Sandwell Metropolitan Borough Council (202108283)

REPORT

COMPLAINT 202108283

Sandwell Metropolitan Borough Council

15 March 2023 (amended at review 6 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:
1. response to the resident’s reports about a leak in the property;
2. complaints handling;
3. record keeping.

Background and summary of events

Background

The resident has been an assured tenant at the property of the landlord since 19 June 2017. The landlord is a local authority.
The property is a ground floor, two bedroom flat in a low-rise building. In or around October/November 2018, the landlord installed a wet room in the property.
The landlord is aware that the resident has a physical disability and uses walking aids.
At times, throughout the course of the complaint, the resident had asked a representative to communicate with the landlord on her behalf. For the purposes of this report, all communications will be referred to as coming from the resident.

Policies and Procedures

The landlord’s repairs policy states that emergency repairs will be attended to within 24 hours. Urgent repairs will be completed within three days and small non-urgent repairs will be completed within 25 days. An example the landlord gives of an urgent repair is leaking pipework or waste pipes, and examples of small non-urgent repairs include internal door repairs and air vents.
The landlord operates a two stage complaints process. The landlord will acknowledge receipt of a complaint within three working days and provide the contact details of the investigating officer. The time frame for responding to a stage one complaint is 10 working days. If the resident is unhappy and wants to escalate to the next stage, they must do so within 28 working days. The landlord’s target for responding to stage two complaints is 20 working days.
The landlord’s tenant handbook has a frequently asked questions (FAQs) section regarding decants. It advises that a decant is a temporary move to alternative accommodation while work is carried out at an uninhabitable property. It also states that personal belongings must be removed from the property and either taken with the resident or placed in storage, and that the resident will need to stay in temporary accommodation until the agreed works have been completed. The housing officer will advise the resident of expected timescales and keep them informed of any changes.
The landlord’s Property Damage Claim form states it will provide a response to claims made within three months of receipt of a completed form.

