Royal Borough of Kensington and Chelsea (202121904)

REPORT

COMPLAINT 202121904

Royal Borough of Kensington and Chelsea

31 May 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 response to the resident’s:
   1. Rehousing request;
   2. Reports of repairs required at the property;
   3. Request to be decanted while the repairs were carried out.

Jurisdiction

2. 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.
3. After carefully considering all the evidence, in accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
   1. The landlord’s response to the resident’s rehousing request.
4. Paragraph 42(k) of the Scheme says 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”.
5. The resident wants to be permanently moved to alternative accommodation. The information seen suggests his request is based on overcrowding and health/welfare grounds. The landlord’s stage two response indicates he has been on the local authority’s housing resister since 2016.
6. Part 6 of the Housing Act (1996) governs the allocation of local authority housing stock in England. It sets out the circumstances where reasonable preference must be given to certain applicants, when making decisions about offers of property. The reasonable preference criteria include applicants living in unsuitable conditions and applicants who need to move on medical or welfare grounds.
7. The Housing Ombudsman can only consider complaints about transfer applications that are outside of Part 6 of the Housing Act (1996). The Local Government and Social Care Ombudsman (LGSCO) can review complaints about applications for rehousing that fall under Part 6. This includes complaints concerning applications for rehousing that meet the reasonable preference criteria and the assessment of such applications.
8. Since the resident’s rehousing request falls within Part 6 of the Housing Act (1996), it cannot be reviewed by the Housing Ombudsman. As a result, this aspect of the complaint is better suited to the LGSCO. The Housing Ombudsman can consider the resident’s other concerns.

Background and summary of events

Background

9. The resident has a secure tenancy which started in September 2014.The property is a one bedroom, second floor flat, occupied by the resident and his family. The family consists of the resident and three other occupants.
10. The tenancy agreement confirms the parties’ obligations. The landlord is obliged to keep in repair: the structure, exterior, common parts and all installations for the supply of water, gas, electricity, heating and sanitation. The resident is obliged to report all repairs and defects in the property to the landlord as soon as they become apparent. 
11. The landlord’s repairs policy says that it will establish the type of repair that needs to be carried out and it will take into account the personal circumstances of the resident. Further, that it would consider the inconvenience to the resident in the context of the repair. Repair categories are used to prioritise repairs and assigned response times to each category.
12. The landlord’s decant policy shows it will consider factors including the level of risk, and whether a property can be safely inhabited during any repair works.
13. The landlord operates a two-stage complaints policy. It aims to respond to complaints within ten working days at stage one. At stage two, it aims to respond within 20 workings days.

Summary of events

14. The landlord’s repair system recorded the roof leaking into the bathroom on 10 December 2016. The resident said the bathroom ceiling had a hole in it and “rain was pouring down the walls”. Further, the water was building up in the loft which was dangerous.
15. The resident contacted the landlord on 5 January 2017 to say that the roof repair carried out the previous week had not worked and the roof was still leaking. There is a gap in correspondence on this point, until it was raised at the complaint stage.
16. The landlord’s surveyor compiled a report which included a five year repair history. In relation to the issues forming the complaint the repair history showed, a leak in the roof was reported in December 2016, issues relating to the bathroom in June 2021 and damage to the windows in July 2021. The resident reported the roof was still leaking in January 2017. The landlord recorded this as ‘resolved’. The landlord said there were other issues forming the complaint which were reported in January 2021. Limited detail has been provided in this context.
17. The resident raised a stage one complaint on 24 August 2021. He said:
    1. The property is overcrowded with four occupants residing in a one bedroom flat. The children were sixteen and ten years old.
    2. He contacted the landlord on numerous occasions over a five year period in attempts to get the property repaired.
    3. The landlord has been unable to provide him and his family with a decent home for the past five years. He was “continuously ignored” by the landlord.
    4. The unresolved repairs were:

i.        The front door was unstable and insecure, and the frame crumbling.

ii.      The hallway had mould and condensation to the walls, and exposed electrical sockets since a previous repair two years earlier.

iii.    The kitchen window was rotten and did not close. The boiler was ineffective.

iv.    Broken bath tap which was reported five or six times; no bathroom fan; and a missing bath panel.

v.      A damaged window frame in the bedroom and damage to surrounding plasterwork due to a leak. Black mould near the children’s bed which was affecting their health.

vi.    The disrepair and overcrowding were also affecting the children’s mental health and school performance.

