Housing For Women (202219766)

REPORT

COMPLAINT 202219766

Housing For Women

11 January 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:
1. Conclusion that the garden was communal.
2. Response to the resident’s request for a fence to be installed.
3. Response to outstanding repair and maintenance issues.
4. Record keeping.
5. Complaint handling.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Paragraph 42 (f) of the Housing Ombudsman Scheme states that the Ombudsman may not consider complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, other tribunal or procedure. The Ombudsman considers that the landlord’s conclusion that the garden was communal is outside of the jurisdiction of this Service as it involves a ruling on the interpretation of an occupancy agreement. This is something which is more reasonable and effective to be pursued via the courts who would be in a position to make a binding ruling.

Background and summary of events

Background

The resident is a tenant of the landlord and lives with her two children, one of whom is 11 and has a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). The landlord did not provide any information to this Service on the property or the tenancy type despite a number of requests.
The landlord does not have a repairs policy available on its website as it states it is under review. It provided this Service with a draft copy of its repairs and maintenance policy and procedure, which states:
1. It will carry out routine repairs within 28 days. Once a repair has been reported, it will provide a copy of the works order to the resident to confirm the details.
2. It is responsible for boundary walls and fences.
3. Regular removal and cleaning of mould is the resident’s responsibility.
The landlord’s complaints policy available on its website. At stage 1 it aims to respond within 10 working days, At stage 2 it aims to respond within 20 working days.

