Clarion Housing Association Limited (202125562)

REPORT

COMPLAINT 202125562

Clarion Housing Association Limited

9 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:
   1. The resident’s reports about the condition of the property at the start of the tenancy.
   2. The resident’s concerns about asbestos at the property.
   3. The associated formal complaint.

Background

2. The resident is an assured non-shorthold tenant at a property managed by the landlord.
3. In April 2021, the landlord commissioned an asbestos report for the property. It also commissioned an electrical safety report which certified the electrics at the property as safe. In June 2021, the landlord decided the property met its void standards and was fit to be let. The resident signed a tenancy agreement on 1 July 2021. He moved in on 29 July 2021.
4. On moving in, the resident reported various problems with the property. These included windows painted shut, broken radiators and a lack of hot water. His formal complaint to the landlord, on 29 September 2021, was about his concerns which included sealed air vents, windows which would not open, asbestos containing material (ACM) in the property and unreliable radiators. He said he should not have to pay rent for the first two months of his tenancy.
5. In its stage 1 response of 27 October 2021, the landlord said many of the repairs had now been carried out and others would be done shortly. It refused to waive the resident’s rent but offered him £200 compensation. This was comprised of £50 because there were repairs outstanding when he moved in, £50 for the late complaint response and £100 because issues had developed with the building.
6. The resident expressed dissatisfaction with the landlord’s response, the state of the property when he moved in, and especially about the ACM. The landlord did not escalate the complaint. However, in early November 2021, it opened a second stage 1 complaint about his concerns about ACM.
7. On 8 December 2021, the landlord sent its second stage 1 complaint. It said it would remove some ACM boxing in the hallway but would not remove other ACM as it posed no risk. This work did not proceed initially due to disputes between the landlord and resident about what ACM required removal.
8. In March 2022, the landlord attended the property and inspected cracks in the walls reported by the resident. During the visit, there was a physical altercation between the resident and one of the landlord’s operatives. However, after the visit, the landlord decided that extensive works were required. These included removing and replacing blown plaster and treating the walls with mould wash in two rooms. The landlord also decided to remove asbestos including the boxing and to renovate the bathroom and fit mixer taps in kitchen and bathroom. It took some time to schedule the works.
9. The resident complained to this Service in May 2022. He said he wanted the landlord to carry out the required repairs to the property. He wanted a mixer tap, the ACM removed and the cracks in the walls repaired. He said he was concerned about the structural integrity of the property. He also complained about the landlord’s complaint responses. He said he wanted compensation. In June 2022, the landlord carried out the works at the property.
10. This Service asked the landlord in May 2022 to send a further complaint response. It sent its stage 2 response to the resident on 26 August 2022. It offered him a further £50 in recognition of this delay in the complaint process. He was not satisfied with this response and asked this Service to investigate.

Assessment and findings

Scope of the investigation

11. It is not in this Service’s jurisdiction or expertise to make definitive determinations about building safety and whether a landlord has been negligent about it. The main consideration in this case is whether it acted reasonably after the resident expressed concerns about the property. He has said he believes the property is unsafe because of the ACM which is present. While this Service is unable to determine whether or not the property is safe because of the ACM, this investigation considers whether the landlord’s response to the issue is supported by the available evidence and information, and the landlord’s policies, procedures, and general obligations.

The resident’s reports about the condition of the property at the start of the tenancy

