Newham Council (202204227)

REPORT

COMPLAINT 202204227

Newham Council

09 December 2022

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 handling of the repair of a leak and remedial works required, including costs incurred by the resident.

The landlord’s response to the resident’s request to be compensated for the personal belongings that were damaged or went missing during the course of the repairs.

2. The landlord’s handling of the associated complaint.

Background

2. The resident is a tenant of the landlord. The landlord has no recorded vulnerabilities for the resident.
3. The landlord’s records show that the resident had experienced historical leaks into his property from the flat above. An emergency call-out took place on 21 July 2021 due to a leak from the property above and the electrics were made safe. On 2 August 2021, the resident reported that plaster was falling from the ceiling in his bathroom. Operatives attended on the same day to make the room safe and inspected the property to determine the required repairs. The resident was offered temporary accommodation (a decant) into a hotel on 23 August 2021 whilst works were completed. This was refused by the resident and he advised the landlord that he would stay elsewhere or with family. Remedial works to install a new kitchen, bathroom, carpeting and decorate the property throughout, were completed on 11 October 2021. The resident’s belongings were removed by a removal company on 23 August 2021 and returned on 12 October 2021.
4. The resident raised a complaint in October 2021 as he was dissatisfied with the length of time it had taken to complete the works required. He explained that when he returned to the property, not all of his belongings had been returned by the removal company and some were missing, including his curtains, curtain rail, freezer, cleaning goods and fan. He advised that his property had been flooded six times and he did not have contents insurance due to the repeated issues. He also reported that his TV, cooker and washing machine had been damaged. He added that he had needed to pay for the electricity bill whilst he was away from the property and experienced additional rent and financial expenses due to needing to leave the property. He also said that the issues had impacted his mental health and expressed concern that the bath installed by the landlord was not a disabled bath, suitable for his needs.
5. In response to the resident’s complaint, the landlord outlined the timeline of the repairs and confirmed that contractors had responded to emergency call-outs within the expected timeframes on each occasion. It also confirmed that the time taken to complete the major works to the property was as scheduled. It confirmed that it had arranged for a removal company to store the resident’s belongings until the works were completed. The operatives had no recollection of removing a freezer and the only reported damage was to a wardrobe which was in poor condition. It acknowledged that the resident had made a claim with the removal company’s insurer regarding missing and damaged items and that it would not be appropriate to also raise a separate claim through its liability insurer. It confirmed that its contractors were instructed to remove the curtains and rod, and had offered to reimburse the resident. It also acknowledged the delay in providing its stage two complaint response.
6. The landlord offered £200 compensation, comprised of £100 for the inconvenience caused and additional costs incurred when the resident needed to move from the property, £50 to reimburse the resident for the cost of his curtains and rod and £50 for the delay in issuing its stage two complaint response.
7. The resident referred his complaint to this Service as he remained dissatisfied with the landlord’s decision. He remained dissatisfied that his personal belongings had not been returned to him when he moved back into the property. He had been told to contact the removal company to raise an insurance claim for his belongings but felt that the landlord should compensate him through the complaints process. 

Assessment and findings

Scope of investigation

8. Although it is noted that there is a history of leaks reported by the resident, this investigation has primarily focused on the landlord’s handling of the resident’s recent reports from July 2021 onwards, which were considered during the landlord’s recent complaint responses. This is because residents are expected to raise complaints with their landlords promptly so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and while the evidence is available to reach an informed conclusion on the events that occurred.

The landlord’s handling of the repair of a leak and remedial works required, including the costs incurred by the resident.