Summary of events

On 30 March 2020 the resident contacted the landlord and stated as follows:
1. An armchair had been “dumped” on her drive 2 weeks ago and since then a fluorescent light tube had also been left there. There were also disposable gloves on the floor and she had found an open packet of tissues in her garden.
2. There had been an attempted break in at another property in the block.
3. She often heard the gate being opened at night which she found frightening as a single parent with two small children.
4. She requested as follows:
  1. A coded padlock be put on her gate.
  2. Lights installed in the yard.
  3. CCTV installed by her driveway to prevent fly-tipping.
  4. The bulky waste to be removed.
  5. A fence be put up around her back garden to ensure her children were safe. Her eldest had high functioning autism and ADHD and required a private space where he could play without there being any potential dangers for him.
On 8 May 2020 the resident stated that her earlier email had been “ignored” and that the housing officer was not fit for her role. She advised that the armchair had not been removed. She reiterated her request for a fence to be put up around her garden and that rubbish had been left in the garden.
On 18 May 2020 the landlord acknowledged the complaint and apologised that it had “missed” the resident’s email from March 2020. It stated as follows:
1. It had spoken to a neighbour and advised them not to leave litter in the garden. The neighbour had advised the landlord that the garden was communal.
2. The request for a fence would be classed as “major works and improvement” and would be put forward for consideration. There was no guarantee it would be carried out.
3. It had no funding or legal obligation to install CCTV. It advised the resident that she could install her own.
The resident responded the following day and stated that the garden was not communal and that it was hers. She stated that the only access to it was through her living room door and it was surrounded by a wall. She advised that the armchair had not been collected.
On 25 June 2020 the resident contacted the landlord and stated as follows:
1. The armchair had not been collected. She paid for such removals as part of her service charge.
2. She had been advised by the landlord’s gardener that he would not tend to her garden. She paid for the upkeep of her garden via her service charge.
3. She requested an update on the works she had requested for the fence, padlock, lights and CCTV.
On 25 June 2020 the landlord advised as follows:
1. It had spoken to her about the fence and advised that it could add this to its list for improvements in 2021.
2. It had asked for the armchair to be removed.
3. The private garden was the resident’s responsibility. The service charge was for the communal gardening.
There is a gap in correspondence until 2 March 2021 when the resident contacted the landlord and referred back to its correspondence from 25 June 2020 and asked when the fencing would be installed.
The landlord did not respond and she chased this up again on 4 November 2021. During this correspondence she also stated as follows:
1. She had informed the landlord about a tree needing to be cut back in August 2021 but this had not been done.
2. She had informed the landlord about mould in her and her son’s bedroom on 2 November 2021 but had heard nothing further.
3. The landlord had informed her (in November 2021) that a fence would require planning permission. She requested a railing fence instead.
On 29 November 2021 the resident chased up a response to her correspondence from 4 November 2021. She stated that the damp had not been treated and the tree had not been cut back.
There is a gap in correspondence until 19 Janaury 2022 when the resident advised the landlord as follows:
1. The damp and mould had been tended to.
2. She was still waiting for a response about the fence.
3. The tree had not been cut back.
4. She questioned when the garden door would be replaced as the landlord had advised it would be done “at the beginning of the year”.
5. There was a problem with the insulation in her son’s bedroom.
That same day the landlord apologised for the delay in responding. It advised that it would be in touch by the end of the week about the outstanding issues.
On 28 Janaury 2022 the landlord advised as follows:
1. Its tree contractor would contact the resident directly to organise a quote. It apologised for the delay.
2. It could not install a fence without planning permission. It advised the resident that she could apply for such planning permission.
On 8 February 2022 the resident advised the landlord that the tree contractor had not contacted her. She stated that she had not been given any information about the insulation in her son’s room.
On 17 February 2022 the resident advised the landlord that she had been under the impression that the garden door would be replaced, but she had been told that week that it had not been approved. She asked when this work would be carried out. She stated that if all the outstanding works were not completed within a month, she would arrange the works herself and bill the landlord as per legal advice.
On 22 February 2022 the landlord stated it had asked its contractors for clarification on when the garden door work would be done.
On 1 March 2022 the resident advised the landlord that she had not heard from the tree contractor or had any update on the insulation in her son’s room.
There is a gap in correspondence until 28 July 2022 when the resident submitted a complaint and stated as follows:
1. The landlord had refused to install fencing despite agreeing to do so in 2020.
2. The landlord had acknowledged that her son’s room was cold but had failed to take action.
3. She requested that works for both issues be carried out, along with mould treatment for reoccurring mould.
There was a gap in correspondence until 2 October 2022 when the landlord noted internally that the matter had been escalated to stage 2 of its complaints procedure.
On 13 October 2022 the landlord responded at stage 2 and stated as follows:
1. It had responded at stage 1 on 28 July 2022 (the same day the complaint was submitted). The stage one response did not follow its complaints policy and did not clearly answer all of the resident’s concerns. (This Service has not been provided with a copy of this stage 1 response).
2. It had not clearly explained the reason for its refusal to carry out the fencing works. This had led the resident to believe that the fence would be delivered as part of its planned work in the future. It had given the resident the impression that it had agreed to undertake the work, which contributed to the resident’s dissatisfaction when this was not done.
3. It had inspected the garden on 6 October 2022 and it had been confirmed as being communal. The landlord had met its obligations to mark the boundary along the public footpath by having a low-level brick wall. There were no health and safety or repair issues with this wall. It had correctly advised the resident that to change the wall would require planning permission.
4. The resident was responsible for her children and their safety when using the area. In response to the resident’s concerns about her children’s health issues, it had arranged for its Housing Officer to discuss this with the resident (this took place on 13 October 2022). The landlord advised that if the resident wanted to create a play area for her children in the communal boundary, she would have to request this in writing via the home improvement policy.
5. It would continue to support the resident in assessing her housing options and it would ensure that it would review any new medical information provided and reassess housing needs as appropriate.
6. It had arranged for a contractor to attend on 4 November 2022 to again review the cause of the cold in her son’s bedroom.
7. It concluded that the resident had received misleading information from many officers over an unacceptable period of time. It had not presented the facts effectively or managed the resident’s expectations. It acknowledged that it had not responded to the stage 1 complaint in line with its policy. It advised that this was caused by a staffing error and poor management of the complaint. It apologised for the poor service and offered £100 as a goodwill gesture.
On 25 November 2022 the resident referred her complaint to this Service. She stated that she did not agree that the garden was communal.

