Optivo (202105830)

REPORT

COMPLAINT 202105830

Optivo

17 December 2021

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 decision to charge rent to the resident for her new property after this was let to her but before she moved in, while she was awaiting repairs there.
   2. The landlord’s handling of the resident’s reports regarding the condition of her new property when this was let to her.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 39(i) of the Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
   1. The landlord’s decision to charge rent to the resident for her new property after this was let to her but before she moved in, while she was awaiting repairs there.
4. Paragraph 39(i) of the Scheme states that the Ombudsman will not investigate complaints which “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”.
5. The Ombudsman does not have the authority or expertise to determine the resident’s liability for rent at her new property after this was let to her but before she moved, while she was awaiting repairs there, in in the way that a court or tribunal might. It would therefore be quicker, fairer, reasonable and more effective for her to seek a remedy through the courts, a designated person, other tribunal or procedure, so this Service is unable to consider this, and a determination will not be made on this aspect of her complaint.

Background and summary of events

6. The resident is a tenant of the landlord who moved from her old address to her current new three-bedroom property via an internal transfer. Her tenancy of the new property commenced on 28 September 2020.
7. The landlord’s records showed that it carried out a gas safety check at the resident’s new property on 21 January 2020, in which it found that the property’s smoke detector that was located in the hall had failed a battery test. It then recorded that, between 19 February and 11 June 2020, a list of the inspections for and details of the void or empty period works to be carried out at the new property was compiled before her tenancy for this commenced on 28 September 2020. This information was summarised on 13 March 2020 by the landlord as including checks carried out to the electricity, gas, electric cooker point, gas cooker bayonet, bathroom and washing machine plumbing.
8. Approval for raising repair orders to be carried out by a contractor was issued on 7 April 2020 by the landlord for the resident’s new property, which were reported on 8 April 2020 and due to be carried out by 7 July 2020. Its records showed that the repair orders were being raised in order to carry out a full redecoration and kitchen upgrade at the property, along with any outstanding routine void repairs, to ensure that the property complied with the minimal lettable standard, which were detailed in a specification of works.
9. Records provided by the landlord showed that, on 11 June 2020, an electrical inspection of the installations for supplying electricity at the resident’s new property was carried out by its contractor, and that a certificate was issued for this by them.
10. There were no records of any further communication or documentation provided to this Service by the landlord regarding works to the resident’s new property between July and August 2020, and it informed us that it had no post-work or pre-tenancy reports on the property’s condition following its above void repairs there. It instead told us that “the property was snagged and handed over upon completion of the works.”
11. On 23 September 2020, a sign-up document for the new property was completed by the landlord with the resident’s details.
12. On 8 and 19 October 2020, the landlord was contacted by the resident’s daughter’s occupational therapist to find out if the resident was able to move into her new property. They explained that the resident had advised that she had not moved in yet, as she was informed by an electrician that it was not safe to move into the property until repairs had been completed, as well as due to a leak there, the damage caused by this and various other issues with the property. The occupational therapist requested confirmation from the landlord as to the resident’s report that it had told her that the tenancy for the property would not be given, and that her rent for this would be adjusted.
13. On 20 October 2020, the landlord noted that the resident contacted it to let it know that she had received a request from it for her to pay rent for the new property when she was not living there, as the whole property was being re-piped by it and the flooring pulled up, for which she requested a changed tenancy start date.
14. Further internal emails were circulated by the landlord on 22 to 30 October 2020 to find out if the resident had contents insurance that could cover the damage caused to the laminate flooring that she had installed at her new property, following a leak at the property. As it noted that she did not have contents insurance at the new property since she was still living in her old property, it agreed to her request for it to reimburse her £105 for the damaged flooring.
15. On 4 November 2020, the resident called the landlord and asked for a stage one complaint to be logged by it about incomplete work to the floorboards at her new property. She explained that, following a missed appointment by it on 23 October 2020 for it to collect pieces of wood that it had left there, she had sustained an injury to her foot on 26 October 2020 because of the incomplete work. The resident was logged by the landlord as stating that pieces of wood left on the landing of her property fell on her foot when she was attempting to climb the stairs there, which it had agreed to collect on 29 October 2020.
16. The resident also explained that there were several repairs that were incomplete, and that she was having to call up the landlord constantly to find out when the work would be complete. She mentioned that she had not been provided with dates or times for when the outstanding work would be carried out. The resident subsequently reported that the above leak at the property had damaged the fire alarm, heat detector, ceiling lights and other electrical installations there, but that the landlord did not attend these until 13 November 2020.
17. A later report provided by the landlord showed that the resident reported an electrical issue at her new property to it on 4 November 2020, and another electrical issue there on the same date that it attended the previous issue on 13 November 2020. It then re-attended the property to resolve the latest issue by reconnecting her cooker and shower on 14 November 2020. The landlord’s later records further explained that neither of the two electrical issues “relates to [the resident]’s claim that the electrician attended to confirm all was safe for her to move in.” It was stated by it that it appeared that neither of these repairs could have stopped the resident from moving in, including because works to her flooring were completed on 2 November 2020, but that this was “safe to use before that”.
18. On 23 November 2020, the landlord recorded that the resident reported ongoing issues with her new property to it, including with a lack of working gas pipes, which it agreed to forward to the relevant team.
19. On 30 November 2020, the resident called the landlord to re-request for the commencement of the tenancy of her new property to be changed by it. She explained that the landlord was “supposed to” change this, as she was unable to move into the property due to the void repairs not being completed there. The notes on the landlord’s records indicated that the resident would need to be updated by it once this had been checked.
20. There was no record of any communication between the resident and the landlord in December 2020. However, it noted that it she had previously reported outstanding repairs at her new property to it from 30 September to 13 November 2020 to the lounge window, front door, kitchen drawer, flooring, smoke and heat detectors, ceiling, toilet, decorations, mobility lift, stair handrail, radiator, washing machine points, electrical installations, and patio door. The landlord recorded that it attended the property to carry out works for these items from 6 October to 17 December 2020.
