Wolverhampton City Council (202212988)

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REPORT

COMPLAINT 202212988

City of Wolverhampton Council

11 September 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 response to the resident’s request for redress for damage to her flooring following a property repair.
The Ombudsman has also considered the landlord’s complaint handling.

Background and summary of events

Background

The resident is a secure tenant of the landlord, which is a local authority.
The resident lives in a 3 bedroomed end terrace house.
The landlord states it does not have a tenancy agreement for the resident and provided this Service with a specimen tenancy agreement. The agreement states ‘fair wear and tear’ is defined as damage that ‘naturally and inevitably occurs as a result of normal wear, use and ageing.’ Tenants must report repairs which are the landlord’s responsibility immediately and they are responsible for any repairs or works that in its opinion are not due to fair wear and tear. It states tenants must make their own arrangements for the completion of repairs or works that are not the landlord’s responsibility at their own expense.
The landlord’s repair and maintenance policy sets out the different repair responsibilities, which will be decided in line with the tenancy agreement. It states repairing damage to a property caused by occupants will be viewed as tenant responsibility. It also states tenants are responsible for reporting any repairs, defects, or damage to it as soon as possible. It wants to complete works ‘right first time’ with repairs being undertaken free from defects. It may carry out inspections to manage the quality of repairs and tenants can report concerns or defects for investigation.
The landlord’s discretionary compensation policy states payments will only be made in exceptional circumstances and ‘swift intervention, effective rectification and a written apology for service failures will be the principal methods of resolving customer complaints.’ It will only issue discretionary payments where a service failure has been identified. The policy states it will not apply where an insurance claim has already been made because of loss or a negligent act by it.
The landlord’s complaints policy states it does not cover complaints being dealt with as insurance claims. It has a 2 stage complaints procedure with complaints being responded to at stage one within 10 working days and at stage 2, within 20 working days. It also states if the investigation takes longer, it will update the complainant within 10 days of the complaint being received, with the reasons for the delay and when a full reply could be expected.
In July 2020, the Ombudsman published its Complaint Handling Code (the Code) setting out good practice on how a landlord should respond to a complaint effectively and fairly. The Code confirms that an effective complaint handling procedure is accessible, timely, responsive, fair and should seek early resolution and deliver improvement to the services a landlord provides.
A member landlord’s obligations are set out in paragraphs 9 to 12 of the Scheme. Paragraph 9 of the Scheme states a member must maintain a complaints procedure in accordance with any good practice recommended by the Ombudsman, including the Code. Members must also manage complaints in line with its published procedures or within a reasonable timescale.

Scope of investigation

The Ombudsman’s remit in relation to complaints is set out by its Scheme, and Paragraph 42(k) of the Scheme states that the Ombudsman will not investigate complaints which in the Ombudsman’s opinion “fall properly within the jurisdiction of another Ombudsman, regulator or complaint-handling body.” The resident made an insurance claim, which was refused by the landlord. If the resident is unhappy with the insurer’s decision, they may contact the Financial Ombudsman Service who can consider complaints about insurance claims. Therefore, this investigation has not reviewed the insurance claim assessment or decision.

