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Lewisham Council (202008088)

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REPORT

COMPLAINT 202008088

Lewisham Council

29 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

  1. The complaint is about the landlord’s handling of:

a.     The resident’s reports of antisocial behaviour (‘ASB’)

b.     The resident’s reports of:

  1. A leak resulting in damp and mould.
  2. An overhanging tree that was believed to be causing structural movement.
  3. An infestation of mice.

c.      The associated complaint.

Background

  1. The resident occupies a property under a secure tenancy agreement commencing 19 February 2007. The property is a maisonette with two bedrooms. The resident told this service that her child suffers from asthma. The landlord is a local authority.
  2. The resident told this service that she had consistently reported ASB, a leak, concerns over structural movement within the property due to a tree in the garden, and pests since 2010. She referred to a report to her landlord on 28 December 2018. The landlord told this service it did not hold any information about this report.
  3. The resident raised a formal complaint on 9 February 2019 for:

a.     Her previous reports of ASB and repairs made on 28 December 2018 were acknowledged but not progressed.

b.     ASB relating to her neighbour’s conduct in and around the property. Including allowing children to set fires in the back garden, damaging the fence with a chainsaw, leaving rubbish in the garden that both damaged and blocked the gully, loud noises such as screaming and banging of doors.

c.      Repairs relating to a leak relating to the movement of roof slates which were believed to be collecting water causing ceiling cracks and damp and mould.

d.     Concerns over a tree in the garden. The resident said she was concerned over the structural integrity of her home because of it being a large and old tree that required annual pruning. In addition, the foliage had blocked the gully.

e.     Concerns over pest control which she thought was a result of the movement of the roof slates.

  1. In its stage 1 response dated 22 February 2019, it acknowledged its delay in responding to her report in December 2018, and stated it did not have any records of the resident reporting structural concerns, damp, or roofing issues. It provided appointments for each issue except the pest control.
  2. The resident escalated her concerns on or around 19 July 2019, because of the lack of follow-up based on the appointments made by the landlord in its formal response and because the repairs remained outstanding. The landlord’s stage 2 response date 9 August 2019, apologised for its communication, and the delay in resolving the repairs and explained there was a further appointment with the resident on 9 August 2019 to discuss the issues she felt were unresolved at stage 1.
  3. The resident raised a complaint with this service on 17 January 2021 about the outstanding repair and ASB issues, and the landlord was directed to respond to this complaint.
  4. The landlord issued a stage 3 response from an independent adjudicator on 21 April 2021. It upheld the resident’s complaint and said that:

a.     The landlord did not carry out the repair work it said it would.

b.     The landlord did not properly consider or adequately case manage the ASB issues reported by the resident.

c.      The landlord’s use of the complaint procedure was inconsistent and failed put things right.

  1. The response also made recommendations to the landlord to:

a.     Carry out the outstanding repairs it had agreed to.

b.     Arrange a structural survey to assess the impact of the overhanging tree on the property.

c.      Assess any further actions it could take for the ongoing ASB.

d.     To pay £250 to the resident in compensation to recognise its failures.

  1. The resident remained dissatisfied because the landlord had not acted on the recommendations of the independent adjudicator and had not acknowledged its failings to her.

Assessment and findings

Jurisdiction

  1. Paragraph 42(c) states: “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion, were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising.”
  2. The resident told this service that the issues some of the issues she had complained about had been ongoing since 2016. The landlord provided this service with some historical documentation dating back to 2010.
  3. This service is unable to investigate matters occurring before 9 August 2018. This is because it is unlikely we would be able to provide a fair opinion on events that occurred historically due to elapse of time. Therefore, this investigation has not considered representations from either party that related to historical information prior to the above date.

