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Lewes District Council (202128624)

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REPORT

COMPLAINT 202128624

Lewes District Council

23 January 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 handling of:
    1. The resident’s request for the kitchen to be adapted to allow for the installation of a dishwasher.
    2. The resident’s reports of cracks behind the boiler.

Background

  1. The resident is a tenant of the landlord.
  2. On 20 April 2022, the local authority’s occupational therapy team (OT) sent a letter to the landlord recommending plumbing to be installed in the resident’s property so a dishwasher could be fitted. In subsequent correspondence, OT advised that the work was not deemed to be necessary, so the landlord informed the resident it would not proceed with the works without an OT assessment.
  3. The resident raised a complaint to the landlord on 29 July 2021, as she was dissatisfied that the landlord had refused to complete works to install plumbing following the recommendation from OT.
  4. In the landlord’s stage one complaint response, it said it would complete the plumbing required to install a dishwasher at the property, as there had been a misunderstanding regarding the recommendation originally made by the OT assistant. In the landlord’s stage two response on 24 March 2022, it reverted its decision as it said the contractor had inspected the kitchen and found it would need to be redesigned to install a dishwasher, which it deemed “significantly above the threshold of reasonable adjustment”. It offered £50 compensation in recognition of the upset and inconvenience caused by the miscommunication. It encouraged the resident to arrange a visit with OT to identify whether there were any required adaptations.
  5. The resident raised a further complaint on 26 May 2022 regarding the landlord’s handling of her reports of cracks behind the boiler. She stated she had initially reported the cracks on 5 August 2021 and a contractor had advised her on 10 January 2022 that the boiler needed to be removed to complete the repair. She stated she was concerned that the cracks could cause a gas explosion, so she wanted the landlord to properly complete the repair. She also requested compensation due to the amount of time taken to complete the repair.
  6.  In the landlord’s final response to this complaint on 29 September 2022, it advised that a surveyor had assessed the cracks behind the boiler and confirmed they were cosmetic, rather than structural. It stated the resident had previously been correctly advised the work was the resident’s responsibility, but it had arranged an appointment for 13 October 2022 to fill the cracks. It stated there were no outstanding actions required regarding gas safety checks.
  7. In the resident’s complaint to this Service, she said she remained dissatisfied as she wanted the landlord to complete a kitchen refurbishment and install a dishwasher, as recommended by OT in April 2021. She also did not think the crack behind the boiler had been satisfactorily repaired, as the landlord had not coordinated with the gas company to remove the boiler to carry out the repair. She said she had completed a service access request (SAR) with the landlord and had not received any evidence to confirm there had been a surveyor report. She also wanted compensation as the landlord had exceeded its complaint response timeframe.

Assessment and findings

Scope of investigation

  1. In her complaint, the resident raised concerns regarding the landlord’s handling of her Service Access Request (SAR). This aspect of the complaint is outside of the Ombudsman’s jurisdiction as complaints relating to data protection and freedom of information fall properly within the jurisdiction of the Information Commissioner’s Office (ICO). Therefore, this investigation report will not consider the landlord’s handling of the resident’s SAR request, however, references have been made where contextually relevant. If the resident wishes to pursue her complaint about the SAR response, she can contact the ICO for further advice.

Policies and procedures

  1. The tenancy agreement states:
    1. The landlord is responsible for repairing and maintaining the structure of the property including the walls, the boiler and the fitted kitchen.
    2. The resident is responsible for decoration within the property.
  2. The landlord’s aids and adaptations policy states:
    1. Major adaptations are works likely to cost over £1000.
    2. Major adaptations will only be completed if a recommendation has been made by OT.
    3. “Major Adaptation Referral Form. These require a multi-agency visit, with the OT, Contractor and the council to agree the works and consider all options of the tenant.”
  3. The tenancy handbook states:
    1. The landlord is responsible for repairs to walls and plastering.
    2. The resident is responsible for painting and decorating walls and repairing small cracks in plaster.
    3. Routine repairs will be completed within 28 days. Repairs to walls are considered a routine repair.

Kitchen adaptations

  1. Upon receiving a request for an adaptation, the landlord should ensure that it acts in accordance with its aids and adaptations policy. The landlord initially acted appropriately as OT sent a letter to the landlord on 20 April 2021 recommending a minor adaptation to install plumbing for a dishwasher in the resident’s property and the landlord raised the relevant work order. However, OT subsequently advised that it had not assessed the resident’s need for a dishwasher, so the landlord revoked its decision to complete the work. The landlord cannot be held accountable for the decisions and misinformation provided by OT.
  2. If the resident disputes the decisions made by OT, it is recommended that she raises the matter directly to OT and ultimately raise a complaint to the Local Government and Social Care Ombudsman (LGSCO) if she remains dissatisfied. Complaints about local authority’s activities (aside from their responsibilities as social landlords), including complaints about occupational therapy, fall in the jurisdiction of LGSCO, and therefore will not be assessed within this report.
  3. Given that the resident had been misinformed by OT and the works were initially considered a minor adaptation, it was reasonable that the landlord used its discretion and agreed in its stage one response to complete the works without an OT recommendation. The landlord promptly arranged an inspection, but the contractor identified that the works required to install the plumbing for a dishwasher were extensive and due to the limited space available the kitchen would have to be redesigned. The landlord also noted that the kitchen had been replaced in 2012, so was not due to be upgraded until 2032. As a result, the works would be considered a major adaptation costing more than £1000. In line with the landlord’s aids and adaptations policy, would require an OT assessment.
  4. The landlord determined that the works were significantly above the threshold for reasonable adjustment, so it was reasonable that the landlord reverted its initial decision to complete the adaptation. While this would not be evidence of failing on the landlord’s part, it may be helpful for it to ensure if a similar issue occurs it assesses the works required before providing a decision to the resident regarding whether it would complete the requested adaptations. This would ensure that residents’ expectations are reasonably managed and prevent the landlord from having to revert its decisions, causing disappointment.
  5. As the works were considered a major adaptation, it was reasonable and in line with its aids and adaptations policy, that the landlord advised the resident a joint visit from OT and its contractor was required to proceed. The resident has also requested adaptations to the bathroom and said that the kitchen was not to a lettable standard. Again, it was appropriate that the landlord advised that an assessment and inspection was required to assess whether there were any required works. The landlord has encouraged the resident to engage with OT on numerous occasions and several appointments had been arranged but OT had been unable to gain access. As a result, OT advised the landlord on 1 July 2022 that the referral had been closed. This meant the landlord was limited in the actions it could take as it needed input from OT to pursue the adaptation further.
  6. Overall, although it is recognised that the change in decision would have been frustrating and disappointing to the resident, ultimately the landlord acted in line with its adaptations policy. Furthermore, the landlord cannot be held accountable for the actions of OT, or the fact that the recommendation was made in error. In light of the clear inconvenience to the resident due to the change in the decision to complete the adaptations to install a dishwasher, it was appropriate that the landlord used its discretion to offer £50 compensation.

