Havering Council (202206914)

REPORT

COMPLAINT 202206914

Havering Council

20 April 2023

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 landlord’s handling and responses to reports of anti-social behaviour from the flat above.
2. The landlord’s handling and responses to reports of flooding from the flat above.
3. The landlord’s complaints handling.
4. If the landlord should have completed a risk assessment for its occupant who it temporarily housed in the flat above.

Jurisdiction

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 will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42 (k) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. If the landlord should have completed a risk assessment for its occupant who it temporarily housed in the flat above. This is because the process of allocating housing under the relevant legislation is part of the landlord’s duties as a local authority, and this part of its duties falls under the Local Government and Social care Ombudsman (LGSCO).

Background and summary of events

Background

The resident is a leaseholder who sublets his property. For the purpose of this report he will be referred to as the leaseholder. He is bringing his complaint to this service on behalf of himself and his tenant. The property is a one bedroom first floor flat.
The flat directly above the leaseholder is a one bedroom second floor flat. At the time of the events, the flat was leased by an independent third party to the landlord. The independent third party is not part of this complaint. The landlord refers to this flat as a “private sector landlord (PSL) property”. Its tenant was temporarily housed in the flat during the time of the leaseholder’s complaints. The landlord’s tenant moved out of this flat around 22 June 2022. It handed back the flat to its owner (the independent third party) after this date and says it is no longer responsible for day to day repairs. The landlord’s tenant will be referred to as the occupant for the purposes of this report.

Policies

The landlord’s anti-social behaviour (ASB) policy says it will contact residents within five working days. It will keep residents informed of progress at least once every ten working days. It uses a range of tools to investigate and resolve reports including:
1. Undertaking a risk assessment with witnesses.
2. Community wardens to witness noise and gather evidence.
3. Carrying out a witness impact assessment with neighbours.
4. Reviewing incident logs it asks reporters to complete.
5. Noise monitoring equipment.
6. In cases of low level incidents a warning letter may be sent.
7. Mediation, acceptable behaviour contracts (ABC) and floating support.
8. A range of enforcement options including: Anti-social behaviour orders (ASBO), injunctions, dispersal of groups, closure notices, eviction and criminal prosecution.
The landlord’s repairs policy says that for leaseholders it will repair and maintain the structure and communal areas as documented within individual leases. It will also undertake any health and safety related works required though may charge the leaseholder. It gives the following timeframes for repairs:
1. Emergency repairs will be attended within four hours of the request. A make-safe repair may be done with further works to follow on. This also applies to out of hours reports. The tenant’s handbook says that a leaking pipe will be repaired within one day.
2. Urgent repairs will be competed within three working days of the request. These are repairs that may cause inconvenience or nuisance.
3. Routine repairs will be completed within 28 working days of the request. These are repairs unlikely to cause serious inconvenience, nuisance or cost to the resident or third party if not fixed immediately.
The landlord’s complaints policy says it will acknowledge all complaints within three working days. It will respond to a stage one complaint within ten working days, a stage two complaint within 25 working days, and a stage three complaint within 30 working days. If a complaint is complex it may need to extend timescales to provide a full response but will inform the resident. If a resident wants to escalate their complaint to the next stage they need to complete an online form within 30 working days from the date of the landlord’s complaint response.
The landlord’s goodwill gesture/discretionary payment policy says that payments may be made when:
1. There is evidence of poor complaint handling.
2. Unreasonable delays in undertaking a repair as per the repairs policy timescales.
3. Unreasonable time taken to resolve a situation or proven failings on the part of individual staff or a team.
The leasehold agreement says the landlord is responsible for maintaining and repairing the common parts of the estate. The landlord supplies buildings insurance for which the leaseholder is required to pay for via the service charge. The landlord’s website advises that this insurance covers common parts and areas where the leaseholder is responsible. Although the leasehold agreement and the website does not state specifically what is covered by the buildings insurance, it is common place that these policies would cover damage to a flat caused by a leak from an adjoining flat. If the leaseholder’s (or their tenant’s) belongings were damaged as part of the leak, this would require them to claim on their contents insurance.
The Housing Ombudsman’s Complaint Handling Code (2020) is a set of standards which landlords need to abide by when dealing with complaints. It says that “landlord’s should make it easy for residents to complain, by providing different channels through which residents can make a complaint”. Landlord’s should progress a complaint through the complaint’s procedure when a request to escalate is received. They should consider all information and evidence carefully. Landlord’s should provide outcomes to complaints within the following timeframes:
1. Stage one decision – ten working days from receipt of complaint.
2. Stage two decision – 20 working days from the request to escalate.
3. Stage three response – 20 working days from the request to escalate.
4. If the timeframes are not possible, the landlord should give an explanation and a date by when the response should be received. There should be a good reason for extending the timeframes in these instances.

