Aster Group Limited (202204915)

REPORT

COMPLAINT 202204915

Aster Group Limited

6 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 handling of repairs to the resident’s windows.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is a leaseholder of the landlord under a shared ownership scheme. The resident’s property is a flat on the 3rd floor of a block, and he purchased the property in 2014. The landlord has no recorded vulnerabilities for the resident.
The building in which the resident’s property is located was built in 2009, and has cedar wood cladding and wooden framed windows. The landlord completed an inspection, following a contractor reporting a water ingress issue with windows, in November 2020. The landlord’s operative issued a report on 27 November 2020, which said:
1. There was evidence that water had been penetrating the cladding for a number of years;
2. There was no evidence of ‘flashing’ or ‘soakers’ which it would expect to see, meaning the windows were not protected when “wind driven rain” got behind the cladding. There was evidence of previous attempts to remedy the issue by using ‘mastic’ and a retrospective flashing;
3. The timbers behind the cladding were damp, and had started to rot;
4. The windows had gaps in the rubber seals around the glazing and had started to rot and “fail”;
5. It recommended the cladding for the whole building be replaced as it had not been installed correctly, but this was unlikely to be a viable option due to the cost and likely timeframes;
6. It recommended installing additional damp proofing above the windows to allow water to drain away, but said the suggested works were not a long term solution to the issue.

Summary of events

The resident contacted the landlord on 8 September 2021 and said that he was concerned that the landlord had not responded to a previous query he raised about his windows. The resident said his window frames were rotting, and the glazing had water inside it. It is unclear when the landlord responded to this report from the resident.
The local authority wrote to the landlord on 8 February 2022 and said that it had received a report from the resident that he was unable to close the windows in his living room and bedroom. This was due to parts of the window having rusted and he was experiencing “excessive draughts”, he was therefore finding it difficult to keep his property adequately heated. The local authority stated that it had not yet inspected the property and hoped the landlord could agree an appropriate solution without it needing to intervene.
The resident submitted a complaint on the landlord’s website on 18 February 2022 and said:
1. The issue with his windows had been ongoing since he bought the property in 2014, and his reports at that time were ignored;
2. He had raised his concerns about the condition of the windows with the local authority;
3. He was having to shut his living room window every few minutes, as the wind was blowing it open;
4. He was suffering high heating costs, due to the issues with the windows.
The landlord acknowledged the resident’s stage 1 complaint on 22 February 2022, and said it would issue its response by 8 March 2022. The landlord contacted the resident on 7 March 2022 and said it needed longer to investigate the resident’s complaint, and would issue its response by 21 March 2022. The landlord sent its stage 1 complaint response on 16 March 2022, and said:
1. It had found that issues with the render and cladding meant that moisture was trapped in the window frames;
2. It was going to survey and measure the windows to enable it to provide the resident with a cost for replacing them;
3. The windows had failed before they would usually be expected to, and should have lasted for 25 years;
4. It had identified the fault and was confident the proposed works would solve the problem;
5. It apologised for the inconvenience and distress caused by the issue and offered £100 in compensation.
The resident contacted the landlord on 12 April 2022 and asked for his complaint to be considered at stage 2 of its complaints procedure. The resident said that the landlord had not responded to his query about its plan to measure and provide a cost for the window replacement. The landlord acknowledged the resident’s escalation request on the same day and said it would respond by 12 May 2022. The landlord emailed the resident on 12 May 2022 and said it needed more time to complete its investigation, and would issue its response by 26 May 2022. The landlord sent its stage 2 complaint response on 27 May 2022, and said:
1. Its stage 1 complaint response was not clear on what actions it intended to take on the windows, and apologised for this;
2. It had carried out repairs on some windows but they were now at a stage where they were “beyond reasonable”;
3. It was now putting in plans to replace all windows in the building;
4. Stating it would provide a price to replace the windows was due to the officer responding to the complaint being of the view that it was the resident’s responsibility to replace the windows;
5. It had sought legal advice about the lease and was now of the view that it was responsible for replacing the windows, and it would then recover the cost from the resident;
6. It apologised for its misinterpretation of the lease in its stage 1 complaint response;
7. It expected to complete the works to replace the cladding and windows in the financial year 2023-24, which meant the resident’s windows would not be immediately improved. It regretted this, but was of the view that replacing the cladding and windows at the same time was the most cost effective and least disruptive approach;
8. It apologised for the “small delay” in issuing the stage 2 complaint response, and advised the resident how to raise his complaint with this Service if he was unhappy with its response.

