London Borough of Sutton (202127305)

REPORT

COMPLAINT 202127305

Sutton Housing Partnership

28 February 2024

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 relates to:
1. The landlord’s handling of reports of a pest infestation.
2. The landlord’s handling of the complaint.

Background and summary of events

The resident has occupied the property, a three bedroomed flat on the third floor, with her two children on a secure tenancy, since 16 August 2019.
On 7 January 2022, the landlord arranged for pest control to lay traps in all communal areas of the building, due to a report of mice in the building.
The resident reported that mice were getting in to her property via holes on the balcony, on 11 January 2022. Having been unable to gain access to the property on 21 and 28 January, a repair was carried out on 14 February 2022, with holes on the balcony being filled. The following day, on 15 February 2022, the landlord raised another job in order for holes in the kitchen to be repaired. A contractor attended the property on 18 February 2022, but could not gain access.
The resident made a stage one complaint, on 22 February 2022, and followed this up with additional points on 3 March 2022. She complained that:
1. Four weeks earlier she returned home to find mouse traps outside the boiler room, which was next to her property. Once they were removed, she saw a mouse on the balcony. She had not been warned there may be a mouse/pest infestation, so she could make provision for securing her property.
2. There were several holes in her new build property that needed to be addressed, as mice were getting in. The mice were getting in from outside her property (balcony and boiler room), which meant the repairs were external, and the landlord’s responsibility; not hers. They were also in the lift area.
3. A contractor did come and repair holes but only filled a small area, and the second visit was cancelled due to a storm. Someone was scheduled to go back to the property on 28 February 2022.
4. She had hurt her back moving furniture, dealing with the pest infestation and had to also deal with mice urine and faeces in the property, especially the kitchen, where they got in to the cooker.
5. She had spent money on cleaning products, dealing with the infestation.
6. She wanted:
  1. An exterminator to remove the rodents from the property immediately.
  2. Someone to fill all holes in the balcony decking and other areas in the property.
  3. Fumigation of the boiler cupboard next to her property, where the rodents were coming from and she believed, were breeding.
  4. To be rehoused.
The landlord acknowledged the complaint on 1 March 2022. It said it aimed to deal with all stage one complaints within ten working days. It carried out an inspection of the communal areas, including cupboards, on 1 March 2022 and it found no evidence of pests in the communal areas. A full inspection was also completed at the resident’s property, with “slight mouse droppings” noted beneath kitchen units, and that there were gaps beneath the skirting. The landlord’s notes say the resident showed photos of mice droppings on the window frame behind the TV and said a dead rodent had been removed from behind the fridge. She also said some had been seen on the balcony, coming from beneath the decking.
The landlord visited the property on 3 March 2022, and followed up by sending an email the following day. It :
1. The resident wanted bait traps to be put behind the kick boards in the kitchen and additional traps by her fridge freezer and cooker.
2. She wanted the removal of debris that was left behind from the developers, that was behind the kick boards in the kitchen.
3. The back of the kitchen units needed to be sealed to prevent rodents from entering the property.
4. Refitting of kickboards was needed, including sealant.
5. A large gap to the balcony door be filled in and it did not close properly when outside. The gaps that had been filled in on the balcony were not sufficient to prevent the rodents getting onto the balcony.
6. The resident wanted to be rehoused, but it explained it was not possible under these circumstances. However, it was suggested she register on the homeswapper website for a mutual exchange. It was happy to discuss how the mutual exchange process worked.
7. It had arranged for a visit, hopefully the following week.
A contractor attended the property on 4 March 2022, but the notes from the visit say the operative was not qualified to do the work as it needed a supervisor to do an inspection, as the property was a new build.
On 11 March, the landlord told the resident that after a visit in March 2022, a works order to remove the kickboards and fill any holes behind the units in the kitchen, had been created. It would clear out any rubbish underneath and mastic the kickboards when back in place. It also provided a link to information about mutual exchange and details of how to join the housing register. It is noted that the same day, another contractor attended the property and it applied mastic to the top of the kick boards and filled holes under the units and cleared rubbish.
Having considered the complaint, as well as photographs of mice droppings the resident had sent in, the landlord issued its stage one response on 14 March 2022. It did not uphold the complaint and said:
1. It had sent the resident’s photos to the repair team.
2. She had been advised she could apply for another property; however, as there was an outstanding repair issue that it was seeking to resolve, she would not qualify as a housing need.
