Lewisham Council (202225524)

REPORT

COMPLAINT 202225524

Lewisham Council

3 April 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

1. The complaint is about:
   1. The landlord’s response to the resident’s concerns about fire safety of the communal maintenance cupboard door.
   2. The landlord’s handling of major works to replace the communal maintenance cupboard door.
   3. The landlord’s complaint handling.

Jurisdiction

2. In escalating her complaint to the Ombudsman, the resident raised concerns with the landlord’s response to fire safety. While the serious nature of this matter is acknowledged, the evidence provided to the Service does not demonstrate that the resident has raised her concerns with the landlord through its complaints process.
3. Paragraph 42(a) of the Scheme states that the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, are “made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint-handling failure, and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale”. It follows that this complaint falls outside of the Ombudsman’s jurisdiction.
4. If the resident wishes to pursue these issues, she will need to contact the landlord and, if appropriate, raise a separate complaint. The resident may be able to refer the new complaint to the Ombudsman if she remains dissatisfied once the complaint has exhausted the landlord’s internal complaints procedure.
5. While this investigation will not assess the fire safety aspects of the case, it is essential that any such issue is always taken seriously by both this Service and any member landlord. A recommendation has been made therefore for the landlord to complete an investigation of the communal maintenance cupboard door from a fire safety perspective.

Background

6. The resident is a leaseholder of a maisonette on the second and third floors of a building owned by the landlord. The building is managed by a managing agent on behalf of the landlord under a Private Finance Initiative (PFI). A contractor made up of 3 organisations was put into place to manage refurbishment of the building’s PFI properties.
7. The landlord sent a Section 20 notice to the resident on 20 May 2022 regarding replacement of the fire door on a communal cupboard. The cupboard housed the building’s electricity supply and switchboard. On 25 May 2022, the resident asked the landlord for the specification of its quote for the fire door. She told it she wished to obtain her own quotes. She believed the quote the landlord obtained was “excessively expensive.”
8. The resident raised a complaint on 16 June 2022. She said she had received no reply from the landlord and needed to provide her observations by 22 June 2022. She said she had little time to organise quotes for the cupboard door. The landlord responded to the complaint on 27 June 2022 and stated the following:
   1. It had emailed the resident on 16 June 2022 stating it would send the specification for the cupboard door to her. It said it should have explained the work was being dealt with by the managing agent. It apologised that its response took 5 days longer than the 10 working days it expected. It promised the staff member responsible would turn on their ‘out of office’ reply during leave in future and redirect their emails.
   2. Its managing agent had sent the specification of its quote for the fire door to her on 17 June 2022. It said she had since asked for the measurements of the door and the managing agent would provide these to her. It said as a result it would not start work to replace the cupboard door until it had sent all information she had requested, to her.
   3. It was sorry that the resident felt the managing agent was not transparent. It said it aimed for its responses to be honest with information available to it at the time.
   4. It partially upheld the resident’s complaint and provided details on how to escalate her complaint to stage 2 of its complaint’s process.
9. The resident asked for her complaint to be escalated on 16 July 2022. There is no evidence of the landlord responding to her concerns at this time. The cupboard fire door was installed on 4 August 2022 by a contractor. An installation report with accompanying photographs was completed. A fire safety assessment of the building was completed on 7 November 2022.
10. The resident told the landlord on 19 December 2022 she wished to escalate her complaint to stage 3 as the landlord had not responded to her. The landlord responded on 10 January 2023. It told the resident its response was at stage 3 of its complaint’s process. It told her the following:
    1. As a leaseholder she could apply to the Residential Property Tribunal about her concerns with the finish and cost of the communal cupboard door. It said the tribunal had the expertise it did not have to decide on the issue.
    2. It said it had not responded to the resident’s complaint in July 2022 within its timescale. It apologised for this and said the delay was due to “heavy staff caseload.” It said it was aware of the issue and improvements to its complaint handling was underway.
11. Between 21 February 2023 and 6 August 2023, the resident raised her concerns to the Ombudsman. She stated the following:
    1. She said she had received a bill of £224.42 from the landlord for the communal cupboard door and was unsure what to do.
    2. She said the communal cupboard was not fire safe as there were gaps around the door. She said the cupboard was under the building’s main staircase and was by the only exit for those living upstairs. She said the landlord was not taking fire safety seriously.
    3. She said the landlord had failed to investigate the condition of the cupboard and it was in disrepair. She said the cupboard needed to be replaced at the landlord’s expense.

