Gentoo Group Limited (202339892)

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REPORT

COMPLAINT 202339892

Gentoo Group Limited

26 July 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

The complaint is about the landlord’s handling of major repairs due at the resident’s property, including:
1. The time taken to start the work.
2. The landlord’s decision to decline the resident’s request for replacement like-for-like laminate flooring and to fully re-skim the walls.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is an assured tenant of the landlord. The property is a 3-bedroom house. The tenancy began on 20 November 1995 with Sunderland Council and was subsequently transferred to Gentoo Group.
The resident is hard of hearing, has heart problems, mental health issues and early onset vascular dementia. He has also had several strokes and transient ischaemic attacks (TIAs).
Structural movement in the property has been an issue since at least 2019. A later survey determined that this was caused by a nearby tree being removed which had caused water levels in the ground to increase. In turn, this caused a sulphate attack which made the floors expand. This resulted in cracks and bulging in the resident’s floors and walls and several other properties on the street were also affected. On 25 November 2021 the landlord inspected the property and determined that significant works were necessary to remove and install a new subfloor.
On 23 May 2022 the resident told the landlord he wanted to make a complaint as the works remained outstanding. The landlord did not log this as a formal complaint and instead tried to resolve it informally. The landlord wrote to the resident on 23 August 2022 to confirm the works it was going to arrange concerning the subfloor. It also agreed to fit a new kitchen and rewire the electrics at the same time. The landlord told the resident it would need to decant him to another property for around 12 weeks while the works took place. The resident did not want to be away from home over Christmas so it was agreed that the landlord would schedule the works for spring 2023.
The resident made a stage 1 complaint on 9 May 2023 stating that the repairs had been outstanding for 6 years and had now been pushed back until June. The resident asked the landlord if it would skim his walls and replace his laminate flooring like-for-like once it completed the works. The landlord responded to the complaint on 22 June 2023 and said it did not yet have a start date for the works and would contact the resident when it did. It also said that it would plaster the affected parts of the walls but not skim them, and it would investigate whether it could replace the laminate floor.
The resident was dissatisfied with the response as the landlord had not provided a start date for the works or answers to all his queries and so he escalated the complaint to stage 2 on 5 July 2023. The landlord responded on 2 August 2023 and reiterated its position from the stage 1 response, adding confirmation that it would not replace the laminate floor like-for-like and would provide alternative flooring instead.
The landlord contacted the resident on 17 August 2023 about starting the works but the resident did not want to be decanted over Christmas again. He escalated his complaint to the Ombudsman on 19 April 2024 and told the landlord he wanted to defer the works until the outcome of our investigation.
The resident is dissatisfied as he says a former member of the landlord’s staff agreed to replace the laminate and reskim the walls and the landlord is now reneging on that agreement. He says the stress of the situation has affected his health. As a resolution, he would like the landlord to complete the works, replace his laminate floor like-for-like and to reskim the walls rather than patch plaster the affected areas. The resident said he paid for these improvements himself and he feels the landlord should put the property back into the same condition when the works are completed.

Assessment and findings

Scope of investigation

Paragraph 42g of the Scheme states that the Ombudsman will not consider complaints that 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.
The resident told the Ombudsman that the stress of the situation has affected his health. It is outside the Ombudsman’s remit to draw conclusions on the causes of or liability for impacts on health. This would be more appropriately dealt with as a personal injury claim through the courts or the landlord’s liability insurance. We have, however, considered the general distress and inconvenience which the situation may have caused the resident as well as the landlord’s response to any concerns he raised about his health.
Moreover, paragraph 42c of the Scheme states that the Ombudsman may not consider complaints that were not brought to the landlord as a formal complaint within a reasonable time, which would normally be within 12 months of the matters arising.
The resident told the Ombudsman that the issues in the property began 6 years ago. In accordance with paragraph 42c our investigation is only able to consider matters that occurred in the 12 months prior to the resident’s complaint. However, as the resident attempted to make a formal complaint on 23 May 2022 which the landlord failed to properly progress under its complaints process, we have considered events since 23 May 2021 – 12 months prior to this date rather than the 12 months preceding the stage 1 complaint that was formally logged. Any mention of events prior to this date is for context only and does not form part of our investigation.

