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Hammersmith and Fulham Council (202010475)

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REPORT

COMPLAINT 202010475

Hammersmith and Fulham Council

14 June 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

1.     The complaint is about the landlord’s:

  1. Response to the resident’s reports about the intercom system.
  2. Handling of a repair to fix the fire door exit.
  3. Management of asbestos.
  4. Response to the resident’s concerns regarding the standard of caretaking in respect of the communal areas.
  5. Complaint handling.

Jurisdiction

2.     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, or aspects of a complaint, will not be investigated.

3.     Paragraph 39(a) of the Housing Ombudsman Scheme sets out the Ombudsman will not consider complaints which, in the Ombudsman’s opinion, are made prior to having exhausted a member’s complaint procedure.

4.     As part of her referral to the Ombudsman, the resident raised concerns regarding the landlord’s response to concerns about the intercom system.  The resident stated that despite the intercom system being subject of a complaint in March 2020 it was still out of service. 

5.     The Ombudsman can see that the landlord responded to the resident’s concerns regarding the intercom system in March 2020 at stage one of its complaint procedure.  The landlord said it had liaised with its Housing Management and Repairs Team about the issues the resident had been having and “they would update [her] directly further in this regard”.  The landlord invited the resident to escalate her complaint if she was not satisfied with its response.  The Ombudsman cannot see that the resident escalated the complaint at that time.

6.     The landlord should have the opportunity to address a complaint under its own internal complaints procedure before the Ombudsman considers it. This is vital to the Ombudsman’s consideration of a complaint as it is the landlord’s responses to the initial incident and throughout the complaints procedure that are investigated.  Therefore, and in accordance with paragraph 39(a) of the Housing Ombudsman Scheme the complaint about the landlord’s response to the resident’s reports about the intercom system does not fall within the Ombudsman’s jurisdiction to consider.

7.     If the resident remains concerned regarding the landlord’s response to her concerns about the intercom system she should refer the matter back to it for further consideration under its complaint procedure.

Background and summary of events

Background

8.     The resident is the tenant of the property which the complaint concerns.  The landlord owns the property.

9.     The property is a flat situated in a purpose-built block (the building).

Summary of events

10. On 11 July 2020 the resident made a complaint to the landlord “regarding the disgusting state of the communal areas in [the building]”.  In summary the resident said:

  1. Despite previously complaining to the landlord about the communal areas, things had not improved.  The resident noted that her most recent complaints were October 2019 and February 2020.
  2. The fire door exit had deteriorated.  The resident explained that the door had woodworm and had come away from the frame.  The resident also advised that there was broken asbestos next to the door.
  3. The communal doors were filthy.
  4. While the communal floors and lifts were mopped “dust bunnies” were ignored.
  5. The light at the foot of the stairwell had not worked for approximately six weeks.
  6. The landlord should refund “all caretaking and communal maintenance charges since October 2019” as the communal areas were in a state of “squalor”.

11. On 7 August 2020 the landlord provided its stage one response.  In summary the landlord said:

  1. Prior to the Covid-19 pandemic the building was inspected on a six-weekly basis.  The landlord noted that the most recent inspections were undertaken on 15 November 2019, 20 January 2020 and 17 February 2020 where “cleaning received a score within the range of good, demonstrating most standards were maintained”.
  2. It had temporarily adjusted its cleaning arrangements to reflect the needs of the pandemic.  The landlord explained that the caretakers prioritised the sanitising of high touch points “whilst also maintaining as many of the other caretaker duties as possible”.  The landlord noted that its cleaning standards were provisionally altered.
  3. It inspected the building on 20 July 2020 and found the general cleaning was to a “good standard”.  The landlord confirmed that it however noted that “walls, lifts, communal doors and floors could do with more attention” as there was a higher traffic on the ground floor as more people were staying home during the pandemic.  The landlord confirmed that these matters were dealt with by 27 July 2020.
  4. It had arranged for the door frame to be replaced by the end of August 2020.  The landlord confirmed that it intended to complete the job quicker however it was delayed as its manufacturer had closed due to the pandemic.
  5. It had arranged for an asbestos survey to be completed on the two emergency exits on the ground floor on 7 August 2020.
  6. It had repaired the lights in May 2020 and a further visit was made on 16 July 2020 where four lamps were replaced.

12. The landlord concluded by confirming that it partially upheld the resident’s complaint as:

  1. While the general cleaning was to a good standard, due to high traffic in the block, some areas required improvement which it had now addressed. 
  2. It had raised repairs for all concerns and any delay was due to “unprecedented circumstances during the lockdown period” for which it had no control over.