21. There were several emails sent between the resident and the landlord from 4 to 8 March 2021, in which concerns were raised by the resident regarding the requests for rent payments that she was receiving from it for her new property. Internal emails circulated by the landlord showed that certain of its teams were aware that the resident had not moved into her new property for many weeks due to the outstanding repairs there. The rent overlap between her old and new properties was also raised in the internal emails, as the resident had explained to the landlord that the repairs had delayed her move to the new property.
22. The landlord logged a stage one complaint on 10 March 2021 to raise the above concerns that it discussed with the resident on 9 March 2021. The landlord’s internal email stated that the complaint response’s due date was 24 March 2021.
23. On 31 March 2021, the landlord received another email from the resident’s daughter’s occupational therapist reiterating that the resident was receiving requests to pay rent for the period that she was not occupying the new property. They also stated that the resident had only moved in to the property on 16 November 2020 because this was not previously safe for her and her daughter, who had disabilities requiring the use of a wheelchair and specialist equipment, to move in to due to exposed flooring, pipes, electrics, and the general condition of the property. A request was again made by the occupational therapist for the start of the tenancy to be the date that the resident moved in to the property.
24. On 9 April 2021, the landlord sent a stage one complaint response letter to the resident, and it apologised that she had cause to complain to it. The resident was advised that her complaint had been investigated with regard to issues including, concerns about whether the new property was habitable, as well as the difficulties that her child would have had if the resident moved into the property with the flooring lifted upstairs, as her child was a wheelchair user.
25. The landlord acknowledged that the resident had explained to it that she was unable to move to her new property on 23 September 2020 because of the outstanding repairs that she had reported to it there between 23 September and 16 November 2020. The landlord advised her that its staff who had attended the property had explained that they were happy that the flooring there was re-laid and safe to use from 9 October 2020.
26. The landlord added that it had also responded to her repair reports by investigating and repairing the leak at the property from 5 to 8 October 2020, the toilet on 21 October 2020. The landlord additionally reported that it repaired the ceilings affected by the leak on 2 and 18 November 2020, the stair handrail and radiator on 2 November 2020, the electrical installations on 4, 12 and 13 November 2020, and the patio door on 17 November 2020.
27. The resident was therefore offered £50 as a goodwill gesture in line with the landlord’s compensation policy in recognition of the inconvenience caused to her while its contractor investigated and repaired the leak at her new property. The landlord apologised for not arranging a surveyor’s inspection to assess the condition of the property, although it stated that none of the above repairs would have led to a surveyor making a recommendation for the resident to move out while the repairs were being carried out.
28. The resident was invited by the landlord on 16 April 2021, following a telephone conversation with it on 15 April 2021, to submit a final stage complaint to it, so that her complaint could be reviewed and responded within ten working days, with a decision on whether the landlord would escalate the complaint to a review panel. On 18 May 2021, the resident emailed the landlord pictures of unfinished repairs at her property.
29. The landlord advised the resident on 18 May 2021 that it had recorded that she had reported issues to it at her new property that it would consider at the upcoming review panel meeting that included an intercom fault on 16 November 2020, and the lack of a gas cooker connection on 23 November 2020. The landlord explained, however, that the latter issue was attended and repaired by its contractor on 27 November 2020, and that she had been informed that it would not check this when the property was void, with the job only being noted if she wanted a gas appliance that it had found no failure and had agreed no compensation for.
30. A response regarding questions raised during the resident’s final stage complaint review panel meeting was circulated internally by the landlord on the same date as the meeting on 26 May 2021. There were no notes by it to suggest that there were any delays in work being completed due to a serious leak at her new property, and it stated that leaks did not usually mean that residents had to move out “in the vast majority of cases.”
31. On 9 June 2021, the landlord emailed the outcome of the final stage complaint review panel meeting to the resident. It explained that there had been repairs needed in her new property, however these repairs had been resolved quickly and would not have made the entire home unhabitable. These included the leak there, for which it said that it had found no evidence of this prior to 23 September 2020, as the damage to the surrounding areas would have been more significant.
32. The landlord further stated that it could see that there were delays in renewing the flooring at the resident’s new property to a standard where the resident could re–lay her own floor covering, but that this would not have made the property unhabitable. The exposed hole had been affixed with a temporary covering by 9 October 2020 and this was said to have made the floor safe. The resident was advised that the landlord’s compensation policy does not include compensation for the personal injury that she had reported to her foot, but that she could pursue this as an insurance claim to it and was provided with its insurance forms.
33. The landlord reiterated that the flooring was completed by 3 November 2020 and the resident prepared to move in after this. It additionally stated that the property was habitable before this date, even with the outstanding repairs. The landlord also explained that, although there were other items that needed to be repaired, it did not consider the new property to be unhabitable for the resident. It further added that, when the resident accepted her new home, it had no record of the resident advising the landlord that the property would not be suitable for all of her family from the tenancy start date.
34. The landlord additionally explained that it did not believe it was reasonable or proportionate for it to clear the resident’s rent arrears, which she had requested, as the new property was habitable for her. It also explained that it was unable to compensate the resident for distress and anxiety as this is not covered within its policy. She was instead offered £75 compensation in recognition of the inconvenience caused to her, as well as a decoration pack that included paints and materials, as it acknowledged that it could have fully resolved the repairs quicker and could have been clearer when she enquired about these. The landlord added that it would review whether it was possible that a percentage of its homes could be inspected by resident monitors in the future to assure it that they were brought up to the expected standards.
35. The resident then complained to this Service that she was not happy with the condition of the new property when she moved in. She explained that, when she turned the heating on after the flooring had been done, there was a “huge leak” which damaged the flooring. The resident outlined that the property also had electrical issues, was not electric safe and there were no fire alarms. She reported that she could not connect her cooker pipes for “months”, and that she was not happy with everything there.
36. The resident stated that the landlord’s works had delayed the move into the new property, and that this had caused a “huge inconvenience”, as well as stress and anxiety. She explained that, throughout all of this, her daughter had been in and out of the hospital. The delays were reported as therefore having had a huge impact on the resident’s family, for which she sought further compensation from the landlord.