Summary of events

The resident reported a repair on 23 March 2022 concerning a hole behind her sink and washing machine and along her skirting boards. The landlord’s in-house repairs team completed the repairs at her property on 8 April 2022. The repair record confirmed completion of the repair and did not record any issues.
The resident telephoned the landlord 17 days later to report her kitchen lino had been ripped by the repairs team when they attended. The resident said the lino was ripped when her washing machine was moved.
On 2 May 2022, the landlord’s repairs team confirmed to the complaints team the issue was an insurance claim for compensation and not a complaint. There is no record of the resident being advised of or involved in this decision.
On 3 May 2022, following a telephone call between the resident and landlord, the resident made an online insurance claim for compensation. This Service has not been provided with records of this call, but the stage one response confirms the resident was informed during this call that its complaints policy could not consider a complaint and insurance claim together. On 4 May 2022, the complaints team sent the claim to its repairs team to ask if the repairs team wished to pursue the claim or consider it a ‘complaint/pre complaint’. There is no evidence that the repairs team responded to the complaints team.
The landlord’s operative in an undated statement said he fitted an air vent behind the resident’s sink unit when he attended the property on 8 April 2022. He stated repairs were within the sink unit and externally, so the washing machine was not moved. He notes he was asked by the resident to move the washing machine, but this was declined as he says it was not necessary for the repair. He states the resident did not mention any issue about her lino being damaged on the day.
The second operative in an undated statement said he does not remember the washing machine being moved when he attended the property with his colleague. Following the repair behind the sink unit, the team carried out further work at the property for another hour and he says the resident did not raise any issues about the lino during this time.
In a letter dated 21 June 2022, the resident was informed by the landlord’s insurance team that following its investigation, it had concluded it had not been negligent and would not offer compensation to her. It suggested she may be able to claim on her own home insurance policy.
This Service contacted the landlord on 23 September 2022 after being contacted by the resident on 16 September 2022. The landlord was asked to respond to the complaint about the damage to her lino. It was informed the resident was seeking £200 compensation as a resolution.
The landlord issued a stage one response to the resident on 7 October 2022. It confirmed it had investigated the matter and based on its insurance team’s decision of 21 June 2022, her complaint was not upheld. A copy of the 21 June 2022 insurance claim letter was sent to the resident when it emailed its stage one response to her.
On 24 October 2022, the resident asked for her complaint to be escalated to stage 2. She disagreed with the repair team’s version of events stating when the first operative arrived, he did pull the washing machine out slightly, and after the second operative arrived, it was agreed the machine did not need to be moved. The resident states the second operative did not see the first operative move the machine. She also referred to being confused about sending evidence including photographs, videos, and emails to the insurance team, which she was told had not been received.
In the landlord’s letter of 4 November 2022, it issued its stage 2 response acknowledging the resident was unhappy with the outcome of her claim and the contents of its insurance team’s letter of 21 June 2022. It confirmed its stage one response was unchanged as it was unable to overturn a claim outcome once this has been determined. It stated if she had new evidence for its insurance team, her claim would be reviewed.

Assessment and findings

The landlord’s response to the resident’s request for redress for damage to her flooring

The evidence of the resident and the 2 operatives who carried out the repairs confirm the damage to the lino was not raised while they were at the property. It would have been reasonable for the resident to raise the damage at the time of the repair or as soon as possible afterwards and sooner than 17 days later in line with the repair and maintenance policy.
The landlord did not carry out an investigation of the complaint reported to better understand the quality of the repairs service it delivered. Its insurance team carried out the only investigation. An insurance claim has a narrow focus and looks solely at negligence and liability. It would have been appropriate for the landlord to carry out a complaint investigation to consider the issues of service failure and distress and inconvenience to the resident.
The landlord’s discretionary compensation policy states payments are only issued after an investigation of a complaint where a service failure has been identified. This approach disadvantages those whose complaints have an insurance element as in these cases the investigation is led on an insurance, not a complaint basis.
The evidence seen by this Service shows the landlord did not inspect the damage. The resident was not directly contacted about the damage and her complaint. While it was reasonable for the landlord to consider the signed statements of the 2 operatives and the repair record, it would have been appropriate for it to have contacted the resident to clarify and listen to her perspective directly.
The landlord’s discretionary compensation policy states the policy will not apply where it has not acted negligently or if an insurance claim has already been made. Following a telephone call with the landlord the resident made an online insurance claim. This meant in line with the complaints policy she would not be eligible for discretionary compensation. There is no record of this conversation, including any discussion of her options or any advice given. It is vital that landlords keep clear, accurate and easily accessible records. It is reasonable to expect a landlord to keep an accurate record of contacts with residents.
The Ombudsman finds maladministration in the landlord’s response to the resident’s request for redress for damage to her property. While the tenancy agreement states damage to property is the tenant’s responsibility, it did not carry out a reasonable investigation. It would have been appropriate for it to have investigated her response to the repair team’s version of events to decide if there was a service failure and whether compensation was appropriate or reasonable. There is no evidence the resident was told if she made an insurance claim, she would be unable to apply for discretionary compensation. The landlord’s response to her request for redress caused the resident confusion, disappointment, and a delay in getting the matter resolved. It has not acknowledged or apologised for its failings or the impact on the resident.

