Cornwall Council (201900404)

REPORT

COMPLAINT 201900404

Cornwall Council

9 July 2021

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 is about:
1. the level of compensation offered to the resident further to his reports of water ingress, damp and mould.
2. the landlord’s response to the resident’s complaint about the “One-Stop-Shop.”

Background and summary of events

Background

The resident occupied a three-bedroom property under a secure tenancy which began on 17 April 2015. The landlord is a local authority whose stock is managed by an ALMO (Arms-Length Management Organisation). For the purposes of this report, the ALMO will be referred to as the landlord on whose behalf it was acting.
The resident is disabled. He occupied the property with his partner who had physical and mental health issues, and his two sons. His younger son had some vulnerabilities.
The ‘One Stop Shop’ provided advice and information in relation to accessing services provided by the local authority, including housing/homelessness, social services, education, council tax and housing benefit. It is operated by the local authority and not by the ALMO.

Legal framework

The tenancy agreement provided that the landlord must keep in good repair the structure and exterior of the building including window frames, external doors, drains, gutters, kitchen and bathroom fixtures, heating equipment and water heating equipment and carry out repairs within a reasonable time. The obligations reflect the obligations under Section 11 of the Landlord and Tenant Act 1985.
Section 9a of the same act provided that the property must be fit for human habitation during the term of the tenancy in relation to (under Section 10 of the same act) repair, freedom from damp, and ventilation.

The complaint and compensation policy

The complaint policy provided an email address where to submit a complaint. It did not suggest it be made by delivery to the One-Stop Shop. The website currently states that a resident can make a complaint on-line, by email or by post.
The compensation policy stated that the landlord may pay compensation in respect of a service failure.
The policy set out likely maximum compensation values ranging from £50 to £250 where the landlord had partial responsibility and £100 to £500 where the landlord had full responsibility, depending on the impact of the service failure on the resident.
Where the resident had been unable to use some of the rooms or amenities in his home due to service breakdown , the landlord based compensation on a formula as follows:-
1. A second failure to carry out minor repairs would be paid to a maximum of £50.
2. Complete loss of an amenity for more than four days in winter (October to March), where the heating was provided by the landlord, would be the equivalent of 12% of the rent for the relevant period for loss of heating and hot water, and 8% of rent for the relevant period for loss of heating.
3. Loss of any other room would be calculated by dividing the daily rent by the total number of habitable rooms (including kitchens but not including bathrooms), multiplied by the number of rooms lost, and multiplied by the qualifying days.
In assessing compensation, the landlord would consider:
1. Who was responsible for the issue.
2. Whether the resident had taken action to deal with the problem and could reasonably have been expected to.
3. The resident’s ill health and where it was affected by the service breakdown.
4. Quantifiable losses including damage to the resident’s belongings due to the landlord’s failure to carry out necessary repairs.
It would consider paying interest if it owed the resident money, and had not paid it when it ought to have done, or if the resident had to spend money because of a service failure. It would calculate the interest using the statutory County Court rate (8%). Interest would start from the point where the resident spent the money or did not receive any money due and would apply until the date the payment was made.
It would consider giving compensation for anxiety, frustration, uncertainty, worry, inconvenience or outrage caused by the service breakdown. It would consider the: severity of the distress, length of time involved, number of people affected, and whether those affected are vulnerable and affected by the distress more severely than most people, and in some circumstances, time and trouble for pursuing the complaint together with any available professional opinion about the effects on any individual.