Correspondence following the referral to this Service

Following a request to the landlord for correspondence related to this case, the landlord advised this Service on 28 June 2023 as follows:
1. The resident had not completed its internal complaints procedure and it did not have a record of a stage 1 or stage 2 complaint response on its system.
2. It was awaiting a second quote for the works to address the mould.
3. It had attended the property following reports of the insulation issue in the son’s bedroom. The resident had requested that cavity wall insulation be installed. It had advised her that it would not do this as this would be an improvement and not a repair.
4. It would not be installing a fence at the property.
On 24 August 2023 this Service queried with the landlord’s its records of the resident not having complained about the fence. The landlord reiterated that the resident should submit a formal complaint about the fence issue.
On 7 September 2023 this Service issued the landlord with a complaint handling failure order (CHFO) as the landlord had failed to provide all of the requested information to this Service.

Assessment and findings

Response to the resident’s request for a fence to be installed

The resident first requested a fence be installed in March 2020. Three months later, in June of 2020, the landlord advised that it would add the fence to its list of works for 2021. It was reasonable for the resident to believe the landlord would therefore action this accordingly and she chased this up in 2021. It was not until Janaury 2022 that the landlord advised that it would not be installing a fence and that the resident would have to seek planning permission on her own accord to do so. This timeframe of just under two years (March 2020 to Janaury 2022) for the landlord to clarify its position on the installation of a fence was not reasonable.
The landlord was not clear or consistent in its correspondence with the resident about the garden being communal, as it had advised her in 2020 that she was responsible for the upkeep of her “private garden”. The landlord failed to appropriately manage the resident’s expectations that although she could request planning permission for a fence, if granted, this would not change the communal nature of the garden space.
The landlord acknowledged that its communication in respect of the fence was not as clear as it could have been and that it had led the resident to incorrectly believe the fence would be installed in 2021. It apologised for this and spoke to the resident about the needs of her children and the support it could offer. It was appropriate for the landlord to take the opportunity to discuss the support that it could provide to the resident in light of the medical diagnosis of her child.
In addition to the apology, the landlord offered £100 compensation as a goodwill gesture. It is noted by this Service that the £100 also encompassed the landlord’s failure to appropriately handle the complaint (addressed separately in this report). This offer of compensation however did not take account of the significant time period the issue of the fence was outstanding, for almost 2 years. Had the landlord clarified this matter in a timely manner, the resident would not have been given inappropriate false hope that the fence would be installed. The offer of £100 compensation was not commensurate to the length of time it took the landlord to acknowledge its failing or the impact caused to the resident by the landlord’s failing. This amounts to maladministration. To acknowledge the distress caused to the resident, the length of time this issue was ongoing, the time and trouble caused to the resident in chasing the landlord for clarity, compensation of £250 is appropriate and has been ordered below. This is in line with the Housing Ombudsman remedies guidance for maladministration.

Outstanding repair and maintenance issues

The resident raised a number of issues with the landlord within her correspondence in respect of repair and maintenance issues. For clarity, these have been addressed separately below.

Son’s bedroom insulation

The resident raised this with the landlord in Janaury 2022. The landlord failed to respond and the resident subsequently chased the landlord for a response between February and March 2022. The landlord has not provided any repair logs or records to this Service, so it has not been possible to determine when the landlord inspected the bedroom, however from the resident’s correspondence it is apparent that the landlord did so at some point prior to July 2022.
Despite having attended to investigate the bedroom by July 2022, there is no evidence that the landlord took any action to resolve the issue. The landlord’s finding, that it did not need to install cavity wall insulation in the bedroom was not communicated to the resident until the stage 2 complaint response in October 2022. This timeframe of 9 months to confirm its findings was not reasonable nor was it in line with the landlord’s repairs policy which sets out a maximum response time of 28 days. Whilst it is acknowledged that some repairs cannot be undertaken within that timeframe, the landlord should have taken action to investigate what was causing the issue within that timeframe and should have advised the resident of the follow up action it intended to take. It is not clear why this conclusion was not reached or communicated to the resident following the initial visit prior to July 2022. The landlord subsequently advised the resident that it had arranged a contractor to investigate the cause of the cold in November 2022. It is unclear what the outcome if this visit was or why the landlord felt this was necessary when it had already investigated the matter and had advised it would not be insulating the wall.
The landlord’s failure to appropriately respond to the resident’s query caused her distress and frustration. The landlord did not acknowledge its failings in how it responded to this aspect of the resident’s complaint.