9. The resident’s tenancy agreement confirms that the landlord is responsible for maintaining installations for the supply of water, including pipework. The landlord’s repairs policy confirms that the landlord is responsible for major ceiling repairs, major plasterwork repairs and the replacement of kitchens and bathrooms. The landlord would be expected to attend emergency repairs such as major leaks within four hours and make safe. Follow-on works may then be required. The landlord’s website confirms that it aims to attend all other repairs within 20 days. Where a repair is more complex (such as where kitchens or bathrooms are being replaced) and inspections or parts are required, a repair may take longer.
10. The landlord’s compensation policy states that where residents have incurred costs as the result of the landlord’s action or inaction, proof of purchase is normally required and the request may be resolved by a refund of the appropriate amount. Where proof of purchase is not available but it is reasonable to believe that such costs have been incurred, it is feasible to make an estimate based on the likely cost of such things.
11. In this case, the landlord acted appropriately by attending the property in a timely manner following the resident’s reports of a leak into his property on 21 July 2021 and made the electrics safe. Following this, it acted appropriately by investigating the cause of the leak in the flat above. It identified that major works were required to the above property to stop the leak. The landlord initially inspected the property on 2 August 2021 to determine the schedule of the remedial works required given the damage caused. The landlord identified that the property above needed major works to resolve the leak. It is unclear from the evidence provided as to the nature of the works required, however, these were reported as completed during August 2021 which was reasonable in line with the landlord’s timescales.
12. It was reasonable for there to be some delay in arranging works until 8 September 2021 due to the need to ensure that the leak was resolved to avoid any further damage. The landlord also needed to arrange for the resident’s belongings to be removed from the property to allow works to go ahead which was completed on 23 August 2021. The landlord acted appropriately by offering the resident temporary accommodation on this date in recognition of the disturbance the resident was likely to experience as a result of the works. The resident declined the offer and chose to stay elsewhere and it remains unclear as to whether the resident had vacated the property already by this point. The works to replace the bathroom, kitchen, carpeting and paint the property were then carried out by 11 October 2021, approximately five weeks following the start date on 8 September 2021. Overall, the time taken to resolve the leak and complete remedial works to the resident’s property took approximately 11 weeks in total. Given the nature of the works required for both the resident and his neighbour’s property, the timeframe is not considered unreasonable.
13. However, the resident expressed dissatisfaction that he was informed the works would take five weeks to complete. The landlord has not provided communication logs or evidence to demonstrate that it had communicated effectively with the resident during this period. The onus would be on the landlord to provide evidence showing how it satisfied itself that it had acted in line with its obligations. As such, the Ombudsman is unable to conclude that the landlord provided regular updates to the resident to effectively manage his expectations of how long the work would take in line with its obligations. The perceived delay in completing the works was likely to have caused inconvenience to the resident at the time.
14. Within his complaint, the resident also raised concern that he had needed to pay rent for the property, alternative accommodation, and the electricity bill at his property whilst works went ahead. The landlord offered a total of £100 compensation in recognition of the inconvenience caused and additional costs incurred. However, it is unclear as to what expenses the landlord had considered when assessing the compensation offer.
15. The landlord does not have a clear policy on the costs it would cover whilst residents need to be temporarily moved from their property. In line with best practice, where a resident needs to be decanted (temporarily moved) from their property where the property cannot be occupied due to major works, a resident would usually be responsible for maintaining rent payments at their property but would not usually be expected to pay any additional costs for the alternative accommodation. The landlord would be expected to cover costs that would be reasonably incurred by the resident, including alternative accommodation and energy costs, which may have increased electricity use, whilst the works went ahead. 
16. Given that the resident had declined the landlord’s offer of temporary accommodation, the landlord is not obliged to cover the entirety of the costs incurred by the resident. However, it would be fair in all the circumstances for the resident to be able to claim some of the alternative accommodation costs, and to receive these from the landlord for reasonable expenses or costs that the landlord would have otherwise incurred by providing temporary accommodation it offered, together with meals & other expenses. This is necessary to prevent the resident from being left out of pocket and to restore the resident to the position prior to the landlord’s actions, particularly if the resident had to stay elsewhere for longer than was originally expected and this wasn’t communicated appropriately.
17. There is no evidence to suggest that the resident had provided evidence of his additional costs, however, it is reasonable to assume that costs had been incurred. There is no evidence to show that the landlord had enquired further regarding the resident’s concerns by requesting proof of the costs he had incurred in line with its compensation policy which would have been appropriate to fully consider his additional expenses. Nor has it provided a clear explanation of the costs it had considered and those that it would not be liable for to demonstrate that it had fully considered the resident’s concerns.
18. In view of the identified service failings, the landlord’s overall offer of £100 compensation for the inconvenience and additional expenses the resident had experienced over the 11-week period is not considered proportionate in recognition of the landlord’s poor communication and failure to fully address his concerns. As such, the landlord is to offer the resident an additional £100 compensation in recognition of the inconvenience caused as a result of the landlord’s poor communication and failure to address the resident’s request for compensation. It should also contact the resident to request evidence of the expenses he had incurred during the decant process. It should calculate and pay reasonable decant expenses, including but not limited to alternative accommodation costs and increased electricity costs for the period in question. It is also recommended that the landlord reviews its policies and procedures to include specific information related to its decant process and the type of reasonably incurred costs it would compensate for.

