Co-operative Development Society Limited (202207573)

REPORT

COMPLAINT 202207573

Co-operative Development Society Limited

24 September 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:
   1. the landlord’s response to repairs to the communal lift,
   2. the resident’s request for the landlord to impose future sanctions on the lift contractor for any poor service.
2. The Ombudsman has also considered the landlord’s complaint handling.

Background

3. The resident is an assured tenant of the property since 2007. The property is a sixth floor flat and there is a communal lift that services the block. The alternative way to access the flats is via a set of communal stairs. All residents of the block pay a service charge for the use and upkeep of the lift. The landlord has subcontracted the repairs and maintenance of the lift to a contractor. It does not have any recorded vulnerabilities for the resident. The resident has told this Service she has arthritis and is severely impacted when the lift is not working.
4. The evidence shows the resident complained to the landlord in 2021 about its handling of the lift repairs. This complaint was then taken through stages 1 and 2 of the landlord’s internal complaints process. The resident later told the landlord she did not bring her complaint to the Ombudsman at that time as the landlord ‘discouraged’ her to do so.
5. The landlord’s repairs log shows on 28 December 2021 the lift stopped working and a repair was raised with the contractor. The resident has told this Service the lift was fixed on 21 February 2022 after it had been out of service for around 56 days. The landlord recorded that the lift was out of service for 49 days. On 13 April 2022 the lift broke down again. The landlord’s repairs log says the lift was out of order for 17 days. On the 10 June 2022 the landlord’s repairs log shows a further breakdown of the lift and the repair took 21 days to complete.
6. On 11 July 2022 the resident complained to the landlord about the lift. She said she was unhappy with the landlord’s management of the lift contract and the service she had received. The resident said for 13 weeks of a 6-month period the lift was not working. She asked to be refunded for the lift service charge during that time. The resident asked the landlord to commission an independent assessment report of the lift and contract. She also said she was unhappy with the standard of the cleaning and gardening within her property’s block. This is a service which the resident pays for via a different service charge. On the same day the resident contacted this Service with her complaint. The resident said she suffered greatly when the lift was not working.
7. The landlord replied to the resident’s complaint at stage 1 of its internal complaints process on 3 August 2022, around 17 working days later. It said it found that the resident’s lift had ‘broken down very frequently’. The landlord said it had spoken to the contractor and instructed improvement on their service and maintenance of the lift. It said it had employed a ‘lift specialist to carry out a feasibility report’ which would be ‘independent’. The landlord upheld the resident’s complaint. It said it would arrange for the lift service charge to be refunded to all residents of the block during the time the lift was not working.
8. On 23 September 2022 the landlord escalated the resident’s complaint to stage 2 of its internal complaints process. It acknowledged the resident had previously said she was not happy with the response at stage 1. However, the landlord had failed to escalate the complaint. The resident said she wanted the landlord to change lift contractors for the lift in her block.
9. The landlord sent an interim stage 2 response to the resident on 20 October 2022. From this date until June 2023 this Service has not seen any evidence of communication from the landlord to the resident. On 6 June 2023, around 9 months after the landlord formally escalated her complaint, it responded to her at stage 2 of its internal complaints process. The landlord upheld the resident’s complaint regarding its poor service, communication and repairs to the lift.
10. The landlord calculated the compensation to all residents at £40.65 for the service charge plus £100 for a service failure, totalling £140.65 for all residents of the block. It offered the resident a further £250 for the delay in resolving her complaint, totalling £390.65. The landlord said it had picked up shopping for the resident on 2 occasions. It had also offered to move her; however, it acknowledged the resident did not want to move.
11. On 7 October 2022 the landlord received the independent feasibility report it had commissioned for the lift’s performance and contract review. The report said it was a ‘good service contract’.

Assessment and findings

Scope of Investigation

12. The resident has told this Service she has been reporting issues with the lift since 2020. The resident has said she complained to the landlord who responded to her through its internal complaints process in 2021. Following this, the matters were not referred to this Ombudsman by the resident at that time. Though the resident’s concerns are acknowledged, the scope of an Ombudsman investigation can be limited to various factors including the time that has passed. Given the above, our assessment focused on events from 28 December 2021 onwards.