The time taken to start works

Repair logs show that the landlord was aware of subsidence in the property since at least March 2019. The landlord attended the property on 11 February 2021 and surveyed the damage. It advised the resident that the damage was minimal and, at that time, it was not necessary to carry out extensive works. The landlord visited the resident again on 11 March 2021 and agreed to undertake further exploratory work to investigate the extent of the issue. The evidence does not confirm that this work took place but emails between the resident and landlord and internal emails indicate that it did.
Internal emails dated 23 September 2021 show that the landlord considered that while movement in the property was not ideal, it did not warrant significant works at that stage. The landlord stated it had no concerns about the structural integrity of the property but would monitor the situation and consider works at a later date if it worsened significantly or if the property became void. The resident was unhappy with this conclusion and stated that the movement had been a problem for over 6 years. The landlord’s internal emails suggest that it commissioned further inspections all of which concluded that works were unnecessary. This Service has not had sight of the reports.
Further internal emails on 4 October 2021 indicate that the resident had told the landlord he was not happy for the situation to be left to be monitored due to the length of time he stated the issues had been present. He also told the landlord he had mobility and vision problems which made it difficult to cope with the uneven kitchen and dining room floors. The landlord noted in the emails that while it felt the floors did not need extensive works from a technical perspective, it may need to act now due to the resident’s health concerns. The landlord went on to note that it could offer the resident a temporary fix to improve the unevenness and to continue to monitor it, but that if the resident refused this it would not go ahead with more extensive works. The landlord does not appear to have discussed these concerns or the option of a temporary fix with the resident.
There is no record of the next conversation the landlord had with the resident. Internal emails on 14 October 2021 indicate that the landlord told the resident it may be able to go ahead with extensive works to remove the subfloor and the resident had indicated he would be happy for this to go ahead in the new year. The resident called the landlord for an update on the same date. It is unclear why the landlord was now prepared to carry out extensive works rather than the temporary fix it suggested on 4 October 2021.
Repair logs show that the landlord arranged to inspect the property on 25 November 2021. An internal email on 29 November 2021 shows that the inspection went ahead but the outcome was not recorded in repair logs. It is imperative that landlords keep records of all aspects of repairs, including reports, appointments booked and the outcomes of all visits. This helps both the landlord and the Ombudsman to easily understand the timeline of events and the landlord’s decision-making. Again, the landlord’s records were not robust.
The surveyor recommended that the landlord remove and replace the entire subfloor due to sulphate levels in it which presented a likely ongoing risk of movement. Following this, the landlord should have begun making plans to complete the works within a reasonable timeframe. The landlord’s repairs policy states that planned maintenance repairs should be carried out within 180 days and defines planned maintenance as “larger or more complicated repairs that may require a number of different trades that will be batched together by area and carried out in a planned programmed way”. The works in question appear to meet these criteria meaning that the landlord should have completed them by 24 May 2022. Even if the landlord categorised the works as major works rather than planned maintenance, the Ombudsman considers 180 days after authorisation a reasonable timeframe for the work to be completed. However, the landlord did not arrange to complete the works or contact the resident until he contacted it himself to make a complaint. The landlord failed to follow its own repairs policy, which was inappropriate.
The resident called the landlord on 23 May 2022 to make a complaint. He said that there had been issues in the property for 6 years, that his dining room and kitchen floor were bulging, and that despite the landlord attending several times the issues remained outstanding. He said that he had spoken to the landlord on 26 April 2022 and it had said it would call him back when the surveyor returned from annual leave but had not done so. There is no record of this call in the evidence the landlord provided the Ombudsman so we are unable to determine whether the landlord failed in this respect. The landlord did not log this complaint as an official complaint at stage 1 and instead attempted to resolve it informally. The decision to do this is discussed further in the complaint handling section of this report.
The landlord inspected the property again on 28 June 2022. The surveyor noted that the resident’s property was the worst out of all those that were affected and recommended that the landlord complete works as a separate scheme to the others. The landlord wrote to the resident on 23 August 2022. It confirmed it would be going ahead with the works to remove the subfloor and install a new floor structure. The landlord also said that the property needed to be rewired and to have a new kitchen fitted so it would complete these works at the same time.
The landlord’s letter said it would need to decant the resident for around 12 weeks while work took place and that it had no suitable decant properties available at that time. The subfloor works were already 3 months overdue at this point. The resident had been living with the issues for several years, which potentially posed a risk to his health and safety and had spent considerable time and trouble trying to resolve the matter. In the Ombudsman’s view, the landlord therefore should have done more to accommodate the resident elsewhere so that works could begin promptly.