Events after the complaints procedure

The resident contacted this Service on 10 June 2022 and asked the Ombudsman to investigate his complaint. The resident stated that he was unhappy with the landlord’s response to his reports of rotting windows, and it was yet to take any appropriate action.
The landlord emailed the resident with a stage 2 complaint “follow up” on 30 November 2022 and said:
1. In preparing the file for this investigation, it had revisited its handling of the resident’s case;
2. It was of the view that it should have done more to support the resident and offered more of an explanation of its position in relation to the windows;
3. It found its communication had been “poor”, and its advice unclear, leaving the resident to chase for information over an extended period of time. It offered £250 for its poor communication;
4. It found that it had not “fully addressed” the resident’s concerns about the safety of his windows and increased heating costs. It wanted to arrange a visit by a window specialist to identify any temporary repairs to improve the situation, until the windows were replaced. For its failure to address the resident’s concerns it offered £400 in compensation;
5. It asked the resident to provide evidence of additional heating costs he had incurred, so it could consider making a “contribution”;
6. It found that it had not offered appropriate redress in its complaint responses, and its complaint handling fell below the standard expected. It offered £250 for its complaint handling;
7. It had assigned a point of contact for the window issue, so the resident had someone to raise concerns/questions with.
The resident emailed the landlord on 12 December 2022 and said that he was unable to provide evidence of increased heating costs. He said that when it had been cold and at times of high winds he had stayed elsewhere, as his property was losing warmth “rapidly”.
The landlord completed temporary works to the resident’s windows on 23 June 2023. On 3 August 2023 the landlord advised this Service that the temporary repair was successful, and the resident was able to open, close and lock his windows. The landlord also told this Service that it hoped to begin works to replace all of the windows in the block in January/February 2024 (subject to planning and building regulation sign off.

Assessment and findings

Relevant obligations, policies and procedures

The resident’s lease agreement states the windows and glass are ‘demised’ to him. The lease agreement states that the landlord is responsible for maintaining and repairing “the load bearing framework and all other structural parts of the building”. Under the terms of the lease the landlord is able to carry out repairs, and recover costs from the resident through his service charge. (The courts have held that all parts of a window are considered to be part of the structure of a property).
The landlord’s complaints procedure states that it will acknowledge complaints within 2 working days. The procedure states that it will issue stage 1 complaint responses within 10 working days and stage 2 complaint responses within 20 working days. It also states that if an extension is needed at either stage, it will explain and give a timeframe for a response to the resident.
The landlord’s compensation policy states that it can offer discretionary payments of compensation when a failure in service is identified, as part of a complaint investigation. The policy states it can offer up to £500 as part of a discretionary offer of compensation. The policy states that it can offer up to £250 for inconvenience and distress, and in some circumstances up to £500.