Assessment and findings

Legislation, policies and procedures

37. When a property is void or empty, a landlord is obliged, in accordance with section 9A of the Landlord and Tenant Act 1985, the Government’s Decent Homes Standard and section 1(3) of the Homes (Fitness for Human Habitation) Act 2018, to ensure that, when a tenancy commences, the property is “fit for human habitation”. This is determined by whether the property is not reasonably suitable for occupation in that condition because of factors including repairs, stability, and hazards under the Government’s Housing Health and Safety Rating System, such as falls on level surfaces or associated with stairs and steps, electrical hazards, fire and structural collapse or falling elements.
38. The landlord’s home standard states that it aims to “exceed the government’s Decent Homes Standard”, always remedy health and safety hazards at its properties to keep its residents safe as its first priority, and make the general fabric of its buildings its second priority. This also states that the landlord “will always meet or exceed the lifespans stated in the Decent Homes Standard. To ensure we spend our money wisely, we carry out an inspection of your home to assess the age and condition of the item to be upgraded prior to adding it to a programme of work.” It is additionally required to undertake regular property surveys to identify and remedy any health and safety hazards, including in relation to fire and electrical installations.
39. The landlord’s empty home standard states that, while some repairs may be carried out to its residents’ new homes after they have moved in, it is obliged to have tested and repaired its properties’ gas and electrical installations, handrails, doors, windows, cooker connections, flooring, showers and toilets for when its residents have moved in.
40. The landlord’s responsive repairs policy requires it to make safe emergency repairs to items such as gas and electrical installations and unsecured doors and windows within six hours, and to arrange non-emergency repairs for these items, floors, ceilings, toilets, heating and showers with its residents by appointment.
41. The landlord’s compensation procedure gives it discretion to award remedies to its residents, including decoration packs for damage to their fixtures due to its works and financial compensation of usually £50, and up to £250 in exceptional cases, for failures including causing loss or inconvenience and not taking residents’ vulnerability or disability into account.

