Harlow District Council (202212441)

REPORT

COMPLAINT 202212441

Harlow District Council

9 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 

1. The complaint is about the landlord’s handling of the resident’s reports of unreliable lifts.

Background

2. The resident is an assured tenant of the local authority landlord. The resident lives at the property with his wife. Both are vulnerable due to their age. For the purpose of this report, both will be referred to collectively as ‘the resident’.
3. The property is a one-bedroom flat on the fourth floor of an eight-story purpose-built block. The building has two lifts, right (R/H) and left (L/H), served by a single-call button system.
4. On 16 April 2021, the resident complained to the landlord and said one of the lifts was out of action for several weeks at the beginning of the year; he said the lift was repaired, but after a few days, it failed again, and it remained out of service for over a month. The resident said he called the landlord on 2 March, 9 March, 8 April, 9 April, and 14 April 2021, but no information was available on when it would be repaired. The resident explained in his complaint that: “With the current Covid-19 precautions, households cannot use the one remaining lift if it is already occupied. It is, therefore, important to get the broken lift repaired quickly. However, there seems to be no sense of urgency”.
5. The landlord responded on 28 April 2021 and said investigations were ongoing to identify the root cause. It added: “It is also a matter for investigation as to why the Council was not informed of the operational issues with the lift until 6 April 2021, even though it had been evident for a period of time. [Our contractor] understands the circumstances which led to these issues and expects this to be concluded shortly. I will be able to update you again once the issue has been resolved”.
6. The resident responded on 25 May 2021 and said he had not received any update since the stage one response a month earlier, and since then, the situation had deteriorated. The resident said the lift was operational for five days between 28 April and 25 May 2021. The resident asked to escalate his complaint to stage two.
7. The landlord responded on 25 June 2021 and said that while its records indicated that the lift contractor attended within the permitted response time, the frequency of faults detracted from their overall level of performance; however, it recognised the ongoing issue must have caused frustration. It said it had requested an urgent lift inspection to try and resolve the issue and would provide an update.
8. The resident contacted the landlord again on 23 July 2021 and said that despite the landlord’s assurances, the lift had been out of service from 24 June to date, and he had received no updates or information. The resident asked to escalate the complaint to stage three.
9. The landlord sent its final response letter on 14 September 2021. It apologised for the unsatisfactory lift service and the delay in communications. It acknowledged the situation was frustrating to the resident and said it had to send some lift components for manufacturer collaboration.
10. The resident contacted this service on 10 September 2022 as he was dissatisfied with the landlord’s response. He explained that his wife was 86 and found it very difficult to use the stairs, meaning that it was difficult for her to access her home when the lifts were out of service. The resident explained that he wanted the landlord to repair the lifts.

Assessment and findings

Policies and Procedures

11. The tenancy agreement reflects the landlord’s repair obligation under the Landlord and Tenant Act 1985. The landlord is responsible for repairs to communal areas of the building, including lifts, which should be repaired within a ‘reasonable’ time.
12. Derogation from grants is a common law concept and an implied term of tenancy agreements. It says that a landlord must not do anything that may have the effect of making the property less fit for the purpose for which the lease was granted. In the resident’s case, if two lifts serve the building, it would be a derogation of the grant had the landlord decided only to have a single lift in operation.
13. The landlord operates a three-stage complaint procedure. Stage one responses are by the service manager within 10 working days. Stage two responses are by the head of housing within 10 working days. Stage three responses are by the Chief Executive Officer within 15 working days.