18. The landlord acknowledged the stage one complaint on 2 September 2021. It notified the resident that it would need the full ten working days to respond in full. It then issued its formal response on 16 September 2021. It said:
    1. All concerns about overcrowding and rehousing had to be addressed by the ‘housing solutions team’ or the local neighbourhood service coordinator. Contact details were provided.
    2. It apologised that issues had been reported and not resolved, and for the resultant distress and inconvenience caused.
    3. It acknowledged the areas for repair which were highlighted by the resident in the complaint.
    4. Some of the repairs had been “reported recently and are being planned”.
    5. Due to the nature of some issues, a surveyor would attend to assess the issues and plan the repairs.
    6. The complex case manager attempted to contact the resident by telephone but was unable to get through. It was acknowledged that this was due to the resident working night shifts in a hospital.
    7. A surveyor would attended on 22 September 2021. They would assess the issues and plan the repairs.
    8. Pest control would attend and carry out proofing works.
19. The surveyor attended the property on 22 September 2021. They did not produce a report until 11 November 2021.
20. The resident escalated the complaint to stage two, on 5 November 2021. He said:
    1. Since the surveyor attended the property, no further action was taken.
    2. A second surveyor also attended, six weeks prior to the complaint escalation; however, no action was taken.
    3. He since noticed further repairs which needed work. These included:

i.        Replastering the living room wall.

ii.      Exposed electrical sockets.

iii.    Rusty radiator in the bathroom caused by lack of extractor fan.

iv.    Mouldy bathroom ceiling.

v.      Receding attic beams damaging plasterwork throughout.

vi.    He was considering legal action if the outcome of the investigation did not cover the failure to provide a duty of care towards him and his family by not providing a decent home.

21. The surveyor emailed the resident on 8 November 2021 and apologised for the delay in completing the report and the distress this caused to the resident. They confirmed the recommendations following the inspection. They said a number of specialist surveys and repairs needed to be carried out. Further that the property was overcrowded.
22. An internal email from the landlord said there were no holes in the ceiling except ventilation holes through which the resident claimed mice were entering. Further that the resident had declined a pest officer visit and said there was no point as the property was in disrepair and full of holes. The resident had also declined the offer of a heating engineer visit.
23. The surveyor’s report was dated 11 November 2021 (for the inspection on 22 September 2021. It included supporting photographs. They appear to reflect the comments in the report. The report said:
    1. Main entrance.

i.        The front door was loose in the frame but it was secure. Insulation strips should be fitted to prevent heat loss. There was plaster damage around the door, possibly due to hard opening and closing.

2. Hallway.

i.        There was a small amount of mould growth towards the roof pitch and evidence of water staining on the walls. There was an issue with condensation and there was no ventilation to the hallway except the Velux window which was out of reach.

ii.      There was a damaged electrical socket, but no evidence on the repairs history to show electrical works.

3. Kitchen.

i.        The window needed adjustment and was not thermally efficient.

ii.      The base plinths had been removed from the kitchen.

iii.    The boiler was being serviced on site.

4. Bathroom.
   1. The mixer tap was in a poor condition. This had been reported four times.
   2. The bath panel was forcibly removed by the landlord’s contractors and not replaced.

v.      Some tiles and boxing required repairing.

vi.    The window required adjustments and was not thermally efficient.

vii.  The light diffuser was missing and required replacing.

5. Bedroom.

i.        Plaster around the window is damaged. Water damage caused shrinkage to the casement timber frame, which affected the plaster. The window was not thermally efficient.

ii.      There was no evidence of mould growth around the loft hatch.

iii.    The minor decorative cracking in the ceiling was not due to damaged ceiling joists.

