Optivo (202109450)

REPORT

COMPLAINT 202109450

Optivo

30 November 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 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 the landlord’s handling of the resident’s concerns regarding the condition of the property when she moved in, and the subsequent repairs carried out.

Background and summary of events

Policies and procedures

2. As per the landlord’s “empty homes standard” document, the landlord promises that the property will be “in good repair” when the resident moves in. This includes the following:
   1. Testing all gas installations, and check all wiring and electrical installations to make sure they are in good working order.
   2. Ensuring that all windows fit their frames, and secure any loose floorboards.
   3. In respect to the garden, it will remove “any fast-growing varieties” and clear the garden of any rubbish.
   4. It also advises that “some repairs” may be carried out after the resident moves into the property.
3. The landlord’s empty homes procedure further explains that while the property is empty, the landlord will arrange for gas checks and electrical surveys to be carried out. All work should be completed except external non-health and safety related works, and minor works which can be carried out after the new tenant moves in.
4. Section four of the landlord’s compensation policy confirms that if it fails to carry out its duty, it will compensate the resident by one or more of the following: apologising, rectifying its mistake, or making a goodwill gesture. The landlord’s compensation procedure confirms that it can make a discretionary compensation payment of up to £250 in “exceptional” cases.

Background and summary of events

5. The resident is a tenant of the landlord, residing in a property with its own private garden.
6. On 7 September 2020, the resident contacted the landlord to raise concerns over the property she had just collected the keys for. This included a loose floorboard in her hallway and the garden being “in a mess” and with a fence panel missing. In her kitchen, there was no waste connection for the washing machine or access to plumb it in.
7. On 11 September 2020, the resident raised further concerns to the landlord, which is summarised as follows:
   1. She did not feel that the property was in a lettable condition due to the outstanding repair work that was required. Further holes had since been found in the floorboards “in all the other rooms”.
   2. She was unhappy that “there was no electric to the two bedrooms”, and that she would need to be present while the landlord carried out the work to rectify this. She was also unhappy as it was yet to inspect the garden.
   3. She wanted to remain in her temporary accommodation until the repairs had been completed, and for the tenancy start date to be amended accordingly.
8. On 15 September 2020, the landlord’s records confirm it had received a further list of repairs from the resident, which is summarised below:
   1. In respect to her garden, she was unable to access this due to the presence of Japanese knotweed.
   2. In her living room, she requested it renew a section of the skirting board and repair the holes. She had also raised concerns over holes in two of her bedrooms and on the fan isolator.
   3. Concerns were also raised that “all cupboards” would not close, and that the radiators in the property were “full of dust and debris”.
9. On 17 September 2021, the landlord spoke to the resident and followed this up with a letter. It advised her that it was unable to adjust the start date for her tenancy for the property. This was because it did not feel that the outstanding repairs should prevent her from moving into the property. As she remained dissatisfied following this call, it had considered this to be her stage one complaint, which it would respond to.
10. Following this, the resident raised further concerns about a mice infestation, a loose front door lock, and ill-fitting windows resulting in water leaking into her living room.
11. On 21 September 2020, the landlord’s records confirm that it’s contractor had been to the resident’s property and found no Japanese knotweed present in her garden.
12. On 1 October 2020 the landlord met with the resident at the property and agreed a schedule of works.
13. On 9 October 2020, the landlord issued its stage one complaint response to the resident, which is summarised as follows:
    1. It recognised that work should have been completed prior to the resident moving into the property, and therefore it agreed to amend the date of the tenancy to when it had completed the necessary work.
    2. In respect to the water penetration from the living room window, it was waiting for the report following a contractor’s visit on 5 October. It would also review the condition report on all other units in the property and carry out any required repairs.
    3. It had started repair work in her property and expected this to be completed by 12 October 2020. It committed to carrying out a post work inspection to review the completed work.