Fly–tipping

The resident reported that an armchair had been left on her driveway in March 2020. Despite chasing the landlord up to have this removed on at least 3 occasions, the armchair had not been removed by the end of June 2020, 3 months later. The landlord has not provided any information to this Service about when this item was removed, however the timeframe of 3 months to remove this was not reasonable or appropriate.
The resident advised that she pays a service charge for the removal of waste. The landlord had the opportunity to say otherwise via its internal complaints process but did not do so. It is therefore reasonable to conclude that this is the case and that the landlord failed to deliver a service for which the resident was paying towards. This was not appropriate.

Tree maintenance

The resident reported to the landlord that a tree needed to be cut back in August 2021. The landlord failed to respond and the resident chased it up on a number of occasions between August 2021 and Janaury 2022 (a period of 5 months).
When the landlord responded to the resident’s concern on 28 Janaury 2022 it noted that its contractor would be in touch with her. The resident advised the landlord between February and March 2022 that she had not heard from the contractor. This Service has not seen any evidence to show that this issue was investigated further by the landlord or resolved. There is no evidence that the landlord was proactive in monitoring whether its contractor had arranged an appointment or had attended to investigate and carry out any required action. This was not appropriate or reasonable.

Mould

Whilst the landlord’s repairs policy sets out that it is the residents’ responsibility to clean mould, this does not absolve the landlord of its responsibility to investigate the cause of mould, to see if there is a structural issue (or other issue for which it is responsible) causing the mould.
The resident advised the landlord that there was mould in the bedrooms in November 2021. Although the landlord took some action to resolve this, the records of what this was have not been provided to this Service. The resident however confirmed that the mould had been resolved in January 2022.
By July 2022 the resident reported that the mould had reoccurred. When the landlord became aware that the mould had reoccurred, it should have taken action to identify whether it had previously correctly identified the cause of it. The landlord however did not take any action until June 2023, almost a year later. Even when it did act in June 2023 this was only to arrange quotes, rather than carry out any works required to address the mould. Given that the same room was reported as being cold and having a lack of insulation, there is no evidence that the landlord considered or investigated a possible link between the two issues. Given the health risks associated with mould and that the landlord knew the mould was in a child’s bedroom, its delay in responding to investigate the issue was not appropriate. It is not clear at the time of writing this report if the mould has been resolved. An order has been made in respect of this below.
In conclusion, the landlord consistently failed to respond to the outstanding repair and maintenance issues within a reasonable timeframe. It was not proactive in ensuring that contactor appointments were arranged and it significantly delayed responding to reports of reoccurring mould. These failures amount to maladministration.
To acknowledge the impact and distress caused to the resident of these multiple failings in respect of repair and maintenance issues, and for her son having mould in his bedroom for over a year without the landlord taking action, compensation of £700 has been ordered. This takes into consideration the lack of full use and enjoyment of the bedroom for a significant period of time and the associated distress caused to the resident.

Record keeping

The landlord has been unable to provide this Service with a number of documents that were requested, including policies, tenancy information, repair logs and the stage 1 complaint response. Despite multiple requests, the only policy provided to this Service was a draft repairs and maintenance policy which contained a number of visible edits and tracked changes. This Service expects landlords to have systems in place to support comprehensive record keeping of both policies and correspondence. The landlord’s failures to provide the requested information in this case led to a CHFO to be issued by this Service.
It is concerning that the landlord advised this Service that the resident had not submitted a complaint in respect of the fence and that she had not completed its internal complaints process. This was despite the landlord having provided the stage 2 response to this Service in respect of the complaint.
It is also noted that the landlord relied on a neighbour advising it that the garden was communal. The landlord subsequently relied on the views of this neighbour in its response to the resident about the garden fence in May 2020. This was not appropriate. The landlord should have access to the tenancy information to be able to clarify such queries without relying on the beliefs of other tenants who are not experts in respect of the resident’s tenancy.
In summary the landlord’s failings in respect of its record keeping amount to maladministration. An order has been made in respect of this below.

