Newcastle City Council (202214228)

REPORT

COMPLAINT 202214228

Newcastle City Council

29 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:
1. Handling of reported structural issues with the property.
2. Handling of the request to transfer to another property.
3. Complaints handling.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, is likely to fall within the jurisdiction of another Ombudsman, regulator or complaint-handling body. The following aspect of the complaint is likely to fall within the jurisdiction of the Local Government Social Care Ombudsman (LGSCO):
1. The landlord’s handling of the request to transfer to another property.
The Memorandum of Understanding between the Housing Ombudsman and the LGSCO sets out the complaints that each Ombudsman is responsible for considering. This states that the LGSCO is responsible for complaints about:
1. Housing allocations under Housing Act 1996 Part VI.
2. The assessment of such applications, the award of points, banding, or a decision that the application does not qualify for reasonable preference.
The resident’s housing application and banding was handled under the local authority’s allocation duties as per the Housing Act. Therefore, such matters fall under the LGSCO jurisdiction and not the Housing Ombudsman. The local authority use its Arm’s Length Management Organisation (ALMO) to administer its allocations duties.

Background and summary of events

Background

The resident lived in the 2 bedroom end terraced house from 2010 until August 2023. The secure tenancy was managed by the landlord’s (a local authority) ALMO. For the purposes of this investigation both the ALMO and landlord in regard to its housing management function, will be referred to as the landlord. For all other actions taken by the landlord outside of its housing function, it will be referred to as the local authority, for which the Ombudsman has no jurisdiction over.
The resident has fibromyalgia, asthma, and mental health issues. Her daughter and granddaughter, (who was under 1 when the complaint was raised with the landlord), lived with the resident. Her daughter acted as the resident’s advocate when raising the complaints with the landlord and with the Ombudsman. For the purposes of this report the advocate will be referred to as the daughter.
The landlord had no vulnerabilities recorded on its systems for the resident.
The resident reported structural movement in the property in 2021. In 2022 she reported issues with the windows not being sealed and letting in draughts. Investigations from the landlord’s second contractor showed that the issues were related and as such the landlord dealt with both issues as part of its stage 2 response.

Policies and procedures

The resident’s tenancy agreement says it is the landlord’s responsibility to keep the structure of the property in good repair. Its repairs policy says it is responsible for window and plasterwork repairs (apart from small cracks in plaster, which the resident would be required to fix).
The landlord’s decant policy says that it will consider moving residents based on their ability to cope with the works and the type of works that are required. If it decides the resident cannot cope with the works, it will consider permanently rehousing them.
The landlord’s complaints policy has 2 stages. It does not have a compensation policy and instead uses the Ombudsman’s remedies guidance. The remedies guidance uses the principles of fairness, putting things right and learning from outcomes when deciding on appropriate redress for residents. The remedies guidance considers distress and inconvenience to the resident when awarding compensation.