The letter referenced a conversation the landlord had had with the resident on 11 August 2022. In this conversation the resident told the landlord that he and his wife were in poor health, due to have surgery, and they did not want to be decanted over Christmas, so the landlord said it had scheduled the works for spring 2023 to avoid this period. The letter ended with the landlord saying it would contact the resident again to arrange a kitchen survey and let him know when it had a date for the works to begin. As the resident had asked to postpone the works, this Service would ordinarily have considered it reasonable for the landlord to await contact from the resident to confirm he was ready for it to go ahead. However, the landlord confirmed in writing that it would contact him to provide a date for spring 2023, which raised the resident’s expectations.
On 9 May 2023 the resident made a stage 1 complaint. He said that his house had large cracks in the walls and was at risk of falling down. The resident said that the landlord should have resolved the issue before Christmas but had now pushed the works back to June, and he had not had an update on where he would be decanted to. It is unclear from the evidence whether the landlord had confirmed it had scheduled works for June 2023, however there is no evidence that it attempted to go ahead in spring 2023 as planned either. If the landlord was unable to commence works in spring 2023 as it said it had agreed, it should have communicated this to the resident, which it did not. The failure to keep to the agreed schedule or update the resident of any delay was inappropriate.
A call log dated 25 May 2023 shows the resident contacted the landlord and said he was happy with the outcome of a visit from the landlord. There is no record in the evidence file of the landlord arranging or attending this visit which is another instance of poor record-keeping.
The landlord responded to the stage 1 complaint on 22 June 2023. It apologised for any distress and inconvenience the situation had caused the resident and said that while it had identified a decant property for the resident, it was still in the process of doing so for other residents that were included in the works programme. The response stated that the resident had already asked to escalate his complaint to stage 2 as it felt the landlord had not answered all his questions, but the record of this conversation is missing from the evidence. It went onto ask the resident to confirm if he still wanted to escalate to stage 2, which he did on 5 July 2023.
The landlord’s surveyor had previously recommended that the work on the resident’s property be carried out separately to the other scheme of works and as the landlord had identified a suitable decant property for the resident, it should have taken the opportunity to go ahead with the works instead of waiting for suitable properties to be found for all the other residents, for which there was no timeframe available. The landlord was aware that the resident had concerns about his health and safety and had already unreasonably delayed the works prior to the resident asking to postpone them. The landlord could have resolved part of the resident’s complaint by going ahead with the works in his property separately from the rest of the affected properties, which may have prevented the complaint from escalating.
The landlord responded to the stage 2 complaint on 2 August 2023. The response said that it had a decant property on hold for the resident but still did not have a start date due to complications finding decant properties for other affected residents. The landlord said it was actively working on this.
The landlord contacted the resident to discuss beginning works on 17 August 2023 but the resident again did not want to be decanted over Christmas. He was also unhappy for the works to begin while there was no agreement from the landlord to replace his laminate flooring and skim the walls, which will be discussed in the next section of this report. The landlord asked the resident if he would consider a permanent move, which he declined. The evidence shows that the landlord arranged to visit the resident on 30 August 2023 but again, there is no record of this visit in the evidence file.
The landlord wrote to the resident on 9 October 2023 and reconfirmed its position from the complaint responses. It also said that it had tried to begin works twice but the resident had not allowed them to due to his dissatisfaction about the flooring and walls and not wanting to be decanted over Christmas. Internal emails dated 12 February 2024 indicate that the resident had told the landlord he had contacted this Service and did not want to go ahead with the works until we had investigated his case. This conversation is also missing from the evidence.
The Ombudsman recognises that the landlord could have completed the works earlier had the resident not postponed. However, the landlord still did not arrange to complete the works within a reasonable timeframe and in line with its repairs policy. The landlord’s surveyor first recommended the works on 25 November 2021, and the landlord did not attempt to make arrangements until 11 August 2022, when the works were already 79 days overdue. The landlord later said it would schedule works for spring 2023. Considering the fact works were already overdue and would take 12 weeks to complete, this Service considers that the resident could reasonably have expected the landlord to schedule works for the beginning of spring (officially 20 March 2023). The landlord did not attempt to make arrangements until 17 August which was a further delay of 150 days. The total delay the landlord was responsible for was 229 days.
These were unreasonable delays which amount to maladministration. The resident has spent much time and trouble progressing his complaint and the issues in his property have caused distress and inconvenience. To reflect this, the landlord should pay the resident £640 compensation. This is in line with the Ombudsman’s remedies guidance which recommends compensation of this amount for maladministration which has a significant impact on the resident.