6. Other.

i.        The living room window and surround was similarly damaged.

ii.      The resident reported a mouse infestation and a bait tray was visible.

iii.    The landlord’s contractor had removed radiators and capped pipework.

7. The following recommendations were made and a schedule of works provided:

i.        “The property needs repair…and the one-bedroom accommodation is overcrowded, rehousing the family should be considered”.

ii.      A roof inspection should take place.

iii.    Boiler instructions should be sent to the resident.

iv.    A survey relating to condensation and improving ventilation was required.

v.      A full electrical survey was required. Repairs should be completed.

vi.    New windows were due to be fitted in 2022-23. Current windows are inefficient and need repairs.

vii.  A new bath should be fitted and minor decoration completed.

viii. Decoration vouchers should be issued.

24. The landlord’s call records noted:
    1. The landlord called the resident on 15 November 2021. It spoke with the resident’s partner who said he was sleeping after a night shift. She advised:

i.        They had been waiting for repairs for two years.

ii.      The property was covered in mould.

iii.    The property was “infested with mice”.

iv.    The windows were rotting.

v.      The walls were constantly dripping with condensation.

vi.    The beams in the attic were “receding” due to a previous leak that took over a year to resolve.

vii.  The property was too small and the resident was sleeping on a mattress in the living room after a twelve hour night shift.

2. The landlord advised it was unable to rehouse the family as they were only one bedroom short.
3. The family needed to be decanted while works are being carried out and a further survey as new issues had been identified.
4. A voicemail was left for the resident on 26 November 2021. The call was made by the landlord to speak with the resident and “persuade” him to grant access for the works. 

25. The landlord issued a stage two response on 3 December 2021. It said:
    1. It wanted to ensure its repairs team learned lessons from the resident’s experience.
    2. It was unacceptable that the surveyor did not arrange for any action in relation to the outstanding repairs until after the stage two escalation.
    3. Regular updates were supposed to be provided, but this did not happen.
    4. The repairs and actions identified by the surveyor could be summarised as follows:

i.        The windows could be “adjusted” so that they were in a working order and the casements can be repaired.

ii.      The bath panel and bath will be renewed. Further, the wall tiles and boxing will be completed at the same time.

iii.    The areas which required replastering in the bedroom, living room and hallway would be replastered and painted.

iv.    The surveyor will arrange for a heating engineer to provide an update and provide the boiler instructions.

v.      The surveyor advised they would like a full survey by its contractor in relation to the condensation and mould.

vi.    A roofer needed to inspect the condition of the roof and loft space.

vii.  A full electrical survey was required, after which all required repairs would be completed.

viii. The pest control team attended the property and were denied access.

5. The resident needed to confirm that he was happy for the above to be actioned by the landlord.
6. The surveyor needed to attend again to assess the new repairs which were reported by the resident.
7. The resident wanted a written resolution to the stage two complaint before any repairs were carried out. These repairs would now be prioritised by the landlord.
8. The resident was offered £1000 in compensation for delays in responding to the repairs.
9. It believed that it would be necessary for the resident to move to temporary accommodation while the repairs were being carried out.
10. The repairs team have confirmed that the resident could remain in the property with the family in situ (it appears the preceding comment omitted the word ‘not’ when explaining it would not be necessary to decant the family).