Summary of events

On 29 March 2022 the leaseholder reported ASB on behalf of his tenant. This was in relation to the occupant in the flat above. He spoke with the landlord’s PSL officer. His tenant was being disturbed by six visitors and a dog may have been removed by the police. The PSL officer sent the leaseholder an email so that he could respond with his tenant’s details.
The leaseholder raised a stage one complaint about the ASB on 13 April 2022. He said that the landlord’s PSL officer had not called his tenant. When he spoke with the PSL officer, they told him that further progress had not been made due to their high workload. The leaseholder was unhappy with this response. He asked if a risk assessment had been done and, if not, when it would be. His tenant had also experienced ASB from the flat upstairs that morning and she had called the police. His tenant was close to moving out because of the ASB. He had experienced problems with previous PSL occupants in the past.
The landlord provided its stage one complaint response to the ASB on 16 April 2022. It said:
1. Its PSL officer had left a voicemail for the leaseholder’s tenant on 8 April 2022.
2. It was sorry it had not responded to the leaseholder’s emails about the ASB and that its communication should have been better. Its communications should not have been impacted by staff shortages and this should not have been communicated to the leaseholder.
3. Under general data protection regulations (GDPR) it could not disclose any action that it was taking against its occupant of the flat above. However it was satisfied that appropriate action has been taken.
4. It partially upheld the complaint as there was a delay in communication and apologised for the inconvenience caused.
The leaseholder responded later that day confirming his tenant had been contacted. He asked if he could contact the PSL team directly to improve communication. He also asked if the landlord knew about the ASB reports regarding its occupant back in December. Also whether a risk assessment had been done. The leaseholder asked if there is a vetting process for moving occupants into the upstairs flat as he has had problems for over ten years.
On 18 April 2022 the leaseholder raised a stage one complaint about a leak from the upstairs flat. The leak had happened at midnight and was still ongoing. It was causing damage to his flat. He raised that:
1. The out of hours Service initially told him it couldn’t attend. This was because it did not have a contact number for its occupant.
2. It asked if his tenant could knock on the occupant’s door. He said this was not acceptable due to ASB allegedly perpetrated by the occupant against his tenant.
3. When the landlord did agree to attend he asked it not to knock on his tenant’s door. The landlord did this anyway.
4. When he had called back today he had been told as it was a bank holiday he would need to call back tomorrow.
5. He asked why the leak could not be isolated by turning off the stopcock for the flat. He advised that the stopcock was located in the communal area.
The evidence shows that the landlord attempted to contact its occupant, (the PSL resident of the landlord), on 19 April 2022 to ask for urgent access due to the ongoing leak. The landlord’s surveyor had attended later that day but could not gain access to the flat.
On 21 April 2022 the landlord acknowledged the stage one complaint about the leak. Over the next two days, there followed a series of internal emails between staff of the landlord investigating the complaint about the leak. The landlord confirmed that its emergency out of hours Service, (which was an independent contractor), did not have access to its systems so would not be able to see any contact numbers for its occupant. It noted it had spoken with the leaseholder’s tenant on its initial attendance who had told them the leak had stopped. It had left voicemails for the tenant four times since the report and received no response. It was going “through the process” to force entry into the flat and repair the leak. It had seen pictures from the leaseholder of damp walls and ceiling in his kitchen but it did not have a responsibility to repair it.
On the afternoon of 22 April 2022 the leaseholder emailed the landlord asking for an update on the repair of the leak. The landlord’s surveyor and its contractor gained entry to the flat the same day. The leak was isolated as a temporary measure and follow on works were scheduled to carry out the required repairs. The reporting of the leak to the temporary repair took four calendar days. This included a bank holiday.
On 5 May 2022 the landlord noted that it would deliver diary sheets to the leaseholder’s tenant to complete in regards to the ASB reports.
On the 10 May 2022 the landlord contacted the leaseholder’s tenant about the ASB. She reported issues with the occupants visitors pressing the communal buzzer, playing music and smoking cannabis. She further alleged that the occupant had made a racial slur towards her. She had not seen the occupant for around a month and the last incident happened two weeks ago. The landlord asked the tenant to complete diary sheets for two weeks and advised her they were looking to rehouse the occupant. The landlord noted that they had completed an action plan although this Service has not seen this document. This Service has seen a risk assessment that was completed with the tenant about the ASB. The landlord did not share this with the tenant or the leaseholder.