The landlord’s decision to decline the resident’s request for replacement like-for-like laminate flooring and to fully re-skim the walls

It is established case law that a landlord has an obligation to make good the damage to the decorations caused by repairs but it is not established that this has to be like-for-like. In one case the court held that “what work can reasonably be required of the landlord will depend upon the facts of each particular case.” The court made it clear that the obligation to make good did not impose an absolute standard, but an obligation so far as possible to restore the property to its pre-existing condition.
On 13 June 2023, while the landlord was investigating his stage 1 complaint, the resident called the landlord to say that he wanted it to replace his flooring with laminate when the works were completed. The resident had laminate flooring already which he had laid himself and wanted the flooring to be put back to the way it was. He also said that he had had the walls professionally skimmed and he wanted the landlord to put them back to the same condition following the rewire and skim each affected wall rather than plaster patches. The landlord was unable to confirm its position on this at that time.
The stage 1 response confirmed that the landlord would not reskim entire walls and would only plaster the affected areas as this was standard procedure. It said it would need to speak to the Asset Team about replacing the laminate floor. After escalating his complaint to stage 2 the resident told the landlord that a former member of staff had previously agreed to both requests. The stage 2 response confirmed that the landlord would not replace the flooring like-for-like and it would offer the resident an alternative.
In the landlord’s letter of 9 October 2023, it told the resident it would provide and lay vinyl flooring to replace the laminate and would give the resident vinyl samples to choose from. It also said it would plaster patches that were affected by the rewire and leave the walls in a condition ready to decorate, for which the resident would be given a decoration and disturbance voucher or allowance, which it does not usually do, in consideration of his concerns. The landlord did not give a value of this voucher or allowance.
The resident remained unhappy with the landlord’s response. He told the landlord again that a former member of staff agreed verbally to replace the laminate flooring and reskim the walls following any structural works. The landlord told him that it had no record of this agreement. The resident told this Service that when the landlord carried out works prior to his complaint it did in fact fully reskim the affected wall, which is evidence that this had previously been agreed.
The landlord does not dispute that a wall was previously reskimmed however it disputes that it agreed to do so for future works. While we do not doubt the resident’s account, in the absence of any evidence we are unable to hold the landlord to this agreement and can only consider what the landlord is obligated to do and what is reasonable in the circumstances.
The landlord’s response to the resident’s request for like-for-like replacements was reasonable and not in contradiction of its legal obligations. Neither the resident’s tenancy agreement nor the landlord’s policies say that damage will be repaired like-for-like following repairs. Considering this and the relevant case law, this Service is unable to find that the landlord was obligated to offer a like-for-like replacement.
The Ombudsman appreciates that the resident is concerned that the flooring and plastering the landlord is offering will not be of the same quality. While this may be the case, laminate flooring and skimming the walls are alterations that the landlord is not responsible for. They do not form part of the fixtures and fittings of the property, neither are they provided as part of the tenancy agreement. Any improvements such as these are the resident’s responsibility to insure under their own contents insurance and the resident should consider making a claim on his insurance policy if he has one. With that being said, any plastering work that the landlord does should be of sufficiently good standard that it should not be noticeable that only patches have been plastered.