13. On 10 August 2020 the resident requested to escalate her complaint.  In summary the resident said:

  1. The “neglect of maintenance and caretaking [went] back much further than the current Covid-19 pandemic”.
  2. “Dust bunnies and cobwebs [hung] from walls for years on end while unidentified substances [were] allowed to drip and dry in place”.
  3. Floors were cleaned annually but walls and ceilings were not.
  4. She disputed that high touch points were prioritised for cleaning by the caretaker during the pandemic as the doors were “filthy”.
  5. Despite committing to improve services the landlord had failed to do so.  The resident noted that she had raised the same issues regarding the caretaking service in her previous complaints and the landlord had acknowledged “some issues required attention”.
  6. She had included photos taken earlier that day to show broken asbestos “which [was] about to fall from a very great height”, in addition to damaged interior communal walls and dirt on the doors, walls and floor.
  7. Despite reporting woodworm on the fire door exit in October 2019 no action had been taken.

14. On 3 September 2020 the landlord spoke with the resident.  The record of the conversation noted that the landlord informed the resident that its stage two response would be delayed due to annual leave.  The landlord also confirmed that it would attend the building on 4 September 2020 in response to her report of hanging asbestos.

15. On 16 September 2020 the landlord provided its stage two (final) response.  In summary the landlord said:             

  1. It was sorry for the delay in responding to the complaint, which was due to staff annual leave.
  2. It visited the building on 1 September 2020 to carry out an inspection to ensure that the building was clean.  The landlord noted that it identified some “light cobwebbing on the ground floor and foot marks on the wall by the lift”.  The landlord confirmed that the caretaker would spot clean the walls and ceilings twice a week going forwards to ensure that standards were maintained.
  3. The repair to replace the fire door exit was still on hold.  The landlord explained that this was because the cladding above the door was an Aluminium Composite Material (ACM) and sections needed to be removed to ensure a safe installation.  The landlord confirmed that its Asbestos team was arranging removal of the asbestos so that the cladding could be removed and the door replaced.  The landlord added that it was also required to write to all residents about the work before it commenced, as the work was in respect of an emergency exit.  The landlord apologised for the time it was taking to resolve the matter.
  4. During a conversation on 3 September 2020 the resident reported bits of hanging asbestos which had not been attended to.  The landlord confirmed that in response it visited the site on 4 September 2020, with the resident in attendance, however no debris was located.  The landlord however confirmed that some “loose sections of asbestos to the external” were identified which it would make safe.

16. The landlord concluded by confirming that the resident may refer her complaint to the Ombudsman if she was not satisfied with its response.

17. On 6 October 2020 the resident wrote to the landlord following its final response.  In summary the resident said:

  1. Scaffolding had recently been erected around the fire door exit however the contractors did not wear appropriate PPE when completing the task.
  2. Despite the scaffolding no works had been completed to address the asbestos and cladding in order for the fire door exit to be replaced.  The resident noted that she was concerned that the cladding was ACM cladding which is similar to the cladding present on Grenfell Tower.
  3. The building was not maintained, including standard of cleaning and broken plaster.
  4. She felt it unreasonable that she was required to pay full rent due to the ongoing issues.

18. As the resident was not happy with the landlord’s response she referred the complaint to the Ombudsman for adjudication in December 2020.  Within her referral the resident noted that she was not happy with the landlord’s handling of her complaint as it was “delayed”. 

Assessment and findings

The landlord’s handling of a repair to fix the fire door exit and;

The landlord’s management of asbestos

19. The landlord’s repair log for the communal areas of the building document that concerns were reported in relation to the fire door exit in late 2019.  This included on:

  1. 14 October 2019 – “the fire exit door on the ground floor… is not closing properly”.
  2. 21 November 2019 – “back fire door frame is broken, does not close very well”.

20. The repair log sets out that the landlord’s immediate response to address the fire door exit was to attend and repair.  The landlord’s internal notes then show that in early 2020 it raised a work order to replace the door and door frame.  In the Ombudsman’s opinion it was appropriate that the landlord decided to replace the door in early 2020 as the repairs it had undertaken had not successfully resolved the issue and to bring a lasting solution.

21. By July 2020, the date of the resident’s complaint, the replacement of the fire door exit was still outstanding.  The landlord’s internal records document that the delay in completing the replacement between the start of 2020 to July 2020 was due to:

  1. The bespoke design of the door.
  2. The requirement to get two quotes from joinery manufactures.
  3. Covid-19 causing the commissioned manufacturer to close during lockdown.

