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Cannock Chase District Council (202109327)

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REPORT

COMPLAINT 202109327

Cannock Chase District Council

31 March 2022


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 resident has complained about the landlord’s response to her reports of a dark patch on her property.
  2. The resident has also complained about the landlord’s response to her request for compensation for injuries she reported sustaining while attempting to clean the dark patch.
  3. The Ombudsman has also considered the landlord’s complaints handling.

Jurisdiction

  1. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
  2. After carefully considering all the evidence, in accordance with paragraph 39(i) of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s response to her request for compensation for injuries she reported sustaining while attempting to clean the damp patch is outside of the Ombudsman’s jurisdiction.
  3. Paragraph 39(i) of the Housing Ombudsman Scheme states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.  
  4. The Housing Ombudsman Service does not have jurisdiction to assess or determine personal injury negligence claims.  The Ombudsman’s role is to consider how a landlord has dealt with a formal complaint and to assess whether there has been any maladministration on its part. The complaints process does not have built into it mechanisms for establishing legal negligence and for quantifying damage such as personal injury or damage to personal property. 
  5. The court or the landlord’s insurance company have the expertise and authority to determine the resident’s personal injury compensation claim. In doing so, they can assess whether there has been any negligence on the part of the landlord and decide whether it is liable for her injuries.  As the resident’s request for compensation for her injuries would be better dealt with by the courts or insurers, this complaint is outside the Ombudsman’s jurisdiction in accordance with paragraph 39(i) of the Scheme.

Background and summary of events

  1. The landlord’s Repairs Procedure confirms its statutory repair obligation to “keep in good repair the structure and exterior of dwellings and the buildings in which they are situated. This includes: The Structure and exterior of the building – roofs, walls,…”. The landlord’s Lettable Standard states that “all (empty) properties will be left in a safe, clean and tidy condition”, but does not provide an additional obligation in respect of the cleaning of external walls.
  2. The Council has a three stage complaints procedure, applicable to the landlord.  At Stage 3, complainants may escalate their complaint to the Council’s Appeals and Complaints Panel, a Committee of Councillors called to hear the complaint, or they can refer their complaint to the Local Government and Social Care Ombudsman (LGSCO) or this Service.
  3. The resident was a tenant of the landlord, the tenancy commencing in 2019. Her property was a flat. On 19 November 2019 a member of staff from the landlord’s Repairs and Maintenance Team visited the resident’s property to inspect various repair issues.  Various repair jobs were raised but the member of staff advised that the landlord would not carry out any remedial work to a stain on the rendering to an exterior wall.  It is understood that the resident at a later point tried to clean the stain herself by climbing onto a porch roof but suffered accidental injuries when doing so.
  4. On 6 April 2020 the landlord responded to an enquiry from the resident’s MP stating the member of staff who attended on 19 November 2019, although not being able to recall all details of the advice provided to the resident, agreed that he suggested that the dark patch was not a maintenance issue but that she could possibly clean the patch herself. The landlord accepted that the advice given may have fallen short of a detailed description of how the issue could be resolved safely. 
  5. The landlord stated that to prevent the recurrence of issues highlighted by the resident’s case, it would ensure that when information was provided to customers for any repair reason, regardless of who was responsible for the repair, health and safety considerations should be considered. The landlord agreed to clean and/or repair the patch so as to present no further health and safety implication to the resident and apologised for any harm she suffered. 
  6. On 27 April 2020 the resident raised a formal complaint stating that she had suffered a major accident after following advice to clean a wall herself. She noted that the member of staff had accepted that he should not have asked her to do this work and now would arrange for the wall to be cleaned.  However, she stated that she wanted additional redress.
  7. On 5 May 2020, the landlord responded to the resident’s complaint denying that the staff member made a mistake as the only advice given was that the issue raised – a dirty mark to the exterior of the property – was not a repair issue, and this was factually correct. It reiterated the position outlined in the MP response – that the member of staff could have provided more detailed advice regarding any health and safety implications in carrying out the cleaning of the dirty mark; however, it could not be held responsible for any injury to a tenant or any other persons whereby it had no control over the following:
    1. How access to the area of work was gained.
    2. What working platform was used to access the area.
    3. What the condition was of the working platform at that time.
    4. Whether a suitable risk assessment had been considered prior to carrying out this work.
  8. On 19 May 2020 the resident escalated the complaint noting her injuries and stating that she should not have been told to clean the stain herself. She requested compensation for her injuries.
  9. On 4 June 2020 the landlord confirmed that:
    1. It would clean the stain, and that if it could not do this, it would paint over it.
    2. Whilst the instructions provided by the staff member of 19 November 2019 was not clear, the resident put herself in danger by not having the correct equipment to carry out the cleaning.
    3. Although the property met the lettable standard, it believed that it should have removed the stain prior to the resident moving into her new home, and would ask the Repairs and Maintenance Team to review the void works.
    4. It would not offer compensation as it was not liable for an injury sustained by a tenant in carrying out works themselves. It suggested that the resident make a claim with her travel insurance company for the cancellation of a planned holiday due to her injuries.
    5. The resident could escalate her complaint to Stage 3 of its Complaints Procedure or approach the LGSCO.
  10. On 9 June 2020 the resident asked to escalate her complaint to Stage 3 again contending that the member of staff admitted to his errors. There is no evidence that the landlord responded to the request.
  11. On 8 January 2021 the LGSCO decided it could not investigate the resident’s complaint as it was not its role to investigate complaints about the provision or management of social housing by a council acting as a registered social housing provider.  Additionally, it noted that it could not award compensation for the injuries she suffered as this was a matter for the courts.
  12. On 21 February 2021, the landlord wrote to the resident after speaking to her on 18 February 2021. It noted that the LGSCO had not accepted the resident’s complaint for investigation and referred her to this Service.  It also suggested that the resident seek legal representation if she wanted to pursue her claim for compensation.

