London Borough of Hackney (202102368)

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REPORT

COMPLAINT 202102368

Hackney Council

29 September 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

The complaint is about:
1. The resident’s request for a new bathroom and a new front door.
2. The landlord’s response to the resident’s reports of mould in her bathroom.
3. The Ombudsman will consider the landlord’s complaint handling.

Background and summary of events

The resident occupied her home under a secure tenancy, following a mutual exchange. She moved into the property on 17 December 2018. The property is a ground floor flat with a garden in a low-rise building. The resident reported that she suffered from mental health issues and had suffered a serious assault in the past. The landlord suffered a cyber-attack in October 2020 which it reported had impacted on its provision of its records to this service.

Legal and policy framework

Under the tenancy agreement and section 11 of the Landlord and Tenant Act 1985, the landlord was responsible for repairing the structure and outside of the property (including drains, gutters and external pipes); repairing the systems in the property for supplying water, gas and electricity, and for sanitation (including basins, sinks, baths and toilets), and keeping those systems in proper working order.
Under Section 9a of the Landlord and Tenant Act 1986, it had a duty to keep the property fit for habitation. A property would not be fit for habitation if it had a hazard as defined by the Housing Act 2004, including freedom from damp, where there was a risk to health and safety so that the property is uninhabitable.
The landlord did not provide its policy regarding mutual exchange, only a link explaining the process.