The landlord’s response to repairs to the communal lift

13. The landlord’s repairs log shows the lift broke down at the resident’s block on 28 December 2021. The repairs log shows the lift was repaired on 21 February 2022. However, the resident has said the lift was not in service until 25 February 2022. This was a period of around 61 days that the lift was out of order. During this time the resident said she was restricted in her ability to leave her property and enjoy her normal life.
14. On the 12 April 2022 the landlord’s repairs log shows the lift broke down and was not working for around 17 days. The repairs log shows a further break down from 10 June 2022 and this repair took 21 days.
15. The landlord has a service agreement with the contractor of the lift. This service agreement says the contractor will carry out repairs and it provides a helpdesk for breakdowns which is a ‘24-hour service’. However, it does not specify repair timeframes for the lifts it has contracts with.
16. The Ombudsman understands it is inevitable that lift break downs will occur from time to time. If the lift remains out of order for long periods of time, the landlord should be able to evidence its process for communication. It should also be able to show how it has supported the resident. The landlord is expected to be proactive in monitoring the overall number of breakdowns, managing its contract and communicating with residents.
17. The landlord should be able to show it responded to reports of lift faults within a reasonable timeframe. However, it has not evidenced communication or a support plan with the resident during the long periods of time the lift was out of service. This was unreasonable of the landlord.
18. The resident complained to the landlord on 11 July 2022. She said she had ‘endured’ overall 13 weeks of the lift not working since Christmas time. The resident said she felt the contractor had no interest in servicing the lift. She also said she felt ignored by the landlord. The resident said she wanted a refund for the lift service charges paid when it was not working. She also asked the landlord to commission an independent assessment of the lift and its contract.
19. On the same day the resident contacted the Ombudsman. She said the service she was getting from the landlord and lift contractor was ‘atrocious’. The resident said that her previous complaint had not been dealt with properly due to staff leaving. She said she found it ‘very difficult to lead a normal life’ when the lift was not working. The resident said she would like the landlord to change lift contractors or put in a new lift.
20. On the 3 August 2022 the landlord replied to the resident at stage 1 of its internal complaints process. This was around 17 working days after the resident raised her complaint. It said it had established the lift had broken down ‘very frequently’ at the block. The landlord said it had spoken to the lift contractor and instructed that they ‘improve on the quality’ of service and maintenance of the lift. It said it would actively monitor the contract going forward. It upheld this part of the resident’s complaint.
21. The landlord also said it had instructed an independent lift specialist to carry out a feasibility report on the lift. The landlord said it would refund the lift service charge to all residents in the block for the 13 weeks in total the lift was not working. It calculated this at £7.65 per month for 3 months totalling £22.95. It partially upheld this part of the resident’s complaint. This was a reasonable response by the landlord. It shows it had listened to the resident and it wanted to try and make things right for her.
22. The landlord was unable to provide a copy of the resident’s escalation request. The timing of the request is therefore unclear. The landlord subsequently escalated the complaint on 28 September 2022. At this point, the landlord apologised and acknowledged it had not acted on the resident’s previous request.
23. A landlord should have systems in place to maintain accurate records of repair reports, responses and communications. Good record keeping is vital to evidence the action a landlord has taken. Failure to keep adequate records indicates that the landlord’s processes are not operating effectively. The landlord’s staff should be aware of its record management policy and procedures and adhere to these. 
24. The landlord received the independent feasibility report for the lift on 7 October 2022. The report said ‘considering the age and make of the equipment this is a good service contract’. It did not recommend that the landlord look to change contracts providing it received the level of service stated in the contract. The report said the landlord could consider moving from the large contractor to an independent one for better service, as a proposed alternative option.
25. On 20 October 2022 the landlord sent an ‘interim response’ to the resident at stage 2 of its internal complaints process. It said it understood the resident was not happy with the outcome at stage 1. The landlord said it would write again in 5 working days with an update on the complaint. This Service has not seen evidence that an update was provided following this.