Assessment and findings

The resident’s complaint about the landlord’s response to her reports of a dark patch on her property

  1. Following the resident’s report about dark patch on the exterior of her property the landlord sent a member of staff from its Repairs Team to inspect on 19 November 2019.  This was appropriate as by doing so the landlord could make an informed decision on what, if any, action it could take on the patch.  The landlord was entitled to rely on assessment of the member of staff who had the authority to make decisions
  2. The landlord’s repair obligation to keep in good repair the structure and exterior of the building does not extend to cosmetic issues, such as cleaning external walls. Nor does the Lettable Standard require a landlord to clean external walls. Given this, it was reasonable that the landlord took the decision at the inspection of 19 November 2019 not to make good the patch at that time by carrying out a responsive repair.
  3. The resident subsequently complained that the landlord asked her to clean the wall herself.  Whilst, due to lack of corroborative evidence, the landlord could not confirm exactly what advice it gave to the resident on 19 November 2019, it accepted that it could have given her more detailed advice regarding any health and safety implications in carrying out the cleaning of the dirty mark.  Nonetheless, the landlord’s acceptance that it could have provided more detailed advice on 19 November 2019 does not indicate there had been a significant service failure as it remained the resident’s decision whether or not to clean the stain. Moreover, she had the opportunity to seek advice from the landlord (or any third party) about how best to do so. 
  4. The Ombudsman’s Complaint Handling Code notes that “Effective dispute resolution requires a process designed to resolve complaints. Where something has gone wrong a landlord should acknowledge this and set out the actions it has already taken, or intends to take, to put things right”.  In this case, the landlord when responding to the complaint took reasonable steps to resolve the underlying matter – the stain on the wall – in line with the Code by agreeing to clean or paint it, even though it did not have a particular obligation to.
  5. It is noted, however, that the landlord’s response of 4 June 2020 was confusing and contradictory as it simultaneously stated that the property met the lettable standard but the stain should have been removed anyway during void works.
  6. The Complaint Handling Code also states that “Landlords should look beyond the circumstances of the individual complaint and consider whether anything needs to be ‘put right’ in terms of process or systems to the benefit of all residents” and “An effective complaints process enables a landlord to learn from the issues that arise for residents and to take steps to improve the services it provides and its internal processes”. In this case the landlord has demonstrated that it has learnt from the outcome of the resident’s complaint by identifying that health and safety factors should be taken into account when providing information to residents about repairs.

Complaints Handling

  1. The Complaint Handling Code states that “Under the Housing Ombudsman Scheme a member landlord must as part of that [complaints] procedure, inform residents of their right to bring complaints to the Ombudsman under the Scheme”.  In this case, the landlord incorrectly referred the resident to the LGSCO in the Stage 2 response of 4 June 2022 which caused unnecessarily delay.
  2. There is also no evidence that the landlord responded to the resident’s Stage 3 request of 9 June 2021.  It therefore missed an opportunity to refer the resident to the correct Ombudsman.  It also failed to explore whether the resident wanted to take the alternative option which was for her complaint to be considered by its Complaints and Appeals Panel.

 

 

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the resident’s complaint about its response to her reports of a dark patch on her property
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its complaint handling.

Reasons

  1. Following the resident’s report about a dark patch on the exterior of her property the landlord sent a member of staff from its Repairs Team to inspect on 19 November 2019.  This which was appropriate as by doing so the landlord could make an informed decision on what, if any, decision it could take on the patch.  it was reasonable that the landlord took the decision at the inspection of 19 November 2019 not to make good the patch at that time by carrying out a responsive repair. 
  2. The landlord’s acceptance that it could have provided more detailed advice on 19 November 2019 does not indicate there had been a significant service failure as it remained the resident’s decision whether or not to clean the stain. Moreover, she had the opportunity to seek advice from the landlord (or any third party) about how best to do so.
  3. When responding to the resident’s formal complaint, the landlord took reasonable steps to resolve the underlying matter – the stain on the wall – in line with the Code by agreeing to clean or paint it, even though it did not have a particular obligation to. 
  4. However, there was service failure in the landlord’s complaint handling insofar as in the Stage 2 response of 4 June 2021, it referred the resident to the incorrect Ombudsman.  This is in breach of the Complaint Handling Code.  It also failed to respond to the resident’s Stage 3 request of 9 June 2021 and therefore missed the opportunity to advise of the next, correct options.

Orders and recommendations

  1. The landlord pays the resident £50 compensation in respect of the additional time and trouble caused to her from the failings in its complaints handling.