On the same day, the landlord emailed the leaseholder to confirm that it had spoken with his tenant about the ASB. It said it would send a copy of the action plan and would complete an impact assessment with neighbours. It agreed to keep the leaseholder’s tenant updated. It also said the leak had been resolved.
On 11 May 2022 the landlord responded to the leaseholder’s questions from his stage one complaint outcome. It apologised for not responding sooner and said:
1. The flat above was being used for temporary accommodation in line with its duties under the Housing Act 1996.
2. The only vetting done is to establish whether there is a genuine need under the act.
3. There are no contact numbers for teams. As such the leaseholder would need to go through the contact centre to be directed to the right person. If that person is not available a call back request is logged.
4. The PSL team have been reminded to return calls in a timely manner.
5. It is satisfied that the ASB reports have been and continue to be dealt with appropriately.
The leaseholder responded to the landlord later that day and asked whether a risk assessment had been done in regards to the ASB. He also chased the landlord’s response to his stage one complaint about the leak.
The leaseholder chased the landlord again on 17 May 2022 for a response to his stage one complaint about the leak. He also asked for a response to his further questions following the landlords stage one response to the ASB.
On 18 May 2022 the leaseholder raised a new complaint about the landlord’s complaint handling. This complaint focused solely on the length of time the landlord had taken to provide responses to his complaints about the ASB and the leak. He said that he had not received a stage one outcome from his complaint about the leak. He was also still waiting for a response on his further questions following the stage one outcome of his complaint about ASB.
On the 6 June 2022 the resident asked the landlord why his complaints had not been answered. He chased the landlord again the next day and asked if he was being ignored.
On 20 June 2022 the leaseholder requested that his complaint about ASB be escalated to stage two. This Service also contacted the landlord the same day asking it to respond to the leaseholder about his complaints.
On 22 June 2022 the landlord left a voicemail for the leaseholder’s tenant. It said that the occupant of the flat above had now moved out.
On 12 July 2022 the leaseholder contacted this Service as he was yet to receive a stage two response about the ASB. This Service chased the landlord the same day asking it to issue the stage two response.
On 9 August 2022, the landlord issued its stage two response about the ASB. It could not escalate the complaint to stage two. This is because the leaseholder had requested escalation 36 working days after it had issued its stage one response. Its policy said that it would only accept escalations to stage two if the request was received within 30 working days. It apologised for the delay in responding as the leaseholder’s request to escalate had not been passed to the correct team.
On 11 August 2022 the landlord issued its stage one response to the complaint about the leak:
1. It partially upheld the leaseholder’s complaint because its operatives knocked at his tenant’s door when they were asked not to.
2. Also, its out of hours Service had incorrectly advised that it could not attend to the leak without a contact number for its occupant.
3. It was satisfied it had taken the appropriate actions to deal with the leak so did not uphold this part of the complaint. The landlord said his tenant had confirmed that the leak had stopped a few hours previously so it treated further attendance as a day to day repair.
4. It had advised it could not turn off the stopcock as this would stop water to the whole block. It also said that it did not have a requirement to keep contact numbers on its systems for leaseholders.
5. It advised the leaseholder to submit a claim for water damages through his own insurance. Four days later the leaseholder asked for the complaint about the leak to be escalated to stage two.
On 15 August 2022 the leaseholder emailed the landlord asking to escalate the complaint about the leak to stage two.
Later that day, the landlord issued its stage one response about the time taken to answer the leaseholder’s complaints. It agreed that it had not met the timescales for stage one responses set out in its policy. It advised that it had a high caseloads of complaints which had caused some delays. As a result it had taken on extra staff to help deal with the volume. It apologised for the delay and inconvenience caused to the leaseholder. The leaseholder did not ask for this complaint to be escalated so the landlord’s internal complaints process was not exhausted for this particular complaint.
The landlord responded to the leaseholder’s escalation request regarding the complaint about the leak on 16 August 2022. It said it was sorry the leaseholder was not happy with its stage one response. It said if the leaseholder did not want to discuss the complaint with a complaints officer, he could request for it to be escalated via the complaints procedure. It gave a link to its website that explained the complaints procedure. This Service has not seen evidence to show that the landlord escalated the complaint to stage two as per the resident’s request.