Chronology

The resident initially viewed the property in September 2018 and moved in December 2018. According to the complaint correspondence, there was a discussion about the condition of the bathroom.
In March 2019, the resident reported to the landlord that a “bathroom replacement” was agreed as part of the mutual exchange and that the shower was faulty and she had not been able to use it.
Internally, it was noted on 16 April 2019 there had been a discussion about the resident’s expectations. The resident was expecting a new bathroom suite. “The impression (their end) was that the shower would be replaced with a bath”. The matter was being reviewed at management level.
On 14 May 2019, the resident’s sister wrote to the landlord to state that the resident had been promised it would install a shower and bath on moving in but had since been told that it was “too expensive”. Both a shower and a bath were required on health grounds. The landlord replied on 24 May 2019 that the job to install a bath was to be raised “soon”. The resident asked the landlord to confirm that the whole bathroom was being renovated and was not just installing a bath. There was mould in the bathroom and the shower cut out. She had children of relatives visiting, she was vulnerable person and suffered “aches and pains”. According to the landlord’s notes, it logged a complaint.
On 1 June 2019, the landlord replied that the works included the total removal of the wet room as well as the installation of the bath, including any works to the tiling, panels and electrics. It would chase the works.
On 3 June 2019, the resident asked the landlord to confirm whether the landlord was to install a security door, as part of the mutual exchange agreement.
The landlord replied on 4 June 2019 that it had no record of a request for a new door.
On 17 June 2019, a job was raised to remove the walk-in shower and install a bath and on 17 July 2019, the electrics were reinstated after they had been made safe.
The landlord wrote to the resident on 11 June 2019 that the plumbing works were extensive and were likely to take two full days. The landlord wrote internally on 2 July 2019 that it agreed that the bathroom would be put back to the way it would have been before the adaptations, namely “a bath and making good on wall and floor”, rather than a “new bathroom”.
According to an internal email of 3 July 2019, the resident refused access to the landlord to carry out works as she believed that she was due to get a bathroom refurbishment.
On 22 August 2019, the resident made a complaint. When she had viewed property, she had noted that the front door was “a basic wooden door” and “not a security door” and there was a wet room in need of renovation, it had mould and rust, and a “cracked” floor. She accepted the property on condition that the landlord would fit a security door and renovate the bathroom, including tiling and flooring, bath and shower. The landlord had since stated that it was only authorised to install a bath. It was a verbal agreement. She did not want to wait for a year for renovations to take place.
The landlord wrote on 23 August 2019 that the agreement was for the removal of the adapted wet room apparatus and the installation of the bath and referred to its email 1 June 2019.
On 29 December 2019, the resident reported a green growth that had been present for over 10 months. The landlord who had inspected the bathroom prior to the summer had also advised that one of the bathroom walls should be checked for asbestos. She requested that a surveyor attend. The landlord replied at the end of January 2020 that the landlord did not treat mould as this was the tenant’s responsibility and referred her to free mould treatment. There were no notes in the system that there was asbestos in the property. It did not raise jobs for asbestos to be removed unless it was requested by an operative or a contractor.
On 13 March 2020, the landlord wrote regarding her email of 22 August 2019. It apologised for the delay in replying. Major internal works were not due to take place until 2022-23. It appreciated that this was some way off and that this account varied from what she was told at the time she accepted the property. It apologised. She should report defects with her door to the repairs team. It was “not satisfied with their response and have gone back to them”. This was not explained further.
According to internal emails in April 2020, a door replacement could be carried out after the pandemic but a “one off” was “hard” to get the manufacturers to programme in.
The resident wrote again on or around 23 April 2020 as follows:
1. She referred to her report of the agreement on exchange.
2. The repairs contact centre had “mishandled” her enquiries.
3. Neither manager had responded to her emails
4. The landlord’s attitude had caused her distress.
5. Her housing officer had been unprofessional in denying he was aware of the agreement for a new bathroom. He also contacted her on her home phone despite her request not to.
There followed internal enquiries which were reflected in the complaint response.
The landlord wrote to the resident with its stage one response on 14 May 2020 as follows:
1. It referred to its responses of 13 March 2020, the resident’s email dated 23 April 2020, and the parties’ conversations.
2. It apologised for the delay due to it being a complex issue, involving a number of different departments.
3. The Housing Officer did agree to the bath being changed as part of the mutual exchange. This was agreed by management “due to the sensitivity of the mutual exchange” and the need for an adapted bathroom to be returned back to a standard bathroom. This was passed to the repairs team to reinstate the bath.
4. There was a miscommunication as to whether it was a bathroom refurbishment. The incoming correspondence confirmed that the bath would be replaced, but there was no agreement that the whole bathroom to be refurbished.
5. The scope of works she was expecting in relation to a full bathroom refurbishment, door replacement, damp works and asbestos removal had not been completed in line with her expectations.
6. The decisions were not for the contact centre, but it had tried to progress matters and had put her in touch with the relevant teams. It noted that a manager did not return her call.
7. Her housing officer emailed its manager on 3 April 2019. The surveyor attended on 11 April 2019 to inspect the removal of the walk-in shower to be replaced with a bath. She had asked to keep the shower unit on the wall. A complete bathroom refurbishment did not form part of the original agreement.
8. The works were to: “renew” the bath, remove the walk-in shower, renew the panel, hack off defective tiles and make safe the electrics.
9. The works were raised but she had refused access. Electrics were not scheduled for the same date and time, which led to the electrician making safe the electrics on 1 July 2019 and were reinstated on 24 July 2019. It apologised for the delay.
10. Internal works were due to take place in 2022-23
