London Borough of Barking and Dagenham (202210149)

REPORT

COMPLAINT 202210149

Barking and Dagenham Council

February 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 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:
1. The resident’s report of a communal repair, her associated health and safety concern, and the subsequent offer of compensation for this.
2. The associated complaint.

Background

The resident is a leaseholder of the landlord of a first-floor flat. The landlord does not have any recorded vulnerabilities for her.
On 18 July 2022 the resident returned to her property to find nails protruding upwards and out of the stairs leading to her property, and the fire door underneath the stairs left open. She reported extreme distress of both her and a child that was with her. A neighbour assisted her in attempting to make the area safe. She attempted to report the issue to the landlord, but the email that she sent was not delivered until two days later.
On 19 July 2022, the resident spoke to the operative who had returned to complete the works and she was informed that they were installing fire-proof cladding in the fire cupboard beneath the stairs. She raised concerns about the nails, and a manager then visited the resident to explore these, and oversee the resulting works, in which the nails were removed, and the area made safe.
On 22 July 2022 the damaged floor on the stairs was replaced with new linoleum, and a manager returned to the property and apologised to the resident. She reports that she had requested a copy of the investigation report that was being produced. The resident made a stage one complaint regarding the events, as she sought compensation for the distress she experienced.
The landlord’s stage one complaint response of 26 August 2022 upheld her complaint and confirmed that the operative’s contract had been terminated due to gross misconduct. It clarified that an apology had been provided to her and that repairs were carried out urgently. It declined her request for compensation, and instead informed her that she could seek legal advice to raise a civil claim against its contractor.
The resident escalated her complaint to the final stage of the complaints procedure on 30 August 2022 because she was disappointed with the landlord’s response, and said she did not understand how it could perform a review without speaking to her to collect relevant information. She further said she wanted to be informed of the details of the investigation that it had undertaken.
The landlord’s final stage complaint response of 6 September 2022 confirmed that there had been a breach of its health and safety obligations, and that the operative had been duly investigated in line with its protocol. It explained it was prohibited by the Data Protection Act 2018 to share the investigation report with the resident, as it included confidential information. It accepted responsibility for the resident’s distress and inconvenience, and stated it could have been avoided had the appropriate checks been undertaken by the operative.
The landlord further explained that it had no obligations to inform the resident that works were being conducted, but it accepted that it would have been best practice for it to have done so. It said that in the future, residents will be informed of upcoming communal work. In maintained its previous response that it was unable to compensate her for her reported psychological trauma, and that its stage one complaint response was correct to advise her to seek legal advice. Lastly, it offered her £50 compensation in acknowledgement of its failure to provide her with a written apology.
The resident then complained to this Service, as she was dissatisfied with the amount of compensation offered in consideration of the distress she experienced. She further complained that she was dissatisfied that the landlord had failed to monitor and properly supervise the subsequent repair, despite it being aware of the previous health and safety breaches.

Assessment and findings

Scope of investigation

It is of concern that the resident has reported experiencing extreme distress and psychological trauma as a result of the nails protruding from her staircase. While we do not doubt her comments about the effect of the case on her health, this Service is unable to determine liability or award damages for ill-health because we do not have the authority or expertise to do so, and so this is outside the scope of this investigation to consider. However, we have considered the general distress and inconvenience which the situation has caused the resident.

The resident’s report of a communal repair, her associated health and safety concern, and the subsequent offer of compensation for this