The landlord’s handling of the resident’s reports regarding the condition of her new property when this was let to her

42. It is noted that the resident made a report to the landlord of an injury to her foot at the property on 26 October 2020. She explained that the injury was sustained at a time when work was being carried out at the property, and she attributed this to the work being incomplete there. It is nevertheless beyond the authority or expertise of this Service to determine whether there was any liability for injury or damage to the resident on the part of the landlord in the way that a court or insurer might. The landlord did, however, provide the resident with insurance forms, as its policy did not cover compensation for personal injury, and so she was advised by it that she could pursue this as an insurance claim to it.
43. With regard to the condition of the resident’s new property when this was let to her, the landlord showed that it followed its empty home standard by carrying out electrical, gas, cooker, bathroom and washing machine checks there during the property’s void or empty period on 21 January and between 19 February and 11 June 2020. This included certification to show that an electrical safety inspection was carried out there on 11 June 2020, as well as its approval on 7 April 2020 for its contractor to carry out a full redecoration of the property, a kitchen upgrade there and any outstanding routine repairs to ensure that this complied with the minimal lettable standard.
44. As such, the landlord took some reasonable steps to carry out its obligations to ensure that the resident’s new property was fit for habitation before the start of her tenancy there on 28 September 2020. This was in accordance with the above requirements for it to do so under the Landlord and Tenant Act 1985, the Government’s Decent Homes Standard and the Homes (Fitness for Human Habitation) Act 2018, as well as its own home and empty home standards. This is because its above inspections and repairs aimed to make the property safe and to keep this in repair with regard to the concerns about electrical issues later raised by the resident, in addition to gas safety, cooker, bathroom, washing machine, kitchen and other works there.
45. It is nevertheless of concern that the landlord did not confirm that all of its above works to the resident’s new property were completed satisfactorily, and that this was fit for habitation, before this was let to her from 28 September 2020. This is due to the absence both of any records on its part for the period when these repairs were due to have been carried out in July to August 2020, or of any post-work or pre-tenancy reports by it on the property’s condition following its above void work there, which was inappropriate. This would have also made it more likely that the resident would have experienced issues with the condition of the property and responsive repairs there when this was let to her.
46. There was additionally no evidence that, despite the resident’s daughter’s occupational therapist’s reports to the landlord of 8 and 19 October 2020 and 31 March 2021, it ensured that the condition of and outstanding repairs at her new property was fit for habitation and free from hazards for her daughter at the time that she moved in there. This is particularly in light of the occupational therapist’s description of her daughter as having disabilities requiring the use of a wheelchair and specialist equipment.
47. As the resident’s reports to the landlord about the property from 30 September to 13 November 2020 included the flooring, mobility lift, stair handrail and falling pieces of wood and the occupational therapist referred to exposed flooring, pipes and electrics, this indicated that it had not confirmed that her property was reasonably suitable for her daughter’s occupation. This was especially concerning, and was contrary to its above obligation to confirm that the property was fit for habitation when let to her, in relation to factors including repairs and stability, and free from hazards such as falls on level surfaces or associated with stairs and steps, electrical hazards, fire and structural collapse or falling elements.
48. Moreover, there were reports made by the resident that, during the above period, the leak at the property had damaged the fire alarm and heat detector there, but that the landlord did not attend these until 13 November 2020. The resident had further explained in her complaint to this Service that there were no fire alarms in the property, and evidence provided by the landlord showed that the property’s smoke detector was inspected on 21 January 2020 and the battery failed a test.
49. The landlord also recorded that it received reports from the resident from 30 September to 13 November 2020 that were also logged by it as including heat and smoke detectors, which it noted that it attended and carried out works for within this period. However, the landlord had no records logged to show that further tests or actions was carried out by it for the smoke detector at her new property to follow up the failed battery test for this on 21 January 2020. The landlord therefore failed to comply with good practice in either remedying this or in keeping robust records that it had done so for fire safety, as outlined in its above home and empty home standards.
50. The landlord did comply with its above responsive repairs policy’s requirement for it to arrange non-emergency repairs at the resident’s new property for gas and electrical installations, doors windows, floors, ceilings, toilets, heating and showers by appointment from 30 September to 13 November 2020. It additionally acknowledged on 9 April 2021 that there was no surveyor’s inspection recorded to determine if the property was habitable for her, including after her report to it of 26 October 2020 when she felt that she could not move in due to the condition of the property.
51. The landlord therefore accepted that it should have arranged the above surveyor’s inspection of the resident’s new property and on 9 June 2021, it offered her £75 compensation in recognition of the inconvenience caused to her, and a decoration pack that included paints and materials. It also agreed to review whether it was possible that a percentage of its homes could be inspected by resident monitors in the future to assure it that they were brought up to the expected standards, which was a relevant proposed improvement to its practices to seek to increase confirmation that its new properties were fit for habitation. The landlord additionally agreed to reimburse the resident for the damage to the laminate flooring that she had installed at the property with £105 on 30 October 2020, which was appropriate.
52. The landlord’s above actions partially complied with its above compensation procedure’s discretion for it to award the resident a decoration pack for the damage to her fixtures due to its works and financial compensation of usually £50 for failures including causing loss or inconvenience. However, it was unreasonable that it did not consider further exercising its discretion under the procedure to award her the maximum recommended compensation of £250. This was for not taking the resident’s daughter’s vulnerability or disability into account, in relation to whether the condition of and repairs at the new property were fit for her habitation at the time that she moved in there. This is also due to the landlord’s failure to fully record or inspect its void works or follow up the failed smoke detector test at the property.
53. The landlord has therefore been ordered below to pay the maximum compensation to the resident recommended by its compensation procedure in recognition of its above failings. It has additionally been ordered below to seek to prevent these failures from occurring again in the future by reviewing its monitoring, inspections, record keeping and staff training for void works and fire safety.

