Lewisham Council (202224894)

REPORT

COMPLAINT 202224894

Lewisham Council

23 May 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 delays in replacing damaged and rotten windows at the resident’s property.

Background

The resident holds a secure tenancy for a ground floor flat with the landlord. The landlord’s records show that the resident has medical vulnerabilities.
On 17 January 2023 the resident contacted the Ombudsman and explained that he had made a complaint via the landlord’s website but had not received a response. The Service advised the resident to resubmit his complaint.
On the same day, the resident raised a complaint via the landlord’s website. The resident said that he first reported issues with his wooden windows approximately 4 years ago, but nothing had been done.
On 2 February 2023 the landlord provided its stage 1 complaint response, which said that:
1. The investigation revealed that it had completed several inspections and determined that the windows were beyond repair and needed to be replaced. The works were added to a scheduled works program, but the works did not go ahead.
2. The repairs team were asked to repair the windows temporarily in the interim. However, it was found that the windows had deteriorated beyond repair.
3. As the property was located within a conservation area, the windows would need to be replaced like for like.
4. Due to a high turnover of staff, it had no one with the expertise to do this. It had found a specialist contractor to manage the outstanding works and the rear windows were due to be replaced on approximately 9 and 10 February 2023.
5. In conclusion, it upheld the complaint as it failed to progress the works via its stock investment works program as he was advised. The management team would also see the works through to completion and would update the resident as the works progressed.
On 19 March 2023 the resident contacted the landlord to escalate his complaint. The resident said that his complaint was still not resolved and that his front bay window was so rotten, it was dangerous.
On 19 April 2023 the landlord provided its stage 2 complaint response, which said:
1. That the front windows would be replaced within the calendar year, but it first needed to undertake a leaseholder consultation, as well as obtaining planning permission.
2. Obtaining the permission may take some time, but it hoped to complete the works by October 2023.
On 24 April 2023 the resident contacted the Ombudsman as he remained dissatisfied with the landlord’s response.
On 26 April 2023 the resident contacted the landlord and said that his windows would not last until October 2023. He was struggling to heat his home due to the windows. He further informed the landlord that he was elderly and had COPD and breathing difficulties and the issues with the windows was causing him stress.
On 2 June 2023 the landlord provided a further stage 2 response, which said that the October 2023 timeframe was based on obtaining planning permission and carrying out a section 20 consultation. It would also attend to carry out temporary repairs to the front windows in the interim.
In May 2024, the resident told the Ombudsman that his situation had not changed. The landlord said that only the back and side windows had been replaced.

Assessment and findings

The Ombudsman’s approach.

The Ombudsman’s role is to determine complaints by reference to what is fair in all the circumstances and decide if the landlord is responsible for maladministration or service failure.
When investigating a complaint, the Ombudsman applies its dispute resolution principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:
1. Be fair – treat people fairly and follow fair processes.
2. Put things right, and
3. Learn from outcomes.
The Ombudsman must first consider whether a failing on the part of the landlord occurred and, if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.

Scope of investigation.

In April 2023 resident told the landlord that he was struggling to heat his home due to the broken windows and how it was also affecting his breathing. It is widely accepted that cold temperatures may impact a person’s health, however it is outside the Ombudsman’s remit to establish whether there was a direct link between the landlord’s actions or inaction and the specific health conditions of the resident. Matters of liability for damage to health are better suited to a court or liability insurance process to determine. This is in line with 42f of the Scheme which says the Ombudsman may not consider 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 has considered any distress and inconvenience the resident experienced as a result of errors by the landlord as well as the landlord’s response to the resident’s concerns about his health.

The complaint is about the landlord’s handling of replacement windows.

