman’s opinion that an operative’s illness is indeed unfortunate but nevertheless it is a circumstance that is not unusual and would not necessarily constitute an exceptional circumstance, as contingencies can be put in place for such an event. The landlord is therefore ordered to pay the resident £20 in compensation for the missed appointment.
In addition, communication during the works could have been improved when the resident was pursuing clarification of the completion date. As mentioned above, the scope of the works had changed and thus the onus would be on the landlord to ensure clear communication regarding the revised completion date. The resident chased the landlord on 18 October 2022, as she was expecting correspondence that day confirming the completion date, which did not materialise. And though the landlord did call her on 19 and 20 October 2022, it was not in regard to the update she was expecting on 18 October 2022. While the landlord did update the resident in the afternoon of 20 October 2022, and then subsequently provided more concrete details about the completion date on 21 October 2022, the resident had still spent time and trouble chasing a response, and there was still a delay of two days in keeping the resident updated.
In view of this, the landlord is ordered to write to the resident and apologise for its poor communication and also pay £50 compensation in recognition of the time and trouble, and the distress and inconvenience caused.
It is of concern that the landlord does not hold information on its system in relation to the resident’s vulnerability status, despite acknowledgment by a number of staff members that she is indeed vulnerable. Information regarding this seems to be used on an ad-hoc basis; for example, when the landlord decided that it would carry out the shower hose repair as a goodwill gesture based on her vulnerability status. Without fully up-to-date information, however, staff and contractors may not always be able to make fully-informed decisions specific to the resident’s circumstances and this may result in an inconsistent approach.
This service is not privy to the reasons for this absence. It may be the case that the resident does not want sensitive information held by the landlord. But it would nevertheless be helpful if the landlord held relevant and up-to-date information on the resident, so that all staff members are aware of the resident’s circumstances, to ensure informed decisions are made where necessary moving forward. It is therefore recommended that the landlord, with the permission of the resident, update its records accordingly.
In summary, while the landlord did act in accordance with its relevant policies and procedures for the most part, and did demonstrate a willingness to find an amicable solution on a number of occasions, there were failings in its handling of the remedial repairs that were not identified in the internal complaint procedure, which should have warranted redress. It is for that reason that an overall finding of service failure has been found.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord for its handling of the remedial repairs in the resident’s property following a leak.

Orders

The landlord is ordered to pay the resident £70 in compensation, being:
1. £20 for the missed appointment;
2. £50 for the poor communication.
This should be made within four weeks of the date of this determination.
The landlord is also to write to the resident within four weeks of the date of this determination and apologise for its overall poor communication relating to the repairs.

Recommendations

It is recommended that the landlord, with the permission of the resident, update its records accordingly in regard to the resident’s vulnerability status.