Wandsworth Council (202200519)

REPORT

COMPLAINT 202200519

Wandsworth Council

16 August 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:
1. The condition of the property when the resident’s tenancy began.
2. The communications from the landlord on how to move home during the pandemic.
3. The landlord’s complaints handling.

Scope of the investigation

Part of the complaint which the resident has referred to this Service is that the property had no heating. The resident told the Ombudsman that he wanted this Service to consider the issue; however, as it has not been considered by the landlord as part of a formal complaint, the landlord has not yet had the opportunity to respond and the matter is outside the Ombudsman’s jurisdiction as per paragraph 42(a) of the Scheme

Background and summary of events

Background

Prior to the events with which this complaint is concerned, the resident lived with his parents, who were tenants of the landlord, in a property which had been occupied as the family home for many years. The resident’s parents made a request to the landlord for a move to a ground floor property which would better meet their needs. Following this request, the landlord offered the resident a tenancy of a separate studio property. It is understood that the landlord’s offer was in made in contemplation of the resident’s parents’ move to a smaller property better suited to their needs.
The resident’s complaint to this Service concerns the studio property which he was offered by the landlord. This was an introductory tenancy of a ground floor, studio property which commenced on 11 January 2021.
The tenancy agreement sets out the obligations of the landlord and resident in relation to the tenancy. These include that the landlord is responsible for repairs to the structure and exterior of the property and for keeping in good repair and working order the installations in the property for heating. The landlord undertakes to take reasonable steps to put defects right within a reasonable time. The resident was responsible for keeping the property clean and in a good state of repair and decoration.
Further information regarding each party’s responsibilities is provided online. This information explains the pests and infestations for which the landlord is responsible in its tenanted properties. One of the listed pests which the landlord states that it will clear are pharaoh ants.
The landlord has provided this Service with copies of its relevant policies and procedures including:
1. The landlord’s policy for visits by the landlord to properties during the Covid pandemic: The policy restricted visits during the immediate phase of the pandemic to those which were essential, such as those necessary to ensure the health and safety of residents.
2. The landlord’s procedure once the landlord has decided to offer a property to an applicant: This includes offering applicants the opportunity to view the property being offered.
3. The landlord ‘s complaints procedure: The landlord operates a two stage complaints procedure. In respect of complaints which can be referred to this Service, the landlord aims to respond to such complaints within 10 working days at Stage 1 and within 20 working days at Stage 2.