It is not disputed by either party that the landlord was responsible for the health and safety breach, and the resulting repairs that the stairs required. It acknowledged and took ownership of the breach at the earliest opportunity, and worked to make the area safe for the resident and her family. Unfortunately, the resident reports experiencing considerable distress in the time before the area was made safe, and before the landlord acknowledged and rectified its fault.
When failings are identified, the Ombudsman’s role is to consider whether the redress offered by the landlord has put things right and resolved the resident’s complaint satisfactorily. This is in accordance with the Ombudsman’s dispute resolution principles: to be fair, put things right and learn from outcomes.
In this case, the landlord did put matters right by acknowledging and apologising for its failings which led to the breach in health and safety, and undertaking an internal investigation which led to dismissal of the responsible operative. It also put matters right by performing a repair to the linoleum on the stairs to return it to its previous condition, and informing the resident of the outcome of its investigation of the operative.
However, the omission of a fair and proportionate amount of compensation was a failing on the landlord’s behalf in this instance. In short, the landlord’s final offer of compensation of £50 was disproportionately low, especially when we take into consideration all of the circumstances of the case.
The landlord’s compensation policy does not outline compensation amounts for where there has been distress and inconvenience as a result of a failing in its service. However, this Service’s remedies guidance suggests compensation from £50 to £100 where there has been a failure in service by the landlord which has not been put fully right. It has therefore been ordered below to pay £100 compensation in recognition of the resident’s distress as a result of its breach of health and safety obligations. This is because it partly put this failure right by apologising for and acknowledging this, and by completing the resulting repair, but this was not proportionate to recognise the distress she experienced, in accordance with the remedies guidance.
While it was reasonable that the landlord appropriately said that it could not provide her with the investigation report, it should have instead managed her expectations at the time she first requested access to the report. While it is unclear whether the landlord had agreed to her request for access to the report, when it learned that it could not share the report with her, it should have communicated this to her.
It is reasonable that the landlord recognised its failure to provide the resident with a written apology, and apologised for this. It is noted that a manager of the landlord attended her property to supervise, which was an appropriate action while the repairs were ongoing. However, a written apology would have both validated the resident’s concerns and be able to provide a formal response to its failings.
It is appropriate that after the landlord learned of the hazard, it removed the nails, and its manager visited the property to apologise to the resident and oversee the works. Firstly, this ensured that the hazard was removed, and alleviated the resident’s concerns that her fire escape had been blocked. Secondly, it ensured that the landlord could understand and then address her concerns, to resolve her reports at the earliest available opportunity.
The resident complained to this Service that the landlord did not appropriately monitor and supervise the resulting repairs. On 19 and 22 July 2022 a manager of the landlord attended the property to apologise and oversee the resulting repairs that were required. Moreover, the landlord replaced the linoleum flooring that had been damaged by the nails within five days of the damage occurring, which the resident reports exposed her to toxic fumes. It is unclear whether these concerns were raised to the landlord for it to respond to. However, there is no evidence to suggest the flooring was emitting toxic fumes.
This was an appropriate timescale for the landlord to complete the repair within and this Service is satisfied that the landlord took all reasonable steps, and fulfilled its repair obligations, following its initial breach, to ensure a safe and swift resolution to the issue.
In response to the resident stating she should have been given prior notice of the works, the landlord appropriately explained that, because the power supply had not been affected, it was not required to provide written notice of the works. However, it accepted that it would have been best practice to do so. It appropriately stated that it would do this in future, showing it had listened to the resident’s concerns and actioned a plan on how to prevent future upset to its residents.
It is also of concern that there was no evidence that the landlord advised the resident to submit a claim in writing with details to it for it to refer her reports of the personal injuries that she experienced from the events, to its liability insurance. It has therefore been ordered below to provide her with details to enable her to make a liability insurance claim to it for damages for the psychological trauma that she reported experiencing as a result of the health and safety breach, if it has not done so already.
In summary, whilst the landlord put some matters right for the resident, the exclusion of a proportionate amount of compensation was a failing on the landlord’s behalf. The landlord acted appropriately in apologising to the resident, returning the area to its previous condition, and informing her of the results of its investigation. It clearly recognised and accepted that it had breached its health and safety obligations, and the actions it took to remedy that were, with one exception, reasonable and appropriate. The exception being the level of compensation it offered to the resident, which was disproportionately low when the impact this had on the resident and her family, is considered.

The associated complaint

The landlord’s complaints procedure states that a stage one complaint will receive a response within ten working days, and that a stage two complaint will be acknowledged within five working days and a response provided within 30 working days. If it is unable to meet this timescale, the complaints procedure outlines that the resident should be sent a progress report.
The landlord failed to acknowledge both her stage one and final stage complaint, which is contrary to this Service’s complaint handling code, which requires complaints to be acknowledged within five working days, and a failing in its complaint handling. This led to the resident being inconvenienced, as she had to complain to this Service to receive a stage one response. Acknowledgements also serve to inform residents about the complaints procedure, which would have benefitted the resident.
Furthermore, the landlord provided its stage one complaint response 25 working days following the resident’s stage one complaint. This is a 15-working-day-delay, which unnecessarily protracted the resolution of the resident’s complaint, leading to additional distress to the resident. This is a failing its service that it did not acknowledge nor apologise, and failed to offer redress for.
The landlord has therefore been ordered below to pay the resident £50 compensation in recognition of its failure to adhere to its published timescales, and issue complaint acknowledgements. This is in line with this Service’s remedies guidance, which suggests compensation from £50, where there has been a failure in service by it that has not been put appropriately acknowledged or fully right.
Moreover, it is noted that the landlord’s complaints policy is not in line with this Service’s complaints handling code, which outlines landlords should acknowledge complaints within five working days, issue stage one complaint responses within ten working days and stage two complaint responses within twenty working days. The landlord has been ordered to review its complaints procedure against Service’s complaint handling code. It has also been recommended below to review its staff’s training needs regarding their application of our complaint handling code.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of:
1. The resident’s report of a communal repair, her associated health and safety concern, and the subsequent offer of compensation for this.
2. The associated complaint.

Orders and recommendation

The landlord is ordered to:
1. Pay the resident £150 total compensation, this is broken down as:
  1. £50 that it had already offered her, if it has not done so already.
  2. £100 in recognition of the recognition of the resident’s distress as a result of its breach of health and safety obligations.
  3. £50 for its delays in providing a stage one complaint response, and in acknowledging the resident’s complaints.
2. Provide the resident with details within four weeks to enable her to make a liability insurance claim to it for damages for the psychological trauma that she reported experiencing as a result of the health and safety breach, if it has not done so already.
3. Review its complaints procedure against this Service’s complaint handling code at https://www.housing-ombudsman.org.uk/landlords-info/complaint-handling-code/.
It is recommended that the landlord:
1. Review its staff’s training needs regarding their application of its complaints procedure, and of this Service’s complaint handling code, in order to ensure that these are followed to prevent its complaint handling delays in the resident’s case from occurring again in the future.
The landlord should write to this Service and confirm it has followed the above orders, and whether it will follow the above recommendation, within four weeks of the date of this report.