26. The resident brought the matter to this Service a year later on 30 December 2022. The resident said:
    1. The landlord had failed to provide a decent home “for a number of years” as the property was overcrowded and full of mould.  
    2. He could not take anytime off work or be anywhere else during the day as he is a nurse on night shifts.
    3. He did not trust the surveyor to arrange any works or make further assessments due to the experiences to date.
    4. The mould experts appointed only washed the walls and did not carry out a survey or install any ventilation system.
    5. The offer of £1000 did not reflect the “years of suffering” endured.
27. The resident instructed a solicitor who sent a letter of claim to the landlord on 8 March 2022. The solicitor detailed a number of outstanding repairs and said that the resident notified the landlord of these issues between 2015 and January 2021. Further, they said that in their view, the landlord was in breach of its repairing obligations in accordance with the tenancy agreement and relevant statute.
28. The landlord contacted this Service on 26 April 2022, after the resident brought the case to the Ombudsman. It said that as the resident had instructed legal representation, the matter would no longer be considered under its complaints process. It questioned whether it needed to provide the information requested. It was informed by this Service that it did need to provide the information as requested as legal proceedings had not commenced.
29. The resident’s MP emailed the landlord on 27 February 2023. They said the resident had contacted them regarding concerns about disrepair, mould and other serious issues.
30. Internal email correspondence from the landlord on 3 March 2023 discussed the option of another inspection. This was dismissed and the surveying team said they could start works as soon as the resident was in agreement with them to do so.
31. This Service discussed the matter with the resident on 5 May 2023. The resident said:
    1. The property was overcrowded and the landlord had not provided him with a larger property. Nothing had been done to progress his rehousing request.
    2. He and his family had been living in substandard conditions for years and the landlord failed to respond to his requests for repairs.
    3. The surveyor who attended to inspect the property agreed with the resident’s assessment of the condition in person, then produced different findings in their report.
    4. No mould survey was carried out, only a mould wash.
    5. He sleeps on a mattress on the living room floor, during the day, as he works as a nurse doing night shifts at a hospital. Therefore, it would not be possible for him to rest while not working if works were being carried out.
    6. He and his family should be decanted while the works were carried out.

Assessment and findings

The landlord’s response to repairs

32. The resident raised a formal complaint on 24 August 2021. He said he raised many of the issues forming the complaint over a number of issues dating back to 2015. The landlord has provided screenshots showing the progress of a number of repairs in relation to a repair history over five years. Windows were recorded as being inspected in 2015; however, most historic issues recorded did not relate to the issues forming the complaint. Therefore, the landlord’s response will be assessed only in relation to the repairs forming the complaint.
33. The landlord issued a formal response to the stage one complaint on 16 September 2021. It said that due to the nature of the issues reported, a surveyor needed to attend to inspect the property. The surveyor then attended on 22 September 2021 and completed an inspection. This was an appropriate response to the issues raised in the complaint. The landlord was not in a position to carry out works to the property before assessing what was required through an inspection.
34. The landlord acknowledged that some of the issues were reported to it in January 2021. Therefore while the surveyor was appointed relatively quickly after the stage one response, it took the formal complaint for this to happen. This represented a delay which was not in compliance with the landlord’s policy or reasonable in the context of the issues established.
35. The surveyor’s report recorded outstanding works at the property, with repairs and surveys required, and issues identified in every room. The surveyor made a number of recommendations in the report; this was for a roof inspection, a boiler inspection and instructions, a condensation and ventilation survey, an electrical survey, repairs to windows, a new bath and decorative works to the bathroom, and decoration vouchers.
36. These were reasonable recommendations in consideration of the findings of the report. The report recommended completing any works identified in the respective surveys. A cost sheet was also provided and it is not disputed that a contractor attended to complete a mould wash, in response to the limited areas of mould found in the inspection report, as supported by the surveyor’s photographs.
37. The surveyor did not submit their report until 11 November 2021. This was after the resident said no action had been taken since the inspection. The surveyor apologised for the delay. They accepted there was no excuse for not providing the findings sooner. The landlord formally apologised for this failing in the stage two response. It also apologised for not addressing the issues reported as early as January 2021, until the stage one complaint.
38. The landlord acted appropriately in recognising the failings and apologising for these. It offered to initiate the works program as soon as the resident was able to facilitate access and offered £1000 compensation. It also said there were lessons its repair team needed to learn and it would be raising this directly with the head of resident safety and repairs.
39. However, it was evident that the works could not reasonably be undertaken with the resident and family living at the property. The landlord’s failure to recognise this meant the resident could not accept the landlord’s offer to start works. This resulted in the issues identified in the surveyor’s report, not being more thoroughly investigated and repairs carried out as necessary. The resultant delay was distressing to the resident as it left him not knowing when or how the works would proceed. This constituted severe maladministration by the landlord.
40. While the landlord assessed the compensation based on the period up to the stage two response, as it did not act appropriately in accordance with its policies, the delay period continued to run until the present time. Therefore this extended period needs to be considered when assessing the reasonableness of compensation.
41. The landlord issued its stage two response on 3 December 2021. Compensation was offered by the landlord for its response up to that point. As the delay period can be considered to have continued beyond that point and as the works remain outstanding to date, further compensation of £1500 for distress and inconvenience is appropriate in the circumstances.

