Kirklees Council (202220406)

REPORT

COMPLAINT 202220406

Kirklees Council

31 July 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 concerns:
   1. How the landlord responded to reports of leaks from the resident’s shower.
   2. The landlord’s decision to decline the resident’s request to install a bath.
   3. The landlord’s handling of the associated formal complaint into this matter.

Background

2. The resident is a secure tenant of the landlord, which is a local authority. The property is a house.
3. The resident took on the tenancy of the property via a mutual exchange in November 2021. Since moving in, the resident has experienced issues with water overflowing the adapted shower unit in the bathroom.
4. On 22 September 2022, the resident called the landlord to inform it that there was an uncontained leak from the bathroom into the kitchen that had tripped the lighting. The resident also asked to raise a formal complaint into how the landlord had handled the issue. The landlord raised an emergency repair to respond to the leak and opened a formal complaint. The landlord described the elements of the resident’s complaint as:
   1. She has three young children in the property and the leak from the bathroom was a health hazard.
   2. She had reported the issue to the landlord numerous times, but despite several repairs the problem had always returned.
   3. As a resolution to the complaint the resident asked for an explanation as to why the landlord had been unable to rectify this issue, and for the landlord to remove the shower and install a bath. The resident also asked for an apology and compensation for the stress and inconvenience the matter and caused, and to cover the costs of the damage to the flooring caused by the leak.
5. The landlord sent a stage one complaint response on 11 October 2022, then a stage two complaint response on 9 December 2022. In its responses, the landlord:
   1. Stated that it had arranged two appointments in March 2022 for plumbers to inspect the shower. The plumbers reported that the shower curtain was too high, and the leaks would be prevented if the shower rail was lowered by the resident.
   2. Reiterated the advice about the shower rail. However, following an inspection undertaken in December 2022, a small leak was located near the shower door hinge. The landlord confirmed that work had been raised to replace the shower door and it hoped to have the work completed by 23 December 2022.
   3. Apologised that the previous visits had not identified the leak and noted that while its advice to lower the curtain would have helped, it would not have fully prevented the leak until the shower door had been replaced.
   4. Declined the resident’s request for compensation for the damage to the flooring. It explained that it advises its tenants to take out their own contents insurance to cover incidents of this nature.
   5. Also declined to replace the bath. It noted that when the resident accepted the property, she agreed to accept the property in its current condition, which included an adapted bathroom. The landlord further noted that it was its policy not to replace adaptations that were in good working order and that it was satisfied that the replacement of the shower door would resolve the leak.
6. In referring the case to this Service, the resident described the outstanding issues of the complaint as the leak from the shower remained despite the work the landlord had undertaken and the landlord’s decision not to offer any compensation. As a resolution to the complaint, the resident requested that the landlord replace the shower with a bath and to pay £250 compensation for the damage the leak caused to the flooring and for the stress and inconvenience the matter had caused.

Assessment and findings

Relevant policies and procedures

7. Section 2.1 of the tenancy agreement confirms that the landlord is responsible for repairing “structure and the outside of [the] home and also for any systems that supply water, gas and electricity within [the] home”. Section 2 also comments on insurance and states that the tenant is responsible for taking out their own insurance to cover damage to their belongings and decorations, and any third party liability if there is a fire, flood or other accident.
8. The landlord’s repairs policy categorises its repair types as “Instant Response” (attend within four hours), “Emergency” (attend within two working days) and “Routine” (attend within 25 calendar days). The landlord defines a repair that requires an instant response as “repairs where there is an immediate danger to the occupants or there is a risk of further damage to the property or adjoining property, [for example] flooding, gale damage, gas explosion, house fire or severe vandalism”.  The landlord defines an emergency repair as repairs that “put the health, safety or security of our customers at risk but there is no immediate danger to the occupants or further serious damage to the property”. All other repairs are considered routine.
9. The landlord’s complaints policy states that it will respond to a complaint at stage one within 10 working days and stage two within 20 working days. The policy also describes issues that it will not consider as part of its formal complaints process. This includes “complaints relating to Insurance claims, which are managed by the Risk Management and Insurance Department”.
10. The landlord’s compensation policy states that it will consider offering a complainant discretionary compensation for “poor complaint handling, delays in providing a service, e.g., in undertaking a repair, failure to provide a service that has been charged for, temporary loss of amenity, failure to follow policy and procedure or unreasonable time taken to resolve a situation”.

The leaks from the resident’s shower.