Summary of events

The facts are in the main not in dispute. The resident made a complaint to the landlord on 18 August 2017 which he had delivered to the local authority’s ‘One Stop Shop’ in relation to the lack of heating and hot water in his property. The complaint was not delivered by the One Stop Shop to the ALMO.
The resident made a subsequent complaint on 8 April 2019. The resident’s complaints related to the service he had received in relation to his long-running reports of water ingress, damp and mould. According to the repairs history, a number of works were carried out to address the reports, including fitting a ventilation system, fitting extractors, carrying out a wall insulation survey, overhauling UPVC windows and installing new seals. The landlord cleaned and treated the mould, replaced the roof, and installed a new heating system. A kitchen and bathroom upgrade took place, which addressed the resident’s report that the bath was too small and to address the condition of the kitchen that had been installed by a previous tenant. At the conclusion of the landlord’s internal complaints procedure, 3 November 2020, further works were underway for the removal and replacement of cavity wall insulation and full replacement of all UPVC windows and doors, together with a review of the extractors throughout the property. It would also consider the need for render to the wall outside.
Throughout the process, the resident expressed distress and inconvenience caused by the delays. He reported that his son was unable to sleep in his bedroom. The landlord offered the resident a decant (a temporary move) but the resident declined. The resident also suffered the distress and inconvenience of ongoing reporting and operatives attending the property who did not always announce their attendances. The resident reported on 16 October 2019 that his partner had been diagnosed with lung function damage and respiratory difficulties that were in the process of being investigated by an NHS specialist. He reported that the initial diagnosis indicated that the damp and mould was a major contributory factor to her health condition. He reported his partner’s physical and mental health deteriorated and attributed this to the landlord’s failure to carry out effective pairs. It was disputed whether or not the landlord was provided with the relevant medical reports.
The resident also reported damage to a number of his household and sentimental items, as well as an increase to his heating costs.
By 2 August 2019, while the landlord had offered a meeting which took place, it had not provided a stage one response to the resident’s complaint, and so it escalated the complaint to stage two. The landlord failed to send its second stage response it had drafted in September 2019 at all. The parties dealt with the complaint on an ongoing basis during which time the resident continued to report on the repair issues he was experiencing. The resident chased a response on 4 September 2020.
The landlord’s response of 1 October 2020 to the resident’s complaints stated as follows:
1. It acknowledged that it had failed to send out its stage two complaint response. It was due to have been sent out in September 2019. It contained an offer of compensation of £922 in respect of :
  1. The delay in fitting an extractor fan in the bathroom which was raised on 20 April 2018. The installation was not completed until 31 March 2019 which was a delay of 240 days.
  2. The overhaul of the UPVC windows was raised on 13 December 2017 and was not completed until 3 December 2018, which was a delay of 246 days.
  3. Given the extended period of delay, it did not limit the compensation as set out under the policy to £50, but calculated all the working days of the period of the delays at the rate of £2 per day for the total of 486 days.
2. It added statutory interest at the “County Court” rate of 8% in relation to the period of the delayed payment, calculated at £79.36.
3. It denied that it did not provide any means by which the resident could contact the landlord during lockdown, and it explained the methods of contact available to the resident at that time, and provided an explanation for the loss of the resident’s allocated contact at the landlord.
4. It accepted and apologised that its contractors failed to notify the resident of its visits. It acknowledged that its contractors did not comply with the instructions for which it apologised.
5. It acknowledged its oversight and delay in not sending its original complaint response, and it offered £100 for this administrative error.
6. In relation to the replacement household items and furniture, it calculated a sum of £3,198.97 with reference to a well-known retail website. It then rounded that amount up to £3,500 to cover the additional loss of clothing and sentimental items.