26. On 23 November 2022 the resident emailed the landlord and asked for an update on the independent feasibility report. The resident said if the landlord only reimbursed for the time the lift is out of action that would not be acceptable. The resident said the lift doors had been ‘scraping’ every time they open. She said she did report this to the landlord, but nothing had happened since.
27. The landlord replied on the same day and provided an ‘interim response’ to the resident. It said it would increase the compensation to all residents in the block to £63.60 each. This represented 144 days of the lift not working, over 3 years. The landlord said this new calculation was based on information the resident had provided. It also said it would now ensure it kept ‘accurate records’ of all lift repairs and contractor call outs. This was a reasonable response by the landlord. It shows that it had listened to the resident and was learning from her complaint.
28. The landlord said the ‘last remaining action’ was for its Head of Property Services to review the feasibility report for the lift and make a recommendation. It said it would raise a job for the noise of the lift doors to be checked. This was a reasonable response by the landlord as it recognised the repair the resident reported in her email.
29. On 5 January 2023 the resident emailed the landlord. She asked for an update on the landlord’s review of the independent feasibility report. This Service has not seen any evidence that the landlord replied to the resident until it sent its stage 2 response.
30. On 6 June 2023, around 9 months after the resident raised her complaint, the landlord replied at stage 2 of its internal complaints process. The landlord said the feasibility report had given assurances that the lift was safely maintained. It said the recommendation that a smaller contractor could provide better value for money and better service is something they would ‘consider’ in the future. The landlord said in the past 7 months the contractor’s performance had been ‘satisfactory’. This Service has not been provided with the lift repair logs post September 2022.
31. The landlord said it had failed to maintain good communication and had let the resident down by not responding to her complaint at stage 2. However, it was ‘proud’ of the actions it had taken to mitigate the lift outage on the resident. The landlord said that it had picked up shopping for the resident 2 times and had offered to move her to a new property, although the landlord accepted the resident did not want to move. It was appropriate the landlord recognised its failure to respond to the resident’s complaint in a timely manner. The landlord did take some steps to support the resident at times when the lift was broken, and this was reasonable. However, the lack of communication will have had a negative impact on the resident and would of undermined her confidence in the landlord’s management of her complaint.
32. The landlord said it would offer £100 to each resident in recognition of the long periods of lift outage and poor communication. This was on top of £40.65 in lift service charge refunds. The landlord also awarded the resident £250 for its complaint handling failure. This meant a total of £390.65 was offered to the resident.
33. The landlord said it had learnt from this complaint. To improve its record keeping it subsequently tracks lift repairs on its housing management system. This was a reasonable response from the landlord as it shows it has identified where things went wrong and had looked to put them right.
34. The resident replied to the landlord on 13 June 2023. She said she was concerned the issues with the lift would continue if it did not do anything about the contractor. The resident said although there had been no issues in the last 6 months, it did not ‘exonerate’ the contractor. She said she wanted assurances the landlord was auditing the contract and addressing poor performance.
35. On the same day the landlord replied to the resident. It said it appreciated that it had not met her expectations as it was not ending the relationship with the contractor. The landlord said it stood by its review and offer of redress to the resident.
36. In summary, there was a lack of communication and consistent support for the resident by the landlord when the lift was not working. The landlord admitted it failed to record accurately the lift breakdowns and the impact it had on the resident. As such it is reasonable to conclude it would have been unable to successfully monitor the service the contractor was providing without this information.
37. However, it is recognised the landlord has taken steps to put things right for the resident. It offered to move her to an alternative property, and it commissioned the feasibility report on the lift. The landlord tried to put things right for the resident with the offer of £140 compensation for the lift outages. Had this not been offered the Ombudsman would have made a finding of maladministration. However, the amount of compensation does not reflect the distress caused. The failures outweigh the positive actions undertaken by the landlord. As a result, the Ombudsman finds that there was a service failure by the landlord in this case.

