Peabody Trust (201909073)

REPORT

COMPLAINT 201909073

Peabody Trust

26 February 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

This complaint is about the landlord’s response to the resident’s concerns about how it dealt with an infestation at his building following the discovery of a decomposing body in a neighbour’s flat.

Background and summary of events

The resident has a shorthold assured tenancy for a two-bedroom flat.
On 2 September 2019 the resident notified the Police and the landlord of a dead body in the flat next door to him. The resident has said that the Police had told him that the neighbour had passed away around 12 days ago. As such, the body had been decomposing in the flat for about 12 days before it was discovered and removed from the flat.
The landlord’s records show that contractors attended on 2 September 2019 and noted live maggots in the communal lights which had travelled from the deceased tenant. The contractor was unable to open the lights and requested that a specialist contractor be appointed to remove the maggots.
On 3 September 2019 the landlord’s housing officer attended. The resident has said that on 4 September 2019 he was advised by the landlord that he could dispose of all food and clothes that had been left out in his flat. There is no supporting evidence of this in the landlord’s records. The resident was then decanted to a hotel temporarily to allow for the decontamination works to be carried out to four affected flats in the building (including the resident’s).
The landlord’s records show that on 9 September 2019 its contractor attended the site and confirmed that maggots were affecting three flats and the communal area. They were due to re-attend the next day to carry out treatment works.
The landlord confirmed on 10 September 2019 that its contractors did not have any availability until the next week and it was therefore looking at alternative contractors to attend.
The landlord’s correspondence on 18 September 2019 states that infestation treatment works had been carried out and another contractor would need to attend on 24 September to remove the dead maggots. The landlord’s records on 24 September 2019 show that the infestation treatment work was completed. The landlord’s records do not show exactly what works were actually done to treat the infestation.
On 26 September 2019 the landlord told the resident that its pest control contractor was satisfied that there was no infestation within the flat, but it did confirm that there were dead flies inside a light fitting which needed to be removed. The decant was extended to allow for the fly removal treatment.
The resident has said that the final treatment work inside his flat was done on 1 October 2019. The landlord’s records also show work was completed on this date (but again, there are no details of exactly what was done). The landlord’s records for 8 October 2019 show ‘3 part treatment carried out for maggots’. The next day the landlord wrote to the resident to confirm that his decant would end on 13 October 2019 as his flat did not need any further work. It acknowledged an issue with rodents but said that this was not linked to the maggot infestation, and this in itself would not justify the continuation of the decant. The rodent treatment was logged as a separate job.
On 11 October 2019 the resident made a formal complaint to the landlord:
1. He said that his flat had not been cleaned and/or treated thoroughly enough and it was not ready to be moved back into yet. He provided photos of the property which he believed showed it was unsafe to live in.
2. The communal area had not been cleaned and there were still dead flies and items from the deceased tenant still in the communal area. Live and dead flies were still visible all over the flat.
3. Although the property was recently cleaned by pest control, this has not worked and the treatment was not effective. He believed that the main infestation was still present in the deceased tenant’s flat which was producing flies, maggots and mice which were tunnelling into his flat.
4. He was unhappy with attitude of the housing officer and that he had to be at the property to allow contractor’s access, sometimes at short notice and there had been missed appointments.
5. He was unhappy about the landlord’s lack of urgency and poor communication.
6. He wanted compensation for issues such as a lack of subsistence payment, and reimbursement for disposed items and other expenses.
The landlord’s records show that the decant accommodation (hotel room) had been paid up until 20 October 2019.
The landlord’s records note that the work at the property was completed on 17 October 2019, but it has not provided details of this.
The resident wrote to the landlord on 29 October 2019 as he had not received a response to his complaint. He said that the communal areas and hallway had not been treated to make them safe for habitation. The electric system within the property had not been investigated to assess the impact of the biohazard chemicals that had leaked from the bodily fluid of the deceased tenant. There was still a residue and smell. He said that he would carry out cleaning of the flat and dispose of contaminated items and seek reimbursement of these costs from the landlord.
The resident contacted this Service for assistance and following contact from the Ombudsman, the landlord arranged a meeting with the resident on 18 November 2019 to discuss his complaint. It then issued its Stage 1 complaint response on 21 November 2019:
1. It said that the infestation was exceptional and it was not something that it had dealt with on a regular basis. However, it had learnt lessons which would help it to manage similar cases more effectively in the future.
2. It agreed to carry out further pest control treatment and rodent proofing.
3. It acknowledged that the resident had sought legal assistance about making a claim for his costs and compensation and said it would contact his Solicitor regarding this.
4. It apologised for the poor service.
The resident responded on 23 November 2019 saying that he wanted more specific information from the landlord about what it proposed to do about further treatment work rodent proofing and cleaning of the communal area. He said that these works were necessary in order for him to be able to move back in. He wanted the landlord to provide the surveyor’s report which said that no further work was necessary to his property. The resident provided his Solicitor’s details to the landlord.
The landlord’s records show that rodent proofing was carried out on 13 December 2019.
The resident has said that he moved back into his flat on 11 January 2020. On 13 January 2020 he contacted this Service again as he had not heard back from the landlord. This Service then contacted the landlord enquiring about the escalation of the complaint. The landlord confirmed on 5 February 2020 that the complaint had been escalated to Stage 2 of its process. It apologised for the delay in the escalation and said that this was due to the case handler at Stage 1 not forwarding the complaint within the guided timescales.
On 25 February 2020 an officer from the local authority Environmental Health (‘EH’) team inspected the building. The landlord received the report on 13 March 2020, which stated the following:
1. The communal staircase was littered with rubbish and other debris and had not been washed for some time. There were handprints and smear marks on the walls in some places.
2. He had spoken with the resident and had noted his concerns about the landlord’s handling of the infestation. For example, the resident had flagged concerns such as:
  1. the landlord did not respond in an urgent manner.
  2. its cleaning of the deceased tenant’s flat was unsatisfactory, as was its cleaning of the communal areas.
  3. the landlord’s pest control team were slow to attend and did not provide him with details of the treatments it had carried out.
3. The EH officer confirmed that he had not seen any evidence of flies or mice in the resident’s home.
4. He recommended that the communal staircase at the property is swept and washed with a sanitiser, the walls, handrails, and lenses of the light fittings, which may have been contaminated by body fluids should also be cleaned and disinfected.
5. In addition, he recommended that the landlord adopt a clear ‘schedules of works’ for cleaning contractors in such cases to protect public health. These should include correct bagging and disposal of clinical waste and contaminated PPE, washing down surfaces contaminated with body fluids or other biohazards and post cleaning inspections to confirm the works have been completed adequately and liaise with tenants to ensure cleaning works are carried out correctly. Contractor’s should also be checked that they are correctly licenced to dispose of contaminated waste, and they should provide data sheets showing what chemical were used in the treatments.
6. In the officer’s opinion, ‘the contractor in this instance was unlikely to have been able to control the fly infestation as they had arrived too late and the eggs and maggots had already developed into adult flies, though this could have been foreseen with an understanding of the lifecycle’.
The landlord issued its Stage 2 response on 13 Mar 2020:
1. It detailed the background to the complaint. It had noted the Stage 1 response and said it was ‘disappointed that it did not contain more investigative content’. It also acknowledged that it had given the resident incorrect information about claiming compensation. It said it should have redirected the resident to its legal team.
2. It apologised for not responding to the resident’s follow-up correspondence and accepted that this was clearly a failure within the complaints process, and it should have escalated the complaint earlier.
3. It confirmed the rodent proofing works that had been carried out and it said that its records showed that there was a rodent problem at the property which pre-dated the discovery of the deceased tenant.
4. It arranged for EH to inspect the resident’s flat and it acknowledged his concerns about the landlord’s handling. It also accepted the EH recommendations for further cleaning in the communal areas of the building as well as implementing changes to its processes.
5. It acknowledged that the matter could have been managed more proactively. Works were protracted by a lack of coordination which caused the resident to be frustrated as well as being inconvenienced. The initial treatments were inadequate and should have been expedited to ensure that when the resident returned home, he did not feel uncomfortable. The decant period was not extended because it believed the resident could have returned home.
6. With regards to the deep cleaning costs incurred by the resident and any associated expenses, it agreed to consider a contribution to this cost as a goodwill gesture. It asked that the resident provide a receipt showing the total expenditure for the cleaning.
7. As for the refurbishment costs, it stated that this was a personal decision taken by the resident and it was unable to consider these costs. It recognised that it had undertaken works to other properties within the building, however, this was based on the severity of the damage that had been caused by the incident.
8. It agreed to offer the following compensation:

