Kingston upon Thames Council (202304327)

REPORT

COMPLAINT 202304327

Kingston upon Thames Council

7 August 2024

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s handling of forced entry to the resident’s property.
The Ombudsman has also investigated the landlord’s complaint handling.

Background

The resident has been a leaseholder of the property since 2018. The property is a 3-bedroom maisonette arranged over the 3rd and 4th floors of the building. The landlord is a local authority.
In January 2023, the estate where the property is situated experienced a mains water burst and the water supply was temporarily cut off while repairs were carried out. On completion of repairs and resumption of the water supply, it was discovered that 15 properties on the estate remained without access to hot water and WC flushing facilities.
The landlord identified the source of the issue as tanks housed within the communal roof space of the resident’s building. The landlord had previously accessed the tanks via the resident’s property and sought to do so again. It called the resident and posted a note through his door requesting a call back over the space of approximately 4 days, but was unable to make contact.
The landlord forced entry into the property on 9 January 2023. After it had completed the repair, it changed the front door locks. It left a note on the door advising the resident to pick up his new keys; the location provided on the note for key collection gave only a door number and a building name. There was no further explanation provided.
The resident made a complaint to the landlord on 17 January 2023. He said he had travelled abroad to attend a funeral and had returned in the early hours of 12 January 2023 to find himself locked out with visible signs of a break-in. He said the note left by the landlord did not give an explanation or a full address, and instead acted as an ‘advertisement’ that the property was unattended.
He said he tried to find the location where his keys were left but due to the incomplete address he was not able to do so. He tried to contact the landlord by phone and then visited its offices, but as it was 2am they were shut. He then visited a police station hoping to obtain further information or at least help with finding the location of the keys. The police were unable to locate the address and had no information on the break-in.
The resident said when he eventually found the building, there was no one in attendance to give him his keys. He had to spend the night in his car and was not given the keys until the next afternoon. He said rubbish was left in the property from the forced entry, there was damage to the front door and an internal door, and he had to change the locks again as he was deeply concerned about who may have had the keys before he collected them.
In its stage 1 response of 6 March 2023, the landlord said it tried to contact the resident and when it was unable to do so made the decision to force entry, which it was able to do under the emergency access clause of the lease. It apologised for the forced entry but hoped the resident understood the urgency of the situation due to the multiple properties affected over 3 or 4 days.
The landlord said only its staff had access to the resident’s keys before collection, and requested alternative emergency contact details for future use. It accepted that the note left on the resident’s front door was ‘not ideal’, and apologised for the inconvenience this may have caused. The landlord said it would not compensate him as there was an urgent need to access the property and it had the right to do so.
The resident was dissatisfied with the landlord’s response and escalated the complaint to stage 2. He said an apology was insufficient as he had been caused significant inconvenience, distress, trouble, and expenses. He asked the landlord to find alternative ways to access the roof space in the future as this was not the first time it had needed to enter via his property, and he sought £1,000 compensation.
In the landlord’s stage 2 response of 28 April 2023, it reiterated the explanation of its stage 1 response. It added that the resident had requested compensation without providing any breakdown of the costs incurred. Alternative roof access had been explored but external access required scaffolding, which would have delayed matters, and while anther property had an access hatch, it could not be opened. It said the decision to change the locks again was the resident’s choice, and that the photographs provided did not show any damage to the internal door, only to the front door, for which repairs could be scheduled.
The resident remained dissatisfied with the landlord’s response and contacted the Ombudsman in May 2023, when he advised he sought compensation and for the landlord to use alternative roof access.