Assessment and findings

The landlord’s handling and responses to reports of anti-social behaviour from the flat above.

The evidence shows that the landlord did not communicate with the leaseholder within the timeframes set out in its ASB policy. As part of its stage one complaint outcome, it did acknowledge its communication should have been better and apologised. It partially upheld the complaint because of this but did not provide any other form of redress. It would have been reasonable for the landlord to have considered a goodwill or discretionary payment as per its policy.
Following the stage one complaint outcome its speed of communication with the leaseholder did not improve. He had to wait 16 working days before receiving a reply to his further questions about the stage one outcome. This Service cannot comment on whether the landlord should have vetted its occupant as this is outside of the Ombudsman’s jurisdiction. However, the landlord’s explanation of its obligations to temporarily house the occupant was reasonable. Its explanation as to why the leaseholder would need to contact its PSL team through its contact centre was also reasonable.
The landlord failed to address the leaseholder’s question about whether a risk assessment had been completed as per its ASB report. The evidence shows that one was completed with the leaseholder’s tenant. It would have been reasonable for the landlord to have confirmed this had been done.
Due to GDPR this Service cannot detail how the landlord dealt with its occupant in regards to the ASB reports. It can comment on whether the landlord followed its ASB policy when handling the ASB reports against its occupant. As already mentioned, the landlord did not meet the timeframes within its policy for contact with the leaseholder.
The landlord’s ASB policy details a number of investigative tools and remedies that it can use when dealing with reports including close partnership working with police. The landlord did advise it would complete a community impact statement but this Service has not seen evidence to show this was done. In addition, this Service has not seen evidence to support that the landlord used the tools and remedies at their disposal appropriately in this case. It could have used community wardens and noise equipment to gather evidence. It could have considered and used enforcement options against its occupant when it received reports that the ASB was continuing. Had the landlord done so the ASB issues raised may have been addressed more effectively.
The evidence also shows that the landlord had difficulty contacting its occupant. It would have been reasonable for the landlord to investigate possible abandonment of the flat by its occupant, or take further steps to establish contact. The landlord does not have an abandonment policy.
The impact on the leaseholder from the ASB resulted in increased calls from his tenant and the concern that she may end her tenancy. He also experienced inconvenience chasing the landlord for answers and checking it had followed up with his tenant. The redress that the landlord offered did not put right the failures this Service has identified and were not proportional to the impact of the failures.

The landlord’s handling and responses to reports of flooding from the flat above

The leak was reported around midnight on 18 April 2021. It was repaired on 22 April 2021.
The landlord’s out of hours Service (which was an independent contractor) did not have access to the occupant’s contact details, therefore there was a slight delay in arranging the repair. However, the landlord still attended within the same day which was in line with its policy.
Although the landlord had left voicemails for the leaseholder’s tenant four times since the report of the leak, it did not contact the leaseholder. The leaseholder had to chase the landlord for updates and to tell them of the ongoing leak. It would have been reasonable for the landlord to have contacted the leaseholder when it could not reach his tenant.
The leaseholder had to wait four days for the repair to be completed. This was not reasonable as in the landlord’s policy says leaks should be categorised as an emergency. It therefore should have resolved the leak within one day. When the leaseholder first reported the leak it attended as an emergency. However, it then downgraded the repair as routine (to be fixed within 28 days) after it said the leaseholder’s tenant told them the leak had stopped. When the leaseholder told the landlord the leak was continuing, it should have re-assessed the repair as an emergency.
The landlord told the leaseholder to claim on his own insurance for the damages from the leak. The leaseholder may have actually been able to claim on the landlord’s buildings insurance policy. There is no evidence to show that the landlord considered or reviewed the buildings insurance policy before advising the leaseholder to claim on his own insurance. Therefore it’s advice to the leaseholder about an insurance claim was not reasonable.
The leaseholder experienced inconvenience and delay due to the lack of updates from the landlord and its incorrect categorisation of the repair.
The leaseholder has since told this Service that he has experienced a further four leaks from the flat above his and raised a stage one complaint with the landlord. This Service cannot look at new reports made after the events of this investigation. However if the new leaks reported are being caused by the same repair issues as before, this Service can recommend that the landlord considers any previous repairs it has done as part of its new investigation.

The landlord’s complaints handling.