Anti-social behaviour

  1. The landlord’s ASB policy derives its definition of ASB from the Anti-Social Behaviour, Crime and Policing Act 2014. This states that ASB is “conduct capable of causing nuisance or annoyance to a person in relation to that person’s occupation of residential premises.”
  2. The policy categorises behaviour such as misuse of communal areas, fly-tipping, noise nuisance and criminal behaviour in or around the property as a Category B. It will respond to this type of report within 3 working days. After this it will agree an action plan, complete a risk assessment, and keep in regular contact until the investigation is concluded and communicate the outcome.
  3. The policy details it can respond to reports of nuisance by speaking to the alleged perpetrator of the nuisance, sending letters, facilitating mediation, and issuing good neighbour agreements.
  4. The policy also states that it recognises another person’s behaviour may be annoying or disturbing but not reach the threshold of ASB such as lifestyle differences, noise, and neighbour disputes. In such instances, it will take steps to try to resolve the situation, but it is unlikely to take enforcement action and will not investigate behaviour that falls outside of the definition of ASB.
  5. The resident reported ASB by her neighbour on 28 December 2018 as detailed in paragraph 4(b) The resident said the landlord acknowledged her report and said it would refer the issues to her housing officer and she should be contacted within 10 working days. The resident said she did not hear anything further from the landlord until she raised a formal complaint.
  6. The landlord said it tried to call the resident on 13 February 2019 but could not leave a voicemail. In its formal response it said it arranged an appointment with the resident on 19 February 2019 to discuss her report. The landlord later explained the appointment could not go ahead because the officer responsible was not in the office. It made a further appointment on 9 August 2019. The evidence shows the resident also filled in an ASB reporting form on 7 October 2019.
  7. The landlord responded by:

a.     Opening and allocating a case for ASB on 9 October 2019.

b.     Writing to the resident’s neighbour on 4 November 2019 with an interview request.

c.      Interviewed the neighbour on 12 November 2019. The evidence provided by the landlord did not detail any further actions to be taken by it or the parties involved.

d.     Attempting to call the resident on 12 December 2019. It said it was unable to get through, so it left her a voicemail.

e.     Liaising with the resident on 26 March 2020. The landlord noted the resident said the ASB had stopped. It said it would refer the resident to the tenancy audit team for further support and close the case. The resident disputes that she told the landlord the issues had stopped; and explained to this service that she did not realise the case would be closed.

  1. The landlord did not produce evidence about the resident’s original report. However, it acknowledged its failure to act on the resident’s report in December 2018. Therefore, the resident did not receive contact about her report for 29 working days outside the landlord’s ASB response timeframe. This was inappropriate because the resident spent time and trouble chasing the matter, whilst living with the distress and inconvenience of the ASB.
  2. The evidence shows that the landlord was unsure between 9 October 2019 to 17 February 2020, who was responsible for managing the resident’s ASB case. In addition, it did not audit the case until 14 January 2020 when it identified that the case had not been actioned since 17 December 2019. This was inappropriate because the landlord failed to properly case manage the resident’s matter.
  3. The Ombudsman would have expected the landlord to assign a known member of staff to the case as a point of contact for the resident. This would have been to communicate any updates, confirm that any further actions agreed upon were carried out, and ensure that the matter was progressed appropriately in line with the landlord’s ASB policy.
  4. When the landlord did act on the report, although it interviewed the perpetrator, it did not take any further action. Accordingly, if it did not feel it could take further action, it should have explained this to the resident together with its reasons.
  5. The Ombudsman considers this was a missed opportunity to communicate clearly with the resident about the outcome of its investigation but also, to take steps such as offering mediation to the parties and consider the use of good neighbour contracts. This could have mitigated the distress and inconvenience to the resident and helped to resolve the dispute between the resident and her neighbour.
  6. Due to the cumulative failures found in the way the landlord handled the resident’s reports of ASB, the Ombudsman considers that there was maladministration for this element of the complaint because the landlord:

a.     Delayed in acting on the resident’s reports.

b.     Failed to maintain clear and adequate records of the resident’s reports, its assessment of the case, and its intended actions.

c.      Failed to communicate clearly with the resident throughout the process about its assessments, the actions it would take and the outcome of these. This resulted in the case being closed without proper explanation.

d.     Consistently failed to keep appointments with the resident to discuss her reports. This resulted in the resident feeling that her landlord was not taking her reports seriously or considering them fairly.

e.     Failed to follow its policy for the way it should respond to reports of nuisance both about response timeframes and not considering the further options available to it regarding prevention and enforcement.