Assessment and findings

The landlord’s handling of the forced entry

The resident’s lease agreement says the landlord has the right to enter the property, with permission, to carry out necessary repairs to any part of the estate or property or things affecting any part of the estate or property. The requirement for permission does not apply in cases of emergency. The lease further states that the landlord may force entry to the property where emergency repairs are necessary. It is required to make the property secure before departure and repair any damage caused to locks, doors, windows or frames.
The landlord’s repair policy says it is responsible for tidy up at the end of the job or end of the day. The policy goes on to say that if a resident is unhappy with any aspect of the repair or the conduct of an operative then they should get in touch with the landlord for a resolution.
This Service enquired with the landlord if it had a separate no access policy which sets out the procedure for its staff and agents to follow before, during and after cases of forced entry. The landlord has told this Service that its tenancy conditions cover issues of access and it does not have a separate policy for this.
The terms of the lease allowed the landlord to force entry to the property after it had failed to get in touch with the resident. A number of households by that point had been without full water service for days. It would not have been reasonable to cause additional delays by arranging scaffolding for external access or to start work to repair the hatch in the neighbouring property. The landlord established and pursued the quickest access route to restore service to its residents and it was reasonable for it to do so.
However, it is not clear why the landlord failed to leave a voicemail, or send a text message or an email to the resident before or after the forced entry. The landlord has also not provided an explanation for why it did not hold emergency contact information for the resident. This is something that would ordinarily be acquired at the commencement of the lease as a basic step in the landlord and resident relationship management. At the very least, considering that access was previously required in the month prior to this incident, it would have been reasonable for the landlord to review its records at that time and acquire the information.
While the forced entry was unavoidable due to the resident’s absence, had the landlord sent a text, email or left a voicemail to explain the situation it would have prevented the shock and worry the resident then experienced upon his return to the property. The landlord accepts that the note it left was inadequate. It is unacceptable that such a brief note was left for the resident which did not provide an explanation or a proper address to allow for the collection of keys. There is no doubt the lack of a proper and timely explanation and instructions exacerbated the distress of the situation.
The resident has been candid in explaining the impact on his mental health. Not only was he dealing with a bereavement but returned home in the middle of the night to find himself locked out and with what looked like a possible burglary. He was then unable to retrieve replacement keys until the next afternoon and was forced to spend the night in his car in mid-January, when the average temperature was 2 degrees. He also had to explain the situation to his employer and miss work the following day.
The landlord left the keys at an address without ensuring that access would be granted whenever the resident was available to collect them. No thought seems to have gone into minimising the impact on the resident of the unavoidable forced entry. Contrary to its own policy, following the forced entry, the landlord failed to clean up the metal and wood left behind by the breach.
The landlord left the front door with visible signs of damage and only told the resident it was happy to instruct the contractor to carry out a repair in its stage 2 response, almost 4 months after the forced entry. As stipulated in the lease, the repairs should have been conducted as a matter of course without the resident having to bring this to the landlord’s attention.
The resident explained at length the anxiety and paranoia he was experiencing as a result of what happened and set out the reasons why he had changed the locks again. Despite this, the landlord told him that changing the locks was a decision he had taken, displaying no understanding or empathy for why he felt the need to do so.
The locks were changed on 9 January 2023, and the resident did not gain access to the keys until 3 or 4 days later. He had no knowledge of who might have had access to them during that period. Given the preceding events, his decision to replace the locks for his own peace of mind was understandable. The landlord’s poor handling of the situation gave him no reason to be reassured or have confidence that something might not have gone wrong during the period others had his keys.
The landlord’s compensation policy says it tries to resolve problems quickly and efficiently and will apologise where service failings are identified. It says compensation is paid where appropriate and is proportionate to the loss or inconvenience caused. Under examples of service failures where compensation may be offered it lists, amongst others, instances where its staff have not communicated properly, where a contractor caused damage to the property, where an apology is not considered sufficient, or where the landlord has taken an unreasonable amount of time to resolve the issue complained about.
The resident experienced service failings which the landlord’s policy states it would consider offering compensation for. The landlord said the resident requested compensation without providing a breakdown of expenses incurred, but it had not asked him to do so. It simply refused to consider compensation stating that it had acted within the lease provisions. This was unreasonable. It may have forced entry under the terms of the lease but the manner in which it handled the overall situation was inappropriate and fell short of its own stated standards.
The resident also asked the landlord to consider alternative access for future events, providing plans and pictures of where he thought access could be gained other than from his property. The landlord responded to this only in regards to the event passed, and provided no comments on what it planned to do for any future issues. It is not in dispute that the resident’s lease allows the landlord to gain entry for repairs but it is not reasonable that access is only gained through his property when potential alternatives are available. This places an unfair burden on the resident.
The landlord’s poor handling of the forced entry amounts to maladministration. While the resident has asked for £1,000 compensation, this Service makes awards in line with the Ombudsman’s remedies guidance and the awards it orders are not intended to be punitive, but instead a recognition of the impact on the resident. The landlord is, therefore, ordered below to apologise for its failings and to pay the resident £400 for the distress and inconvenience caused.
The landlord is further ordered to (if it has not already done so) arrange to inspect the hatch in the neighbouring property and arrange repairs to allow access. It should then ensure that it does not request access repeatedly from a single point and instead alternates in the interest of fairness.
The landlord should also consider creating a separate no access policy which its staff and agents must refer to and follow in cases requiring forced entry. The mistakes in this case highlight that its process around managing forced entry is not stringent enough. It should do all it can to remove any element of personal discretion which might lead to service failures by specifying a consistent and clear process for its staff and agents to follow.
Additionally, the landlord should consider investigating whether the water tanks require more comprehensive repairs. The tanks experienced consecutive faults in a short space of time. This could be indicative of wider issues. It is, therefore, reasonable for the landlord to take action to fix the issue at its root, which will also reduce the likelihood of it requiring access through its residents’ properties. The residents are entitled to quiet peace and enjoyment of their properties; the landlord ought to ensure it facilitates this in so far as possible.