There was unreasonable delays in providing a stage one complaint response to two of the leaseholder’s complaints. It was 80 working days before the landlord gave its stage one response to the complaint about the leak. It was 61 working days before it gave its stage one outcome to the complaint about its complaint handling. This is outside of its policy by a large margin to respond to stage one complaints within ten working days.
It also provided a stage two response to the ASB 37 days after the request to escalate. It said the reason for this was that the request to escalate had not been passed to the right department. This is again outside of its complaints policy of 25 working days. The timeframe within the landlord’s policy for stage two complaints also goes against the Ombudsman’s complaints handling code which states stage two complaints should be responded to no later than 20 working days from the request to escalate.
The landlord’s policy also provides for a stage three complaint and that it will respond within 30 working days. This is also against the complaints handling code which gives 20 working days for a stage three response.
The landlord’s stage two response to the ASB was not reasonable or in line with the complaints handling code. It would not escalate the leaseholder’s complaint as it stated its policy required escalation requests to be made within 30 working days of its stage one outcome. The Complaints Handling Code says that landlord’s should only exclude complaints where the events have happened over six months ago. The leaseholder requested escalation to stage two within 37 working days of the stage one response. It would have been appropriate for the landlord to accept the stage two escalation due to its own delays in providing complaint responses and answers to the leaseholder’s questions about its response.
The complaint handling code states that landlords should make their complaints policies accessible. By requiring resident’s to complete an online form in order to escalate, the landlord is not making it’s process accessible to all. It should have accepted the leaseholder’s email stating he wanted to progress his complaint about the leak to stage two rather than directing him towards its website. This is a failure to progress the complaint through the complaints procedure.
The landlord did not demonstrate that it had considered information and evidence carefully (as per the Complaints Handling Code) when providing its stage one response to the leak. It said it did not have a requirement to keep leaseholder’s numbers on file in reference to not being able to contact its occupant. This information was not correct.
The landlord acknowledged within its stage one response about the length of time taken to respond to the complaints, that its communication had been poor. It apologised for this and advised it had hired more staff to deal with the high volume of complaints it was receiving. It was good that the landlord took responsibility for the delays and sought to put measures in place to reduce its response times in the future. The leaseholder did not request to escalate this complaint to stage two and did not express dissatisfaction to the landlord about this specific response.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was:
1. Maladministration in respect of the complaint about the landlord’s handling and responses to reports of anti-social behaviour from the flat above.
2. Maladministration in respect of the landlord’s handling and responses to reports of flooding from the flat above.
3. Maladministration in respect of the landlord’s complaints handling.
In accordance with paragraph 42 (k) of the Housing Ombudsman scheme the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
1. If the landlord should have completed a risk assessment for its occupant who it temporarily housed in the flat above.

Reasons

The landlord’s communication was poor with the leaseholder around the ASB. It did not evidence that it had followed its ASB policy when investigating the reports.
The landlord did not follow its own policy when categorising the repair which impacted on the time taken to fix it. It demonstrated poor communication with the leaseholder and did not provide timely updates on the fix.
The landlord delayed unreasonably in providing complaint responses. Its policy is not compliant with the complaints handling code in respect of timeframes for responses and exclusions for escalations. It failed to progress complaints through its complaints procedure and its requirement to complete online escalation forms is not accessible. It apologised for its poor communication but did not provide reasonable redress.
The complaint does not fall within the jurisdiction of the Housing Ombudsman. This is because the process of allocating housing under the relevant legislation is part of the landlord’s duties as a local authority, and this part of its duties falls under another Ombudsman.

Orders and recommendations

Orders

The landlord to pay the leaseholder £400 consisting of:
1. £100 for its poor communication and failure to handle the leaseholder’s complaints within a reasonable timeframe which caused inconvenience, and delay.
2. £100 for failure to follow its ASB policy which caused distress and delays in getting matters resolved.
3. £200 for its failure to correctly categorise the repair in line with its repairs policy which caused inconvenience and delays in getting the matter resolved.
The landlord should complete a self-assessment against the complaints handling code and take appropriate action to ensure its complaint handling is compliant with the code.
The landlord should review its buildings insurance policy and provide relevant information to the leaseholder about when a claim can be made.
The landlord should confirm compliance with the above orders within four weeks of the date of this determination.

Recommendations

The landlord should make sure it reviews the further leaks that the leaseholder has reported to this Service. If the new leaks reported are being caused by the same repair issues as before, it should consider any previous repairs it has done as part of its new investigation.
The landlord should look at how it reviews its ASB cases to ensure reports are followed up in a timely way and appropriate actions are taken.
The landlord should consider creating an abandonment policy. This is good practice and would prompt staff to take action in cases where it is suspected tenant’s have moved out.