Window repair

When the resident raised his complaint with the landlord, he said that he first reported the issue with the windows when he purchased the property in 2014. As part of this investigation the landlord has provided a log of all incoming communication from the resident, and there is no evidence to support this. The evidence provided for this investigation shows that the landlord completed a building wide survey that identified an issue with all of the windows in the block in November 2020. Therefore, this investigation has considered the landlord as being on notice about the window issue from November 2020.
When the resident raised a concern about his window frames rotting in September 2021, it appears from the evidence provided, that the landlord did not respond to the concern raised by the resident. This was a failing in its handling of the matter. It is evident that the during parts of his complaint, the landlord was of the position that the resident was responsible for maintaining the windows in his property. The landlord later accepted that this position was incorrect. However, it would have been reasonable to inform the resident of its position when he raised a concern about the windows, and give advice about what assistance it could offer in relation to any repair needed.
It is reasonable to expect the landlord to have been clear about its legal position relating to its responsibilities under the lease agreement. The fact that the landlord was, incorrectly, of the view the resident was responsible for maintaining the windows, can reasonably be expected to have impacted on its overall handling of the matter.
The evidence available indicates that the landlord’s approach to the issues with resident’s windows primarily focused on the building wide issue and the project to replace all of the windows in the building. While it was appropriate to replace all of the windows, it appears the landlord did little to address the resident’s immediate concerns about his living conditions, due to the defective windows. Internal emails, seen by this investigation, indicate that the landlord discussed completing “weather sealing” works in October 2021, to limit water ingress ahead of the wider project. There is no evidence available to suggest the landlord completed any temporary remedial works at the resident’s property, a fact it later accepted in its stage 2 complaint follow up of November 2022.
When the local authority wrote to the resident in February 2022, it identified concerns that the resident could not close his windows. The letter said the resident was suffering a detriment as a result, due to his windows opening when windy and increased heating costs. Internal emails, from February 2022, state, as a shared owner, the windows would “ordinarily” be the resident’s responsibility, but it intended to replace the windows for the whole block. It is concerning, considering the issues described in the letter, the landlord did not seek to engage with the resident around the living conditions he was describing. The landlord’s focus remained on the wider project, rather than the individual circumstances of the resident. This is further evidence that its incorrect view of its repairs obligations impacted on its overall handling of the matter. It is reasonable to expect that, had it correctly applied its repair responsibilities, it may have visited the resident around this time to see if it could do any remedial repairs to improve the situation.
The landlord’s stage 1 complaint response did not discuss the concern about the resident’s windows in any detail and was cursory. The landlord indicated that it would provide the resident with a quote to replace his windows. However, it is clear that by this time the landlord was of the position that it was going to replace the windows for the whole block. It would have been reasonable for it to have made this position clear to the resident in its stage 1 complaint response. The complaint response lacked clarity for the resident, and it would have been reasonable for the landlord to give more detail about intentions to replace all of the windows in the block. The result for the resident was confusion about the process, and what specific action the landlord intended to take.
The landlord’s stage 1 complaint response failed to address the resident’s concerns about the conditions in his property, and the fact he had reported the issue initially in 2014. It would have been reasonable for the landlord to use its complaint response to outline what it could do to address the resident’s immediate concerns, and its position in relation to the resident’s claim of when he first reported the issue. Its approach failed to have the appropriate consideration for the resident’s individual circumstances and the distress he had said he was experiencing. This Service has seen no evidence that the resident did report the issue in 2014, but given he had raised the issue as part of his complaint, it is reasonable to expect the landlord to address it.
The landlord’s stage 2 complaint response appropriately put right the incorrect position it had previously outlined (that the resident was responsible for the windows). It also used the response to provide the resident with further information about its plan to replace all of the windows in the block, which gave greater clarity to the resident about the process.
The landlord’s stage 2 complaint failed to address the concerns the resident had raised about the living conditions he was experiencing. The landlord’s comment, that it regretted it could not improve the windows in the interim, was inappropriate. Given it used its stage 2 complaint response to acknowledge that it was responsible for completing repairs to the windows, it would have been appropriate arrange a visit to see if it could assist. The resident suffered further distress of continuing to live in a property where he was unable to shut the windows. The landlord failed to seek to improve the circumstances he was living in, in line with its repair responsibilities.
The landlord’s stage 2 follow up email did acknowledge and apologise for its failure to investigate the window issue, which was appropriate. The landlord arranged for a window specialist to inspect the windows to see if they could be improved in the interim. This was a reasonable approach, considering the impact the faulty windows were having on the resident. However, it is reasonable to expect the landlord to have done this sooner. The landlord arranged a specialist to inspect the resident’s windows in November 2022, this was 9 months after he reported that they would not close. This was an unreasonable delay, and the resident suffered significant distress as a result.
The landlord completed the temporary repair to the resident’s windows a further 7 months after it had agreed to do so. Given the level of the delays the resident had experienced up to that point, and the landlord’s acceptance that it should have done this sooner, this was an unreasonable delay. The resident suffered further distress of living in a property where he could not properly close the windows during the coldest months of the year.
The landlord used its follow up response to manage the resident’s expectations about heating costs. It explained that it was hard to do such a calculation, but asked the resident to provide evidence and it would consider providing compensation. This was a reasonable approach in the circumstances. It is noted that the resident felt he was unable to provide such evidence, as he spent time away from the property due to the condition. It would have been appropriate for the landlord to have offered compensation for the inconvenience of the resident having to stay elsewhere. This Service has seen no evidence that it did so.
Where there are admitted failings by a landlord, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was proportionate and reasonable. The Ombudsman’s dispute resolution principles are to be fair (follow fair processes and recognise what went wrong), put things right, and learn from outcomes.
The landlord’s stage 2 follow up email, of November 2022, apologised and acknowledged failings in its handling of the substantive issues of the complaint. It offered a total of £650 in compensation for its handling of the window issue. The landlord appropriately acknowledged and apologised for its failings in its handling of the matter, and sought to put things right by offering compensation. However the landlord did not explicitly offer compensation for inconvenience and distress which it would have been appropriate to do, in line with its compensation policy. It is evident that the resident suffered a significant amount of inconvenience and distress as a result of its handling of the window issue. It is therefore unclear why the landlord did not offer compensation for this.
The landlord’s follow up email did not explain what learning it had done as a result of its poor communication. However, it did show learning about its lack of investigation for an interim solution for the windows, which was appropriate. At the time of its final offer of compensation, the window issue remained outstanding, and as such did not fully put it right for the resident. Its overall handling of the issue was poor, and there was a long delay in arranging to address the resident concerns in relation to the conditions he was reporting. The landlord identified some learning, but this was not comprehensive. Its offer of compensation did not fully put things right for the resident, as such relevant orders have been made below.

