Optivo (now Southern Housing) (202112494)

REPORT

COMPLAINT 202112494

Optivo

23 September 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 the landlord’s handling of:
   1. A request for repairs to the resident’s windows.
   2. The resident’s request for the landlord to use a different contractor.

Background

2. The resident is a secure tenant of the landlord, a housing association. The property is a 2-bedroom ground floor flat. The tenancy commenced on 27 November 2008.
3. Section 1.7 of the responsive repairs policies states that a landlord will repair and maintain homes in line with best practice and legislation. This includes (but is not  limited to) the following:

1. Tenancy Agreement.
2. Housing Acts 1988,1996,1998 and 2004 .
3. Landlord and Tenant Act 1985.
4. Right to Repair Regulations 1994 (for secure tenants of Local Housing Authorities). 
5. Health and Safety at Work etc. Act 1974.
6. Management of Health and Safety at Work Regulations 1999.
7. The Defective Premises Act 1972. 
8. Building Regulations.
9. Environmental Protection Act 1990.
10. Leasehold Reform, Housing and Urban Development Act 1993.
11. Equality Act 2010.
12. Care Act 2014.

4. The landlords repairs policies states it must keep the structure and outside of residents homes in a reasonable state of repair and in proper working order. This includes window frames.
5. The resident’s tenancy agreement states it must allow the landlord and its contractors into the property to do repairs and other works when required. 
6. The landlord’s access policy states it may need access to residents homes for  various reasons including to carry out a servicing or repair. Should it need access it will make all reasonable attempts to contact the resident first, however there may be urgent situations where it is unable to inform residents.
7. The repairs policy states if a resident refuses access after reasonable request, it will do the following:
   1. Serve a notice of seeking possession letter to let residents know its intention to seek possession of the home.
   2. May ask the court for an injunction to allow it to access the home and will ask the court to say the resident has to pay its legal fees. If access is repeatedly refused, the landlord may ask the court to grant an injunction to last the life of the residents tenancy agreement.