Summary of events

On 18 December 2020, the landlord wrote to the resident offering an introductory tenancy of a ground floor studio property. The landlord’s letter invited the resident to make an appointment to view the property. The letter explained that a representative of the landlord would meet the resident at the property and show him around. The landlord’s representative would make him aware of any repairs that would be undertaken prior to, or following, the commencement of the tenancy. The resident would be able to discuss any other concerns regarding the property at the visit.
On 29 December 2020, the resident viewed the property with the landlord’s Building Maintenance Manager (BMM).
On 30 December 2020, the resident signed the necessary documentation to accept the offered tenancy. The resident signed a form which certified that he accepted responsibility for complying with the tenancy conditions, including payment of rent. The form stated that the resident had inspected the property and that he confirmed that all fixtures and fitting were in good condition. There was space on the form for any exceptions to be listed and this remained blank.
On the same day, the landlord completed a ‘tenancy sign up checklist’ which the resident also signed. Among other things, this indicated, by way of a tick box, that the resident had been advised about repairs to be done at the property once he had taken up occupation. The form indicated that the resident had been provided with valid gas and electric safety certificates, window certificate, EPC and keys for the property.
On 4 January 2021, the landlord’s BMM sent an email to the resident to advise that an order would be raised for the loose paving in the garden to be made secure. The email stated that this would be done on occupation so the resident should still be able to move into the property.
The resident’s tenancy at the property commenced on 11 January 2021.
On 23 January 2021, the resident sent an email to the landlord’s BMM. He stated that if a date for the garden paving to be made safe could be confirmed, he could plan to be there and allow access. He also stated that one of the wall radiators had come off the wall brackets and was hanging off the wall and that there were drips of water leaking. He asked if this could be raised as a request too.
On 25 January 2021, the landlord’s BMM replied to the resident and advised that there was currently no set date for the garden works as the landlord’s contractors were attending to emergency and urgent works only and such works would be picked up when lockdown restrictions were eased. He advised that the resident needed to call the heating contractors to assist with the radiators and provided the contact number for the resident to do this.
On 26 March 2021, the landlord’s BMM met with the resident at the property and carried out an inspection.
On the same day, the landlord’s BMM contacted the heating contractors for an update on when the radiator could be refitted to the wall of the property. He reported that the resident had been advised by the heating contractors that the wall needed to be secured before the radiator could be fitted. The landlord’s BMM stated that he had inspected the wall that day and it appeared to be solid and in a good state. He asked what was required on the wall so that the work could be done.
On 15 April 2021, the resident chased the landlord for an update on the radiator works and when the garden would be made safe. He asked the same day for an explanation of why his sister’s property was redecorated fully but the property which he had been forced to move to was in a horrendous state.
On 15 April 2021, the landlord’s BMM chased the heating contractors for an update on the radiator refitting. They responded that the resident had been advised to contact the landlord to make good the wall and to contact them when it had been done so that they could rehang the radiator. As the landlord’s BMM had confirmed the wall was good enough, the heating contractors stated that an engineer would refit the radiator.
On 30 April 2021, the landlord’s BMM responded to the resident’s email of 15 April 2021. He stated that he had explained to the resident during his visit to the property that it was given to him in an acceptable standard and condition. He was unable to discuss the condition of another property with him but advised that, when required, the landlord would bring a property up to an acceptable standard before letting it out. He confirmed that the heating contractors should have contacted the resident to arrange for the hallway heating to be reinstated and provided the resident with a contact number. He advised that the landlord’s contractors had resumed full services. They were prioritising high priority works but he would be contacted at some point for the works in the garden to be organised.
On 1 May 2021, the resident sent an email to the landlord’s BMM in which he stated that he did not accept that the property was up to acceptable standards when let to him. He sent a further email the next day retracting the email.
In an exchange of emails between 18 May 2021 and 4 June 2021, the resident chased the landlord for completion of the outstanding works to the garden. The landlord’s BMM advised that its contractors were working on a backlog from the lockdown restrictions and that the garden would be attended to once the high priority works had been completed.
In his email of 4 June 2021, the resident complained to the landlord that the property was unsafe to move into. He referred to broken paving, overhanging and broken fences, and the possibility of faeces, used condoms, drugs paraphernalia and vermin in the garden. He did not see why he should continue to pay rent and be forced to live elsewhere.
On 10 June 2021, the landlord’s BMM conducted an inspection of the garden of the property and took pictures. The landlord found no evidence of the issues referred to by the resident in his email of 4 June 2021.
In a further email of 17 June 2021, the resident complained that he had stayed at the property the previous Sunday to receive a delivery. He had woken up in the morning covered in ants. This had confirmed to him that the property was not, and never had been, suitable. He had decided to continue staying with his parents and to return the property to the landlord.
On 25 June 2021, the landlord’s BMM responded to the resident’s emails of 4 June 2021 and 17 June 2021. He stated that:
1. The property had been handed to the resident in a safe and secure condition.
2. The resident’s responsibility was to decorate the property as he desired.
3. The only work which was outstanding to the property was to realign the paving in the garden which the landlord’s contractors had been informed about.
