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Hyde Housing Association Limited (202116234)

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REPORT

COMPLAINT 202116234

Hyde Housing Association Limited

13 March 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

  1. The complaint is about the landlord’s response to the resident’s reports about:
    1. Asbestos at the property.
    2. Lighting at the property.
    3. Fire safety.
    4. Delays in completing repair works following leaks at the property.
  2. The landlord’s complaints handling has also been investigated.

Background

  1. The resident is an assured tenant of a two-bedroom ground floor flat owned and managed by the landlord.
  2. In May 2017 the resident reported water coming through her kitchen ceiling from the flat above. The landlord attended and carried out repairs. In June 2019 the landlord attended the property again following the resident stating she had no lighting in the kitchen. In November 2019 the resident reported a further leak to her kitchen from the flat above and the landlord attended to make safe. An asbestos survey took place in October 2020 and in March 2021 the landlord fitted a new kitchen ceiling, a new kitchen strip light and new heat detector.
  3. On 3 March 2021 the resident made a complaint about the way the repairs to her property had been handled. She said that she was unaware that there might have been asbestos in the kitchen ceiling and that she had been present when it had been taken down during the repair works. She identified that for a significant period she did not have a kitchen light. She felt the contractors had disrespected her home by not wearing shoe coverings and standing on her kitchen worktop with dirty boots. She stated that her towels and sheets were damaged when she cleared up the water leaks. She referenced delays in handling the issue, asserted that her kitchen was in a very bad state and did not have a heat detector alarm, and stated that she was ‘appalled’ with the way she had been treated through the whole process. She asked for compensation to replace her damaged goods and for the stress she had been through.  When the resident further pursued her complaint in July 2021 she added that she had a crack in her lounge ceiling and that her property had out of date smoke alarms for a lengthy period.
  4. The landlord sent a stage one complaint response on 8 July 2021, in which it offered £300 compensation for delays in completing the repairs and delays in completing its complaints process. It explained that it was unable to investigate ‘historic’ issues due to the time that had elapsed, including the collapsing of the original ceiling. It confirmed that the kitchen ceiling replacement in March 2021 had taken place under ‘controlled conditions’ and that it had installed new lighting and carried out both a smoke and air test. The landlord also confirmed that it ‘understood’ that the resident was getting mixed messages about asbestos within the property – it confirmed that there were ‘low risk’ asbestos containing materials (ACMs) within the property but that these were not considered harmful unless disturbed.
  5. A final complaint response was sent by the landlord on 30 September 2021. The landlord recognised that it did not have adequate information on the expiry dates of the smoke alarms so could not confirm whether the resident had been left at risk. It did not accept however, that the resident had been left without a kitchen light as it had photographic evidence which showed that a temporary light was installed in the corner of the kitchen in June 2019. It confirmed that all the repairs had now been completed apart from the more recently reported crack in the lounge ceiling which was in the process of being addressed. It apologised for the distress, frustration and inconvenience the issues had caused, including the time it had taken to respond to the complaint, and increased its compensation offer to £500.
  6. The resident contacted the Housing Ombudsman in October 2021 as she remained dissatisfied with the landlord’s final response. She claimed the landlord had made excuses to justify its actions, that its answers were insufficient, and it should have offered a higher level of compensation.