Summary of events

In 2021, the resident reported movement at the property. The landlord appointed its first contractor to investigate. The first contractor was external and not employed directly by the landlord. The first contractor conducted investigations between 27 September 2021 to 30 March 2022. The investigations involved digging pits to assess the foundations of the property and the surrounding groundworks. The first contractor noted in its report that the gable end wall had been rebuilt but it had no information about why. After issuing its report to the landlord on 28 April 2022, the landlord instructed the first contractor to carry out further investigations.
On 30 June 2022, the resident contacted the landlord about the movement in the property. She referred to a previous complaint response letter which said the landlord would contact her by mid June. She was yet to hear anything from the landlord and did not know the results of the survey from the first contractor. She further reported that a bump in the road was causing vibrations in the property whenever heavy traffic went over it and there were cracks in the walls.
The landlord’s staff emailed each other and said that they could not find the previous complaint response letter or a complaint reference on its systems.
The first contractor finished its further investigations at the end of June 2022. On 2 August 2022, the landlord told the daughter that once it had the further report from its first contractor, it would speak to the local authority about repairing the road. It apologised for the wait.
The landlord received the further report from its first contractors on 25 August 2022. The report suggested underpinning the property and a further survey. The landlord appointed a second contractor to review the reports and carry out another survey. It asked the local authority if the bump in the road could be fixed.
The daughter chased the landlord for an update on 31 August 2022. The landlord said it had received the report from its first contractor which suggested another survey and planned repair works. It was appointing a second contractor who would be in contact with the resident to carry out their own survey. This was to “sense check all the reports”. The second contractor was also external and not employed directly by the landlord. It had asked the local authority for an estimate to repair the road.
On 8 September 2022, the second contractor told the landlord what it had found when visiting the property. They said that they had reviewed the first contractor’s reports and it was their opinion that there was no structural movement, and no underpinning was required. They said the rear elevation was formed in timber which was a lightweight material and could be contributing to the noise and vibration from the road that the resident had reported. They suggested improving the fixings and strapping between the gable wall, stud wall, first floor wall and roof joists. They advised the landlord to consider installing insulation if it was not in place.
The resident submitted her stage 1 complaint on 14 September 2022. She complained that:
1. The windows in the bedroom were not sealed. This caused the room to be cold. As a 5 month old baby was sleeping in the room, the heating had to be kept on all the time. She had reported this before, but the landlord had not fixed it.
2. The back door was jammed open and had the wrong bracket.
The same day, the daughter and the landlord discussed the repairs work the landlord was proposing to lessen the noise and vibration in the property. This included removing plasterboard from the walls to inspect the joists and complete repairs. The daughter asked if the work could be done externally to reduce disruption. The landlord said it would look into whether it could.
The landlord acknowledged the stage 1 complaint on 16 September 2022.
On 20 September 2022, the daughter told the landlord that the local authority had said that fixing the bump in the road would not resolve the issues in the property. She asked the landlord to reconsider carrying out the repairs externally due to the dust that would be caused which could affect the resident (who had asthma) and her young baby. She asked for copies of the first and second contractor’s reports through a subject access request (SAR). The daughter contacted her MP about this and cited the following concerns:
1. The resident had been experiencing issues for the past 5 years with cracking around the windows, doorframes and walls as well as vibration and noise from the traffic. The landlord had completed plastering repairs previously, and the resident had paid for private repairs due to how often it was happening.
2. She had found out from neighbours that before the resident moved in, the property had subsidence and the previous tenants had been moved. The previous subsidence had led to the gable wall being rebuilt.
3. The landlord had chosen to go with its second contractor’s recommendations, which was in direct contrast to its first contractor’s recommendations. The second contractor had only completed a visual inspection whereas the first contractor had done extensive investigations.
4. She had asked for the resident to be permanently moved and did not want to be in the property whilst the repairs works were carried out. The landlord had said it would not move her and would instead put sheeting up in the bedroom at the end of the day.
5. The repairs works and continuing vibration and noise, was causing stress, distress and exhaustion for her and the resident.
The next day the landlord told the resident it would consider doing the repairs externally, but that it may not be possible due to “technical factors”. It said that what the local authority had told her about the road was not helpful, and it would continue to follow the advice of its second contractor. It was still working with the local authority to get the road repair done.
On 27 September 2022, the resident’s MP asked the landlord to consider moving her. 2 days later the landlord issued its stage 1 complaint response. It said:
1. It had visited the property and inspected the back door. It would install a hook and eye to the door and wall as a temporary measure. It would investigate whether there was a different door mechanism that could be used to hold the door open.
2. On its visit, it had also discussed further issues with the resident which were “in hand”. It did not give further detail about what these issues were. It said it would “pick up” the issues with the windows.
3. It partially upheld the complaint and apologised for the lengthy process. This was due to surveys having to be scheduled and completed before works could progress.
The same day, the landlord received letters from the resident’s social prescribing link worker and the daughter’s health visitor. The letters raised concerns that the repairs would be done with the family in situ due to the resident’s “severe asthma”, and the age of the baby. The windows not being sealed were a “huge problem and a risk to her (the resident) physically”. The continuing vibrations and noise in the property were causing a lack of sleep for the whole family. This was causing the resident to have migraines and flare ups of her fibromyalgia. The health visitor asked the landlord to rehouse the family as a priority as the issues may not be fully fixed following the repairs works.
On 5 October 2022, at the request of the resident this service contacted the landlord asking it to issue a complaint response.
The landlord logged a new complaint at stage 1, on 7 October 2022. On 10 October 2022, this service asked the landlord to instead escalate its previous stage 1 complaint response. The landlord advised the resident that it would issue its complaint response following a visit by its senior manager.
On 3 November 2022, the landlord issued its stage 2 complaint response. It upheld the complaint and said:
1. It was sorry for the time taken to complete the repairs works. It noted its first contractor report had been issued in March 2022. It said it understood the “stress and discomfort this may have caused”.
2. It advised it would be carrying out the repairs to the resident’s property as suggested by its second contractor. New acoustic windows would be installed to the landing and the bedroom which would minimise noise and stop draughts. The windows were on order, and it was expected they would be fitted before Christmas. It would let the resident know once it had a date for the install. After the windows were installed, it would update the insulation and remove and refix the timber cladding to further minimise noise.
3. It was still waiting for the local authority to give it a date for the road repairs and would update the resident once it knew.
4. Following her SAR, it had sent the daughter redacted reports from its first and second contractor on 17 October 2022. The redactions were because of data protection.
5. The local authority had processed the resident’s housing application and awarded a band C for overcrowding. It had made a further referral to the local authority to assess the resident’s medical evidence in relation to her banding.