3. It had filled all holes and was going to remove kitchen kickboards, upon the resident’s request.
4. Holes on the balcony were expansion joints and could not be filled.
5. The Repairs Policy said it would fill in the holes but it would not provide traps as it was the resident’s responsibility to eradicate any pests.
6. The lift was a sealed box and there was no evidence of pests there.
7. It would not provide compensation as there had been no service failure to warrant compensation.
8. On 11 March 2022, it sealed the back of the kitchen units to prevent rodents from entering the property and refitted the kickboards back in place and sealed with sealant.
9. No fault was found with the balcony door.
On 16 March 2022, a contractor returned to seal a gap between the kickboard and the kitchen unit, at the resident’s property. Pest control then visited the building on 28 March 2022 to do a report on an infestation in communal areas, including the lift shaft; however, the outcome of that is not known.
On 10 April 2022 the resident escalated her complaint to stage two. She explained that rats were getting in as a result of the landlord failing to maintain communal areas and make repairs. They were coming through the decking on the balcony and accessing the property that way. She said there were holes in the balcony that needed repairing and the landlord saying a pest control report said there was no evidence of pests, was incorrect. She said there were holes in the kitchen that still needed filling, behind the kickboards and between the cabinets. In addition, that she had incurred costs instructing a private pest company, eating out when the kitchen could not be used and buying pest control products.
The landlord arranged for pest control to carry out a further inspection of the building on 12 April 2022; this included boiler cupboards, plant rooms and cycle stores. The report from the visit states, “Field mice droppings noted inside the bin stores, plant rooms and boiler cupboards. Field mice droppings also reported in hallway by lift and inside property of residents. Multiple reports across the property. Proofing works required on metal door frames in all areas and at wall to floor junctions providing access into fabric of building.” It was recommended that there were routine inspections and trapping at the property. That there were gaps and holes in all plant rooms and boiler rooms and access provided for rats and mice via metal doors. It said smaller gauge mesh was required to prevent access in these locations.
The resident emailed the landlord on 13 April 2022, and said rodents were still entering her kitchen. That a private pest controller could not deal with it as the landlord staff had used silicone to seal the kickboards. She said the holes needed to be filled with wire wool and foam, and said she had an appointment for 27 April 2022 at 3.15pm for this to happen. The landlord’s records show a contractor attended, but could not obtain access.
The landlord responded on 14 April and said, “we won’t be taking your complaint forward as a Stage Two review, As advised in our Complaints Resolution Policy and Procedure, the points raised would not lead to a change in the outcome of the original investigation.”
On 20 April, following a report from the resident, a contractor attended to fill holes around the balcony.
On 26 May 2022, the landlord’s records show pest control visited the building again, and the “communal area in front of the boiler cupboard on ground floor opposite the lift had a serious accumulation of mice faeces”. It says cleaning took place.
The resident reported that the kickboard in the kitchen needed to be re-sealed, on 30 May 2022, because a big gap had appeared above the kitchen window, near the balcony which rodents were accessing. This work was completed the following day.
After being prompted by this Service, the landlord sent a stage two response, on 12 July 2022. It said:
1. It apologised that holes at the property were not picked up at handover, as it was a new build property.
2. It took four weeks to fill holes and remove kitchen cupboards, but it had to inspect the property first before it arranged to have the work done.
3. It reiterated that holes on the balcony were ventilation points and could not be blocked up and it had been advised pests could not access the ducts.
4. In terms of the property being fit for habitation, communal treatments took place from December 2021 through to February 2022, and no other properties had reported a pest problem. It was sorry there was a pest issue, but its policy was to only treat communal areas and it had a responsibility to stop pests entering the property, which it felt it had done. It did not agree that the flat was unfit for human habitation.
5. The resident had been provided with information about how to do a home swap.
6. It did not accept that the resident had been overcharged for rent or was entitled to compensation as it did not accept there had been a service failure.
On 17 August 2022, a contractor attended the building to carry out baiting in communal areas, and found no evidence of active pests. When it returned on 25 August and 2 September 2022, the contractor found all bait points and surrounding areas were clear of all rodent activity.
The resident has told this Service that she believes there are still pests in the building; however, she has not seen any pests, or signs of pests in her property, since 2022.