Summary of events

After first noticing damp on her walls, on 3 July 2020, the resident reported this to the landlord in August 2020 and submitted a General Property Damage Claim form. In response, the landlord installed some ‘penny vents’ on 17 September 2020 after an inspection concluded that the damp had been caused by condensation. The resident telephoned the landlord on the same day and stated she was willing to give the vents a try but was not confident this would rectify the damp problem.
The resident made a stage one complaint to the landlord on 22 September 2020, attached some photographs of the damp, and stated the following:
1. When she raised concerns about damp and bubbling paint on her walls, the landlord carried out an inspection. It said the plaster would need to come off and a new floor put in the bathroom while it investigated where the water was coming from.
2. Three penny vents had been installed in the bathroom wall but the walls were still wet and new areas of damp had appeared.
3. The smell of mould was getting worse.
On 15 October 2020, the landlord visited the property to investigate a possible leak and found there was an internal underground burst pipe between the bathroom and the tank in the bedroom cupboard. On 21 October 2020, the landlord raised a request for planned work to dig up the floor between the bathroom and bedroom in order to repair the pipe.
On 3 November 2020, the resident telephoned the landlord to speak to an officer about the ongoing repair to the leak and, on 10 November 2020, 17 December 2020 and 25 January 2021, she contacted the landlord to speak to someone regarding the decant process. The resident was decanted from the property between 7 February 2021 and 19 July 2021.
The resident submitted another General Property Damage Claim form on 5 May 2021, stating that the landlord’s operatives had damaged the blinds in her living room and that they needed to be replaced.
The evidence provided suggests that the landlord cancelled this claim on 12 April 2022. It has said this is because it did not hear back from the resident following initial contact.
On 19 May 2021, the resident telephoned the landlord to say she wished to make a complaint regarding the lack of communication received. In her complaint she stated the following:
1. The landlord had not fitted the walk in shower properly and this led to a leak that affected the whole property.
2. Before she was decanted, the resident was informed the works would take three months.
3. The operatives had ripped the curtain rails off and did not put them back, put rubbish on her carpets and did not clean them, removed the toilet from the bathroom and left it in the living room, along with other rubbish.
4. She wanted to know why the landlord had not used the paint and wallpaper the resident had supplied to re-decorate the flat, as had been verbally agreed.
At review stage of the Ombudsman’s procedure, the landlord provided evidence that this complaint was withdrawn by the resident on 30 June 2021.
On 27 May 2021, the landlord carried out an inspection of the works it had completed and, on 8 June 2021, an officer returned the calls the resident had made regarding the decant.
On 4 July 2021, the resident contacted this Service to report she had made a complaint to her landlord, but that this had not been acknowledged.
The resident moved back into the property on 12 July 2021 and, on 14 July 2021 she contacted this Service to say the landlord had still not connected the gas or electricity supply in the property, and that she had to stay at her mother’s house.
The resident telephoned the landlord on 15 July 2021 to say she wanted to make a formal complaint. She stated that due to not having any electricity, food in her freezer had spoiled. In addition, she had discovered that she owed money on her electricity meter. She also had concerns that she could not use her cooker as a ‘test and turn on’ had not been carried out and as such she had no gas supply to the appliance. She was also concerned that the landlord had tried to charge her rent on two properties.
At review stage, the landlord provided evidence of a formal response to this complaint dated 16 July 2021. In its response, the landlord confirmed:
1. The electricity issue had been resolved. It said it had made a compensatory payment of £40 for the food that had spoiled, which the resident accepted.
2. That it had advised on 20 July 2021 the resident would need to contact the energy company to arrange a credit to her account, which the resident agreed she would do.
3. That the landlord had arranged for a ‘turn on and test’ to be completed for the cooker on 23 July 2021, as per the resident’s request. It confirmed this appointment would be going forward.
4. That she was not being charged rent on both properties.
The resident telephoned the landlord again on 29 July 2021, to make a stage one complaint and stated the following:
1. A gas engineer who attended on 23 July 2021 was unable to connect the cooker because it was not safe due to damage.
2. The engineer who came prior to this appointment said he could not connect the cooker because the ‘turn on and test’ had not been done, but he had not mentioned anything about it being damaged.
3. The resident wanted to know why the cooker was damaged and why the landlord would not speak to her about this.
At review stage, the landlord confirmed to this Service that it cancelled this complaint on 3 September 2021 after being unable to contact the resident.
On 6 August 2021, the resident contacted the landlord to chase up a discretionary payment of £40 it had agreed to pay her for the loss of food in her fridge-freezer. On 12 August 2021, she emailed the landlord to report that she had been without a cooker for nearly a month and asked why it could not supply a new cooker as a matter of emergency.
At review stage, the landlord informed this Service that in response to the resident’s enquiry it confirmed the payment for the spoiled food had been made to her nominated account. It said it told the resident that a ‘turn on and test’ of the cooker had been completed on 15 July 2021. However, the supply to the cooker was capped due to there being no electricity in the property and a debt on meter.
The landlord has also said that it informed the resident that when the engineer attempted to redo the test on 23 July 2021 following the issue with the electricity supply being resolved, damage to the cooker was discovered. As such, the gas supply remained capped.
At review stage, the landlord confirmed to this Service that although the cause of the damage to the cooker could not be established, it replaced the cooker on 17 August 2021 as a goodwill gesture.
The resident called the landlord on 27 August 2021 to say she wanted to make a complaint because she had taken a day off work for a gas service, but nobody had arrived.
On 8 September 2021, the resident visited the council offices to escalate her complaint and wrote to the landlord on 17 September to say she was waiting for someone to contact her to discuss her concerns.
On 18 October 2021, the landlord issued a stage one complaint response and stated the following:
1. The response was in relation to the issue the resident had with a gas safety check.
2. The system appointed the job and sent out a follow-up text message and a letter informing the resident of the appointment.
3. The resident was still recorded on the system as being in her temporary address.
4. It said that, in future, the team would ensure it cancels the job in situations like this and apologised for failing to meet its aim of delivering all services: “Right First Time, Every Time.”
The resident escalated the complaint on 21 October 2021, and the landlord sent its stage two response on 18 November 2021, in which it stated the following:
1. The landlord acknowledged the resident suffered loss to her property while works were being carried out; however, it only admitted to the use of gas and electricity and a damaged light fitting. Although the resident’s cooker was damaged during the move, the landlord could not establish how this had happened.
2. The landlord apologised that it had let the resident down, for its lack of communication, and for failing to take sufficient care of her property and belongings.
3. The landlord offered £300 in compensation, in addition to the £40 it had already paid for the gas and electricity used while the resident was not living in the property.
The resident contacted this Service on 3 January 2022 to say the landlord was not taking her complaint further due to lack of evidence. She stated that the resident deserved an explanation and adequate compensation for the damage that was caused.
On 19 July 2022, the landlord’s Risk & Insurance Services team responded to the resident’s General Property Damage Claim form of August 2020, and did not accept liability for the following reasons:
1. The resident was first aware of damp affecting the walls on 3 July 2020 and reported damp on a number of occasions. She was initially advised that the cause was condensation and this resulted in damage to the walls, décor, and flooring in the hall and living room.
2. The resident first reported a leak on 25 August 2020 and the landlord attended on 10 September 2020, and raised a job to install penny vents. The landlord stated that operatives had not identified a leak at the time and diagnosed the damp as condensation.
3. The landlord received a second report of a leak on 15 October 2020, when the damage would have been more prominent and easier to diagnose. It suggested that there was an underground leak and an excavation was required to locate and remedy the cause of the leak.
4. The landlord stated that it had attended within a reasonable period of time and undertook repairs that were deemed necessary. It concluded that, while it was unfortunate the leak was not identified on 10 September 2020, the landlord believed it was not immediately evident.