Complaint handling

The resident raised a concern about the service he had received from the landlord, in September 2021. Given the content of the resident’s email, it would have been appropriate for the landlord to have opened a complaint investigation at that stage. The Housing Ombudsman’s Complaint Handling Code (the Code) states that a complaint is an expression of dissatisfaction, however made. The landlord’s decision not to open a stage 1 complaint at that stage, was a failing in its complaint handling.
On receipt of the letter from the local authority, internal emails for the landlord indicate that it took the letter as a complaint from the resident, which was appropriate. An internal email on 17 February 2022 stated that the letter was “passed around” but the complaint team was not notified. The email stated this was “complaint mishandling” and raised a query whether this should be addressed in the response or acknowledgement letter. It was reasonable for it to identify this failing, however its stage 1 complaint acknowledgment and response were silent on the matter. Given it had identified failings in its complaint handling, it would have been reasonable for the landlord to have addressed these.
The landlord acknowledged the resident’s stage 1 complaint, 10 working days after receiving the letter from the local authority. Given the landlord took the letter from the local authority as the resident’s initial complaint, this amounted to 5 days later than set out in its procedure. This was a further failing in its complaint handling, and resulted in the resident experiencing an inconvenience, albeit minor, of not having his complaint acknowledged within a reasonable timeframe.
The landlord’s stage 1 complaint response offered the resident £100 in compensation to acknowledge the issues with the resident’s windows. However, it did not specify what failings it had identified, that led to an offer of compensation, which would have been appropriate and in line with its compensation policy. The landlord’s stage 1 complaint response was cursory and lacked empathy for the resident’s individual circumstances, and the conditions he had reported. In line with the Ombudsman’s dispute resolution principles it would have been reasonable for the landlord to have explained the failings it had identified, and what learning it had done. Its failure to do so was a further failing in its complaint handling, and the result for the resident was an unfair complaints process, that failed to address specific issues he had raised.
The conclusion that the landlord’s approach to its stage 1 complaint investigation was cursory is further supported by its internal communications during its stage 2 complaint investigation. An internal email for the landlord on 20 April 2022 expressed a frustration that it had not completed a “learning record” for the stage 1 complaint. It stated that it expected to have done “significant learning” due to its handling of the issue.
The landlord’s stage 2 complaint response admitted failings in relation to its handling of the stage 1 complaint, and acknowledged the small delay in issuing its stage 2 complaint response. Given it had admitted failings in its complaint handling, it would have been reasonable for it to identify learning it had done, and offer redress to the resident. It is unclear why it did not do this, and its failure to do so was a further failing in its complaint handling.
The landlord did not issue its stage 1 or stage 2 complaint responses within the timeframes set out in its procedure. However, on both occasions it sought to manage the resident’s expectations about the delay, and gave a timeframe in which it would respond. This was reasonable in the circumstances and in line with the its procedure and the Code. It is noted that it was unable to comply with the timeframe given in its stage 2 extension request, however the 1 day delay in issuing the response caused the resident no real detriment. The landlord appropriately apologised for the delay.
The landlord decided to revisit its handling of the complaint in November 2022, and issued the resident with a follow up response. Considering the failings in its complaint handling up to that point, it was reasonable for it to do so. The follow up response was thorough, and addressed concerns about the substantive issue that had not been considered in its previous responses. It also identified failings in its complaint handling, which it apologised for and offered compensation to try and put things right.
The landlord’s follow up response appropriately identified that it needed to promptly visit the resident’s property to detect any temporary works it could do to improve the situation for the resident. It is reasonable to conclude that this should have been done sooner, and had it conducted an appropriate complaint investigation, it may have arranged this visit during the initial complaint. It is therefore reasonable to find that failings in the landlord’s complaint handling, contributed to its poor handling of the substantive issues of the complaint.
The landlord’s follow up acknowledged that it had not offered appropriate redress throughout its complaints process, which was reasonable. However, it failed to apologise for, or acknowledge the cursory nature of its complaint responses, and the lack of empathy shown towards the resident’s circumstances. It is noted that the follow up response did show empathy and an evident desire to put things right. Given the multiple failings in the landlord’s complaint handling, the £250 it offered for its complaint handling, failed to fully put things right for the resident.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s handling of repairs to the resident’s windows.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Reasons