After the end of the landlord’s complaint process

The local authority awarded the resident a band B to move after consideration of the resident’s medical issues and the landlord’s outstanding repairs in the property. The landlord decided not to carry out the remaining repairs as the resident wanted to move.
The daughter contacted this service on 13 December 2022 as she had not received the stage 2 complaint response from the landlord, or any contact since its senior manager had visited. She further complained of a broken sewage pipe underneath the property which the landlord had given no date to repair.
The landlord told this service it had emailed its stage 2 response on 3 November 2022, and sent a copy by post. It sent another copy on 15 December 2022.
The resident’s complaint was duly made to this service on 3 February 2023. Her reasons for doing so were that:
1. The landlord’s stage 2 complaint response did not refer to the visit where the senior manager had told her that it may need an independent surveyor to review the contractor reports as they were so different.
2. The senior manager had said it would appoint one point of contact for the resident, but this had not happened.
3. The noise and vibration was still ongoing.
The landlord told this service that it opened a wall of the property externally (to check its construction type) at the daughter’s request to minimise disruption. It had offered to open more walls internally to see whether insulation could be improved, but this was declined by the resident unless she and her family could be moved out of the property. It had installed the acoustic windows in December 2022 to minimise the road noise and the local authority had completed road repairs.

Assessment and findings

Handling of reported structural issues with the property

The first and second contractor’s advice in relation to the structural issues contrasted. The first contractor carried out several detailed investigations into the issue. Although the second contractor’s investigation was a visual inspection, they referred to the first contractor’s reports and previous works. This shows they considered the previous evidence when deciding upon and communicating their own advice to the landlord. The second contractor also told the resident their opinion that there were no structural changes since the last works.
The landlord was entitled to make its decision to follow its second contractor’s advice. Its decision was reasonable as its first contractor had considered all the available evidence in relation to the property movement.
The resident said the landlord told her it did not know why it disregarded its first contractor’s report. The resident said the landlord told her it would provide one point of contact which did not happen. Evidence has not been provided to this service to show what the landlord discussed at its meeting with the resident. If the landlord told the resident this, it missed an opportunity to clearly explain its decision making, open a positive line of communication, and manage the resident’s expectations.
The landlord missed opportunities to reassure the resident in relation to historical subsidence at the property. The evidence does not show that the landlord checked its records to determine the cause of the previous subsidence. Its contractor’s reports refer to the gable end wall being rebuilt previously, but not knowing why. The resident was advised by neighbours of the previous subsidence which lent weight to her concerns of structural movement. It would have been reasonable for the landlord to have checked its records to inform the current repairs issues, as well as reassure the resident around her concerns. By not doing so, this caused distress for the resident.
The landlord attributed the vibration and noise in the property to a patch of road 40 metres away that was in disrepair. The resident said that the issues were happening before but advised that the road disrepair had increased the noise. It agreed to pay jointly with the local authority for repairs to the road. The road repairs were beyond its obligations and shows an effort on behalf of the landlord to try and resolve the issue.
The landlord carried out some of the repairs works its second contractor recommended including installing ‘acoustic’ windows in the bedroom and hallway. This was to dampen noise and stop draughts. It opened a wall externally at the request of the daughter. It did not carry out further works to fix the timber cladding and install insulation as the resident did not want this to happen with her family in situ. It had received supporting letters from medical professionals stating it was not suitable to carry out the works whilst the family were living in the property. The landlord did not offer the resident a temporary decant to carry out the works. Instead of carrying out the remaining works, it decided to assist the resident with permanently rehousing her instead which was in line with its decant policy.
The landlord did not list any vulnerabilities for the resident on its systems which was a record keeping failure. However, it provided information to the local authority on the resident’s medical information to assist with permanently moving her. This showed that it had considered her vulnerabilities and the detriment that would be caused if she and her family were to remain living in the property.
The resident had to chase the landlord to find out what had happened following the first contractor’s survey. The landlord received the first report on 28 April 2022. The resident said that the landlord told her it would contact her by mid-June with an update which it failed to do. It was not reasonable for the landlord to delay updating the resident for approximately 2 months and until she chased it. This affected the relationship between it and the resident and caused additional delay with progressing the works.
The landlord further delayed in providing updates to the resident after receiving its first contractor’s second report on 25 August 2022. The resident chased it for an update on 31 August 2022. The Ombudsman’s Complaint Handling Code (the code) is guidance that landlords should follow when dealing with complaints. The code says that landlords should keep residents regularly updated and informed. The resident was inconvenienced by having to contact the landlord to find out what was going on in relation to any proposed works.
Overall, there was service failure as the landlord could have done more to reassure the resident and clarify its position around the structural safety of the property. It should have updated the resident in a timely manner.