Cracks behind the boiler

  1. In accordance with the tenancy handbook, the landlord is responsible for repairs to walls and plastering. As a result, when the resident reported cracks behind the boiler, the landlord was responsible for assessing the cracks and completing any required repairs. In its complaint response, the landlord said the resident had reported cracks behind the boiler on 5 August 2021 and a surveyor attended on 9 August 2021 and determined that the cracks were cosmetic. The landlord therefore responded within a reasonable timeframe. However, in her complaint escalation the resident disputed that a contractor had attended when the issue was initially reported. Furthermore, in her complaint to this Service, she said that she had not been provided with the survey report when she did a SAR. This report has not been provided to this Service either.
  2. The Ombudsman expects landlords to keep a robust record of contacts and repairs, however the evidence has not been comprehensive in this case. When there is a disagreement in the accounts of the resident and the landlord regarding repair works, the onus is on the landlord to provide documentary evidence to prove that it has fulfilled its repair obligations. In this case, as the landlord has not provided a survey report, related repair records or internal correspondence, this Service is unable to conclude that a survey took place. As a result, there is not sufficient evidence to confirm the landlord acted appropriately when the resident initially reported cracks behind the boiler.
  3. The resident emailed the landlord on 19 November 2021, as she said several members of the repair team had advised her that the boiler and gas pipes needed to be removed in order to repair the damage. She also stated a contractor attended on 18 November 2021 and said he would assess the exterior of the building. However, in the landlord’s response it stated the surveyor had advised there were no structural issues, so the cracks were cosmetic. Again, there has not been sufficient evidence provided to this Service by the landlord to confirm these findings, so it cannot be determined whether the landlord has acted in line with its repair obligations.
  4. In the landlord’s initial complaint response, it advised that the repairs to the cracks were the resident’s responsibility. This was seemingly reasonable as the tenancy handbook states that the resident is responsible for repairs to small cracks. However, in its stage two response, the landlord agreed to complete the work, as it said it recognised the repair would not necessarily be a “straightforward matter” for the resident to resolve. Although the landlord’s tenancy handbook outlines that the resident is responsible for repairs to small cracks, the definition can be somewhat subjectively interpreted. Given the resident’s ongoing concerns regarding the scale of the work, as she reported that the cracks were substantial, it would have been appropriate for the landlord to take additional steps to ensure that she would be capable of completing the repair. There is no evidence to suggest that the landlord had completed an additional inspection to lead to its changed decision to complete the repair, which indicates it could have taken responsibility at an earlier date.
  5. The landlord confirmed to this Service that repairs to fill the cracks behind the boiler were completed on 13 October 2022. As it failed to assess at an earlier date whether the resident was reasonably able to complete the repair, the work remained outstanding for over a year from when the resident initially reported the repair on 5 August 2021. The resident also spent significant time and effort pursuing the repair.
  6. In accordance with this Service’s remedies guidance (published on our website), awards of £100-£600 are appropriate in cases where the landlord has failed to acknowledge its failings or made an attempt to put things right. In this case, the landlord has failed to provide evidence to this Service to confirm how it satisfied its repair obligations when the resident initially reported the crack behind the boiler. It also failed to reasonably assess whether it was appropriate to assert that the repair was the resident’s responsibility to complete, which led to additional time and effort for the resident in pursuing the repair. As a result of its failings, the landlord is ordered to award the resident £200 compensation.
  7. In her complaint to this Service, the resident stated she had ongoing concerns that the boiler needed to be removed to satisfactorily complete the repair. Given the lack of repair records, including the requested survey reports by the resident, the landlord is ordered to provide evidence that it has satisfied its repair obligations. The landlord should also contact the resident to address any outstanding concerns she may have regarding the repairs to the cracks.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s request for the kitchen to be adapted to allow for the installation of a dishwasher.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in the way it handled the resident’s reports of cracks behind the boiler.

Orders and recommendations

Orders

  1. The landlord is ordered to pay the resident £200 compensation in light of its failings in its handling of the resident’s reports of cracks behind the boiler.
  2. The landlord is ordered to provide evidence to the resident and this Service to confirm that it has completed the necessary repairs to the cracks behind the boiler. It should also contact the resident and address any of her outstanding concerns.
  3. The landlord should provide proof that it has complied to the above orders to this Service within four weeks of the date of this report.

Recommendations

  1. It is recommended that the landlord reviews its record keeping practices to ensure it keeps clear records of repairs and its communications with contractors and residents.