Summary of events

8. On 15 September 2020, letters were sent to resident stating that the landlord was planning to replace the inward windows in homes between October and December. It was stated that access would be required for the survey and for the installations. The letter mentioned that the surveyor would discuss the opening and handling of the window with the resident.
9. During March 2021, a task was raised to have windows replaced. Subsequently the landlord carried out repair improvements to the properties window. The landlord had carried out repairs to the residents bathroom window and had scheduled for it to do repairs on her lounge window at a later date.
10. Soon after the resident’s bathroom window was installed, she informed the landlord that she was unhappy with the type of window and felt that her privacy was compromised and there was a safety risk. The resident expressed that she felt she had no privacy when the windows are fully opened. She stated she needed to have the windows opened when using the bathroom to prevent condensation.
11. On 1 April 2021 the resident raised a formal complaint to the landlord, and this was acknowledged on 6 April 2021. The following day an inspection was arranged for the window. It had also been arranged for work to be done on the lounge windows on 12 April 2021, however this was refused by the resident.
12. In view of the residents complaint, the landlord considered the following concerns:
    1. All windows on ground floor have compromised residents security. Resident’s shouldn’t have to lock and close their windows when they leave or to feel safe as they didn’t have to do so before so this isn’t an improvement, this is a backward step. 
    2. All residents should be advised they should shut windows before they leave as they may not be aware of the security threat now posed. The individual in charge of making this change needs to meet with all residents and discuss this.
    3. Windows opened 100mm allow all resident’s using path going to bins to see inside.
    4. Opening the window by 1mm means the damp will return and is not enough ventilation.
    5. Offer of a blind is an insult and doesn’t stop the security risk.
    6. The work involved in taking the lower part of wall out and this was not explained to resident about the and dust and stress this would cause.
13. The landlord proceeded to issue a formal response on 15 April 2021. It explained that all windows complied with current health and safety legislations, and prior to installation all residents had been consulted during the survey about the new window design and no comment of disapproval from residents were received. It also explained the new design was to reduce high maintenance of the mechanisms of tilt and turn window and to have uniformity of all windows in this area.
14. In response, the resident expressed to the landlord that she was unwilling to continue with further works in the home until the bathroom windows had been changed.
15. In its response, the landlord explained the window did not compromise the residents security or safety when used properly. The windows four settings were explained as: 
    1. When the window is fully closed, the handle can be locked for additional security.
    2. The window has a ventilation lock facility which locks the window on a ventilation setting. This cannot be opened from outside. It can be used at night-time and after bathroom or toilet use.
    3. The restrictor which allows the window to open to a maximum of approx. 10cm.
    4. Lastly the window can be fully opened.
16. The landlord explained blinds were previous offered in effort to accommodate the resident’s concerns about invasion of privacy.
17. As the resident remained unhappy with the landlords response, the complaint was escalated for a review. During June 2021 the landlord’s panel reviewed the residents complaint. The landlord acknowledged the resident was seeking:
    1. Restrictors to be placed on all small windows and offered to all resident’s that have had new windows.
    2. Bathroom window to be changed.
    3. Handle extenders to be offered to all residents with new windows.
    4. Resident’s preferred contractor to carry out works
18. In reference to points a and c, it explained that it was unable to extend the residents complaint to other properties. Should other residents wish to complaint this would be dealt with separately.
19. The landlord acknowledged that the resident wanted restrictors to be fitted to the smaller fanlight windows. However explained that there is no requirement to fit restrictors to fanlight windows. It explained the design of the work carried out was to national building standards (including The Building Regulations 2010). In light of this it said it would not be making these adjustments. 
20. In relation to the resident wanting the bathroom windows changed because of privacy concerns. It explained obscured glazing had already been provided and it offered to have blinds fitted, however the resident has not agreed to this. It asked the resident to confirm if she would still like for this to be fitted. The landlord found that the bathroom windows were in line with regulations and it would not be changing windows. The landlord also offered to provide the resident with a handle extender, and asked her to confirm if she needed one.
21. In relation to the resident wanting a different contractor to carry out the work, the landlord explained that it cannot employ that individual to act as a liaison for the works. The landlord explained that as its contractors had already started the work, it would need them to continue and finish it. It acknowledged that the resident was unhappy with the conduct of its contractor and explained that it could ask the liaison officer to attend to manage the works, it would also ask its contractors to replace the staff member which the resident was unhappy with to complete the work.
22. Following on from a conversation with the resident during August 2021, the landlord emailed its formal response, review panel outcome and review minutes. The landlord had also wrote to the resident to say that it needed to arrange access to the home to complete the outstanding work. This included lounge windows, spandrel work, and installation of trickle vents to improve ventilation and reduce condensation within the property. The landlord also offered the resident blinds and a handle extender. It explained this work needed to be carried out as a health and safety matter.
23. Between September to November 2021, the landlord had contacted the resident on several occasions to say that the outstanding work needed to be carried out in the property. Consequently, as a result on being refused access the landlord’s solicitor issued an urgent warning letter to the resident on 19 November 2021. This explained that the outstanding work posed a fire safety risk and in order to meet the current regulations and legislator requirements it needed to complete the works. It explained that the landlord and contractors have attempted on several occasion to gain access, but the resident has refused this. It explained it would give the resident a chance to get in touch by 25 November 2021 to arrange this. However should this not happen it would start court proceedings against the resident at the county court and should this happen the resident would be asked to pay legal fees.
24. On 7 March 2022 the landlord sent the resident a further letter asking her to contact it to complete the following work in her home:

1. Fit a blind at the bathroom window.
2. Provide a window winder to help resident open and close the bathroom window.
3. Replace the lounge window.
4. Carry out the external Spandrel works to the cladding.

Assessment and findings

25. In reaching a decision, this service has considered whether the landlord has kept to the law, followed proper procedures and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this service’s opinion, fair in all circumstances of the case.

The landlord’s handling of a request for repairs to the resident’s windows.