Assessment and findings

Leak

Based on the landlord’s repairs policy, the landlord is responsible for attending to leaking pipework within three days as this is considered an urgent repair.
In its letter dated 19 July 2022, the landlord stated that a leak was first reported by the resident on 25 August 2020. The landlord visited the property on 10 September 2020 to inspect for a leak and concluded that the damp was being caused by condensation. The landlord cannot be criticised for relying on the outcome of the inspection, which did not detect a leak at that point. The landlord took appropriate action to address the condensation by installing penny vents in the bathroom on 17 September 2020. Although it took the landlord 16 working days to inspect the report of a leak, it installed the vents within the target timescale of 25 days for small non-urgent work.
The landlord’s letter of 19 July 2022 states that it had received a second report of a leak on 15 October 2020. However, there is evidence the resident made a complaint earlier, on 22 September 2020, where she stated, “I still have damp walls more than ever and now the smell and mould from them is also getting worse.” Evidence shows the landlord did visit the property on 15 October 2020 and reported that it had found an “internal underground burst [pipe] between bathroom and old tank cupboard in bedroom.”
Although it had still not been confirmed that there was a leak when the resident reported worsening damp on 22 September 2020, it is not clear why the landlord took three weeks to carry out an inspection when leaking pipework is deemed an urgent repair in its repairs policy. The landlord should have been able to establish from the resident’s photographs that the damage may have been caused by a leaking pipe. This delay would have caused the resident distress, particularly as the damage from the leak appears to have been developing quickly.
Due to the extent of the work required to repair the leak, it is understandable that the landlord had rated the work as a ‘planned’ repair under its policy and it was correct to decant the resident to temporary accommodation while the works were being carried out. At review stage the landlord provided further details of meetings and conference calls it held with the resident, which it has said were convened for the purpose of ensuring the resident understood the decant process and the works to be completed in the property. However, it was not able to provide any evidence of these in the form of meeting minutes or notes.
Further, updates provided to the resident about when she could move back into her property were given in response to the resident’s repeated requests. The landlord did not provide this information proactively, which it should have done.
The evidence provided (including at review stage) indicates that the resident moved into the temporary property on 7 February 2021, and moved back to her original property 12 July 2021. Given the landlord had previously told the resident the work to her property would take three months, this represents a delay of one month to completing the required work.
Although the landlord responded to the resident’s complaints and enquiries (albeit outside of its own timescales at some stages) the communications regarding the delay to completing works were not adequate. Further, some of the stage one responses do not address all the issues raised by the resident. This demonstrates both that the landlord failed to understand and address all the resident’s concerns via its complaints procedure. Further it demonstrates significant inadequacies with its record keeping. There is little doubt the uncertainty caused by this would have caused the resident a considerable amount of distress and inconvenience.
It was not appropriate that the landlord cancelled the resident’s complaint of 3 September 2021. The Ombudsman’s Complaints Handling Code makes clear that a landlord must not unreasonably refuse to escalate a complaint through all stages of the complaints procedure and must have clear and valid reasons for declining to respond to a complaint. It goes on to state that reasons for declining to escalate a complaint must be clearly set out in a landlord’s complaints policy and must be the same as the reasons for not accepting a complaint. Having reviewed the landlord’s policy to assess the grounds upon which it can refuse to accept a complaint, not being able to make contact with the resident is not a valid reason. There is no other provision within the landlord’s policy which allows it to reject a complaint because it is unable to make contact with the complainant.
Further, the Code makes clear that when a complaint is made, it must be acknowledged and logged at stage one within five days of receipt. The landlord has offered no evidence that it complied with this aspect of the Code either. As such, I find the landlord should have provided a stage one response to this complaint and it was not reasonable for it to ‘withdraw’ the complaint.
There is a differing opinion between the resident and landlord as to the cause of the underground leak. While the resident believes it was caused when the wet room was installed, the landlord stated, following an inspection, that it was caused by a burst pipe between the bathroom and an old tank in the cupboard. It was reasonable for the landlord to rely on the outcome of its inspection.
In summary, the landlord delayed investigating a possible leak following the report of worsening damp, it failed to provide proactive updates about the work being undertaken in her property, and failed to respond to the resident when she made enquiries about this. In addition, the landlord did not keep sufficient records of the discussions it had with the resident, and gave no explanation of why the works took so long to complete. These failings amount to maladministration and, whilst the landlord made an offer of £300 compensation, it is unclear what this was in recognition for. In the Ombudsman’s opinion, the landlord’s offer does not fully recognise the extent of its failings.