7. It offered compensation for the loss of amenity due to the extensive works that were undertaken at the family home. It calculated this based on works starting on 1 November 2019, with an estimated completion date of 30 November 2020. The loss of amenity was calculated at 25% of the weekly rent for the 57-week period at £1096.11.
8. It accepted that communication with the resident had not been as consistent or as immediate as the resident would have like and expected.
9. It accepted that it had taken time to identify the root cause of the issues of damp and mould experienced in the property.
10. It initially declined the resident’s complaint in relation to lack of heating or hot water due to lack of evidence.
11. The total compensation offers which included repair delay, complaint delay, loss of items and distress amounted to £5,697.47.
12. The resident had complained about the One Stop Shop mislaying his 2017 complaint. It, as the ALMO, was not responsible for the operation of the “One-Stop Shop”. The landlord has explained to this service that communication between the ALMO and the One-Stop-Shop had since improved.
The resident provided evidence of the non-working boiler on 6 October 2020. On 2 November 2020, the resident stated he was willing to accept the settlement for loss of personal possessions and the calculations made for the delayed repairs and loss of service regarding the total lack of any heating or hot water for the entire winter, spring and early summer. The only outstanding issue was compensation for his pain and suffering.
On 3 November 2020, the landlord responded that the resident had partial responsibility for the situation with the heating and hot water. However, it accepted it could have assisted the resident to take certain steps. It accepted the resident’s complaint due to lack of records. It partially upheld the complaint that he was left without heating and hot water from 5 December 2017 to 1 August 2018. While the landlord took the view that the resident was partly responsible for the lack of provision, the landlord stated that it would “demonstrate goodwill regarding this matter” and would not reduce the compensation amount as it understood the distress that this situation had caused the resident and his family. As per its compensation policy, loss of heating and hot water was payable at 12% of the rent and it calculated this for the said period at £1,283.03. This brought the total amount to £7,083.14. It reiterated that the compensation for delay, loss of amenity and loss of heating and hot water included provision for distress and inconvenience.
The landlord has explained to this service the compensation exceeded the amounts in its policy to account for the distress and set out for this service how the compensation it calculated exceeded its policy. It explained as follows:
1. It set a likely overall maximum compensation of £500.
2. It paid compensation for delay and additional distress.
3. Compensation for repair delay at £2 per day was calculated for the full period of 486 days, instead of limiting it to £50 in order to account for the distress of this situation. It added a further £20 for the length of time and additional distress.
4. It awarded compensation for replacement items without evidence from the resident as to his actual losses.
5. Instead of using the formula in its compensation policy of dividing the weekly rent by the number of rooms, and then multiplying that amount by the number of rooms lost and qualifying days, it awarded the equivalent of 25% of the weekly rent, multiplied by 57 weeks for the period of the ongoing works, even though no specific dates were provided in relation to the loss of the use of the bedroom.
6. Normally loss of heating and hot water should have been calculated at 12%. It originally used the period of 5 December 2017 to 1 August 2018 being 34 weeks. Instead, it extended the period to 139 weeks (5 December 2017 to 1 August 2020). It did not reduce the compensation by 25%, even though the resident was deemed to have been partially responsible. This made the award £1,283.93 instead of £235.38.
7. It awarded 8% interest of £102.64 for the loss of heating and hot water in relation to the entire period. (139 weeks)
8. The total amounted to £7,083.14 rather than £5,004.32.
9. The landlord had not been provided with the resident’s expectations and why he objected to the award.
The resident informed this service that he did not dispute the calculations or level of compensation, but he wanted an additional amount to compensate for his distress and inconvenience.