The landlord’s obligations, policies and procedures

The Tenancy Agreement and relevant statute

Section 11 of the Landlord and Tenant Act 1985 and the Tenancy Agreement, obliges the landlord to keep in repair the structure and exterior of the property.
The Tenancy Agreement says, the resident must keep the property in reasonable condition and take steps to prevent condensation and infestation. The tenant is responsible for eradicating mice, or other vermin at the property, including any garden.

Policies and Procedures

The landlord’s Responsive Repairs Policy says the landlord is responsible for repairing holes in plasterwork and skirting boards. In addition, that it is “responsible for pest control in communal areas or where the point of entry has been proven to be as a result of a design fault or damage to the exterior of the property”.
It says, the landlord will invoke any warranties that require the developer or building contractor to repair or make good any defect before undertaking any repairs itself.
It also says, it would not deal with pests and infestations in the home as residents are expected in the first instance, to take all reasonable precautions and actions to prevent and deal with any pests. It goes on to say that it would deal with an infestation in the communal areas and that “if a communal infestation in a block is affecting the home internally then [it] will arrange for the relevant block treatment.” It also says it did have discretion, in certain cases of extreme infestation, to take remedial action if the resident’s actions were ineffective. However, there may be a charge if the infestation was due to resident neglect.
The Housing Health and Safety Rating System says when a local authority officer inspects “a dwelling they will look for any risk of harm to an actual or potential occupier of a dwelling, which results from any deficiency that can give rise to a hazard. They will judge the severity of the risk by thinking about the likelihood of an occurrence that could cause harm over the next twelve months, and the range of harms that could result.”
The landlord’s Repairs Guide sets out the following response times:
1. Emergency repairs e.g electric shocks – 3 hours.
2. Emergency repairs e.g broken toilets – 24 working hours.
3. Urgent repair e.g faulty lighting – within 5 working days.
4. Routine repair – within 20 working days.
5. Planned responsive repairs – within 90 working days.
In terms of pests, it says, “You are responsible for dealing with pests in your home. We are only responsible for dealing with pests when it is proven an infestation is due to a design fault or damage to the exterior of the property”. It also says, it “can provide advice and seal up holes in the building where mice, rats, squirrels or birds are entering”.
The landlord’s Complaint Resolution Policy and Procedure says, it has three complaint stages. Rapid resolution, where a resolution can be resolved within two working days, (formal) stage one, where a response is issued within ten working days, and (formal) stage two, where a response is issued within 21 working days. An escalation to stage two would occur if:
1. “We made our decision based on inaccurate facts that could change our decision.
2. The customer has new and relevant information that was not previously available and which might change the outcome.
3. The customer believes and has evidence that they have not been treated fairly, or in line with a policy or procedure.”
It also says the landlord “reserves the right not to agree to a request for stage 2 review.”
The landlord’s Compensation and Redress Policy says, compensation is evaluated based on whether the complaint was upheld, and the impact on the resident. That where the landlord had partial responsibility for an issue, compensation would be £20 if low impact, £100 with medium impact and up to £500 if high impact. If the landlord had full responsibility, compensation would be £50 if low impact, up to £500 if medium impact, and up to £1,000 for high impact cases.
The Housing Ombudsman’s Complaint Handling Code says:
Section 4.14, “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 taking that course of action. 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.”
Section 5.9 says, “If all or part of the complaint is not resolved to the resident’s satisfaction at stage one it must be progressed to stage two of the landlord’s procedure, unless an exclusion ground now applies. In instances where a landlord declines to escalate a complaint it must clearly communicate in writing its reasons for not escalating as well as the resident’s right to approach the Ombudsman about its decision.”