Complaint handling

The Ombudsman’s Complaint Handling Code (the Code) states that a landlord must accept a complaint unless there is a valid reason not to do so. If the landlord refuses to accept a complaint it should provide a detailed explanation of its reasons to the resident, setting out their right to take that decision to this Service.
The resident called the landlord on 23 May 2022 and specifically asked to make a complaint about the ongoing structural issues in his property. The landlord did not log this as a stage 1 complaint. The Code does recognise that there are times when complaints can be resolved immediately and, in these situations, it may be appropriate to do so without logging a complaint but in such cases, both the landlord and resident should agree to this and there must be a clear audit trail to demonstrate it. This was not the situation in this case. The landlord did arrange to visit the resident following his complaint but was unable to resolve the issue he was dissatisfied with. As the landlord had not logged a complaint, the resident was deprived of his right to a formal response within clear timescales. It also meant the landlord missed an opportunity to investigate the problem, reassure the resident what action it had, was or would be taking and to identify where it could make improvements to its service. This was not appropriate.
The Code states that landlords should respond to stage 1 complaints within 10 working days and, where it cannot, it should explain the delay to the resident and provide a clear timeframe for when it will respond, which should not exceed a further 10 days without good reason. The resident made a new complaint on 9 May 2023 and the landlord responded 30 working days later on 22 June 2023. This was an inappropriate delay. The landlord also did not explain the delay to the resident or provide a new timeframe for a response.
The landlord did respond to the stage 2 complaint within the 20 working day timeframe given in the Code, which was positive. However, the failure to log the resident’s initial complaint plus the delay responding to the stage 2 meant that the resident experienced a total delay of 13 months in getting a formal response to his concerns. In turn, this delayed the resident in being able to escalate his complaint to the Ombudsman.
To reflect this, the landlord should pay the resident £200 compensation for maladministration related to its complaint handling. This is in line with the Ombudsman’s remedies guidance which recommends compensation of this amount for maladministration which has an adverse but non-permanent effect on the resident.

Determination

In accordance with paragraph 52 of the scheme:
1. There was maladministration in relation to the time taken to start the works.
2. There was no maladministration in relation to the landlord’s decision to decline the resident’s request for replacement like-for-like laminate flooring and to fully re-skim the walls.
3. There was maladministration in relation to the landlord’s complaint handling.

Orders and recommendations

Orders

Within 4 weeks of the date of this report the landlord is ordered to:
1. Pay the resident £840 compensation broken down as follows:
  1. £640 in relation to the delays in completing the structural works.
  2. £200 in relation to its complaint handling.
2. Agree a timeframe for the works to begin with the resident and confirm this in writing.
3. Confirm the scope of the works in writing and how long it is likely to take to complete.
4. Confirm in writing the value of the decoration and disturbance voucher/allowance it is offering the resident.
The landlord must provide this Service with evidence it has complied with these orders by 23 August 2024.

Recommendations

The landlord is recommended to:
1. Review its staff training and procedures in relation to complaint handling and the Ombudsman’s Complaint Handling Code, particularly in relation to when to log a complaint and response timeframes.
2. Review its staff training and procedures in relation to record keeping to ensure that all resident contact, including phone calls and in person visits and appointments, are recorded at the time they happen.