22. On raising her complaint (July 2020) regarding the outstanding works to fix the fire door exit the resident noted broken asbestos.  The Ombudsman understands that this was the first time the landlord was made aware of the broken asbestos.  In response the landlord confirmed that it would arrange an asbestos survey.  This was appropriate to locate the presence, extent and condition of any asbestos.

23. The Ombudsman can see that between August 2020 and September 2020 the landlord undertook three asbestos surveys:

  1. Survey one (report dated 25 August) was a “target refurbishment survey – specified fire exits”.  The report noted one low risk action – cement cladding panels – “remove if likely to be disturbed by the refurbishment programme”.
  2. Survey two (report date 7 September) was “bulk sampling”.  The report noted one medium risk action – asbestos cement – “remove if likely to be disturbed by the refurbishment programme”.  The report also noted “some tiles higher up… are broken and look as if they may fall”.
  3. Survey three (report date 28 September) was “refurbishment survey of whole property”.  The report noted several “manage and re-inspect” actions in addition to one “encapsulate/ repair and manage” action – with risk priority “very low”.

24. The evidence shows that in November 2020 the landlord arranged for damaged asbestos to be removed from around the fire exit door in November 2020 in order for the door to be replaced.  The Ombudsman has not identified a reason explaining why it took until November 2020 for the asbestos to be removed, noting that the asbestos survey for the fire exits was undertaken in August 2020.  This is unsatisfactory as the replacement of the fire exit had been outstanding since early 2020. 

25. The Ombudsman understands from the information provided from the landlord that the fire exit door was replaced in early 2021.  The Ombudsman has not identified a reason explaining why the fire exit door was not immediately replaced after the asbestos was removed in November 2020.  The Ombudsman notes an internal email dated 17 August 2020 in which the landlord sets out that it would be able to install the fire exit door following the “survey and enabling works”.  

26. Overall, the Ombudsman is not satisfied with the landlord’s response to the resident’s concerns regarding the fire exit door.  While it was appropriate that the landlord agreed to replace the fire exit door in early 2020, as the fixes which it had previously completed had not provided a permanent solution, it was unsatisfactory that it then took until early 2021 for the replacement to be installed.  The Ombudsman accepts that Covid-19 will have had some impact on the service the landlord was able to deliver due to Government restrictions, and that the need for an asbestos survey also delayed the replacement of the door, however the Ombudsman has not seen any evidence that the landlord was otherwise actively pursuing the replacement or prioritising the work.  This is unsatisfactory, especially as the door was a fire exit.

27. As part of her complaint the resident raised concerns regarding broken asbestos hanging at great height.  The Ombudsman can see that this was identified and reported on in the bulk sampling survey.  The landlord’s records show that in response the landlord has “installed crash deck scaffolding around the areas of concerns to ensure the safe use of the area until the asbestos containing cladding [could] be removed and replaced”.  It is appropriate that the landlord has taken steps to make safe as it committed to doing so within its final response.  The Ombudsman cannot comment on the landlord’s handling of works to remove and replace the asbestos containing cladding as this does not fall within the period under investigation and would involve assessment of the landlord’s action after the end of the complaint procedure.  However, in light of the resident’s ongoing concerns regarding the asbestos cladding, including fire safety, the Ombudsman will make a recommendation that the landlord writes to the resident to provide an update on the works, including timescales, and to provide reassurances on how it is managing any fire risks associated with the cladding.

The landlord’s response to the resident’s concerns regarding the standard of caretaking in respect of the communal areas

28. The property’s tenancy agreement sets out that the landlord shall take care to keep the common entrances, halls, stairways, lifts, passageways, communal lighting, fire safety equipment and other communal amenities in reasonable repair and condition.  In order to fulfil this obligation the landlord has employed a caretaker to undertake cleaning.

29. In responding to the complaint the landlord stated that in order to satisfy itself regarding the cleaning undertaken by the caretaker it completes estate inspections.  The Ombudsman considers that this is a reasonable approach.  In order to investigate the complaint the Ombudsman requested copies of the most recent estate inspections, including those referred to within its complaint response.  Despite the Ombudsman’s request, and providing the landlord with ample opportunity to provide the reports, it has not done so.  This is unsatisfactory.  The landlord’s failure to provide the inspection reports has limited the Ombudsman’s ability to thoroughly investigate this aspect of the complaint and to determine if it was meeting its obligations under the tenancy agreement and therefore to consider whether the resident’s concerns were not warranted.