Assessment and findings

Scope of investigation

  1. In its final response the landlord explained it was only able to fully investigate service failures that occurred during the six months prior to the complaint being made. It pointed out that it was difficult to gather full information on historic issues and that it needed to be consistent with the way it treated customers. However, the officer responding then went on to say, ‘That said, I have spoken to as many people as possible in providing this final response and believe that I have responded to your concerns as well as I can.’ This response was confusing at it did not make clear which elements of the complaint were being excluded.
  2. The landlord’s response also did not properly reflect its complaint policy. This states ‘We may decline to investigate a complaint about a specific incident or service failure that occurred over 6 months prior to the complaint being made. Discretion will be used, particularly if there is evidence of a long standing or continuing problem. We would rely on evidence of an unreasonable delay before the complaint was lodged. Where a complaint relates to a safeguarding or health and safety issue, we may not apply this exclusion.’
  3. In this instance the complaint did relate to health and safety issues and there was evidence of a continuing problem with regards to the state of the kitchen ceiling. The decision to replace the kitchen ceiling was taken after the leak in November 2019 but was not completed until March 2021 which is when the resident complained. There is also evidence that the work from May 2017 was not completed. The landlord’s responses indicate it did not give full consideration to how its complaint policy should have been applied in this matter and the policy was not fully explained to the resident.
  4. In particular, it should be noted that there is no evidence that the resident was aware of an asbestos risk when works were carried out to the kitchen ceiling in May 2017. She would not therefore have raised a complaint about the part of the kitchen ceiling being pulled down without adequate precautions at that time. It was only when the ceiling replacement was delayed due to asbestos concerns following the November 2019 leak that the issue of asbestos was highlighted. This would then have caused the resident concern about the way repairs had been handled in 2017 prompting a complaint at a later date.
  5. The Ombudsman’s view is that the landlord did not adequately consider or explain how matters were excluded from the complaint and therefore this investigation seeks to assess all elements of the complaint on the basis of the evidence provided.
  6. The landlord repair responsibilities are set out in the resident’s tenancy agreement and in relevant legislation. The repair obligations are not disputed in this matter and therefore the report focuses on how effectively the landlord delivered it responsibilities.
  7. The resident has stated that the issues raised in the complaint may have affected her and her family’s health. Whilst this Service is an alternative to the courts, it is unable to establish legal liability or whether a landlord’s actions or lack of action have had a detrimental impact on a person’s health. Nor can it calculate or award damages. The Ombudsman is therefore unable to consider the personal injury aspects of the resident’s complaint. These matters are likely better suited to consideration by a court or via a personal injury claim.
  8. It is relevant to note on this case that the resident initiated a legal disrepair claim against the landlord in relation to the issues under investigation, including in relation to personal items damaged. This resulted in a negotiated settlement dated 20 July 2021. The Ombudsman has been provided with a copy of the negotiated settlement only, with the landlord’s legal team not prepared to disclose any further information in this respect. As such, it is not clear to what extent the negotiated settlement might have invoked the Ombudsman’s discretionary jurisdictional powers to not investigate where there is evidence of the substantive issues having progressed through a legal process.
  9. In any case, on the basis that the final complaint response on this case post-dates the date of the negotiated settlement, the Ombudsman has made a decision that the complaint, as detailed in the landlord’s formal complaint correspondence, can be investigated here. The resident confirmed, in a call with this Service in February 2023, that she remains dissatisfied in relation to a number of issues, including the lack of electricity in the hallway and the presence of ACMs in the property. During this call, it was explained to the resident that the Ombudsman does not have the authority to award damages for negligence causing health issues, in the same way that a court can.