The landlord’s handling of the associated complaint

The landlord’s complaint policy applicable at the time defines a complaint as ‘an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the landlord, its staff, or those acting on its behalf.’ It states that a complaint can be made in a number of ways, including by phone, email, or online complaints form.
The policy set out timeframes for responding to complaints; namely 10 working days at stage 1 and 20 working days at stage 2. It also states that complaints will be acknowledged at both stages within 5 working days of being made.
The resident made his complaint on 17 January 2023 by email. While he did not label the email as a complaint, it was obvious from the content that he was expressing his dissatisfaction with the landlord’s actions. However, he did not receive an acknowledgement or response and had to chase the landlord on 26 January 2023.
On 31 January 2023, the landlord told the resident that his complaint had been forwarded to the repairs team. However, the resident did not hear from the landlord and instead had to complete an online complaint form on 20 February 2023. The complaint was finally acknowledged the next day and a stage 1 response was issued on 6 March 2023; nearly 2 months after the resident first complained.
The resident escalated his complaint to stage 2 on 28 March 2023, this was acknowledged by the landlord on 30 March 2023 (within the 2 working days timeframe specified in its policy), and the landlord’s stage 2 response was issued on 28 April 2023 (within the 20 working days timeframe specified in its policy). However, its failures to deal appropriately with the resident’s complaint at stage 1 amount to service failure.
The resident’s contact about the complaint was detailed, honest, and candid. It was clear that he was deeply affected by what had happened and was keen to get support and answers from the landlord. However his requests for both were ignored, further adding to his upset and distress.
The landlord is therefore ordered to write to the resident with an apology (with reference to the Ombudsman’s remedies guidance to ensure the apology is sincere and appropriate) for its failure. It is further ordered to pay the resident £100 for the upset and inconvenience caused by its complaint handling failures.
On 8 February 2024, the Ombudsman issued the statutory Complaint Handling Code (the Code), which sets out the requirements landlords must meet when handling complaints in both policy and practice. The new Code applies from 1 April 2024 and the Ombudsman has a duty to monitor compliance with it. We will assess landlords using our Compliance Framework and take action where there is evidence that the requirements set out in the Code are not being met. As a result, no specific order is made on this case with regard to the landlord’s compliance with the Code, and the contents of its policies and procedures in that regard.
However, an order is made for the landlord to review its handling of the formal complaint in this case, alongside the provisions of the Code in order to: understand how the failings occurred; identify areas for improvement; and note where current practices may be at odds with the requirements of the Code.

Determination

In accordance with paragraph 52 of the Scheme, there was:
1. Maladministration by the landlord in respect of its handling of the forced entry.
2. Service failure by the landlord in respect of its handling of the associated complaint.

Orders and recommendations

Orders

Within 4 weeks of this report, the landlord is ordered to:
1. Write to the resident with an apology (with reference to the Ombudsman’s remedies guidance to ensure the apology is sincere and appropriate) for its:
  1. Failures in the handling of forced entry to the resident’s property.
  2. Complaint handling failures.
2. Pay directly to the resident (and not offset against any rent arrears) £500 compensation, as follows:
  1. £400 in recognition of the distress and inconvenience caused by its handling of the forced entry.
  2. £100 in recognition of the upset and inconvenience caused by its poor handling of the associated complaint.
3. Arrange to inspect the hatch in the neighbouring property and repair it to enable access.
4. Review the complaint handling failures highlighted in this investigation alongside the provisions of the Code.
5. Provide evidence of compliance with these orders to the Ombudsman within 4 weeks.

Recommendations

The Ombudsman recommends that the landlord should:
1. Consider creating a separate no access policy with a consistent and clear process which its staff and agents must follow in cases requiring forced entry.
2. Investigate whether the water tanks require more comprehensive repairs to address the root cause of repeated faults.