The landlord’s overall handling of the window repair was poor, and it accepted that its communication was poor. Its lack of understanding of its repair responsibilities impacted on its ability to address the issue. The delay in arranging a visit to see if it could complete remedial repairs, before replacing the windows was, unreasonable. The landlord identified some learning, but this was not comprehensive. Its offer of compensation did not fully put things right for the resident, as it failed to consider the inconvenience and distress the resident had experienced.
The landlord’s stage 1 complaint response was cursory and lacked empathy for the resident’s situation. The landlord’s stage 2 complaint response acknowledged failings in its handling of the stage 1 complaint, but failed to offer redress. Its stage 2 complaint response failed to address substantive issues of the complaint, and was inappropriate in its approach to the ongoing issue with the window. The landlord’s follow up response went some way to putting things right for the resident, and it genuinely reflected on its handling of the matter up to that point. However, the compensation offered for its complaint handling, failed to fully put things right for the resident.

Orders

Within 4 weeks, the landlord is ordered to:
1. Apologise for the failings identified in this report;
2. Pay the resident £1,650 in compensation, made up of:
  1. The £650 it offered for its handling of the window repair(if has not already done so);
  2. A further £500 in recognition of the distress and inconvenience caused by its handling of the window repair;
  3. The £250 it offered for its complaint handling (if it has not already done so);
  4. A further £250 in recognition of the inconvenience caused by its complaint handling.
Within 8 weeks the landlord is ordered to:
1. Considering the failings identified in this report, complete a review into its handling of window repair including how it can reduce the risk of similar failings happening again. The review should give particular consideration to:
  1. The importance of staff understanding its repair responsibilities in relation to leaseholders;
  2. Its lack of consideration of the impact the situation had on the resident;
  3. Its poor communication with the resident;
2. The outcome of the above review should be shared with this Service, also within 8 weeks;
3. Complete training with its complaint handling staff to assist them in understanding the impact on a resident when responding to a complaint. It should also focus on the importance of a meaningful complaint investigation that seeks to learn from outcomes. The dates of the training and content should be provided to this Service.