Determination

54. In accordance with paragraph 54 of the Scheme, there was service failure by the landlord in respect of its handling of the resident’s reports regarding the condition of her new property when this was let to her.

Reasons

55. The landlord did not take reasonable steps to fully ensure that the condition of and repairs at the resident’s new property meant that this was fit for her, and particularly her disabled daughter’s, habitation at the time that she moved in there. This is because it did not fully record or inspect its void works at the property, or subsequently arrange for a surveyor’s inspection to be carried out for the purposes of determining whether this was habitable. This was not in accordance with the Landlord and Tenancy Act 1985, the Homes (Fitness for Human Habitation) Act 2018, the Government’s Decent Homes Standard, or the landlord’s home and empty home standards.
56. The landlord also did not provide follow up records to show that the failed smoke detector test carried out at the resident’s new property on 21 January 2020 had been rectified. There were attempts by the landlord to partly put its above failings right, and to learn from the outcome of the resident’s case, by awarding her partial compensation, reimbursing her for her damaged flooring, offering her a decoration pack, and agreeing to review the use of resident monitors to inspect the standard of a percentage of its properties. However, these remedies did not fully put things right because they did not recognise all of its above failings, as recommended by its compensation procedure, or address its failures in respect of its own lack of appropriate inspections and record keeping.

Orders

57. The landlord is ordered to:
    1. Pay the resident compensation totalling £250 within four weeks, which is broken down into the £75 that it previously awarded her, if she has not received this already, plus £175 additional compensation. This to fully recognise any distress, inconvenience, time and trouble that she experienced from its failures to take her daughter into account, fully record or inspect its void works, or follow up the failed smoke detector test to ensure that her new property was fit for her habitation at the time that she moved in there.
    2. Review its processes for monitoring, inspecting, recording and completing void repairs and fire safety works at its properties to ensure that these have been improved to avoid a recurrence of the failings identified in the resident’s case.
    3. Review its staff’s training needs in relation to their application of its statutory obligations and home and empty home standards in respect of void repairs and fire safety works to seek to prevent the failures identified in the resident’s case from occurring again.
58. The landlord shall contact this Service within four weeks to confirm that the above orders have been complied with.