30. The Ombudsman notes that the resident believes that she is entitled to a refund of service charges in respect of the upkeep of communal areas as she does not consider that an acceptable caretaking service has been provided.  From review of the landlord’s complaint responses the Ombudsman understands that it is the landlord’s position that no refund is due in respect of the caretaking service as it considered that a reasonable service was being provided.  The Ombudsman considers that it would have been helpful if the landlord’s response explicitly stated its position. 

31. If the resident is concerned regarding the reasonableness of the service charge it would be open for her to refer the matter to the First Tier Tribunal Property Chamber (the FTT).  The FTT can make determinations on all aspects of liability to pay a service charge and/ or administration charge, including by whom, to who how much and when a service charge is payable.  In order to decide liability, the FTT also decides whether service charges costs have been reasonably incurred and whether a charge is reasonable. 

The landlord’s complaint handling

32. The landlord’s complaint procedure sets out that it will respond to stage one complaints within 15 working days and stage two complaints within 20 working days.  The procedure further sets out that it will always try to keep to its published timescales for dealing with complaints however sometimes additional time is needed.  The procedure confirms that where further time is needed the resident will be informed of delay and the reason why additional time is needed.

33. The landlord’s stage one response was provided 20 working days after receipt which is outside of its service standard.  The landlord did not inform the resident of the delay prior to its response and did not acknowledge the delay within its response.  This is unsatisfactory, including to manage the resident’s expectations. 

34. The landlord’s stage two response was provided 26 working days after receipt which is outside of its service standard.  However, prior to issuing its response the landlord notified the resident that its response would be delayed and provided an explanation, as noted in paragraph 14.  The landlord also apologised for the delay within its response.  This was in accordance with the landlord’s complaint procedure and therefore appropriate.

35. While both responses were delayed, in the Ombudsman’s opinion, it does not amount to a service failure.  This is because the landlord apolgised that its stage two response was provided outside of its service standard, and while it did not acknowledge its stage one delay, the delay was not so significant as to adversely impact on the resident.

Determination (decision)

36. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was:

  1. Maladministration by the landlord in respect of its handling of a repair to fix the fire door exit.
  2. No maladministration by the landlord in respect of its management of asbestos.
  3. Service failure by the landlord in respect of its response to the resident’s concerns regarding the standard of caretaking in respect of the communal areas.

37. In accordance with paragraph 55b on the Housing Ombudsman Scheme, in the Ombudsman’s opinion, the landlord has offered redress to the resident in relation to its complaint handling which resolves the complaint satisfactorily.

Reasons

The landlord’s handling of a repair to fix the fire door exit

38. While it was appropriate that the landlord agreed to replace the fire exit door in early 2020, as the fixes which it had previously completed had not provided a permanent solution, it was unsatisfactory that it then took until early 2021 for the replacement to be installed.  As the door was a fire exit the landlord should have been proactive in progressing the replacement and ensured that it was completed within a reasonable period of time, which did not happen.  The Ombudsman has taken into account Covid-19 and the asbestos survey when coming to this conclusion.

The landlord’s management of asbestos

39. It was appropriate that the landlord installed crash deck scaffolding on identification of loose asbestos cladding while it arranged a programme of works to remove and replace the items. 

The landlord’s response to the resident’s concerns regarding the standard of caretaking in respect of the communal areas

40. Whilst the landlord advised the resident that it does complete estate inspections, and in response to her complaint it carried out further inspections and identified areas for improvement, it has not provided evidence to support that the standard of caretaking in respect of the communal areas was reasonable and therefore that the resident’s concerns were not warranted.

The landlord’s complaint handling

41. While both of the landlord’s complaint responses were delayed it does not amount to a service failure.  This is because the landlord apologised that its stage two response was provided outside of its service standard, and while it did not acknowledge its stage one delay, the delay was not so significant as to adversely impact on the resident.

Orders and recommendations

Orders

42. The landlord should pay the resident the following compensation within four weeks of the date of this determination:

  1. £300 in respect of its handling of the repair to fix the door.
  2. £200 in respect of not demonstrating that it was meeting its caretaking obligations.

Recommendations

43. The landlord should write to the resident within four weeks of the date of this determination providing an update on the works to remove and replace the asbestos cladding.  The landlord should provide timescales even if provisional.

44. The landlord should review its record keeping to ensure that it has appropriate systems in place to keep appropriate records of the actions it is taking to meet its obligations under the tenancy agreement.  

45. While the Ombudsman has not investigated the resident’s concerns regarding the intercom system, in order to bring the matter to a close the Ombudsman recommends that the landlord should inspect the intercom system to determine if there is a fault which requires remedying.  The landlord should complete the inspection within four weeks of the date of this determination.