Asbestos

  1. When the landlord initially investigated the complaint it assumed that the resident’s concern regarding the ceiling being pulled down without adequate precautions related to works following the leak in November 2019. When it queried the matter with its contractor, the contractor confirmed that the ceiling had not been pulled down as part of the making safe work in November 2019. It explained the ceiling was removed in March 2021, when it was replaced under controlled conditions. However, following the escalation of the complaint to stage two of the landlord’s complaint procedure the resident explained to the landlord that her concerns related to the leak in May 2017.  The landlord then further queried the matter with the contractor who replied that as this was pre-July 2018 it was before the new contract started and that complaints over six months old were very difficult unravel. The contractor concluded the leak from 2017 was not relevant to the original complaint.
  2. The landlord did not challenge this response from the contractor or request further investigation as to what happened in May 2017. The landlord’s repair log shows that there was a leak reported on 31 May 2017 with six jobs being raised with completion dates of 31 May 2017, 23 June 2017, and 23 July 2017. Apart from making safe electrics, the nature of the works was not specified in the log. Internal emails show that the contractor and landlord accepted that when it attended following the November 2019 leak it was seen that part of the ceiling had been previously removed and boarded. There is no evidence of asbestos surveying or asbestos removal work at the time of the 2017 leak. As well as its general repair obligations mentioned above the landlord has responsibilities under the Health and Safety at Work Act 1974 to protect employees and the general public, including residents, who may be affected by the work. This was a serious concern raised by the resident which the landlord should have investigated further and covered in its response to the resident.
  3. When responding to the resident the landlord should also have addressed the condition the ceiling was left in following the works in 2017. As well as its general repair responsibilities, the landlord has additional responsibilities under Part 1 of the Housing Act 2004 (the Health and Housing Safety Rating) and under the Defective Premises Act 1972. These place responsibility on the landlord to ensure residents are protected from disease or injury caused by hazards or defects in the property.
  4. Photos were provided by the contractor and one of its own surveyors, showing the state of the kitchen ceiling prior to its replacement in March 2021. These indicated a partially boarded ceiling where parts of the old ceiling had been cut out. The landlord’s surveyor commented when sending the photos in November 2020 that ‘part of the ceiling has been replaced, though the old artexed section is very poor too’. The contractor confirmed it did not remove any of the ceiling when making safe in November 2019 so this would have been the state of the ceiling prior to the November 2019 leak. The landlord should have investigated if it was reasonable to leave the ceiling in that condition, bearing in mind the presence of asbestos, or whether it should have been replaced at the time it was partially boarded.
  5. It is not clear from the evidence when the resident was first informed that an asbestos survey would be required prior to her kitchen ceiling being replaced. However, the landlord’s stage one complaint response, sent on 8 July 2021 confirmed the landlord understood that the resident had been receiving ‘mixed messages’ about whether her home contained asbestos. It confirmed that in addition to the previous kitchen ceiling, the hallway, lounge and bedrooms all contained asbestos in the ceilings, though this was considered low risk and not harmful unless disturbed. However, the landlord had this information following an asbestos survey in October 2020 and so it is reasonable to expect that this information should have been shared with the resident at that time. This would have helped the resident understand the current position, provided her some reassurance and also ensured she did not disturb the ceilings.
  6. The landlord called the resident to acknowledge the stage one complaint on 9 June 2021. The log for this call identified that the resident stated that her ‘ceilings are completely messed up and have cracks’. In its stage one response the landlord stated, ‘You also told me that you were concerned about the condition of your ceilings in general, stating that they had become cracked, however I have been assured that they are all fine and do not require any further attention’. Following the resident’s request that the complaint be escalated to stage two of the complaint process the landlord called her on 21 July 2021. The call log identified that the resident asked for ‘confirmation that there is no concern regarding the increasing crack in lounge ceiling (re asbestos and it coming down)’.
  7. The landlord referred to this call in its final response and confirmed that an inspection had taken place and a job had been raised to replace the lounge ceiling. It stated that asbestos was present in the ceiling, and the appropriate action would be taken to remove this safely. However, the landlord did not explain why it had previously assured the resident the ceilings were fine. This would have delayed the repair work, potentially causing more distress to the resident. The evidence shows that the lounge ceiling was replaced following the landlord’s final response.
  8. This investigation is unable to make any findings about the resident having been potentially exposed to ACMs during works at the property. There is no evidence available confirming that the resident was present at points that the ceiling collapsed or was otherwise taken down. In any case, the Ombudsman is not able to link any landlord service failures to an impact on the health of any household members as this is outside the Ombudsman’s expertise. However, given the lack of records, the confusing communication and the failure to confirm that it had taken appropriate action back in 2017, when the issue with the kitchen ceiling was first identified, a finding of maladministration has been identified here. As a remedy, the landlord has been ordered to make a compensation payment of £500, to reflect her distress and inconvenience over a protracted period.