Complaints handling

The landlord could not find a previous complaint letter it had sent in May 2022 to the resident on its systems. This was a record keeping failure. It made the decision to open a new stage 1 complaint as a result, though did state that the previous complaint letter did not consider the road disrepair causing noise. This service has not seen the previous complaint letter sent to the resident in May 2022, so cannot determine whether it was reasonable for the landlord to have opened a new stage 1 complaint, rather than escalate the previous complaint.
After issuing its stage 1 complaint response, the landlord was contacted by this service asking it to issue a further response. Before it issued another stage 1 response, this service contacted the landlord again requesting it issue a stage 2 response instead. This was a minor error which did not impact upon the resident, however it would have been reasonable for the landlord to have checked its records to ensure it was responding at the right point within its complaints procedure. This was another record keeping failure.
The landlord’s stage 1 complaint response lacked detail and clarity. It did not refer in any detail to the works regarding the movement in the property. It did not detail what works it would do to the windows. It did not provide timeframes for the work. The code says that complaint responses should detail any outstanding actions. By not doing so, it was unclear for the resident what would be done and when, which caused her uncertainty.
The landlord’s stage 2 response did not explain its reasoning for following the advice of its second contractor. The resident’s concerns led to her requesting a SAR to obtain the reports, after which she then raised further concerns around the landlord’s decision. The landlord should have explained its reasoning for deciding to go with its second contractor’s recommendations. The resident would not be in a different position had it done so, but her expectations would have been better managed, and she would have been reassured.
In both its complaint responses, it acknowledged the time taken to start the works in the resident’s property. It partially upheld the stage 1 complaint and upheld the stage 2 complaint due to the delay in the works commencing. It did not offer compensation. It apologised but said “these things take time”. The windows were installed in the property on 7 December 2022. This was almost 8 months on from the receipt of its first contractors initial report, and 3 months on from the receipt of its second contractors report. It was not reasonable redress to only apologise. It should have taken the delay into account, as well as the ongoing impact on the resident and her family.
The landlord should have offered compensation in line with the Ombudsman’s remedies guidance. The remedies guidance says that financial redress should be considered for any avoidable distress or inconvenience caused to the resident. Overall the landlord demonstrated maladministration with its complaint handling.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure with the landlord’s handling of reported structural issues with the property.
In accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the landlord’s handling of the request to transfer to another property is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration with the landlord’s complaint handling.

Reasons

The landlord was entitled to follow its second contractor’s advice in relation to the reported structural issues in the property. However, it should have updated the resident in a timely manner about the progress of the works.
The landlord demonstrated poor record keeping in relation to complaints. It did not offer clear explanations, detail, or timeframes for the works in its complaint responses. It did not offer reasonable redress.

Orders and recommendations

Orders

The landlord pays the resident £150 in compensation, comprised of:
1. £100 for its complaint handling
2. £50 for distress and inconvenience caused in relation to its handling of the reported structural issues.
The landlord should apologise in writing to the resident for its failings in this case.
The landlord should comply with the above orders within 4 weeks of the issue of this report and provide evidence to this service.

Recommendations

The landlord should consider reviewing its recording procedures in relation to complaints on its systems. The landlord could refer to the Ombudsman’s spotlight report on Knowledge and Information Management Our reports – Housing Ombudsman (housing-ombudsman.org.uk) .
The landlord should consider training for its staff who handle complaints to ensure complaints at all stages are answered with the appropriate level of detail.