Assessment and findings

The landlord’s handling of reports of a pest infestation.

While the resident is responsible for dealing with any pest infestation inside her property, the landlord is responsible for ensuring the property is kept in repair. The evidence shows this was a new building, which should have had the benefit of building warranties. The first report of pests, in January 2022, related to the building in general, and specifically in communal areas. The landlord was therefore on notice that if there were rodents in the building, they may have entered people’s properties. This then led to further investigations, and the resident’s property was then found to have an infestation.
From January to April 2022, the landlord carried out repair works at the resident’s property, in order to try and prevent mice and rats entering the property. These repairs were carried out promptly following the resident’s reports, in line with the target timeframe for routine repairs, despite access issues on occasions. The works also were appropriate, as the issue stemmed from the initial report of an infestation in the communal areas, which led to concerns that pests may have then entered the resident’s property.
However, the resident raised with the landlord, on a number of occasions, that it was her view that the source of the problem lay with pests getting in to the building and in to the communal areas. The landlord’s Repairs Policy and Guide confirms the landlord’s obligations to deal with rodents in communal areas, carrying out block treatments as necessary. The landlord initially acted upon reports of pests in communal areas, but other than initially setting some bait traps and carrying out inspections, little more seems to have been done. It would have been reasonable of the landlord to have taken steps to assess the building itself, and to invoke warranties if appropriate as it was a newbuild block, to identify any defects, the builder may have been responsible for.
An inspection on 12 April 2022 found there were mice droppings in communal areas, and it recommended routine inspections and trapping. The landlord also said holes and gaps needed to be filled with mesh. A further report carried out on 26 May 2022 noted “the communal area in front of the boiler cupboard on ground floor opposite the lift had a serious accumulation of mice faeces”. Both these reports show there was clearly a wider pest issue in the building. While the job report said the area was cleaned, the landlord has failed to show it followed the recommendations of routine inspections and trapping, and blocking access points with a mesh, or took steps quickly to treat the infestation itself after either of these reports. It therefore did not take the necessary action to eradicate rodents in the building at the earliest opportunity. Furthermore, the only records the landlord has of visiting the building after this, was about three months later. This is inappropriate, bearing in mind the history of this matter and given the ongoing concerns over pests in communal areas at that time.
Ultimately, under the tenancy agreement and Repairs Policy and Guide, the resident was responsible for eradicating mice or other vermin from her property; therefore, the landlord said it would not reimburse her for the costs she stated she incurred. It is the Ombudsman’s view that, in general, residents are responsible for pest control within their own properties unless the pests are found to be entering through defects in the structure of the building (holes in the wall etc) In that case, it would be the landlord’s responsibility to arrange pest control. If there are pests reported in multiple properties or communal areas then the landlord would be responsible for pest control for the building or area.
The evidence shows there was an issue with pests in the building that was likely to have been the source of the pests entering the resident’s property. Therefore, it would have been reasonable for the landlord to have considered reimbursing the resident for costs she incurred dealing with the infestation. That the landlord did not was a failing in its handling of the matter, and a missed opportunity to put things right. It follows that an order has been made for the landlord to pay the resident compensation in recognition of that.
Having been told there was an infestation issue in the building, the landlord has failed to show that it acted promptly upon that information, in order to not only treat the building, but to try and identify the cause of the issue. There is also no evidence the landlord considered the Housing Health and Safety Rating System; in terms of any risk to the resident’s health caused by the infestation. Especially as there were reports of a dead mouse being found in the kitchen. The landlord did explain it could not just move the resident to another property, but it did provide details of applying for a transfer to another property or carrying out a mutual exchange, therefore addressing her request to be rehoused. It also carried out a series of repairs in the resident’s property, in order to prevent further issues, and provided a reasonable explanation as to why certain holes on the balcony could not be filled, as they were expansion joints.
The resident has told the Ombudsman that she had not had any issues with pests in her property since 2022. The Ombudsman notes the resident has concerns that the building itself still has a pest problem. However the landlord took appropriate steps to ascertain the further presence of mice by carrying out a baiting programme in August and September 2022, although as noted above, the landlord should have revisited the block sooner.
The repairs carried out by the landlord in the resident’s property, seem to have prevented further issues, However, having identified mice droppings in communal areas on 12 April and 26 May 2022, it took the landlord until August 2022 to set any bait traps. In the meantime, rodents were still getting in to the resident’s property. Therefore, the resident had to endure rodents in her property, that could have potentially been dealt with more quickly, had the landlord not only carried out repairs in her property, but taken steps to survey the building for the source of the problem. The infestation clearly had a negative impact on the resident, and the landlord failed to identify that its failure to survey the building thoroughly, contributed to the situation the resident found herself in. Therefore, it should have applied its Compensation and Redress Policy, and made the resident an offer of compensation. By not doing so, it missed an opportunity to put things right and the Ombudsman has taken this in to account in the orders it has made.