The landlord’s response to the resident’s request to be compensated for the personal belongings that were damaged or went missing during the course of the repairs.

19. The resident’s tenancy agreement states that tenants should take out their own contents insurance to protect their personal belongings against damage or loss. The landlord’s website confirms that where a tenant does not have home contents insurance, believes that the landlord has been negligent and they suffer loss or damage to their possessions, they may make an insurance claim against the landlord. It further explains that if a contractor or third-party causes an accident for which they would be legally responsible, the landlord would send any claim directly to them as they would be responsible for their own insurance. The landlord’s complaints policy confirms that matters subject to an insurance claim would not be considered under its complaints process.
20. The resident has raised concern that a number of his items had been damaged or lost following the works to his property. It is noted that the resident had advised that he did not have contents insurance due to the ongoing historical leaks and believed that the landlord was liable for the damaged and missing items. It should be noted that it is not the Ombudsman’s role to determine liability for personal belongings that have been lost or damaged as these matters are better suited to be considered under an insurance claim. The Ombudsman is unable to comment on the outcome of an insurance claim as this Service can only consider the actions of the landlord, and the Ombudsman has no jurisdiction over the landlord’s, or any third-party insurers.
21. In this case, it was reasonable for the landlord to explain that the resident’s concerns regarding items that had been damaged or lost during the works to the property would be dealt with as a separate insurance matter, outside of its complaints process. This is in line with its policies and considered reasonable. The resident had raised an insurance claim with the removal company’s insurers at the time of the complaint. The resident would not be able to raise a separate claim via the landlord’s own insurance provider where an existing claim is ongoing and the landlord’s advice that it could not do so was reasonable in the circumstances.
22. It remains unclear as to whether the claim with the removal company’s insurers has concluded or whether this included every item that the resident reported as lost or damaged during the repairs. Depending on the outcome and what items were included within the claim, the resident may be able to raise a claim directly through the landlord’s insurers. It is therefore recommended that the landlord consider what was claimed and provides the resident with details of how to raise a claim directly if this is appropriate and he wishes.
23. It was reasonable for the landlord to offer £50 compensation as previously offered by its contractors to reimburse the resident for the curtains and rod that they had been instructed to remove during the works. The landlord had acknowledged that the contractors were specifically directed to remove these items and there is no evidence to suggest that the resident had been instructed to remove these items himself prior to the works beginning to prevent any loss. Its offer of £50 compensation is considered reasonable in the circumstances due to the absence of evidence which confirms how much the items had cost. All other items that were reported as lost or damaged would need to be considered as part of an insurance claim.

The landlord’s handling of the associated complaint.