    4. It confirmed that although it had not found any Japanese knotweed in the garden, it would remain on the programme in the meantime. It would therefore re-attend to check the condition, when it would also burn the green waste which had been stored in the corner of the garden.
    5. It had instructed a pest contractor to inspect the property. It had visited twice, and found no activity on the last visit. If it found no further activity during its visit on 22 October 2020, it would conclude the treatment.
14. On 27 October 2020, the landlord emailed the resident following its earlier visit to her property, which is summarised as follows:
    1. It confirmed that it had completed all of the necessary repairs to her home, with the exception of applying sealant to the kitchen and living room window, and the supply and installation of a new front door handle set, as its contractor was sourcing the parts.
    2. It had amended the start date for the tenancy to 2 November 2020, and the rent account would be credited accordingly. It also apologised for the service the resident had received.
    3. It also confirmed that it did not lay paving slabs as she had requested, and confirmed that the garden would remain on the Japanese knotweed programme until it was “completely eradicated”.
15. On 5 November 2020, the resident had explained that only two tradespeople had visited her property to address the “condemned” boiler servicing the property. This was despite her being informed by the gas engineer that all three would need to be present at the same time. She was concerned that waiting in the “freezing” property was affecting her health.
16.  The landlord responded the same day to confirm that it had carried out a gas safety check in 2019 before the gas was capped during the property void period, with the electrical test also being satisfactory. However, the boiler checks would be completed during the “turn on and test”, which is completed when the resident moves into the property; this had been completed that day. The repair work to the boiler was scheduled for 4 November 2020.
17. On 9 November 2020, the resident emailed the landlord to report that the heating and hot water was still not working in the property. In respect to the treatment of the Japanese knotweed, she asked for a risk assessment of the chemicals it was using, and compensation for the “years” of treatment which would likely be required to address. In response the landlord provided the resident with a final stage review request form for her to complete, if she wished to escalate her complaint.
18. On 11 November 2020, the resident submitted her final stage complaint to the landlord, which is summarised as follows:
    1. She remained dissatisfied that the landlord had offered her the property before the repairs had been completed.
    2. She alleged that the landlord had failed to adhere to its own empty property procedure as it had not carried out tests to the gas and electrical supply.
    3. She also alleged that the landlord had not adhered to its policy as it had not cleared the garden which had Japanese knotweed “covering the entire garden area”. She had asked for her garden to be paved like her neighbours, as she had been advised that this was the only way to stop the growth. She was also concerned that the continued spraying of strong chemicals in her garden could cause “severe” problems with her asthma.
19. On 25 November 2020, the resident raised concerns that the heating was “not fully operational”, with it still shutting off and the radiators were “not generating much heat”. The contractor had scheduled the work to be completed on 30 November 2020, however the landlord would try to arrange a visit sooner to address this.
20. On 1 December 2020, the landlord issued its final stage complaint response to the resident. It confirmed that it had decided not to escalate her complaint, and its response is summarised as follows:
    1. It apologised for having “let the property in the condition it was in”, and it had further amended the tenancy start date to 30 November 2020, as the heating issue was now “fully resolved”.
    2. It was committed to eradicating the Japanese knotweed in the garden, and it explained that the chemical used was not harmful to human health. It further explained that it had assessed the slabbing of her garden to be “unnecessary”.
    3. It also apologised for the time taken to resolve her complaint and the inconvenience this had caused the resident, and it offered her £250 compensation. It was unable to offer compensation for the health issues she had reported; she could make a claim on its liability insurance if she wished to pursue this.
    4. It confirmed that her property did not require a gas or electrical test to be carried out as both were working and had current certificates.
    5. To learn from her complaint, it would be reviewing its working practices to ensure that it adheres to its policies. It would also ensure that additional safety checks are carried out if properties had been vacant for more than six months.
21. The resident subsequently referred her complaint to this Service. She was unhappy that she was unable to move into the property until November 2020 and that the issues with Japanese knotweed in her garden were ongoing.