The landlord’s handling of the complaint.

The resident submitted a complaint on 22 February 2022, and the landlord acknowledged it on 1 March and sent its stage one response on 14 March 2022.
The landlord’s Complaint Resolution Policy and Procedure says it should respond within ten working days to a stage one complaint. In this case it took slightly longer than that, 14 working days; however, the resident did add to the complaint on 3 March; therefore, the landlord had to take those points onboard also, before being able to fully respond. As such, its response time at stage one, was not unreasonable.
The landlord’s stage one response, did address all the points raised by the resident, but on 10 April 2022, the resident asked for her complaint to be escalated. Her email set out a number of points she did not agree with, one of which was that she disagreed with the landlord’s claim that a pest control company had found no evidence of pests in the lift.
The Code says a landlord must not unreasonably refuse to escalate a complaint, and if part of a complaint is not resolved to a resident’s satisfaction at stage one, it must be progressed to stage two of the landlord’s procedure. Despite the request for an escalation, the landlord declined to investigate the complaint at stage two, on the basis that the points raised would not lead to a change in the outcome of the original investigation. Although its Complaint Resolution Policy and Procedure says the landlord reserves the right not to agree to a request for stage two review, it also says a complaint could be escalated if a decision was made on inaccurate facts. The resident said the landlord’s facts in relation to a pest control report were wrong and inspection reports dated 12 April and 26 May 2022 found signs of mice in communal areas, such as boiler cupboard and cycle stores. Therefore, supporting what the resident had said.
The landlord was on notice that there was an infestation in the building and repairs may be needed, and it was not just an issue with the resident’s property. The April 2022 report specifically said mice droppings were found in communal areas, but also said mice droppings had been reported inside the property of residents, and there were “multiple reports across the property”. This was the point the resident had been making throughout and goes against the landlord’s claim in its stage two response that no other properties had reported a pest problem. As such, in order to comply with its own guidelines, the landlord should have escalated the complaint to stage two, without the need for intervention from this Service.
A stage two response was then issued on 12 July 2022, only after this Service contacted the landlord. As a result of its decision not to escalate the complaint initially, it meant the response was sent 67 working days after the request was made by the resident; rather than the 21 working days, set out in the Complaint Resolution Policy and Procedure. In addition, the resident had to spend time and trouble contacting this service in order for her complaint to be escalated. The response addressed the condition of the property and repairs carried out, but failed to recognise the findings from the April and May 2022 inspections and that wider investigations of the building needed to take place. In addition, the landlord also failed to acknowledge the impact the situation and the failings in its service had had on the resident, and that compensation in the circumstances was likely to be appropriate.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of landlord’s handling of reports of a pest infestation.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of the complaint.

Reasons

The landlord failed to fully investigate the required repair of the building that may have led to a pest infestation.
The landlord failed to respond promptly when the resident escalated her complaint to stage two.

Orders and recommendations

Orders

Within the next four weeks the landlord should pay the resident £850 compensation made up of:
1. £500 as a result of distress and inconvenience caused as a result of the pest infestation.
2. £100 to compensate the resident for costs she incurred treating the infestation.
3. £250 due to the delay in responding to the complaint at stage two and not recognising the impact on the resident.