Reports of repairs

  1. The resident’s tenancy agreement is silent on the responsibility of pest control.
  2. The landlord’s repairs policy states that it is responsible for roof leaks and major plastering defects to ceilings or wall. It states that residents will be responsible for filling minor cracks and holes in walls and ceilings and for controlling the build-up of moisture in the home.
  3. The repairs policy also states that non-urgent repairs will be responded to within a maximum of 3 working days. However, where the fault or failure does not cause inconvenience or danger to occupants or the public, it may extend the response timeframe for certain repairs to 20 working days.
  4. The pest management policy states that it would consider commissioning treatments for mice and rats, but it is primarily the responsibility of residents, and this is made clear in the tenancy agreement. However, it does not have a specific duty to treat pests at individual homes and will not routinely fund treatments unless there is a significant pest problem and wider circumstances that justify the treatment.
  5. On or around 12 August 2019, the resident reported the following:

a.     Repairs relating to a leak relating to the movement of roof slates which were believed to be collecting water causing ceiling cracks and damp and mould.

b.     Concerns over a tree in the garden. The resident said she was concerned over the structural integrity of her home because of it being a large and old tree that required annual pruning. In addition, the foliage had blocked the gully.

c.      Concerns over pest control which she thought was a result of the movement of the roof slates.

  1. The landlord only responded to the resident through its internal complaint procedure. It explained that it had no evidence of the resident reporting the repairs or the pest control. In response to the concerns, it arranged for:

a.     An inspection of the property for dampness on 25 February 2019.

b.     An inspection of the leak on 4 March 2019.

c.      A building surveyor’s inspection to assess structural concerns on 1 March 2019.

  1. Although the landlord told this service that all repairs noted on the system were marked as complete. The resident disputes the appointments were carried out. The Ombudsman considers there is not enough tangible evidence to conclude that these appointments were carried out. This is a significant failure that has hampered the ability of this service to provide a full opinion on this matter.
  2. In June 2023, the landlord referred to several actions it had taken or intended to carry out including:

a.     Treatment of walls, ceilings and two cupboards on 12 August 2019.

b.     A leak and roof inspection on 4 February 2020.

c.      An assessment of a leak on 6 March 2023.

d.     A leak and guttering inspection on 19 April 2023.

e.     A tree survey to assess its role in any structural issues on 6 July 2023.

f.        To start ‘repairs’ on 3 July 2023 following the erection of scaffolding. It is unclear from the evidence which repairs the landlord is referring to in this representation.

  1. The resident explains that she is unsure which appointments were carried out and when. She also disputes that some of these appointments were carried out. The Ombudsman considers there is not enough tangible evidence to conclude that the appointments were carried out, the outcome of the inspections or what the landlord intended to do afterwards. This is a significant failure that has hampered the ability of this service to provide a full opinion on this matter.
  2. In addition, there is no evidence that the landlord acted on the resident’s report of rodents in her property. This is a significant failure because the Ombudsman would have expected the landlord to have taken the resident’s concerns seriously and investigated the reports of the resident.
  3. The landlord also referred in its pest control policy to the tenancies of residents and which inferred that all the tenancy agreements with it state that pest control is the responsibility of the resident. Pests will be a tenant’s responsibility except where they have entered the building due to disrepair, such as via holes in walls etc.
  4. The Ombudsman expects landlords to have a robust system and supporting working practices in place to maintain and respond to records relating to repairs. Landlords must keep clear, accurate and easily accessible records to provide an audit trail. If we investigate a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. 
  5. When there is a disagreement in the accounts regarding the condition of the property, the onus would be on the landlord to provide documentary evidence showing how the repair work had been completed to a satisfactory standard. As the landlord did not provide communication records between itself, contractors, and the resident, the Ombudsman cannot determine that the landlord’s handling of this element of repairs was reasonable.
  6. It is the Ombudsman’s opinion that there was maladministration in the way that the landlord handled the resident’s reports for her property. The landlord failed to provide adequate records of information related to the repairs carried out at the property. This included dates the property was attended to, survey and/or inspection reports, and feedback from contractors in respect of the matter. Therefore, it has not been possible for this service to determine if the landlord responded to the repairs appropriately. This is a significant failing of the landlord that has hampered the ability of this service to provide a full opinion on this matter.

Complaint handling

  1. The landlord’s complaint policy states: 

a.     Stage 1 responses will be issued within 10 working days and include details of how to escalate the complaint to next stage of the complaint’s procedure.

b.     Stage 2 responses will be issued within 20 working days and include details of how to ask its independent adjudicator to review the case.

c.      Stage 3 responses from the independent adjudicator will issue its final response within 20 working days of the request escalate. In cases where there are follow-up actions, it will tell the resident about the proposed actions, their timescales, and the officers responsible for them. If the landlord fails to deliver against these commitments, the complaint can be reopened and escalated.