11. On receiving the reports from the resident concerning leaks from the shower unit into the kitchen, the landlord had a duty to respond to the matter in line with the obligations set out in the tenancy agreement and its published policies and procedures. Its repair logs and internal correspondence states that:
    1. It arranged for two plumber visits on 14 and 29 March 2022, who informed the landlord that the cause of the leak was due to the shower curtain being too high and it had advised the resident to lower the shower rail to resolve the issue.
    2. On 22 September 2022, the resident report a leak into the kitchen through the light fitting. The landlord raised an emergency repair on 27 September 2022, which was marked as completed on 28 September 2022 following a three-hour visit to the property.
    3. Following the resident’s request to escalate her complaint, the landlord arranged an inspection of the shower on 7 December 2022. This visit found the leak from shower door and a routine repair was raised to replace the door. This was marked as completed on 16 December 2022.
    4. The resident contacted the landlord on 19 December 2022 and reported that the shower was still leaking. The landlord spoke to the staff member who undertook the 7 December 2022 inspection who informed it that “the doors have been fitted correctly and the tenant has told the joiner she blocks the plug so water gathers in the tray which it isn’t designed to hold”. An internal landlord email stated that it would write to the resident to confirm this information. However, there is no evidence that this letter was sent.
    5. The resident called the landlord again on 11 and 19 January 2023 to report leaks from the shower. The landlord arranged an inspection of the shower by a team leader in its adaptations team on 2 February 2023. The team leader informed it that “when the shower head at the full force setting is pointed at the joining of the bi-fold part of the screens, water passes slightly. But when the shower head is pointed at the same position with the curtain pulled on there is no escape of water. Although the screens are not designed to stop 100% of the water, none escapes when using the curtains properly”.
12. The evidence provided by the landlord shows that while it identified the cause of the leak and undertook repairs to resolve the issue, the resident experienced unacceptable delays in the completion of the work. Despite numerous visits by plumbers and other operatives to inspect the shower from March 2022 onwards, it was not until December 2022 that the issue with the shower door was identified. Moreover, while the landlord correctly categorised the uncontained leak through the light fitting reported on 22 September 2022 as an emergency, it did not raise a work order until 27 September 2022.
13. It was appropriate for the landlord to apologise for these delays in its stage two complaint response. However, in line with its compensation policy detailed above, it should have offered the resident compensation for the delays in completing the repairs and resolving the issue.
14. In order to fully resolve this aspect of the complaint, it would be appropriate for the landlord to compensate the resident. The Ombudsman’s own remedies guidance (which is available on our website) suggests a payment of £100 to £600 in cases of considerable service failure or maladministration by a landlord. This includes distress and inconvenience, time and trouble, disappointment, loss of confidence, and delays in getting matters resolved. Therefore, a payment of £350 that recognised length of time it took the landlord to identify the leak from the shower door, for not raising an emergency repair within its published timescales and the inconvenience that this caused to the resident would be appropriate in the circumstances.
15. The resident has requested compensation for damage the leak caused to flooring in the property. This was declined by the landlord on the grounds that it was an insurance matter. In line with the tenancy agreement, residents are advised to take out their own contents insurance to cover any damage to their personal possessions due to unforeseen events such as leaks. This is because the landlord is not responsible for the cost of repairing or replacing residents’ personal possessions in this type of situation. It was therefore reasonable for the landlord not to consider this element of the complaint through its formal complaint process and consider it an insurance matter.
16. The resident has also disputed that the landlord’s repairs had fixed the leak to the shower. As detailed above, the landlord’s repairs team and adaptations team both inspected the shower and found that, when used correctly, there was no escape of water from the shower unit. It was reasonable for the landlord to rely on the opinions of its appropriately qualified staff members and conclude that the shower had been repaired correctly. It is clear that the resident disagrees with the staff members findings, however, there is no evidence available to contradict these findings. That is not to say that there is no substance in the resident’s reports, only that it has not been possible to substantiate her reports from the evidence available.

Request to install a bath

17. The landlord declined the resident’s request to replace the shower with a bath on the grounds that, following the repairs, the shower was working correctly, and the resident had agreed to take on the property with an adapted shower unit.
18. The landlord’s housing allocations policy sets out the mutual exchange process. This states that the landlord will “not accept liability for the condition of the property other than to carry out repairs which are necessary to and due to fair wear and tear, of the [landlord’s] own fixtures and fittings. Tenancies will be assigned in their original form; that is if the tenant was a sole tenant at the previous address, the tenant should be a sole tenant at the new address”. As the property the resident was moving into had an adapted shower, the resident agreed to accept this when taking on the new tenancy. The landlord’s responsibility was to make sure the facilities were in good working order, not to make any replacements or improvements.
19.         Once the repairs to the shower were completed, the landlord was under no obligation to agree to install a bath into the property. It was therefore reasonable for it to decline the resident’s request.

The landlord’s handling of the associated complaint.

20. The landlord did not follow its complaints policy at either stage of the complaints process. The resident first asked to raise a complaint on 22 September 2022. The landlord did not open a complaint until 3 October 2022 and sent a stage one complaint response on 11 October 2022, four working days outside of its published target of 10 working days. The resident requested an escalation of the complaint on 27 October 2022 and received a stage two complaint response on 9 December 2022, 12 working days outside of the published timescale of 20 working days. When the landlord acknowledged the resident’s request to escalate the complaint, the landlord incorrectly sent a stage one complaint acknowledgement and informed the resident that it would respond within ten working days.
21. This caused clear inconvenience to the resident, who called this service to seek our assistance in receiving the stage two response. The landlord would have been expected to address these delays in the stage two response, apologise for the inconvenience they caused and consider offering compensation. Not doing so represents a service failure by the landlord in its complaint handling and in order to resolve this aspect of the complaint further compensation is warranted.
22. The Ombudsman’s remedies guidance recommends a payment of £50 to £100 in cases of service failure of a short duration that may not have significantly affected the overall outcome. Therefore, it would be appropriate for the landlord to pay £75 compensation to the resident for the delays at both stages of its complaints process and the inconvenience that this caused. The landlord has also been ordered to review its complaint handling procedures to ensure it is sending the proper acknowledgement letters for the stage that the complaint is at.

Determination

23. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of how it handled reports of leaks from the resident’s shower.
24. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its decision to decline the resident’s request to install a bath.
25. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the associated complaint.

Orders

26. Within four weeks of the date of this report, the landlord is ordered to:
    1. Pay to the resident a total amount of £425 in compensation, comprised of:
       1. £350 for the delays in completing repairs to the shower.
       2. £75 for its poor complaint handling.
       3. It is the Ombudsman’s position that compensation awarded by this Service should be treated separately from any financial arrangements between the landlord and resident, and should not be offset against any arrears.
    2. Review its complaint handling procedures to ensure it is sending the proper acknowledgement letters for the stage that the complaint is at.
    3. Confirm that it has complied with the above orders.