4. The garden had been inspected and was free from the conditions which the resident had stated that they could be in.
5. Ant infestations were the resident’s responsibility to treat, unless they were pharaoh ants. The resident was advised to contact the landlord if he believed the ants were pharaoh ants so that a treatment order could be raised.
6. The reason that the resident had stated for wanting to hand back the property was a repair issue and not grounds for ending the tenancy and that by taking this action, he would be voluntarily ending the tenancy and making himself homeless.
On 1 July 2021, the resident provided the landlord with 28 days’ notice to leave the property.
On 5 July 2021, the resident wrote to the landlord stating that he had not been able to move in to the property and asked to be reinstated to the tenancy at his parents’ house.
The resident subsequently completed a formal Notice to Quit and the tenancy terminated on 1 August 2021.
In email communications passing between the resident and the landlord between 8 July 2021 and 21 October 2021, the resident sought repayment of rent he had paid on the property. The resident stated that he had not been able to move in to the property since the start of the tenancy because it was unsafe. The issues raised by the resident were that:
1. The property had not been in good condition when it was let to him.
2. It had taken two weeks to clear up decorators’ dust which the landlord had left behind.
3. The whole garden was in disrepair.
4. The landlord had agreed to make the property safe on occupation but that had not started, 6 months later.
5. There were ants in the property, of which the resident provided video evidence, and which he believed had been there prior to his tenancy.
6. There was a lack of heating in the house.
7. He had incurred expenses buying large household items which he now had to store.
In addition, in emails of 7 September 2021, 20 September 2021 and 7 October 2021, the resident explained that during the pandemic lockdown he had been shielding himself and his family. Due to the pandemic, he had decided to remain at his parents’ home where he and his family were safe and had delayed preparations required for moving home. He had never lived at the property and had no intention of living there until the application to downsize had been completed. He stated that he had felt that he had had no alternative but to sign the tenancy agreement within the timeframe required by the landlord. If he had not done so, he had understood that his father’s downsizing request would have been cancelled by the landlord.
In its responses to the resident’s emails, the landlord disputed the resident’s claims that the property was unsafe for occupation. It also disputed that the pandemic had prevented the resident from decorating the property prior to moving in, commenting that online purchases and deliveries of materials were permitted during the pandemic and that other tenants had moved into properties during the lockdown. The landlord declined to reimburse the rent paid.
On 24 November 2021, the resident made a formal complaint to the landlord. The resident’s complaint was that the landlord was forcing him to break the law and ignore safety guidance during the pandemic and had attempted to move him to an unsuitable home that was infested due to damage to the property done by the landlord’s workers. The resident stated that this had left him feeling suicidal and in financial ruin. The outcome sought by the resident was for the landlord to review his case.
On 16 December 2021, the landlord’s Area Housing Manager provided a Stage 1 response to the resident’s complaint. The response referred to the previous correspondence between the landlord and resident. It stated:
1. The property was deemed to be in an acceptable condition for a void property when the tenancy started.
2. The decoration of the property was the responsibility of the resident. The landlord had been prepared to realign some paving in the garden once he had moved in.
3. With regard to ants, the resident had not reported any issues with ants in the property until 17 June 2021, which was over five months after the tenancy had started. There were no previously known issues with ants at the property. When the resident reported the problem, he was correctly advised that this was his responsibility to resolve.
4. The resident had chosen not to decorate the property and did not move into it, which resulted in the landlord being unable to arrange the works to the garden.
5. It rejected the resident’s suggestion that it had forced the resident to break any laws or ignore safety advice. The landlord had suggested that the resident could have obtained decorating equipment via online delivery which would have allowed him to decorate the property prior to moving in.
6. The Stage 1 response did not uphold the complaint.
In emails of 5 January 2022 and 6 January 2022, the resident confirmed that he wished to escalate the complaint to Stage 2. In his email of 5 January 2022, the resident noted that the Stage 1 response was incorrect in stating that the works to the garden could not be completed due to lack of access. He referred the landlord to his email of 23 January 2021 to the landlord’s BMM, in which he had offered to arrange access for the works.
On 10 January 2022, the landlord added back the resident as a household member on the tenancy at the property occupied by his parents.
On 31 January 2022, the landlord’s Chief Executive issued a Stage 2 response to the complaint. This referred to and reiterated the landlord’s position as set out in the Stage 1 response and did not uphold the resident’s complaint.
On 11 April 2022, the resident referred a complaint to this Service. The resident was dissatisfied with the condition of the property when the tenancy started. He was also unhappy with the landlord’s advice regarding how to move home during the pandemic as he felt it forced him to break the law. The outcome sought by the resident was that he wanted his housing application to be reopened.
On 8 May 2022, the resident provided further information to this Service regarding the complaint. The resident complained that the reason the landlord had not been able to make the property safe was due to the pandemic but in the conclusion of the landlord’s complaints process, it had stated that this was due to having no access to the property. The resident complained that he had raised concerns at the viewing of the property but the viewing officer had refused to note them down and that he had been verbally instructed to stay away from the unsafe property while the works for making the garden safe were being arranged.
The resident also complained that the property had no heating. For the reasons stated in paragraph 2 above, this aspect of the complaint is not considered in this investigation report.