Complaints handling

At the time of the original investigation, although the landlord’s records showed that the resident made complaints on 22 September 2020, 19 May 2021, 15 July 2021, 29 July 2021, and 8 September 2021, no evidence was provided to show these were acknowledged within three working days, as specified in the landlord’s complaints procedure. There was also no evidence to suggest that they were taken forward as stage one complaints. That the landlord was only able to provide further details at review stage further supports the assertion that there are failings with the landlord’s record keeping.
It is clear the landlord’s lack of communication caused the resident significant frustration and distress, which resulted in the resident having to seek help from her friend in order to help progress her complaints.
The stage one response dated 18 October 2021, was sent to the resident seven weeks after she raised her complaint. The Ombudsman recognises the challenges the landlord would have faced during the pandemic and acknowledges that some delays may have been inevitable. However, considering the excessive time taken to respond, coupled with the fact the response makes no mention of any of the other concerns the resident had raised between 9 December 2019 and 8 September 2021, it was surprising the landlord offered no explanation or apology for the delays.
The records show that the resident’s representative visited the council’s offices on 8 September 2021 to ask if she can escalate her complaint. It is unclear which of the previous concerns were being escalated. This is because, although there is reference in the landlord’s records of a stage two complaint dated 21 October 2021, and that an officer had made a written record of it, the landlord was unable to provide a copy to the Ombudsman.
The landlord provided a copy of internal correspondence, dated 12 October 2021, where it confirms it could not facilitate a meeting in the council’s offices due to Covid 19 restrictions but that a meeting could take place in an alternative community setting, or remotely. There is no evidence these options were offered or that a meeting took place. There is evidence that the landlord informed the resident that it could not escalate her complaint at the time because she had not yet received a stage one response. Although the landlord provided a stage two response on 18 November 2021, the concerns the landlord addressed in this letter were not related to those addressed in the stage one response of 18 October 2021. It is not clear why the landlord decided to disregard the first complaint stage when it addressed the resident’s fresh concerns.
While the stage two response letter of 18 November 2021 addressed damage to a light fitting and cooker, and the use of gas and electricity while the resident was not living at the address, the landlord failed to refer to the other concerns the resident had previously raised. There is evidence the landlord was struggling to deal with multiple complaints from the resident and that several officers had been involved. It could have appointed a single point of contact to consolidate all the concerns the resident had raised and ensured these were handled through the complaints process. There is no evidence this was considered.
The landlord was correct to apologise in its stage two response for its lack of communication and for damaging some of the resident’s belongings. However, there is no evidence the concerns that the resident had raised had been properly investigated. The landlord had already reimbursed the resident for the gas and electricity its operatives had used while the resident was not in the property. In addition, it offered the resident £300 in compensation but did not specify what this was for.
There was a one month delay to responding to the resident’s first General Property Damage Claim, and the landlord gave no explanation or apology for this. Although this Service acknowledges that these events took place at the time of the COVID-19 pandemic (which would likely have impacted the landlord’s ability to deliver services), it would have been appropriate for the landlord to explain this to the resident, and apologise for any delays if necessary.
In addition, there evidence suggests the landlord cancelled the resident’s second General Property Damage Claim for damage to the blinds in her living room on 12 April 2022, almost one year after the claim was made. The landlord has not provided details of the attempts it made to contact the resident during this time. It has also not provided evidence that it informed the resident (by letter or email if necessary) that if she did not make contact the claim would be cancelled.
Without knowing what attempts were made to make contact the resident, it is not possible to assess whether the landlord’s actions in closing the claim were reasonable. However, that these records were not provided suggests either attempts at contact were not made, or if they were records of the conversations were not made and/or retained.
The failure of the landlord to follow its complaints process, to respond to the resident’s enquiries within a reasonable period of time, to provide proactive updates to the resident, to handle her claims for property damage appropriately and the clear issues with record keeping amount to maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord responded to reports of a leak in the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord handled the resident’s complaints.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the way the landlord keeps its records.