The landlord’s complaint handling

The landlord’s complaints policy states that it does not cover complaints being dealt with as insurance claims. The Code states landlords must accept complaints unless there is a valid reason not to do so.
When the resident complained, the landlord treated the matter as an insurance claim for compensation and not a formal complaint in line with its complaint’s procedure. The stage one letter states the resident was told of the relevant section in its policy during a telephone call. In the absence of records of the telephone call, there is no evidence she understood this meant the landlord’s complaints procedure would then not cover her complaint or allow her to be considered for compensation when she made an online claim on the same day. It would have been reasonable for the landlord to have written to her to set out her options and confirm the details of the conversation following the telephone call explaining the impact of an insurance claim on any complaint.
While the landlord’s insurance team will look at a claim from the point of view of negligence and liability only, a complaint investigation will be able to consider if something has gone wrong, how things could be put right, and identify any learning. Making an insurance claim should not limit the ways residents have to resolve disputes or access to the landlord’s complaints procedure.
As the insurance team had refused the resident’s claim for compensation, it was no longer a ‘live’ insurance claim. The landlord’s complaints policy is unclear whether ‘closed’ insurance claims can be dealt with under its complaints policy. It would have been appropriate for the resident’s complaint to be progressed without delay and in line with its complaint’s procedures.
The Code states the landlord must deal with complaints on their merits, act independently with an open mind, consider all information and evidence carefully, and residents must be given a fair chance to set out their position. The stage one and two responses are reliant on the insurance team’s outcome. The evidence does not show the landlord investigated the complaint in a meaningful way. It would have been reasonable for the landlord to have:
1. Established the reasons for the resident’s delay in reporting the damage.
2. Reviewed the evidence already sent to the insurance team.
3. Allowed her to respond to the repairs team’s statements.
4. Had a discussion with the resident about her complaint.
5. Considered inspecting the damage to the flooring.
The stage one letter does not uphold the resident’s complaint based on the landlord’s insurance team’s decision of 21 June 2022. It would have been reasonable to investigate the resident’s complaint to give her a fair opportunity to set out her perspective, to understand her complaint and investigate independently.
The stage one response to the resident’s complaint was issued 5 months after it was received by the landlord. The landlord only responded after the involvement of this Service. This was in breach of the Code and its own complaints policy and resulted in a delay in the resident being able to exhaust the complaints process and to bring the matter to this Service for investigation.
There is no evidence of a written acknowledgement of the resident’s complaint. This showed poor complaints handling and was not in line with the Code, which requires complaints to be acknowledged and recorded within 5 working days.
This Service has not seen evidence the resident was told about delays to her complaint. There was a delay in the landlord’s complaint handling, and it breached both its own policy and the Code by not setting out the reasons for the delay, not letting her know when she should expect a full reply, and not resolving the complaint at the earliest opportunity. The delays and lack of communication with the resident about the delays impacted on the resident by causing uncertainty.
When the resident asked that her complaint be escalated to stage 2, she gave an alternative perspective to the landlord’s operatives and refers to evidence she provided to the insurance team. The stage 2 response fails to address the points raised in the resident’s escalation request, this is in breach of the Code. This was a missed chance to investigate the complaint independently of the insurance team’s investigation and a missed opportunity to agree a resolution.
The Ombudsman finds maladministration in the landlord’s complaint handling. No apology or financial redress has been provided for the impact on the resident of the landlord’s complaints handling. It has failed to undertake a thorough and independent investigation of her complaint. There were delays in dealing with the resident’s complaint. The landlord has not addressed the failings in its complaints handling, including the breaches and delays with compliance within its own policy and the Code. The handling of her complaint caused her inconvenience, disappointment, and delay in getting the matter resolved. The landlord has failed to acknowledge or apologise for its failings or the detriment to the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in the landlord’s response to the resident’s request for redress for damage to her property.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord did not carry out an investigation of the complaint when it was made, and it then relied on the insurance claim decision not its own findings at both stage one and stage two. There is no evidence to show the resident was fully informed of her options to pursue the matter. This negatively impacted on the ways she could seek resolution of the dispute and the potential outcomes available.
The landlord has breached its own complaints policy and the Code. Its policy delayed the complaint being considered for compensation due to the insurance claim. The landlord has not apologised to her, and it has not provided financial redress for its failures.

Orders and recommendations

The landlord is ordered to take the following action within 4 weeks of the date of this report. The landlord must provide the Ombudsman with evidence that it has complied with these orders:
1. Pay the resident a total of £300. The compensation must be paid to the resident and not offset against any debts owed to the landlord. The compensation comprises:
  1. £150 for the landlord’s response to the resident’s request for redress for damage to her property.
  2. £150 for the landlord’s complaint handling and the detriment to the resident.
2. Write to the resident to apologise for the failures in its service.
3. Review its complaints policy to ensure insurance claims, whether on-going or closed, do not prevent related formal complaints being dealt with.
The Ombudsman recommends that the landlord:
1. Review its complaints policy to ensure it complies with the Code.
2. Consider additional training around its complaints policy to prevent these failures reoccurring.
3. Consider this Service’s spotlight report on knowledge and information management in view of the missing resident contact records. The web link to the report is KIM-report-v2-100523.pdf (housing-ombudsman.org.uk). The report provides recommendations, which the landlord should consider incorporating into its relevant policies to ensure accurate record keeping.
4. Consider awareness training around the importance and value of record keeping.