12. The Homes (Fitness for Human Habitation) Act 2018 introduced a requirement that rented properties are fit for human habitation at the start of a tenancy. This means, among other things that they must be free from damp and mould, secure, have sufficient heating and hot and cold water and be free from ‘hazards’.  A list of hazards is set out in the Housing Health and Safety Rating System (HHSRS), introduced by The Housing Act 2004. This Act requires landlords to assess hazards and risks within their rented properties.
13. Landlords should be aware of their obligations under HHSRS, and they are expected to carry out additional monitoring of a property where potential hazards are identified.
14. The tenancy agreement also states that the landlord is responsible for repairs at the property.
15. From the day the resident moved into the property in July 2021, he reported issues which, he said, should have been remedied before he moved in. He told the landlord that staff had told him that repairs should be and would be completed before he moved into the property.
16. In its stage 1 complaint response of October 2021, the landlord explained that it had not been able to investigate what the resident said he was told, because the staff he referred to either did not work for it or had left its employment.
17. Nonetheless, the landlord explained that the property had met its void standard, and that while it acknowledged there were repair issues, they were not ones which made it unsuitable to be lived in. This was a reasonable response to the resident’s concerns. It reflected the scale and significance of the repair issues raised (notwithstanding the different views on whether the ACM was a risk). This Service has seen nothing to suggest its explanation about the staff was inaccurate, and the landlord’s internal emails from its void team in June 2021 confirm the property was ready to be let.
18. In his first complaint the resident raised issues about the reliability and effectiveness of his radiators, heating and hot water. The repair records show that he reported having no heating and hot water in August 2021, but do not show how or when that was resolved.
19. In its first complaint response, the landlord said the resident should report his concerns to its heating contractors. Given that he seems to have already done that without the matter being resolved, this was not a reasonable complaint response. In his escalated complaint in November 2021, he repeated that heating and hot water were a problem. The landlord’s escalated complaint response addressed only the ACM issue, not the heating and hot water.
20. Issues about heating and hot water are not among the list of works the landlord assessed as needed in May 2022, so it appears the problems the resident was experiencing were resolved at some point before that. Nonetheless, the landlord’s complaint responses to the issue were not appropriate in the circumstances at that time.
21. As part of its investigation of the resident’s escalated complaint, the landlord explained that it had contacted him in June 2022 to discuss his remaining concerns. He had told it that at the time he had no heating. In its final complaint response in August the landlord explained that the property is in a complex with a communal central heating system. This is turned off during the summer months until 1 October. His concern about this is understandable, but in the circumstances, there was no impact from the issue, and the landlord accurately explained the process.
22. The resident complained about the hot water system formally on 29 September 2021 saying the water took five minutes to heat up and, when it did, it was too hot. He asked for a mixer tap. He also said that the noise made by pipes knocking when the water warmed up was unbearable. The landlord’s repair records show the resident reporting problems with the hot water system not working, but they do not show that these other specific issues were previously reported to the landlord. The resident has since raised this issue with this Service and said that the banging from the pipes distresses him.
23. In its complaint responses, the landlord said that, if the resident believed the temperature was wrong, he should report it to its contact centre, who would consider whether an adjustment was needed. It also explained that the pipe noise was likely caused by them heating up when in use and expanding.
24. Repair concerns and issues must be reported to a landlord for it to take action, and there is no evidence that these particular issues were previously raised. Because of that, the landlord’s explanations were appropriate and reasonable. Its records show that it did subsequently visit the resident to investigate the pipe noise, although they are not clear about what action was taken, and the issue does not appear to have been raised again.
25. The resident’s frustration with the amount of work needed to the property at the time he moved in is wholly understandable. Nonetheless, the landlord addressed most of the issues he raised in his complaint appropriately and reasonably. The exception being his complaint about non-working heating and hot water, for which its complaint response does not appear to reflect the evidence. Accordingly, part of the complaint went unresolved.

The resident’s concerns about ACM

26. Asbestos is a potential hazard set out in the HHSRS and therefore the landlord is required to consider whether any asbestos or asbestos containing material (ACM) in its properties are a hazard that may require remedy.
27. The landlord commissioned an asbestos survey in April 2021. This survey found that there was no ACM that required removal and that any ACM at the property was in good to fair condition and was sufficiently sealed and encapsulated.
28. The resident complained that ACM in cupboards and floor tiles was dangerous. He has told this Service that that this prevented him from redecorating the property as he would not be able to sand it.
29. The evidence does not show that this specific concern or intention was reported to the landlord, but basic good practice is for a tenant to check with the landlord before undertaking any work where asbestos might potentially be disturbed. Accordingly, if this is still a concern the resident should clarify the situation with the landlord.
30. The landlord had commissioned an asbestos survey when the property was empty which found that ACM present in the property posed a very low health risk and did not require removal. It decided, based on this report, that removal was not necessary. It was entitled to rely on expert opinion in deciding whether the ACM needed removal and the evidence it had supported its decision.
31. After the resident reported his concerns about the ACM presence, the landlord visited the property in November 2021 and reassessed it. It agreed to replace the ACM boxing in the hallway but not the floor tiles elsewhere. This was a reasonable response to his concerns as it agreed to replace the boxing to allay his concerns even though its expert report said this was not necessary.
32. The resident continued to press for all ACM to be removed. The landlord refused to replace any but the hallway boxing. There was a deadlock. In March 2022, the resident reported cracks had developed on internal walls at the property. An employee of the landlord visited the property and there was an altercation between the employee and the resident.
33. The landlord arranged to attend to replaster several walls at the property in June 2022. It also arranged for other works to be done at the same time. These included removing the boxing and some other ACM and installing a mixer tap in the bathroom. However, the resident remains convinced that his property is unsafe because of the remaining ACM. The landlord maintains that any remaining ACM is safe and refuses to remove it. Its decision is based on the advice it has, and it is therefore reasonable for the landlord to make it.
34. If the resident can support his ongoing concerns with relevant and meaningful information or evidence, the landlord would be expected to consider the matter again. It would be for it to decide whether the information affected its decision, but, if it did not, it would be obliged to give the resident a clear explanation why.