  1. Both the landlord’s stage 1 and stage 2 responses were unclear about how the resident could escalate her concerns and what the next stage of the complaint procedure was. The responses contained the following statement: “If this letter has not successfully addressed your concerns, you can contact one of our complaints caseworkers to tell us why. They will work with you to deal with any unresolved issues. The best way to contact us is by email or by completing the online form. This can be found in the complaints section of our website.”
  2. The Ombudsman considers this statement to be ambiguous because it does not make explicitly clear to the resident that the complaint can be escalated and what the next stage of the process was. The landlord failed to follow its complaint policy because it was not sufficiently clear with the resident about how to escalate her concerns to the next stage of its complaints process.
  3. This service wrote to the landlord on 17 January 2021 to ask it to respond to the resident, following a request for assistance and this triggered stage 3 of its complaints process. The landlord issued its stage 3 response on 21 April 2021. This was 56 working days outside of the landlord’s complaint timeframes.
  4. The Ombudsman considers the landlord unreasonably delayed in providing the resident with a final response and failed to perform under its complaint timeframes detailed in its policy. This impacted the resident because she had to take time and trouble to chase her complaint and it delayed her ability to request further recourse from this service.
  5. The outcome of the stage 3 response was to uphold the resident’s complaint. However, there is no evidence the landlord contacted the resident to commit to the recommendations made by its independent adjudicator. In addition to this there is no evidence that the landlord considered that it had failed to deliver against its commitments. This was inappropriate because the landlord should have communicated with the resident about how it was going to take forward the recommendations from its final response as well as when it intended to do so.

Determination

  1. In accordance with paragraph 42(c) of the Scheme, the Ombudsman will not investigate the historic events and those dating back to 2018. This is because they were not brought to the landlord’s attention as a formal complaint within a reasonable time, which would normally be six months.
  2. In accordance with paragraph 52 of the Scheme:

a.     There was maladministration in the way the landlord handled the resident’s reports of ASB.

b.     There was maladministration in the way the landlord handled the resident’s reports of:

  1. A leak resulting in damp and mould.
  2. An overhanging tree that was believed to be causing structural movement.
  3. An infestation of mice

c.      There was maladministration in the way the landlord handled the resident’s associated complaint.

Orders and recommendations

Orders

  1. The landlord must within 28 days of the date of this determination:

a.     Provide the resident with a full written apology for the failures found in this report.

b.     Pay the resident a total of £1,800 in compensation for:

  1. £500 for the distress and inconvenience caused by the unreasonable delays, poor record keeping, failure to follow its policy and poor communications with the resident about her reports of ASB.
  2. £1000 for the distress and inconvenience caused by the poor record keeping, and failure to follow its policy about its handling of repairs.
  3. £300 for the distress and inconvenience caused by the unreasonable delays, failure to follow policy and poor communication in its handling of the resident’s complaint.
  4. This award replaces any offer made through the internal complaints process.

c.      Arrange an inspection to assess the outstanding repair issues in the property, with particular focus on:

  1. Structural concerns from the overhanging tree and whether a cyclical repair can be raised to ensure this is maintained as often as is reasonable.
  2. The roof repairs.
  3. Any outstanding leaks.
  4. The windows to ensure these are not contributing to poor property conditions.
  5. Presence of rodents.

d.     Share its findings from the inspection with the resident and this service.

e.     Within 14 days of the inspection, arrange the outstanding repairs and provide this schedule in writing to the resident.

f.        Review its pest control policy to ensure that it does not mislead residents about relevant clauses in their tenancies relating to pest control responsibilities.

g.     Review its complaint policy to ensure that it does not confuse residents with the wording around the use of its own complaints adjudicator, to be clear that they are separate to this service’s investigations.

h.     Review its complaint response templates to ensure they reflect the escalation process detailed within the complaints policy and to ensure residents are aware of their rights to approach this service at any stage during the complaints process.

i.        Provide evidence of compliance with these orders to this service.

Recommendations

  1. The landlord should:

a.     Review the Ombudsman’s spotlight report on Knowledge and Information Management to review the recommendations made regarding how to implement a knowledge and information management strategy to ensure it is aware of the correlation between poor information management and delays and poor complaint handling. To take this forward and seek to review its working practices across ASB, repairs and complaint handling to ensure effective systems are in place and available to interrogate on its case management systems.

b.     Share with the resident the relevant reports and surveys available to it regarding the inspections it had carried out between 2019 and 2023.