Assessment and findings

22. Although the resident has reported concerns over her health and wellbeing as a result of her complaint, it is not within the authority or expertise of this Service to determine whether the landlord would be liable or to award damages for this in the way that a court or insurer might. Therefore, this aspect of the complaint is outside of the scope of this investigation and the resident would need to seek legal advice or refer her claim to the landlord’s insurer if she wishes to pursue this matter further.
23. The landlord was obliged to ensure that the property was in “good repair” at the time of the resident’s tenancy starting, as per its policy detailed in paragraph 2 above. Although this also allowed for “some repairs” to be carried out after the resident had moved in, it is clear that various repairs were needed to the property after the tenancy start date. This included repairs to: the windows to prevent water leaks; the electricity supply to two of the bedrooms; the plumbing to allow for a washing machine; the heating system; loose floorboards; access points for mice; and weed clearance in the garden.
24. It is reasonable to conclude that some of these issues should have been apparent to the landlord and remedied before the tenancy start date, particularly given the impact they would have had on the living conditions in the property. The landlord’s empty homes standard also confirms that electrical wiring and installations will be tested and in working order, and gas and electrical surveys carried out. While the gas safety certificate was issued while the property was empty during November 2019, the available evidence indicates that the electrical survey was carried out in October 2018, prior to the property becoming empty. This suggests that the landlord failed to carry out adequate checks of the electrical installation prior to the resident’s tenancy start date, as required by the empty homes standard.
25. In its complaint responses the landlord acknowledged that the works should have been completed prior to the resident moving in and agreed to amend the start date of the tenancy to when it had completed the necessary repairs. The landlord completed the majority of the works by the end of November 2020 and it was therefore reasonable for it to amend the tenancy start date to 30 November 2020. At this point only the repair to the front door lock remained outstanding as the required parts were on order. It is evident that the resident reported further issues with the heating system throughout December 2020, but the landlord’s handling of this matter is outside the scope of this investigation, as this Service can only investigate matters that have been considered by the landlord through its complaints procedure.
26. As well as amending the tenancy start date, the landlord has offered the resident £250 compensation, recognising the distress and inconvenience caused to the resident by its service failures. This is the maximum amount permitted under the landlord’s compensation procedure and is in line with this Service’s remedies guidance, which suggests awards of £50 to £250 where the landlord’s service failure had some impact on the resident.
27. The landlord has demonstrated that it has learnt from the complaint as it has committed to reviewing its working practices to ensure that it adheres to its policies, and to carrying out additional checks on properties which are empty for a prolonged period.
28. In respect to the Japanese knotweed, the landlord has provided a reasonable response to this matter. It arranged for the garden to be inspected after the resident raised concerns about this matter, and its contractor confirmed that no Japanese Knotweed was present although other weeds did need clearing. The landlord has provided details of the treatment plan that is in place and has confirmed that the chemical used is not harmful to human health. It has declined the resident’s request for it to install paving and this was reasonable because it is under no obligation to carry out these works. Such works would be considered improvement works and not repairs. However, the resident’s concerns about this matter, including her recent report that the Japanese Knotweed still needs treating, are noted and a recommendation has therefore been made as set out below.

Determination (decision)

29. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has offered redress to the resident which, in the Ombudsman’s opinion, resolves the complaint about the condition of the property when the resident moved in and the subsequent repairs carried out.

Reasons

30. The landlord failed to ensure that the property met its empty homes standard prior to the tenancy start date, and the nature and extent of the outstanding repairs were likely to have had a significant impact on the living conditions in the property. It was therefore appropriate that the landlord took steps to put this right by arranging for the necessary repairs to be completed, amending the tenancy start date and offering compensation to the resident. The landlord’s compensation offer was proportionate and in line with its compensation procedure and this Service’s remedies guidance.

Recommendations

31. It is recommended that the landlord does the following within four weeks of the date of this report:
    1. Pay the resident the £250 compensation it has offered, if this has not been paid.
    2. Write to the resident to explain the proposed schedule for the eradication of the Japanese knotweed in her garden.