Assessment and findings

The condition of the property

The landlord was under an obligation to ensure that when the tenancy commenced, the property was fit for human habitation. It was also under an obligation to ensure that the property was in a state of repair, or had been brought into a state of repair, sufficient to comply with its statutory and tenancy obligations, as referred to above.
This Service has not been provided by the landlord with any record of works which may have been carried out on the property prior to it being handed over to the resident or photographs of the condition which it was in at the start of the tenancy.
However, in line with the landlord’s policy, the landlord and the resident conducted a viewing of the property on 29 December 2020, prior to the resident signing the tenancy agreement. The resident was provided with an opportunity at this visit to raise any concerns regarding the condition of the property or, if necessary, refuse the tenancy.
The resident has stated that he raised concerns at the viewing of the property but the viewing officer had refused to note them down. The resident has also stated that he was verbally instructed to stay away from the unsafe property while the works for making the garden safe were being arranged.
This Service is not in a position to determine what was said to the resident by the landlord at the time of the viewing. The Ombudsman relies on contemporaneous documentary evidence from the time of the complaint to ascertain what events took place and reach a conclusion on whether the landlord’s actions were reasonable in all the circumstances of the case.
The contemporaneous evidence shows that the resident signed up to the tenancy the day after the inspection. At that time, the resident confirmed, by signing the paperwork, that he had inspected the property and that the fixtures and fittings were in good condition. He also signed the tenancy checklist which confirmed that he had been advised about repairs to be done at the property upon occupation and that there were valid certificates for services to the property, window and EPC certificates.
There was no record made on these documents that there were defects in the property which rendered it unsafe and none was raised in email communications between the landlord and resident at the start of the tenancy.
The landlord’s email to the resident which was sent on 4 January 2021, very shortly after the viewing, refers to loose paving in the garden which it would make secure. The email made clear that the landlord considered that this was not sufficient to prevent the resident moving in to the property as the repair was to be done on occupation. The resident appears to have raised no objection to this.
From the evidence available to this Service, therefore, it is reasonable to conclude that the property was in a suitable lettable state at the start of the tenancy and that it commenced on the basis that the one identified issue with the property, namely, the loose paving in the garden, was to be attended to by the landlord following the resident’s occupation. There is no indication in the evidence available to this Service that the property was unsafe for occupation at the start of the tenancy by reason of the condition of the garden or any other defect.
In the event, there was a delay in the landlord repairing the loose paving to the garden. The works had not been completed by the time the tenancy was ended on 1 August 2021.
There appears to be no dispute that the reason for the delay in the garden works being carried out was due to the restrictions imposed by the Covid pandemic. Initially, between January and April 2021, the landlord’s contractors were attending to emergency and urgent works only. The landlord therefore acted in line with its protocol during this period in advising the resident that the garden works would be done when the lockdown restrictions eased.
On 30 April 2021, the landlord advised the resident that its contractors had resumed full services but were prioritising high priority works and that he would be contacted at some point for the works to the garden to be organised. There was therefore reasonable mitigation for the delay in progressing the works after 30 April 2021, taking into account that there was a backlog of works for the landlord to carry out caused by the pandemic.
It is noted that the resident expressed concern to the landlord regarding the safety of the garden, in particular in his email of 4 June 2021. The landlord acted appropriately in response to these concerns by conducting an inspection on 10 June 2021 and satisfied itself that there were no issues which should cause safety concerns. The landlord confirmed this to the resident.
The resident raised other repair issues with the landlord following the commencement of the tenancy.
On 23 January 2021, the resident raised with the landlord that a radiator had come off the wall and that there were drips of water leaking. It is not clear when this had first occurred. The landlord gave appropriate advice to the resident on 25 January 2021 on how to contact the heating contractors to arrange the repair.
On 26 March 2021, the landlord noted from its visit to the property that day that the radiator had not been refitted and it acted reasonably in chasing the heating contractors for an update the same day. The landlord was advised by its contractors that it had been left with the resident to contact the landlord to make good the wall and advise them when it had been done so that the radiator could be refitted. Upon being advised by the landlord on 26 March 2021 that the wall was in a solid state, the heating contractors agreed on 15 April 2021 to refit the radiator.
The landlord therefore acted appropriately in response to the resident’s request for a repair when made aware of it. It is noted, however, that the repair log does not record the works raised in respect of the radiator which points to poor record keeping by the landlord. A recommendation is therefore made below in regard to this shortcoming.
The resident raised other issues concerning the state of decoration of the property, including dust, on 15 April 2021. He also reported an ant infestation at the property which he raised on 17 June 2021. In respect of both of these matters, the landlord correctly advised that they fell within the resident’s obligations to address under the terms of the tenancy.
For the above reasons, there was no service failure by the landlord with respect to the condition of the property at the start of the tenancy.