11. It appreciated that 2022/23 was some way off and that this varied from what “(she) felt” she was told at the time she accepted the property and the disappointment in waiting another 3 years for a complete bathroom renovation, given the “current deplorable condition”. It was not clear if the landlord was referring to its own assessment or that of the resident.
12. The offer to remove the walk-in shower and install the bath remained open to her.
13. The housing officer also recalled verbally agreeing to the change of the door, but there was no email trail to confirm this.
14. No reports have been made regarding problems with the door since 2018 when there was a report regarding faulty locks. In the absence of any repair issues with the actual door, it would be replaced as part of the front entrance door replacement programme which was planned on a risk-based approach. It explained the size and scale of the programme and would take some years to deliver. It was prioritising high rise blocks.
15. External works were due to take place in 2023-24.
16. It had made enquiries whether its “void team” could carry out the works but were unable to carry out works on a tenanted property.
17. In relation to her report that her housing officer had delayed arranging the bathroom works, he had not been aware of the mutual exchange conditions. It apologised that he had contacted her on her home phone despite her request not to do so.
18. It referred to her report that the landlord’s attitude and treatment had caused unnecessary and avoidable distress and appeared to be discrimination. It apologised for the distress for any miscommunication and misunderstandings. It assured the resident that there was no discrimination towards people with mental health issues and disabilities. It set out its policies.
19. It was not able to comment on discussions between it and the previous resident.
There were no records between May 2020 and February 2021.
On 12 February 2021, the resident’s MP wrote to the landlord regarding “severe disrepair matters” in the bathroom and front security door. The resident has mental health care support and has regular contact with a psychiatrist to help her with her mental health issues and was deemed to be vulnerable based on historic sexual assault and domestic violence. It asked for a response to her complaint of April 2020.
The landlord replied on 7 April 2021 with a copy of the May 2020 response.
On 29 April 2021, this service wrote to the landlord asking it to respond to the resident’s complaint which it set out on her behalf, including that she had been burgled the previous week. This service chased the landlord for a response to the resident on 29 April 2021 and 19 May 2021.
The landlord wrote with a “stage one” response on 21 June 2021. It had responded on “a number of occasions” to her and to her MP on 7 April 2021.
On 20 August 2021, the resident requested that the landlord escalate her complaint on the basis including that it was in breach of its obligations to carry out repairs and refused to send a surveyor to assess the property till early 2021. There were cracks in the floor and the holes in the walls, mould and dampness she described as “deplorable, inhumane, unsafe conditions of the bathroom” including slugs, fungal growths on the bathroom wall. The kitchen wall had been damp since December 2020. A video call had taken place together with her advocate and the landlord’s surveyor in early 2021. She provided photographs.
This service “chased” the landlord for a response to the resident’s request to escalate her complaint on 13 December 2021 and for it to reply within 20 working days.
The landlord wrote with its second stage response on 3 February 2022 as follows:
1. It referred to a complaint received on 14 December 2021.
2. It apologised for the delay in replying to her complaint at stage 1 and offered £100 compensation to remedy this delay.
3. The proposal fell outside of the remit of mutual exchange as generally, properties were accepted ‘as seen’. It was aware of her requesting that her bathroom was “refurbished” as she did not want the wet room currently installed. There was nothing in writing to substantiate exactly what was promised but there was an arrangement to install a new bath and make good the walls and floor. It was unable to carry out “an overhaul” i.e. provide a new suite however its offer to install a bath was still available.
4. It offered £250 compensation to address her disappointment that it could not provide a new bathroom suite at this time.
5. It offered to raise an inspection for a surveyor to visit and assess the condition of the property and report its findings.
6. The bathroom refurbishment was due for consideration during 2022/23.
7. It had not found that the relevant manager had agreed to replace the front door. Any door replacement would be part of the relevant programme.
8. It would arrange for a surveyor to inspect the kitchen wall that she reported was damp and had been since December 2020.
The landlord wrote to the resident on 11 April 2022 that it was still working on phase 1 of the door replacement programme which prioritised 10+ storey blocks. There had been severe delays due to the pandemic. Contracts with its three principal contractors ended at the end of August 2021. It was not in a position to carry out any work and was looking at the summer of 2022. Her property was in the lowest priority. She could report any issues with the security of her front entrance door to its repairs contact centre.
The following repairs were carried out:
1. 7 December 2018, faulty front door lock.
2. 20 December 2018, repairs in response to the resident’s report that no water was coming from the shower head.
3. 28 December 2018, repairs to faulty lock on the back door,
4. 12 January 2021 water ingress into the wall by boiler and inspect bathroom “for other issues”.
5. 4 March 2021, to repair burst pipes at rear elevation causing damp and mould in the kitchen.
6. 3 December 2021, there was a surveyor inspection in progress regarding vents causing heat loss.
In or around February/March 2022, works were carried out to refit the bathroom with a bath with a shower fitting and mixer tap. According to the contractor’s specification document dated 24 February 2022 and photographs, the bathroom was replastered, retiled, mould removed, redecorated, new pipe fittings, new radiator. The landlord laid new lino flooring. The kitchen was also replastered. The works had been raised on 10 January 2022. The job referred to the “previous ticket”, a “fixed leak” and was marked “completed with variations”. The photographs and the specification indicated that the bathroom was replastered and tiled, skirting board was replaced. It was not clear whether a new toilet and basin was installed, but they looked in good condition.
On 25 September 2023, the resident provided photographs to this service, showing some loose tiles and a crack in the lino by the bathroom door. She also stated that that the outgoing resident, who was present at the initial viewing of the property, had also written to the landlord in support of the resident’s complaint. The service has not seen this letter. She also informed this service that the landlord installed a new toilet and sink in July 2023, following further discussions. The front door had not been replaced.