The resident’s request for the landlord to impose future sanctions on the lift contractor for any poor service

38. What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this Service, we must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated. This part of the resident’s complaint concerned the performance management of the service level agreement between the landlord and the contractor.
39. The resident requested the landlord to impose future sanctions on the lift contractor for any poor service. The terms of the contract between the landlord and the contractor are defined in a legal agreement. It is not within the powers of the Ombudsman to change, or interfere with such a contract. The jurisdiction of the Ombudsman does not extend to third parties such as the contractor, so we have no ability to impose orders upon them.
40. There is no specific reference that the landlord has not fulfilled its obligations to properly exercise the terms of its contract with the contractor. Therefore, it is inappropriate for the Ombudsman to prejudge any failure in the future and as such cannot investigate matters which are yet to occur.
41. Paragraph 42.o. of the Scheme says the Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide.
42. In summary, the resident requested the landlord to impose future sanctions on the lift contractor for any poor service. However, this matter is outside of the Ombudsman’s jurisdiction. The resident should seek legal advice if she wishes to pursue the matter.

The landlord’s complaint handling

43. On 11 July 2022 the resident raised her complaint to the landlord. It replied on 3 August 2022, around 17 working days later, at stage 1 of its internal complaints process. Its complaints policy says that a complaint will be replied to within 10 working days. This shows a delay of around 7 working days. There was no indication the landlord kept the resident updated and it failed to acknowledge the delay in its stage 1 response. The delay and failure to acknowledge it will have caused inconvenience to the resident.
44. The resident said in her complaint she was unhappy with the service provided for the gardening and cleaning service charges that she pays. Point 6.7 of the Ombudsman’s complaint handling code says a landlord must respond to all points raised in a complaint at stage 1. In the landlord’s stage 1 response it failed to respond to this part of her complaint. It was inappropriate of it to not respond to this element of the resident’s complaint. This was a complaint handling failure.
45. On 28 September 2022 the landlord emailed the resident and apologised for not taking her complaint to stage 2 as she requested. This Service asked the landlord for a copy of the resident’s initial escalation request, but it did not provide it to us. It was unreasonable that the landlord did not escalate her complaint when she first requested it to.
46. The resident told this Service on 20 February 2023 she had still not received the stage 2 response from the landlord. She said it had a high staff turnover and she felt this had impacted on how the landlord had dealt with her case. It was unreasonable that the resident was left waiting and had to chase her stage 2 response. This will have caused her inconvenience.
47. An internal email sent by the landlord on 21 February 2023 said that the resident’s complaint was incorrectly closed on the system at stage 1. It says there were issues with the record keeping regarding the complaint.
48. This Service sent a final reminder to the landlord on 26 May 2023. It then issued its final stage 2 response to the resident on 6 June 2023, around 9 months after it escalated her complaint. It said between December 2022 and February 2023 it had ‘a string of resignations in key roles related to this complaint’. The landlord ‘sincerely’ apologised that the resident had had to ‘repeatedly chase’ to get her final stage 2 response.
49. The landlord’s policy says that stage 2 complaints will be responded to within 20 working days. This was a significant delay of around 8 months from the time stated in the policy. This will have caused great distress and inconvenience to the resident.
50. The landlord said it was concerned the resident said she had been ‘persuaded to drop a formal complaint previously’. It said it intended to retrain staff on complaint handling. This was a reasonable response by the landlord as it recognised there had been a mishandling of her previous complaint.
51. The delay at stage 2 of the complaints process would have impacted the resident by denying her resolution at the earliest opportunity, in line with the landlord’s complaints policy. This and the failure at stage 1 to recognise the other element of the resident’s complaint was inappropriate of the landlord. The resident said in her complaint she felt ‘ignored’ by the landlord and the long delays will have compounded this feeling for her.
52. The landlord awarded £250 compensation in recognition of its failings in its complaint handling. Had this not been offered the Ombudsman would have made a finding of maladministration. The landlord would have been ordered to pay a similar amount of compensation to the resident to put things right. The amount awarded by the landlord is consistent with what would have been calculated by the Ombudsman in line with this Service’s remedies guidance. As such, the landlord has provided reasonable redress to put things right for its mishandling of the resident’s complaint. 

Determination

53. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure in relation to the landlord’s response to repairs to the communal lift.
54. In accordance with paragraph 42.o. of the Scheme, the complaint relating to the request for the landlord to impose future sanctions on the lift contractor for any poor service outside of the Ombudsman’s jurisdiction.
55. In accordance with paragraph 53.b. of the Housing Ombudsman Scheme, in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its service failure in relation to the landlord’s handling of the complaint.

Orders

56. Within 4 weeks of the date of the report the landlord should apologise in writing to the resident for the failings outlined above.
57. Within 4 weeks of the date of this report the landlord should pay the resident £300 for the distress and inconvenience caused. The landlord is free to deduct the £140.65 previously offered in compensation for the handling of its lift repairs.
58. Within 4 weeks the landlord must consult the resident. If requested, it should investigate her complaint regarding the level of service for the cleaning and gardening of her block.