Assessment and findings

The level of compensation offered to the resident further to his reports of water ingress, damp and mould.

The resident’s complaint is specifically that the compensation offered did not include compensation for distress and inconvenience. The landlord has accepted that there were failings in this case and has offered compensation as set out in the previous section. The resident’s view is that this does not adequately address the distress and inconvenience caused to him and his household as a result of the landlord’s accepted failures in this case.
The Ombudsman’s consideration of this case has therefore focussed on the level of compensation awarded by the landlord and whether this was reasonable redress in the circumstances. When considering disputes about the level of compensation, the Ombudsman takes into account a landlord’s own compensation policy and also this Service’s own Remedies Guidance when assessing whether an offer was reasonable. It is important to note that the Housing Ombudsman does not award of compensation in the same way a court would, but would identify a suitable remedy to reflect the landlord’s service failure, given the circumstances of the case. The Housing Ombudsman’s awards tend to be moderate. It also generally takes into account the landlord’s need to make the most effective use of its limited resources as a social landlord.
The Ombudsman is unable to assess the extent to which a landlord’s service failure or maladministration has contributed to or exacerbated a complainant’s physical and /or mental health. It is unable to assess medical evidence and does not make findings on legal matters such as negligence. However, the Ombudsman may set out a remedy that recognises the overall distress and inconvenience caused to a complainant by a particular service failure by a landlord.
In this case, not only did the landlord exercise discretion in awarding compensation, but it also exceeded its own policy limits. In addition, the landlord made it clear that it did so because of the distress caused to the resident.
The landlord explained to this service that its offer exceeded what it might normally award under its compensation policy. The Ombudsman has the following comments to make:
1. It is not disputed that the resident’s complaint made in 2017 and submitted through the One-Stop-Shop was not delivered to the landlord. The landlord however addressed the issues of lack of hot water and heating raised in that complaint, once it had received the relevant evidence from the resident.
2. The landlord accepted that it could have assisted the resident in taking steps to remedy him being without heating and hot water in 2017. It was therefore not clear whether the landlord accepted that it was solely responsible. However, either way, it did not make any deductions from its award for compensation in relation to any failures it considered there had been by the resident to assist himself. Not only was the time–period for the loss of heating not limited to the winter months, and to where heating was provided by the landlord, but it was awarded for the maximum period.
3. This service would only award compensation for time and trouble if the time and trouble incurred was significantly more than would be expected. Given the landlord did not send out its response and offer of compensation in September 2019, it was reasonable of the landlord to offer £100 in compensation.
4. The landlord noted that its compensation limit was usually £500 however there is no evidence that that maximum applies to loss of amenity.
5. It is noted that there was a mathematical error as £2 a day for 486 days is £972 not £922, (or £902, taking into account the additional £20 it said it had awarded). However, the difference was minimal and, in any event, given the landlord’s maximum award under its policy was £50 per late repair, the award made exceeded its policy by a considerable amount.
6. The interest was offered in accordance with the compensation policy however it was applied to the maximum time period in relation to the hot water and heating even though the landlord had no dates.
7. The landlord exercised its reasonable discretion in its very generous approach to the loss of items, given no evidence was provided in relation to those losses, such as proofs of purchase, apart from the resident having left some items outside the property for a period. This would have saved the resident the considerable trouble and inconvenience of providing evidence, and may have resulted in a more generous award than otherwise.
8. The formula the landlord used for calculating the loss of amenity was more generous than the policy would have allowed. The calculation under the policy provided did not take the kitchen into account as a room, but the landlord did. The rent for a 3-bedroom house with one reception room and one kitchen would have been divided by five under the policy, whereas using the formula the landlord actually applied for the same size property would divide the rent by four, thus producing a higher figure.
While, as set out in paragraph 28, the Ombudsman does not agree with every point the landlord made in relation to how it exceeded its policy, and notwithstanding two minor mathematical errors, the landlord not only exercised its discretion in awarding compensation, but it was considerably more generous than the policy allowed for. Rather than requesting evidence, despite being entitled to do so, the landlord gave the resident the benefit of the doubt in favour of the resident in every aspect. Not only would the rent formula generally include distress and inconvenience, the landlord was clear in stating that it was generous in order to reflect the resident’s distress and inconvenience. In the circumstances, the compensation awarded had, in the Ombudsman’s opinion, reasonably taken into account the resident’s distress and inconvenience. Moreover, it was in line with any award this service would have made.

The landlord’s response to the resident’s complaint about the “One-Stop-Shop.”

While the ALMO was sitting in the shoes of the local authority, and speaking for the local authority as far as the management of its housing stock was concerned, the One Stop Shop was not managed by the ALMO but by the local authority. In the circumstances, and given the significant amount of time that had passed since 2017, it was appropriate that the ALMO referred the resident to the local authority in relation to its complaint regarding the One Stop Shop not delivering its 2017 complaint to the ALMO.

Determination

In accordance with paragraph 55(b) of the Housing Ombudsman’s Scheme, in the opinion of the Ombudsman, there was:
1. Reasonable redress in relation to the landlord’s handling of the resident‘s report in relation to compensation offered to the resident further to his reports of water ingress, damp and mould.
In accordance with paragraph 54 of the Housing Ombudsman’s Scheme there was:
1. No maladministration in relation to the landlord’s response to the resident’s complaint about the “One-Stop-Shop.”

Reasons

The landlord’s award of compensation was not only appropriate, reasonable and generous but it took into account the distress and inconvenience suffered by the resident.
The ALMO of the landlord acted appropriately in referring the resident to the local authority itself in relation to the resident’s complaint as it did not operate the One Stop Shop. Moreover, steps had been taken to improve communication between the two offices.

Recommendation

It is recommended that the landlord pay the resident the compensation it has offered to the resident within 28 days, if it has not done so already.