The landlord’s response to the resident’s request to be decanted while works are completed

42. The resident said he wanted the landlord to undertake the work; however, he and his family should be decanted while it is carried out. He said this was because the property was a one bedroom flat with four occupants and that he slept on the floor in the living room. Further, that as he worked night shifts at a hospital, he slept during the day. This meant that any work carried out during the day would be highly disruptive. The landlord has rejected the resident’s request on the basis its repairs team said they could carry out the work with the resident in situ.
43. The landlord’s decant policy says in deciding whether decanting will be required, the need must be assessed  in accordance with any vulnerabilities. While no vulnerabilities were recorded, the landlord was aware of resident’s working pattern of night shifts at a hospital. This has been his working pattern for the duration of the complaint process. The resident said he still works night shifts.
44. While the repairs team may be able to carry out the works with the resident in situ, in consideration of the disruption caused by the works, it would be impossible, or at least extremely difficult for the resident to sleep after his shift while works were being carried out. It is not disputed the resident is a nurse at a hospital. It is evident that his work is demanding and that he requires rest in between shifts.
45. Therefore, by refusing to decant the resident during works the landlord did not act appropriately in taking the resident’s circumstances into consideration. This constituted severe maladministration and further compensation of £600 was reasonable in the circumstances.

Determination (decision)

46. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was severe maladministration in relation to the landlord’s response to:
    1. Reports of repairs required at the property.
    2. The resident’s request to be decanted while the repairs were carried out.
47. In accordance with paragraph 42(k) of the Housing Ombudsman Scheme, the complaint regarding the resident’s rehousing request is outside of the Ombudsman’s jurisdiction.

Reasons

48. While the landlord responded to the resident’s complaint by arranging for its surveyor to attend the property and inspect its condition, this was approximately nine months after the landlord said the issues were reported. The surveyor then did not issue their report for a further two months, while works, some of which were urgent, were not carried out. The works remain outstanding to date.
49. While the landlord’s repairs team said they could undertake the work with the resident in situ, it was evident that this was not going to be possible, given the resident’s circumstances and the number of occupants living at the property. Therefore, the landlord did not comply with its own policies by failing to recognise the needs of the occupants and how these works would affect them.  

Orders

50. Within four weeks of the date of this report the landlord is to:
    1. Provide the resident and this service, with a timetable of works based on its surveyor’s report and costed works schedule. This must account for all the specialist surveys and any follow on works identified in those surveys. 
    2. Set out realistic timeframe for completion of work which must be finished within four weeks thereafter.
    3. Make preparations, in accordance with its decant policy, to decant the resident and his family residing at the property for the duration of the works. This must take into account the resident’s employment circumstances and children’s school.
    4. Provide the resident and this service with its plan for decanting the family in relation to the works timetable.
    5. Apologise to the resident for the failures identified in this report.
    6. Pay £2100 compensation for distress and inconvenience caused to the resident; comprising:

i.        £1500 for delays in carrying out the repairs.

ii.      £600 for failing to recognise the need for decanting.

7. Review the circumstances of this case, in conjunction with its decants policy. It is to understand why its decision making process did not identify the need for decanting the resident, in consideration of his circumstances. It should then review the findings of this report and consider how it would respond to in similar situations in the future. Should it find that its policies and procedures lack clarity in the approach expected of its users, these are to be reviewed in conjunction with staff training, within two weeks thereafter. The landlord is to then report on its findings and the actions taken to this Service, when the process is complete.