Assessment and findings

The bathroom works

There was no dispute that when the resident viewed the property, there was a discussion as to the bathroom which was a wet room adaptation for the previous resident. According to the landlord, it had agreed would it would put the bathroom back to the way it would have been before the adaptations, namely install a bath and make good the wall and floor, rather than fit a “new bathroom” with a new suite. The housing officer’s account was that it was to replace the wet room and turn it into a “normal bathroom”, namely one with a bath. According to the resident, the agreement was to provide a bathroom the same as the one in the property she had left, or a refurbishment.
While the landlord did not provide its mutual exchange policy to this service, it is usual practice that an exchange property taken “as seen”. It is also usual and good practice to note any agreements made between the landlord and incoming resident. It was noted that in the circumstances of this particular exchange meant the landlord was keen to promote the exchange. The landlord referred to it as a “sensitive” exchange. The evidence indicated that that it was prepared to reach an agreement in order to facilitate the exchange between the outgoing and ingoing residents.
Despite such an agreement being unusual in the context of an exchange, the evidence indicated that the housing officer involved did not make a note of the agreement. There was no reason to doubt her good faith, but it was a failure that the housing officer did not make a note, giving rise to misunderstandings and miscommunication between the parties. The evidence indicated that for the purposes of the complaint investigation, the landlord relied on her memory of events. There was no evidence that the landlord looked for or examined any written record at the time of the complaint when raised in 2019. Those records would not have been affected by the cyber-attack in October 2020, as the notes would have been available prior to that time.
It was not disputed, however, that there was an agreement, whether for a refurbishment or to convert the wet room back to a conventional bathroom. Whichever way, there was no evidence that the landlord proactively following up its promises and there was an unreasonable delay in implementing the promise from December 2018 to June 2019, when it raised the works.
The Ombudsman has noted that the outgoing tenant supported the resident’s version of events. However, the Ombudsman is unable to determine conclusively what was promised or agreed when the resident moved into the property and therefore cannot determine whether the works planned in June 2019 would have fulfilled that promise. Given the condition described by the resident of mould, rust and cracks in the floor (which appeared to have been a crack in the lino), it is understandable that she was expecting more than just a bath. The landlord planned to “make good the floor and tiling” but it was not clear what that was, if less than a refurbishment.
The original works raised included hacking off (and therefore replacing) defective tiling, “making good on wall and floor”. It later stated that it would not carry out “an overhaul”, defined as not provide a new suite. While the final works raised referred to the original job, it noted there had been variations. It was not clear what constituted the “variations”. Given the landlord referred to the resident having to live with a bathroom in “a deplorable state” but with a bath in place, it is reasonable to conclude that the works that were carried out were better than those offered in May 2019. If the works carried out were those, or approximated those that were originally envisaged by the landlord, there was no evidence that the landlord communicated this with any clarity. On the balance of probabilities, the works resulted in a better bathroom. However, while it could be argued that the resident was right to “hold out”, this would be speculative.
Given that there is insufficient evidence for the Ombudsman to determine the exact terms of the agreement due to the landlord’s poor record keeping, the lack of clear communication, and delays, the Ombudsman does not find that the offer of £250 constituted reasonable redress.
As well as being a wet room and not a conventional bathroom with a bath, the condition of the bathroom was due to its poor decorative state but also due to the presence of mould in the bathroom which issue will be considered separately.

The resident’s reports of damp and mould in the bathroom

While the incoming resident is expected to accept the property as it, that does not absolve the landlord’s responsibilities from its repair obligations. Mould can be due to a number of factors. It was unreasonable of the landlord to have declined to inspect the property in order to establish the causes of mould. The evidence indicated there had been leaks in the property and that there was mould in the kitchen as well. While that evidence is not in itself determinative, it was a service failure on the part of the landlord not to have carried out an inspection until 2021. The evidence indicated that the issue was not resolved until February 2022, having been reported in May and December 2019.
While the resident continued to have the use of the bathroom, and there was no evidence it was unfit for habitation, the Ombudsman will make an order for compensation that reflects the impact of the mould on the resident, including distress and inconvenience, from May 2019, when she first referred to it and then reported it in December 2019, to February 2022 when the walls were replastered and retiled. It is noted that the landlord has, in line with the sector, taken note of the Ombudsman’s report, which issues have been highlighted by further events and has since adopted a damp and mould plan. Damp, mould and condensation | Hackney Council