The communications from the landlord on how to move home during the pandemic

Part of the resident’s complaint to this Service is that he was unhappy with the landlord’s advice regarding how to move home during the pandemic as he felt it forced him to break the law.
It is noted that the discussion between the resident and the landlord on this topic arose after the resident had terminated the tenancy and therefore was not relevant to the resident’s actions or decision-making regarding the tenancy at the time.
Further, the discussion arose in the context of the resident’s claim to repayment of rent from the landlord after the tenancy had terminated. The resident considered a reimbursement of rent was fair on the basis that he felt that he was unable to safely prepare or move into the property due to the pandemic.
As part of these discussions, the landlord commented on the availability of materials purchased on-line to be delivered during the pandemic and that other tenants had moved into properties during the lockdown. However, the landlord was clear that this was a matter for the resident and not something that the landlord would have been able to assist the resident with in any event.
In summary, whilst it is appreciated that the resident may not have felt safe in preparing or moving into the property during the pandemic, and so chose to stay in his parents’ home to protect himself and his family, this was not a decision which involved the landlord or affected the terms of the tenancy it agreed with the resident.
For the above reasons, there was no service failure by the landlord in respect of its communications on how to move home during the pandemic.

The landlord’s complaints handling

Part of the resident’s complaint to this Service is in respect of the landlord’s complaints handling. Specifically, the resident has complained that the reason given by the landlord for works not being carried out to the property was incorrect.
In the landlord’s Stage 1 response, it stated that the resident did not move into the property which resulted in the landlord’s BMM being unable to arrange the works to the garden. As referred to above, the works to the garden were delayed by reason of the pandemic rather than by reason of the resident not being in occupation. The resident had offered in his email of 23 January 2021 to attend the property to allow access for the garden works.
In his email of 5 January 2022, the resident pointed out this inaccuracy to the landlord. The landlord should have acknowledged and corrected this in its Stage 2 response. It did not do so and again inferred that the reason for the works not being completed was due to the resident not moving into the property. The impression given in the complaints responses was that the resident was responsible for the garden works not being carried out.
This was a service failure in respect of the landlord’s handling of the complaint. The resident was caused upset by it and has spent time and trouble pursuing this aspect of his complaint to this Service. It would be appropriate under the circumstances for the landlord to offer an apology to the resident and pay the resident £50 compensation.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the condition of the property when the resident’s tenancy began.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its communications on how to move home during the pandemic.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in respect of its complaint handling.

Reasons

The contemporaneous evidence provided to this Service shows that the property was in a suitable letting condition at the start of the tenancy.
The landlord’s communications of which the resident complains were not relevant to the resident’s actions or decision-making with regard to the tenancy.
The landlord failed to correct an inaccuracy in its Stage 1 response which suggested that a lack of access to the property was the reason that works to the property were not carried out. This was inaccurate, as the resident informed the landlord. The landlord failed to acknowledge and correct this in its Stage 2 response. The impression remained that the resident was responsible for the works not being carried out. This caused the resident upset and time and trouble in pursuing the matter to this Service.

Orders and recommendations

Orders

Within 4 weeks of this report, the landlord is ordered to:
1. Write to the resident to apologise for the service failure identified in its complaint handling.
2. Pay the resident £50 compensation for the time and trouble caused to him by the failing identified in its complaint handling.
The landlord should contact this Service within 4 weeks of the date of this determination to evidence its compliance with the above order.

Recommendation

It is recommended that the landlord reviews its repairs record-keeping practices to ensure that it keeps clear and accurate logs of when repairs are raised and what works have been carried out.
The landlord should reply to this Service within 4 weeks of the date of this determination to confirm its intentions in regard to this recommendation.