The landlord’s handling of the residents’ reports of unreliable lifts

14. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles, which include treating people fairly, following fair processes, and putting things right. The Ombudsman must first consider whether a failure on the landlord’s part has occurred and, if so, whether this adversely affected or caused detriment to the resident. If the Ombudsman found that a failure adversely affected the resident, the investigation will consider whether the landlord has taken enough action to put it right and learn from the outcome.
15. The Ombudsman would expect that when a resident raises a service request, the landlord will complete the repair within a reasonable amount of time which should be specified in its repair policy. Because of the complex mechanical engineering of lifts, some repairs may take longer and require multiple visits. Where this is the case, the Ombudsman would look to see that the landlord kept residents informed of the progress, explained why there was a delay, took all reasonable efforts to rectify the repair, and provided accurate timescales for completion. The Ombudsman would also look to see that the landlord considered the impact on vulnerable residents and took measures to mitigate the impact according to the residents’ needs and the landlord’s resources.
16. The evidence available to this service shows that the landlord refurbished both lifts in late 2018. To avoid ‘derogation from grants’, the landlord must maintain both lifts in operation. While one lift was more reliable than the other, it still broke down frequently. The onus was on the landlord to discharge its obligation to repair.
17. The Ombudsman understands that the lift was within its defects/warrantee period until late 2019, after which the responsibility to repair was transferred to the landlord’s appointed maintenance contractor. In January 2020, the landlord suspended payment for its lift contractor until the lift was ‘repaired properly’. During 2020, there were 11 attendances by the contractor to address the issues with the lift.
18. The resident submitted the complaint in April 2021 and said that the lift had been out of service for a large part of the year.
19. The landlord did not dispute the resident’s version of events and upheld the resident’s complaint. In its 28 April stage one response, it said it was liaising with contractors to understand the circumstances which led to these issues, and expected this to be concluded shortly. There is evidence that the landlord attended several lift breakdown reports in April, May, and June 2021. However, there is no evidence of it liaising with its contractors and no indication that it updated the resident on progress during this period.
20. In the 25 May stage two complaint, the resident noted that there had been no update and that the lift had continued to be out of service for large parts of May 2021. Again, the landlord’s stage two response did not dispute the resident’s concerns and accepted that the situation was ‘unsatisfactory’. It said it had requested an urgent inspection and that a letter would be sent setting out the actions being taken to resolve the issue. However, there is no evidence of this inspection being requested or any other contact with the resident.
21. The resident raised a stage three complaint at the end of July 2021, in which it was noted that the issue was ongoing, and that the landlord had not done what it had said it would in its previous complaint responses. Following this, there is evidence that the landlord tried to resolve the matter, such as contacting the manufacturer and its contractors, requesting information, and employing an expert surveyor to inspect the lifts. The landlord was frustrated by the lack of progress. However, while these actions were appropriate, the landlord could have taken them sooner. Furthermore, there is no evidence that the landlord updated the resident in the period leading up to its 14 September 2021 final response.
22. Just days before the landlord sent its final response letter, it sent a formal complaint to its lift contractor. The complaint was about ‘failures to maintain a basic reasonable, and reliable service and communicate and inform residents’. If the contractor had failed to provide reasonable and reliable service, it follows that the landlord failed in its obligation to repair under the tenancy agreement.
23. The contractor responded that, as per the contract, it did not communicate directly with residents. There is no evidence that the landlord took any steps to rectify this and write to the resident. This was not appropriate and a significant failure by the landlord. There is also no evidence that the landlord wrote to the resident as it promised to do during the complaint process.
24. The landlord commissioned the expert report on the lifts in February 2022, which identified some issues with the refurbishment work. There is no evidence that this resulted in progress in solving the issue, as records show continued issues with the lifts following this throughout 2022 and the first quarter of 2023. The resident and the landlord informed this service that the issue was ongoing and that it had no further updates.
25. The Ombudsman acknowledges that the landlord did attempt to address the ongoing issue with its contractors and consultant and instructed a lift specialist firm to assess the conditions of both lifts in the block. However, given that the situation is still ongoing over two years since the stage one complaint, it is clear that the landlord has not complied with its obligation under the Landlord and Tenant Act 1985 to repair the lifts in a ‘reasonable’ timeframe. Further, there were failures to carry out the actions it had promised in its responses to the complaint and to keep the resident updated.
26. The failure to repair the lift has caused the resident distress and inconvenience, with the lift being out of action and unreliable for lengthy periods. The resident explained in his complaint to this service that during the COVID-19 lockdown, there was a restriction on mixing households indoors, including in lifts, which meant it took an extended amount of time to find the lift unoccupied to be able to use it. There is no evidence that the landlord considered how the serviceability of lifts might have affected vulnerable residents. It would have been an extremely worrying time for the resident who struggled to negotiate stairs and was in a Covid-19 high-risk group. This distress was further exacerbated by the uncertainty surrounding the lifts’ reliability. However, it is important to point out that there is no evidence that the landlord was aware of the resident’s health problems, primarily the difficulties in managing stairs, and the resident did not raise this in any of the complaints. Nevertheless, it was open to the landlord to enquire with the resident if any assistance was required given the issues with the lifts, and it would have been appropriate for it to have done so. There is no indication that the landlord made any enquiries.
27. As well as the inconvenience caused by the repair itself, the resident also expended time and trouble pursuing the matter and chasing the actions the landlord said it would take. The landlord’s failure to do what it said it would, and to update the resident, caused further inconvenience and frustration.
28. Despite acknowledging the ‘unsatisfactory’ situation and the ongoing delays in repairing the lift, the landlord did not take any action to ‘put things right’ for the resident. As such, an order for compensation is made below.
29. A compensation amount of £1,500 has been made to redress the failures of the landlord identified in this report. This is in accordance with the Ombudsman’s remedies guidance where the landlord has repeatedly failed to provide a service which had a seriously detrimental impact on the resident, demonstrating a failure to provide a service, put things right and learn from outcomes. The Ombudsman’s remedies guidance can be found on this service’s website.
30. Finally, there is no evidence that the landlord had a plan of action to resolve the matter and prevent similar issues from recurring. There is no indication it has ‘learned from outcomes and a further order is made below to address this.

Determination

31. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration in the landlord’s handling of the resident’s reports of unreliable lifts.

Orders

32. Within one month of the date of this report, the landlord must:
    1. Write to the resident and apologise for the delay in resolving the issues with the lift. It must also outline what it had learnt from the case to ensure failures such as those identified above (including failings in communication and considering vulnerabilities) are avoided in the future. A copy of its letter must be sent to this service.
    2. Pay the resident a total of £1,500 for the distress and inconvenience caused. This must be paid into the resident’s bank account and cannot be offset against any arrears the resident may have. Evidence of the payment must be sent to this service.
    3. Form an action plan to repair the lifts. The plan must include timescales for completion (to be adhered to) and be shared with both this service and the resident.
33. The landlord must also review complaints it may have received from other residents affected by the reliability of the lifts and consider whether it has taken reasonable steps to redress the complaints in light of the findings of this report. The landlord must write to this service within 28 days with a summary of the complaints received and the steps it has taken to redress them.