Reasons

The landlord’s poor communication meant it failed to properly manage the resident’s expectations about how long the works would take. It took longer than it should for the landlord to investigate the source of the damp following further reports of a possible leak. Poor record keeping meant the landlord could not evidence what discussions, if any, it had had with the resident prior to and during the decant prior to review stage. It was also unable to evidence it had responded to the resident’s enquiries and complaints properly. Although the landlord offered £300 compensation, it did not specify what this was for. Given the consistent failings in communication, which only served to exacerbate the uncertainty caused by delays in completing the works, this offer does not, in the Ombudsman’s opinion, provide reasonable redress.
The landlord failed to follow its complaints process on a number of occasions, and did not handle the resident’s claims appropriately. This meant the resident was not given proper access to the landlord’s complaints process for a year. The landlord failed to investigate the concerns the resident had raised and it provided two response letters that had no relation to one another. The landlord took seven weeks to respond to a stage one complaint, and only addressed one of the issues the resident had raised. In addition, it failed to apologise or offer any explanation for these delays.

Orders and recommendations

Orders

The Ombudsman orders the landlord to pay compensation of £750, comprising:
1. £150 for distress and inconvenience caused to the resident by the failure to communicate with her regarding the decant, failure to provide updates during the works, its failure to keep adequate records, and in recognition that she was in temporary accommodation for five months longer than she had expected;
2. £200 for any distress and inconvenience caused to the resident for the delays to its investigation following her reports of worsening damp;
3. £200 for its ineffective complaints handling.
4. £200 for any distress and inconvenience caused by the landlord’s poor record keeping.
This remedy replaces the landlord’s previous offer of £300 and must be paid within four weeks of the date of this determination.
The landlord is ordered to provide, within 21 days, with a copy to the Ombudsman, an apology to the resident from a senior member of staff for the failures identified in this report.
The landlord to either refer to its insurer to reimburse the resident for the cost of the blind that was damaged, or offer her compensation on receipt of evidence of the cost incurred.
The landlord to review its approach to record keeping in the light of the findings of this investigation, identify areas for improvement and learning, and provide an action plan with timescales for implementation to this Service. This action plan should be provided to the Ombudsman within eight weeks of the date of this determination.
The landlord to carry out a review of why the complaints the resident had made were not dealt with appropriately and offering training to staff on complaint handling in order to address the failures that are identified in its review.

Recommendations

The landlord to consider reimbursing the resident for the paint and wallpaper she purchased, following a verbal agreement that the landlord would use this to re-decorate the property.