Lighting issue

  1. The landlord’s stage one complaint shows it assumed that the resident’s concern about the delay in replacing the kitchen light related to the leak that took place in 2019. However, the landlord’s log of a phone conversation with the resident during the stage two investigation identified that the resident’s concern regarding this related to the works that took place following the leak in May 2017. Despite this, the email exchanges between the landlord and the contractor during the complaint investigation show the landlord continued to mistakenly assume that this related to the November 2019 leak. This is also apparent from the landlord’s final response which stated that a temporary light was fitted in June 2019 and therefore the resident was not left without lighting in her kitchen.
  2. As well as this error, it did not question why a temporary light was fitted in June 2019 when there was no leak at that time. The repairs log indicates that this was the result of a report by the resident that she had no lighting in her kitchen. This fits with the resident’s account that the lighting was removed following the May 2017 leak. Being termed ‘temporary’ by the landlord indicates that there should have been a plan for a permanent replacement. However, this replacement was only brought forward as an issue when the November 2019 leak occurred.  The contractor who worked on the 2019 leak explained it would not replace the temporary light until the old ceiling was replaced as it would further disturb the ceiling. It is reasonable to assume that this was also the case in June 2019 when it was fitted. The fact that this was a temporary light fitting again suggests the ceiling should have been replaced earlier.
  3. As the landlord did not identify these failures they were not considered in its assessment of compensation. The Ombudsman has therefore reflected this by way of a finding of service failure and a further award of compensation of £100.

Replacement of heat detector and smoke alarms

  1. The landlord acknowledged that the heat detector in the kitchen was disconnected following the leak in November 2019 and not reconnected until after the ceiling was replaced in May 2021. The landlord’s response to the resident stated that as no temporary heat detector was provided it was assumed the smoke alarms in the property were adequate protection until the kitchen heat detector was replaced. This was the initial reason provided by the contractor to the landlord. However, when queried a second time by the landlord the contractor confirmed that a temporary battery-operated detector should have been left. This was not made clear in the response to the resident. While the landlord did not have a legal responsibility to maintain a heat detector in the kitchen, a heat detector would provide additional protection from fire. As there was a considerable delay in carrying out the repair work it would have been reasonable to expect that a temporary battery-operated detector be installed.
  2. When the resident discussed her complaint with the landlord on 21 July 2021 she explained that an electrician who visited two months previously had identified that the two smoke alarms in the hallway were considerably out of date. She queried why this hadn’t been picked up by an electrician who visited around December 2020. Although this was not part of the original complaint the landlord used its discretion to include this in its formal response. It did confirm that the smoke alarms would not have been checked during the December 2020 visit but accepted that its procedure for monitoring smoke detectors in properties had not been adequate, which meant it did not have the details for her property, so could not be sure if she was left at risk. The landlord confirmed that new arrangements were now in place and that the smoke alarms at the resident’s property had been replaced.
  3. It is assumed that the general apology and compensation offered by the landlord in its final response sought to cover the failure in respect of smoke alarm monitoring. In the circumstances, the Ombudsman considers the landlord’s apology and confirmation that it has taken appropriate action to put the issue right to amount to a reasonable remedy for its acknowledged failures.

Delay in carrying out repairs

  1. The landlord’s repair policy does not provide a specific timescale for carrying out major or complex works. However, the landlord acknowledged in its responses that there had been a delay in carrying out the repairs. The leak from above took place on 19 November 2019. However, the works to replace the ceiling, lighting and heat detector were not completed until 4 March 2021.The main delay appears to have been caused by confusion over the asbestos survey. This was required by the contractor due to concern that there may be asbestos in the ceiling. The landlord’s records indicate that a survey did not take place until 2 October 2020 and then there was a further delay in communicating this to the contractor. This was a significant delay particularly bearing in mind the resident may have had concerns about asbestos being present in the ceiling. As mentioned above the landlord also did not adequately address why the ceiling was not replaced following the 2017 leak.
  2. Although it is positive that the landlord acknowledged some failings in this matter and provided a general apology, it is the Ombudsman’s view that the level of compensation offered does not adequately reflect the distress and inconvenience caused by the delay in the repair.