Section 11 of the Landlord and Tenant Act 1985 places a legal duty on landlords to make full, effective and lasting repairs once it is given notice of disrepair. Section 9A of the Landlord and Tenant Act 1985 also requires the property to be free from a hazard and to be fit for human habitation.
The Housing Act 2004 ensures landlords are responsible for assessing hazards and risks within its rented homes. When assessing any such hazards and risks, the assessment should be considered in line with the Housing Health and Safety Rating System (HHSRS). Excess cold is a potential category one hazard and the landlord is required to consider whether risks to health are caused by indoor temperatures being too low. It is the landlord’s responsibility to ensure it has identified risks which may require remedy.
The landlord has not been able to locate a copy of the resident’s tenancy agreement, however it has provided a sample tenancy. This confirms that the landlord is responsible for keeping in good repair the structure and exterior of the building. This will also include the windows.
When the Ombudsman is investigating a complaint of any category, the Service asks the landlord to provide full and comprehensive records to evidence what has happened. The Ombudsman asks the landlord to provide information such as copies of repair logs, contractor worksheets, copies of phone logs and any other relevant correspondence.
It is of great concern that the landlord has not been able to provide any information which evidences its position as detailed within its final complaint response.
The Ombudsman’s spotlight report on knowledge and information management states that “good knowledge and information management is crucial to any organisation’s ability to perform and achieve its mission.
The repair records that were provided show that a number of repairs were reported to the landlord between 2020 and 2022. Orders were raised to make safe wooden frame windows and inspect the windows. However, no further details have been provided with regards to what work, if any, was completed.
The landlord has acknowledged that it completed several inspections of the windows, which determined that they were in a poor condition and beyond reasonable repair. However, despite the landlord having responsibility for maintaining and repairing the windows there is no evidence to show that it took any action to repair or replace the windows. This was a failing.
The landlord should have taken action when the repairs were reported to ensure that the windows were kept in a reasonable state of repair whilst awaiting the cyclical works to replace them. While acknowledging that the landlord may have had other commitments, which meant the cyclical works were postponed, it was not appropriate for it to leave the windows in a poor state of repair over such a long time period. This would have had an impact on the resident as he was waiting for the windows to be replaced for longer than he should have been.
There is also no evidence that it communicated with the resident about its decision to not go ahead with the cyclical works, or what it would do in the meantime. This meant the resident tolerated the poor state of the windows, in the belief they would be replaced in the short-term.
The landlord has not provided the Ombudsman with any internal records which show why the original works program was rescheduled, or why it was not pursued. Although it confirmed within its final complaint response that it had arranged for the rear windows to be replaced in February 2023, it does not release the landlord from its repair responsibilities for the front windows, which remain in a state of disrepair. The landlord told the resident that it would look to replace the front windows by October 2023, but the resident has informed the Ombudsman that these works remain outstanding.
The Ombudsman acknowledges that undertaking a Section 20 consultation process and obtaining planning permission can cause delay, but again it does not release the landlord from all duties and obligations to the resident.
When the resident informed the landlord that the property was having an effect on him, the landlord should have taken steps to establish whether the property remained fit for habitation and whether it needed to seek alternative arrangements for the resident until the issues were resolved. There is no evidence that the landlord did this and this was also a failing which may reasonably have caused distress to the resident.
The Ombudsman draws the landlord’s attention to the Housing Ombudsman’s Complaint Handling Code, which sets out what the Ombudsman considers are the best practice principles of “putting things right” where there have been failings. This includes the principle that any remedy offered by a landlord “must reflect the extent of any service failures and the level of detriment caused to the resident as a result”. Therefore, the landlord’s decision not to award compensation was unreasonable in view of the level of detriment its errors caused the resident.
In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort spent pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. We consider whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident, taking into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive, but to provide redress for the impact of any failings by the landlord on the resident.
The Ombudsman has considered the distress and inconvenience suffered by the resident as a result of the landlord’s failure to repair and replace his windows. As detailed, the resident has experienced a property with windows in a poor condition and in need of repair for over 4 years.
The Ombudsman’s guidance on remedies, which can be found on our website, states that where there have been failures which have had a significant impact on the resident and the landlord has failed to acknowledge them, payments of above £600 are recommended.
The landlord acknowledged that it planned to replace the resident’s windows, but for an unknown reason it did not go ahead. There is no evidence to show that it communicated this with the resident, nor did it provide him with any updates of what action it would take in the interim. Based on these circumstances, the landlord is ordered to pay the resident £650.
Next the Ombudsman has considered whether compensation based on rent is applicable. There is no evidence to show that the landlord considered the resident’s ability to enjoy his home while the repairs were outstanding. He informed the landlord that the windows were affecting his ability to heat his home adequately and that it they did not function to a reasonable standard.
The Ombudsman considers that 10% of the weekly rent should be paid to the resident for the period between 27 July 2020 (when the first evidenced repair was reported) and 10 February 2023 (when the back windows were replaced) for reduced enjoyment of his home.
Furthermore, 5% of the weekly rent should be paid to the resident for the period between 11 February 2023 and 16 May 2024. A further recommendation has also been made at the end of the report.
To calculate the compensation due to the resident, the weekly rent has been calculated based on the average social rent in the landlord’s borough between 2019 and 2023, which is £93.95. Therefore, the landlord is ordered to pay the resident a total of £1544.65 compensation based on rent.
The Ombudsman recommends that the landlord take steps to learn from the outcome of the resident’s case by reviewing its record keeping practices in light of the Ombudsman’s spotlight report on knowledge and information management.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was severe maladministration in the landlord’s delays in replacing damaged and rotten windows.

Orders and recommendations

The landlord shall take the following action within 4 weeks and provide evidence of compliance with these orders to the Ombudsman:
1. The landlord will write to the resident and apologise for the failures identified within this investigation.
2. Pay the resident a total of £2194.65, which is made up of:
  1. £650 for the distress and inconvenience associated with the landlord’s delays to replacing the resident’s windows.
  2. £1544.65 compensation based on rent for the reduced enjoyment of his home.
3. The landlord shall investigate the replacement of the front windows, including whether the section 20 process has been completed, and write to the resident and the Ombudsman to confirm a start date for these works.
4. The landlord should investigate if other residents have complained within the block and whether appropriate action has been taken.

Recommendations

It is recommended that the landlord:
1. Review its record keeping practices in relation to inspections, repairs and residents’ vulnerabilities, including in light of the findings of this report and the Ombudsman’s spotlight report on knowledge and information management.
2. Review its staff’s training needs with regard to record keeping, complaint handling and remedies, including in light of the findings of this report, the Housing Ombudsman’s Complaint Handling Code, and our remedies guidance.
It is also recommended that the landlord pay the resident additional compensation when the works have been completed. The Ombudsman suggests an amount of 5% of the weekly rent 16 May 2024 until the completion date.