26. In accordance with the Landlord and Tenant Act 1985 and repairs policy, it is the landlords responsibility to ensure the structure and exterior of the property is up to standard, this includes the windows. Therefore when the landlord arranged to make changes to the windows in order to meet fire safety regulations, it was reasonable for them to do so.
27. In the landlord’s response it stated that it consulted with residents about the changes to windows, and this was not appealed by the resident. However the resident had stated she had not been consulted. On reviewing the evidence this service has seen that prior to work commencing, a letter was sent to the resident on 15 September 2020, to inform her the details of the contractors which had been appointed to carry out required works, what the works consisted of, and the expected timeframe. This service has not seen any evidence to suggest the resident had refused the works to be carried out to the windows. Therefore this service is of the opinion the landlord had made the resident aware of the necessary changes to the windows, and offered fair opportunity for comments.
28. When the resident informed the landlord that she was unhappy about the changes to the window, in particular privacy concerns and safety on 6 April 2020, the landlord proceeded to acknowledge her concerns and investigated this the following day. Following this the landlord issued its response explaining that obscured glazing had already been provided and under Building Regulations 2010 there is no requirements to change the windows. It had also explained the locking mechanisms of the windows.
29. This service has reviewed images of the work which was done to the window and has not seen anything to suggest that the windows do not meet the required standards or are in breach of any policies. Whilst this service recognises the resident’s concerns and understands that the change in windows have caused her stress, this does not mean that the landlord is obliged to change the windows. Therefore the landlord’s response not to change the windows to the residents satisfaction is reasonable.
30. In order to accommodate the resident’s concerns of privacy, it offered to have blinds fitted as a gesture of goodwill. However she felt that the blinds were an insult and did not stop the security risk. Considering the resident had raised concerns about privacy, the landlord’s response to provide additional privacy measures were relevant and proportionate, especially as this is something that would usually be the responsibility of the resident. Whilst this service acknowledges the resident does not feel secure within the property, no evidence has been provided which demonstrate that there was an increased security / safety risk.
31. It is understood the resident had also complained that due to privacy concerns she is unable to open the window fully to prevent condensation. The evidence shows the landlord has attempted to arrange the installation of trickle vents to improve ventilation and reduce condensation. Due to work being refused, however, it has been unable to do so. In the Ombudsman’s opinion, the landlord has been proactive in attempting to address and resolve the issues raised by the resident in regards to privacy and security concerns.
32. This service has recognised that despite the initial works to the windows being completed, the resident has refused entry to the landlord and its contractors to finish further works required. In response to this the landlord has contacted the resident on multiple occasions throughout 2021 and 2022, to inform her that it needs to complete the work and the implications this may have if she continues to refuse this.
33. This service recognises the resident may have been awaiting a response before allowing the landlord to proceed with work. However, in accordance to the landlords access policies it states that residents must allow access to the property when repair works are needed. Therefore by refusing access the resident is in breach of her tenancy agreement and the landlord is within its rights to pursue this via the courts. Overall the landlord has acted in accordance to its procedures by attempting to contact the resident.
34. With consideration of all of the above, the ombudsman has not seen any service failing by the landlord in its handling of the request for repairs to the resident’s windows.

The resident’s request the landlord use a different contractor.

35. It is understood that after works to the bathroom window had commenced using the landlords contractor, the resident was unhappy with its conduct and wished to have another contractor oversee the work.
36. When the landlord was informed of the issues experienced, it had explained that as the work had already commenced, its contractors would need to continue and finish the work. It also explained that it could ensure a resident liaison officer was in attendance when the work took place and could ensure that a different contractor attended to finish the work. The landlord informed the resident that she could directly contact her preferred contractors to act as her representative but this would be at her own cost.
37. In the Ombudsman’s opinion, the landlord’s response was reasonable. Whilst this service acknowledges the residents dissatisfaction with a contractor. The landlord was proactive in providing the resident with reasonable options moving forward in efforts to resolve the issue. Whilst this service acknowledges that in a prior complaint (dated 2019) the landlord had acknowledged the residents preferred contractors, it had previously been explained to the resident that in instances where specialist work was required it may require other contractors to do the work. It is also important to note that prior to the works commencing the resident was informed of the contractors who were appointed to do the work, and this service has seen no evidence to suggest she raised concerns about this prior to the work commencing.
38. Ultimately, the landlord is able to decide for itself which of its contractors may be best suited for a job. It was reasonable, nonetheless, that the landlord offered arrange oversight of the work and/or to change the operative, as a reasonable adjustment. This was reflective of what this Service might expect. The Ombudsman has subsequently seen no evidence that there was any maladministration.

Determination (decision)

39. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the repairs to the resident’s windows.
40. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s request to use a different contractor.

Reasons

41. There was no service failing identified with the landlord’s repairs to the window or how it handle the residents request to have these changed. It made reasonable effort to address and accommodate the resident’s concerns. The landlord was within its right to refuse the residents request to change the windows as it meets the standard criteria.
42. There was no service failing identified with the landlord in not using the residents preferred contractor. The landlord’s response to the resident’s concerns were proactive in resolving matter and reasonable.