Complaints handling

  1. The evidence shows the landlord sent an email to its contractor on 9 February 2021 which contained a communication from a third-party authorised by the resident. The landlord did not identify who sent the communication nor the date it was received. The communication raised concerns about the delay in carrying out the kitchen ceiling repairs and that there was asbestos in the resident’s property. It identified that these issues had not been properly dealt with by the landlord. The landlord asked the contractor to look into the matter and to contact the resident. There is no evidence that the third-party communication was responded to or that the landlord considered logging this as a formal complaint.
  2. The resident’s formal complaint was logged on 3 March 2021. The landlord’s complaint policy states ‘We aim to respond to stage 1 formal complaint investigation cases within ten working days (two weeks) of receipt of the complaint. In some cases, it may not be possible to provide a response in this timescale. If we need extra time to complete the investigation, we will explain this to the customer and give a date for our response. This will be no later than a further ten working days’. The landlord sent its stage one response on 8 July 2021 so did not comply with this policy. On 13 July 2021 the resident requested the complaint be escalated to stage two of the complaint process. Its complaint policy states that following an escalation request ‘We will give customers our decision on the review of their complaint within twenty working days (four weeks). In exceptional circumstances, we may take up to a further ten working days to conclude the review. If this is likely, we will tell the customer as soon as possible and give a date for the decision.’ The landlord sent its final response on 30 September 2021 so again did not comply with its policy.
  3. While the landlord did on a number of occasions notify the resident of the delays in dealing with her complaint, the resident did have to chase for an update in August 2021. The combined delays meant the formal complaint took almost six months to past through the landlord’s complaint process. The evidence shows that this was due to ineffectiveness and delays in the landlord’s information gathering process. The landlord did apologise for the delay in its final response. However, the delay would have caused further distress and inconvenience to the resident and therefore has also been considered in the Ombudsman’s assessment of compensation.

Compensation for delays and complaints handling

  1. The landlord’s final response acknowledged failures in relation to both its delay in resolving repair issues at the property, and in relation to its complaints handling. It offered a total of £500 in compensation for these failures, however, in the Ombudsman’s view, this amount was not sufficient to cover the full extent of the landlord’s failures in these areas and, as such , a determination of service failures has been identified in both of these areas, with additional compensation identified.

Determination

  1. In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of asbestos at the property.
  2. In accordance with paragraph 52 of the Scheme, there was service failure with respect to the landlord’s response to the resident’s reports about lighting at the property.
  3. In accordance with paragraph 53 of the Scheme, the landlord made a reasonable offer of redress for the acknowledged failures in relation to fire safety at the property.
  4. In accordance with paragraph 52 of the Scheme, there was service failure in relation to the landlord’s delay in resolving repair works at the property.
  5. In accordance with paragraph 52 of the Scheme, there was service failure in relation to the landlord’s complaints handling.

Orders and Recommendations

Orders

  1. The landlord to pay the resident £1450 in compensation, broken down as follows:
    1. £500 in relation to failures identified in relation to asbestos at the property;
    2. £100 in relation to failures identified in relation to lighting at the property;
    3. £600 in relation to the delays in completing repair works at the property;
    4. £250 in relation to failures in relation to the landlord’s complaints handling.
  2. This includes the £500 compensation offered by the landlord in its complaint response. This payment should be made within four weeks from the date of this determination and the landlord should evidence compliance to the Ombudsman within that time period.

Recommendations

  1. The landlord to review its asbestos management systems to ensure it has accurate and up to date information on its properties which can be accessed promptly and where appropriate is shared with residents.
  2. The landlord should provide training to all staff handling complaints to ensure they fully understand how to implement its complaint policy.