The associated formal complaint.

35. The landlord’s complaint process had two stages. A resident could complain and, if they were dissatisfied with the response, they could request a review. The policy stated that “they will need to be clear on what they wish to be considered as their desired outcome and what specifically they are not accepting”. After the review stage, residents were directed to this Service.
36. The complaints policy did not set out a required timeframe for dealing with complaints. Nonetheless, the landlord held that its stage 1 complaint response, which was provided 30 days after the complaint was made, was late. It offered the resident £50 in recognition of this delay which was reasonable redress for that delay.
37. However, the records provided by the landlord show that it then failed to escalate the complaint to stage 2 even though the resident asked for a review in early November 2021. That was not in line with its policy, or this Service’s principles of good complaint handling. However, the landlord did open another stage 1 complaint so the impact on the resident was lessened.
38. The landlord’s sent its second stage 1 response on 8 December 2021. There is no evidence of a further request by the resident to escalate his complaint. In May 2022, the resident told this Service that a response from the landlord was still outstanding. We asked the landlord to send a further complaint response. It wrote to the resident on 7 June confirming that it would escalate his complaint, and that it aimed to send its response by 5 July.
39. The landlord then emailed the resident on 22 July 2022 explaining that a cyberattack on its computers had disrupted them and delayed its complaint response. It apologised and explained what it was doing to resolve the problem.
40. The landlord sent its final complaint response on 26 August 2022. It apologised for the delay and explained again the impact of the cyberattack. It offered the resident £50 compensation for the inconvenience caused to him.
41. The delay for the period after this Service contacted the landlord appears to have been mostly due to the landlord’s IT system failures, which by all accounts were outside its control. However, in its final complaint response the landlord said it was responding to the issues the resident had escalated in November 2021 (which its second stage 1 response had only partly addressed). The landlord’s final response therefore was delayed from November 2021 to August 2022, and only a small part of that delay was attributable to the IT failure. It did not explain why the delay since November 2021 had occurred, and the compensation it had offered was not proportionate to the length of time involved. Accordingly, the landlord did not appropriately address and remedy its delay and failing.

Determination

42. In accordance with paragraph 52 of the Housing Ombudsman Scheme (the Scheme), there was service failure in the landlord’s handling of the resident’s reports about the condition of the property at the start of the tenancy.
43. In accordance with paragraph 52 of the Scheme there was no maladministration in the landlord’s handling of the resident’s concerns about asbestos at the property.
44. In accordance with paragraph 52 of the Scheme there was maladministration by the landlord in its handling of the complaint.

Orders

45. The landlord is ordered to:
    1. Pay the resident £300 for its failure to reasonably consider the resident’s complaint about faulty radiators, heating, and hot water.
    2. Pay the resident £250 for its failures in complaint handling. This amount is inclusive of the compensation already offered by the landlord during its complaint process.
    3. Write the resident a letter of apology with respect to its failure to adequately consider his complaint about the radiators, heating and hot water.
    4. Provide evidence of compliance with the above order to the Ombudsman within 4 weeks.

Recommendations

46. It is recommended that the landlord should take steps to discuss the resident’s concerns about banging pipes with him and, if possible and necessary, to address them.