Assessment and findings

Scope of assessment

12. Throughout her complaint, the resident expressed concern about the quote that the landlord obtained in relation to the cupboard door and the quality of the door that was installed. While the resident’s concerns are noted, it is not within the Ombudsman’s authority or expertise to determine if the cost of the repair to the communal cupboard was inappropriate or if the repair was completed to a sufficient standard. As a leaseholder the resident has the opportunity to raise her concerns about the cost and quality of finish to the repair to the communal cupboard to the First Tier Tribunal. The landlord signposted the resident to the Residential Property Tribunal, which is one of the chambers of the First Tier Tribunal.
13. Paragraph 42 (f) of the Scheme states that the Ombudsman may not consider complaints which in the Ombudsman’s opinion “concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure.”  As such, the resident concerns about the cost and finish of the work are outside of the Ombudsman’s jurisdiction. However, the Ombudsman can assess whether the landlord has followed proper procedure, followed good practice, and behaved reasonably, taking account of all the circumstances of the case. While the Ombudsman can take a view on the position by reference to law and policies, if this is disputed, only a court or tribunal can offer a definitive and legally binding decision.

The landlord’s handling of repairs to replace the communal maintenance cupboard door.

14. In accordance with Part 1.5.xi of the Tenth Schedule of the leaseholder agreement, the resident is responsible for “all or any part of repair maintenance or making good of structural defects including rebuilding or reinstatement carried out (by the landlord) to the common parts of the building of which her property forms.” Part 2.3 of the Tenth Schedule confirms the ‘improvement contribution’ paid by the resident shall be proportionate to the charge costs or payments incurred by the landlord.
15. The landlord acted appropriately in sending a Section 20 notice to the resident in accordance with the Landlord and Tenant Act 1985. This was required for the major work on the fire safety door of the communal cupboard with costs estimated at over £250 per resident.
16. The resident asked the landlord on 20 May, 16 June, and 16 July 2022 for it to justify the cost of the major works which she felt were “excessively expensive”. The landlord provided the specification of the quote it had received to the resident. It also suggested the quote allowed for provisional sums and contingency. However, it failed to provide justification for the costs or why it could not provide this specific information. This was unreasonable and caused uncertainty and distress to the resident who was concerned with costs in a “cost of living crisis.”
17. The landlord apologised for its delay in providing the specification for the quote of the major works between 25 May and 16 June 2022. It stated this was due to its staff member not turning on ‘out of office’ email replies or redirecting emails. This was inappropriate and the landlord should have had this in place to manage communication with the resident. It did confirm in its complaint response of 16 June 2022 it was taking steps to ensure this would not be repeated.
18. The landlord acted appropriately in its responses of 16 June 2022 and 27 June 2022 by stating it would extend the period of observation until the resident had all the information she had requested. The landlord failed to follow through on its agreement to provide the measurements of the door from 27 June 2022. On 16 July 2022, when escalating the complaint, the resident told the landlord she believed it would complete the major works without allowing her to obtain a quote. The evidence provided does not demonstrate that the landlord responded. This was inappropriate. It completed the major works on 4 August 2022. In doing so it also failed in its agreement to delay work until it had provided the requested information to the resident. The major work was completed without the resident having opportunity to obtain a quote as she had feared would happen. This caused distress and inconvenience to the resident and actively affected the trust between her and the landlord.
19. The landlord directed the resident to the First Tier Tribunal Residential Property Tribunal in its stage 3 response, which was appropriate advice. However, it did not acknowledge the failures in providing the requested information to the resident and delaying the major works until it had done so. It failed to consider the detriment this had caused to the resident. It also failed to consider and offer appropriate compensation to her.
20. In summary the landlord took appropriate initial steps in issuing a Section 20 notice and promising it would take no action until it had provided information to the resident. It failed to deliver on what it had promised and completed major works without allowing the resident to obtain her own quotes. As such the Ombudsman finds there is maladministration in the landlord’s handling of major works to replace the communal maintenance cupboard door. To reflect the resident’s distress and inconvenience due to the landlord’s failures, £125 compensation has been ordered.

The landlord’s complaint handling.