24. The landlord’s complaints policy states that the landlord has a two-stage formal complaints process. At stage one, the landlord should respond within 20 working days. If a resident remans dissatisfied, they can escalate their complaint to stage two. At stage two, the landlord should respond within 15 working days. If there are likely to be delays at any stage, the landlord would be expected to contact the resident, explain the reason for the delay and provide a new complaint response timescale. It would also be expected to address each aspect of the complaint within its responses or explain why it is not able to do so. It should address new issues as part of a separate complaint.
25. The resident initially raised a formal complaint with the landlord on 14 October 2021. The landlord issued its stage one complaint response on 28 October 2021 which was within its published timescales. The resident escalated his complaint on 17 January 2022. This was not acknowledged by the landlord until 5 March 2021 and the landlord issued its stage two complaint response on  27 May 2022, which was outside of its policy timescale at this stage by 78 working days. It would have been appropriate for the landlord to have provided regular updates to the resident on the progress of his complaint and provide a new complaint timescale on each occasion to manage his expectations. Its failure to do so was likely to have caused inconvenience for the resident who needed to spend time and trouble pursuing a response.
26. As part of his stage two escalation, the resident raised additional concerns regarding his new bath, stating that it was not suitable for his medical needs. He was also dissatisfied that the landlord had placed carpet in the front room and hallway instead of tiles and that the property had been painted white throughout. As these issues were not raised as part of the original complaint to the landlord, it was reasonable for the landlord not to address these concerns as part of its response. However, it would have been appropriate for the landlord to have confirmed this to the resident and confirmed its next steps to manage his expectations. It is unclear if the resident’s concerns have since been addressed, as such, it is recommended that the landlord contacts the resident to address his concerns and raises a separate complaint if requested.
27. The landlord acted appropriately by acknowledging and apologising for the delay in issuing its stage two complaint response to the resident and offering £50 compensation in recognition of the inconvenience caused. However, the offer is not considered proportionate given the time and trouble the resident needed to spend pursuing a response and the lack of clarity from the landlord regarding the other concerns he had raised. As such, the landlord is to offer the resident an additional £50 compensation, bringing the total offer to £100.  This amount is in line with the Ombudsman’s remedies guidance which states that amounts in this range are considered proportionate where there has been service failure which had an impact on the resident but did not affect the overall outcome of the complaint.

Determination

28.  In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the landlord’s handling of the repair of a leak and remedial works required, including costs incurred by the resident.
29. In accordance with paragraph 53 (b) of the Housing Ombudsman Scheme, the landlord has made an offer of redress prior to investigation in respect of its response to the resident’s request to be compensated for the personal belongings that were damaged or went missing during the course of the repairs, which, in the Ombudsman’s opinion, resolves the complaint satisfactorily.
30. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord In respect of its handling of the associated complaint.

Orders

31. The Ombudsman orders that the following actions are taken within four weeks:
    1. The landlord is to pay the resident an additional £150 compensation in recognition of its poor communication and failure to address the resident’s concerns regarding the costs he had incurred during the decant as well as its poor complaint handling. This is in addition to its previous offer of £200 if this has not already been paid.

The landlord is to contact the resident to request evidence of the expenses he had incurred during the decant process. It should calculate and pay reasonable decant expenses, including but not limited to alternative accommodation costs and increased electricity costs for the period in question. If the resident is not able to provide evidence, the landlord should make an estimate based on the likely cost of such things with appropriate research.

Recommendations

32. It is recommended that the landlord reviews its policies and procedures to include specific information related to its decant process and the type of reasonably incurred costs it would compensate for.
33. It is recommended that the landlord contacts the resident and updates its records regarding any vulnerabilities the resident may have if it has not already done so, so that these can be considered in future where appropriate.
34. It is recommended that the landlord contacts the resident and addresses his concerns that the newly installed bathroom is not suitable for his medical needs if it has not already done so. It should also confirm its position regarding his dissatisfaction with the newly installed carpeting and decoration works completed.
35. It is recommended that the landlord considers carrying out staff training for complaint handlers to ensure that residents are provided with regular updates where there are delays in issuing a response. This should include the reason for any delay and an expected response timeframe in order to manage a resident’s expectations.