The resident’s request for a new front door

The landlord acknowledged that the housing officer at the time of the exchange agreed to replace the front door with a door similar to the one in the resident’s previous property. The resident described it as a secure door. It was unreasonable of the landlord to refuse to consider changing the door given it had made such a promise and particularly in the light of the resident’s vulnerabilities.
In the Ombudsman’s opinion, that there was no email correspondence is irrelevant. While the Ombudsman recognises that in usual circumstances, its explanation about its replacement door programme would have been entirely reasonable, the landlord had made a promise to replace it. The implication and the evidence implied that the promise was to do so at the time, not years hence. The Ombudsman recognises that there would be difficult in arranging a one-off fitting of the door, however, would expect the landlord to adhere to its promises, in particular as it had made this promise in order to encourage the mutual exchange. In the circumstances, the Ombudsman finds maladministration in this regard and will make orders accordingly.

The landlord’s complaint handling

The landlord’s records indicated that it logged the resident’s complaint in May 2019.The resident made a fresh complaint in August 2019. While it wrote to the resident in March 2020, it did not provide a formal complaint response until mid-May 2020, after the resident had written again. This was a significant and inappropriate delay.
It did not respond to this service’s emails chasing the landlord until 21 June 2021. some two months later. This again was an inappropriate delay. There was a further significant and inappropriate delay when the landlord did not respond to the resident’s request of 20 August 2021 to escalate the complaint until 3 February 2022, despite being chased by this service. The response itself did not take account of the resident’s previous correspondence of August 2021.
While it was reasonable to offer £100 for the delay from May 2019 to May 2020, this does not constitute reasonable redress of the overall delays, and the further time and trouble in chasing the response, and accumulative frustration. The responses simply repeated the previous responses. There was no evidence of a review. If the complaint response was affected by the cyber-attack, it did not say so. It agreed to arrange an inspection of the damp reported over a year sooner, without an explanation or apology for the delay. However, at the same time as the response, matters had already moved on. Somewhat unaccountably, while the landlord was restating its position that it would not carry out works to the bathroom beyond a certain point, works to the bathroom were being arranged. This demonstrates poor liaison with its repairs department. In the circumstances, the Ombudsman finds maladministration in relation to the complaint handling.
The Ombudsman has noted the complaint review undertaken by the landlord in September 2023, further to the Ombudsman’s investigation 202112672, setting out best practice.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the resident’s request for a new bathroom and a new front door.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s response to the resident’s reports of mould in her bathroom.
In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in relation to the landlord’s complaint handling.

Reasons

It was unreasonable that the landlord did not abide by its promises given at the time when the resident agreed to the mutual exchange. It was inappropriate that the agreements the landlord made at the time were not recorded and there were delays in the overall resolution of the bathroom works and no resolution in relation to the front door.
It was unreasonable and inappropriate that the landlord declined to inspect the resident’s bathroom in response to her report for mould in order to identify the causes of the mould.
There were significant delays in relation to the landlord’s complaint handling and no evidence of self-reflection.

Orders

The Ombudsman makes the following orders:
1. The landlord is ordered to pay the resident compensation in the amount of £2,100 to include the £350 already offered within 4 weeks as follows:
  1. An additional amount of £250 in relation to the bathroom works in addition to the £250 offered to the resident.
  2. The sum of £1,000 in relation to the delay in inspecting and remedying the damp and mould in the resident’s bathroom.
  3. The sum of £350 in relation to the front door.
  4. An additional amount of £150 in relation to the landlord’s complaint handling in addition to the £100 offered to the resident.
2. Within 3 weeks, the landlord should offer to fit a secure fire door to the property together with a timescale for doing so, such timescale to be no longer than 8 weeks. If it is longer than 8 weeks, then the landlord must provide an evidenced explanation for any extended timescale.
3. Within 8 weeks of this report, the landlord should review best practice for record keeping, including ensuring it records any agreements made during the mutual exchange process, with reference to the Ombudsman’s report on Knowledge and Information. KIM-report-v2-100523.pdf (housing-ombudsman.org.uk) and provide a copy to the Ombudsman.
The landlord should confirm compliance with the above orders to the Housing Ombudsman Service within 4 and 8 weeks of this report.