Complaint handling

The landlord failed to provide its stage 1 response to this Service, however it acknowledged within its stage 2 response that the stage 1 response had not been provided in line with its complaints policy (this policy has not been provided to this Service).
The Housing Ombudsman complaint handling code expects landlords to respond at stage 1 within 10 working days and within 20 working days at stage 2. This ensures that the landlord has the opportunity to full investigate the complaint and the resident has the opportunity to bring the complaint to this Service within a reasonable timeframe. In this case the landlord took 3 months (July to October 2022) to complete its internal complaints procedure. This was not appropriate and was not in line with the Code.
The landlord apologised for its failings in handling the complaint however no further compensation (to the £100 goodwill gesture as discussed above) was offered. Given the landlord’s acknowledgment of its failings and the distress caused to the resident, compensation for the complaint handling failures should have been made as a separate offer for fairness and clarity. The landlord’s failure to offer appropriate redress to the resident for its complaint handling failures amounts to maladministration. It should also be noted that the need for the this Service to issue a CHFO for this case, indicates a wider issue with the landlord’s complaint handling. To acknowledge the distress caused to the resident by the landlord’s complaint handling failures, compensation of £200 has been ordered. This is in line with the Housing Ombudsman remedies guidance.

Determination (decision)

In accordance with paragraph 42 (g) of the Housing Ombudsman scheme the landlord’s conclusion that the garden was communal is outside of the jurisdiction of this Service.
In accordance with paragraph 52 of the Housing Ombudsman scheme there was maladministration in respect of the landlord’s:
1. Response to the resident’s request for a fence to be installed.
2. Response to outstanding repair and maintenance issues.
3. Record keeping.
4. Complaint handling.

Reasons

This Service is not able to make a binding determination as to the interpretation of aspects of the tenancy such as communal or private areas. This is more appropriately determined by the courts.
The landlord incorrectly advised the resident that the fence would be added to its list of improvements for 2021. When the resident chased this up in 2022 it took the landlord a number of months to confirm to the resident that it would not be installing the fence. The landlord’s miscommunication, significant delays and mismanagement of the resident’s expectations was not appropriate.
The landlord failed to respond to the outstanding repair and maintenance issues within a reasonable timeframe. It failed to acknowledge the health risks associated with the resident’s son having reoccurring mould in his bedroom for over a year. It was not proactive in ensuring contractor appointments were carried out.
The landlord failed to provide information in respect of this case to this Service to the extent that a complaint handling failure order had to be issued. The landlord did not have accurate records of the issues complained about by the resident. It relied on the opinion of another resident when advising the resident that the garden was communal rather than its own records.
Although the landlord acknowledged failings in how it handled the resident’s complaint, it did not consider a separate offer of compensation to acknowledge this or provide appropriate or reasonable redress.

Orders and recommendations

Orders

The landlord is ordered to take the following action within 4 weeks of the date of this report and provide evidence of compliance.
1. Apologise to the resident for the failures identified in this case.
2. Pay the resident a total of £1150 compensation. This is to be paid direct to the resident and is made up as follows:
  1. £250 to acknowledge the distress caused to the resident by the landlord’s failings in responding to the fence issue.
  2. £700 to acknowledge the impact caused to the resident of the landlord’s handling of the outstanding repairs and maintenance issues.
  3. £200 to acknowledge the impact on the resident of the landlord’s complaint handling failures.
  4. The above amount to include any compensation already paid by the landlord on these issues.
3. Arrange a damp and mould survey of the property and action any identified required works within a further 28 days.
4. Confirm to this Service whether the issue with the tree has been resolved and if not this work is to be arranged within 28 days.
5. Review its record keeping in conjunction with the Ombudsman’s spotlight report on knowledge and information management to ensure that it has sufficient systems in place. The outcomes of this review to be shared with this Service within 28 days of this report.

Recommendations

Provide staff training on record keeping and complaint handling in light with the Code and the Housing Ombudsman’s spotlight report on knowledge and information management.