21. From 1 February 2024 the landlord has moved to a 2-stage complaints procedure. It states this is to comply with the Ombudsman’s Complaint Handling Code which came into force on 1 April 2024.
22. The landlord’s complaints policy that was in force at the time of the resident’s complaint set out that it will contact a complainant within 2 working days of receiving a complaint and at each further stage. It aims to respond to stage 1 complaints in 10 working days, stage 2 complaints in 20 working days and stage 3 complaints in 30 working days.
23. The policy confirms if a complaint is complex, it may take longer to reply at each of its complaint stages. It will keep the complainant informed and propose a new date for reply if this is the case. The aim of its complaints policy is to put its customers “at the heart of complaints management and to use complaints as a learning opportunity to improve services.”
24. The resident raised her initial complaint on 16 June 2022. The landlord provided its response on 27 June 2022. This was equivalent to 7 working days and therefore in accordance with the landlord’s policy.
25. The landlord promised in its stage 1 complaint response it would provide further information to the resident including measurements of the door. As above, it failed to provide this information to the resident before completing the work. The resident asked for her complaint to be escalated on 16 July 2022. The landlord failed to respond to the further concerns raised in her escalation request. This was a further failing by the landlord. However, it is noted that it later acknowledged this failing in its stage 3 response of 10 January 2023.
26. The landlord completed the installation of the fire door on the communal cupboard on 4 August 2022. Its failure to investigate and respond to the resident’s escalated complaint of 16 July 2022 denied any resolution before the work was finalised. This aligned with the resident’s belief that the landlord would complete the work regardless of her concerns. This was particularly concerning as the resident was worried about the cost in a “cost of living crisis.” This caused further stress and anxiety to her.
27. The landlord failed to acknowledge the resident’s escalation request of 16 July 2022 and failed to provide a stage 2 complaint response. This was a departure from its Complaints Policy and a failing in the circumstances. This caused uncertainty and inconvenience to the resident.
28. On 19 December 2022, the resident asked to escalate her complaint to stage 3 of the landlord’s procedure, as it had failed to issue a stage 2 response. The landlord responded on 10 January 2023. This was equivalent to 14 working days and was within the landlord’s 30-day timescale for a stage 3 complaint response in its Complaints Policy.
29. In her complaint escalation of 16 December 2022, the resident referenced emails from “a month ago” and on “19 October 2022”. It is unclear whether the landlord has failed to keep a record of this correspondence, or if it is the case that it has failed to provide it in response to our information request. However, we have not been provided with the evidence and we are unable to consider the resident’s comments in relation to this further.
30. The Ombudsman’s May 2023 Spotlight On: Knowledge and Information Management (KIM) report confirms good record keeping is vital to evidence the action a landlord has taken and failure to keep adequate records indicates that the landlord’s complaints processes are not operating effectively.
31. In its stage 3 response the landlord reasoned it had failed to provide a stage 2 response due to “heavy staff workload”. The timescale between the resident’s escalation and the stage 3 response was equivalent to 123 days. It was unreasonable for the landlord to state its workload was responsible for such a length of delay. This caused further distress and inconvenience to the resident.
32. The landlord’s stage 3 response failed to address further concerns raised by the resident in her escalation request of 16 July 2022. This caused further inconvenience and distress to her. The points it failed to address are as follows:
    1. It failed to investigate or respond to concerns raised by the resident about the conduct of its staff member. The resident believed it was a basic requirement to have automated email responses.
    2. It failed to investigate concerns it was not listening to the resident and would complete the work regardless. This had taken place from 4 August 2022. The landlord missed the opportunity to further investigate this, and the detriment caused to the resident in its stage 3 response.
    3. It failed to investigate the concerns raised about the standard and approach of its managing agent.
33. In summary the landlord failed to provide a stage 2 complaint responses to the resident or address all the concerns she raised. This prolonged the concerns for her, causing her further inconvenience and distress. It failed to sufficiently recognise its failure to respond and failed to offer proportionate compensation. It was ineffective for the landlord not to investigate all the concerns raised by the resident, which suggests it was not willing to take appropriate action and learn from complaints.
34. A landlords complaint process enables them to learn from issues and identify trends so it can take preventative action and learn from this. The landlord failed to adhere to its own complaints policy in its stage 2 complaint response time and its communication with the resident. A determination of maladministration has therefore been determined. To reflect the resident’s distress and inconvenience due to the landlord’s failures, £200 compensation has been ordered. This is in line with the Ombudsman’s guidance in relation to cases where maladministration has occurred over a protracted period with moderate impact to the resident throughout that period.

Determination

35. In accordance with paragraph 42(a) of the Scheme the landlord’s response to the resident’s concerns about fire safety of the communal maintenance cupboard door is outside the Ombudsman’s jurisdiction.
36. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s handling of major works to replace the communal maintenance cupboard door.
37. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s complaint handling.

Orders and recommendations

38. The landlord shall carry out the following orders and must provide evidence of compliance within 4 weeks of the date of this report:
    1. The landlord is ordered to apologise to the resident for its failings in handling of major works to replace the communal maintenance cupboard door and for its complaint handling failures.
    2. Pay the resident a total of £325 in compensation. Compensation should be paid directly to the resident and not offset against any arrears. The compensation comprises of:
       1. £125 for the distress and inconvenience caused to the resident by the inappropriate handling of major works to replace the communal maintenance cupboard door.
       2. £200 for the distress and inconvenience caused to the resident by the landlord’s delays and unreasonable complaint handling.
    3. Conduct a review of its record keeping processes and procedures in light of both the findings in this report and the recommendations made in this Service’s KIM report. The landlord is to provide this service with the outcome of its findings and any actions it proposes to take as a result.

Recommendations

39. The landlord should complete an investigation of the communal maintenance cupboard door to ensure it meets fire safety standards. It should take any further appropriate action as necessary and provide the outcome of its findings to the resident.