(1) £100 complaint handling

(2) £100 lack of communication

(3) £600 time, trouble and inconvenience

(4) £174.15 rent rebate based upon a 5% reduction in the weekly rent for period 2 September 2019 to 15 March 2020.

(5) The total compensation offered was £974.15.

The resident responded on 16 March 2020. He was unhappy with the landlord’s response and said that it had not carried out a full and proper complaint investigation and he disputed the landlord’s version of events. He felt the landlord had downplayed the severity of the infestation and its appointed contractors had not been appropriately qualified to deal with such incidents.
The landlord issued a further complaint response on 8 April 2020:
1. It reiterated its compensation of £200 for complaint handling failures and a lack of communication.
2. It accepted that its management of this issue was not proactive, especially in respect of the cleaning of the communal areas and the pest control treatments. It had accepted the HE recommendations and other learnings had been raised and would be implemented internally.
3. It accepted that three different contractors had been involved in the works and that the delays had allowed the infestation to increase, protracting the matter unnecessarily and causing further distress. It apologised for its failure to properly co-ordinate the works and feedback would be given to improve performance.
4. It acknowledged that the initial officer gave incorrect information about contacting the resident’s Solicitor. As a learning from this, staff would be reminded of the correct procedures when advising about the legal process.
5. It said that that it could find no records of any correspondence from the resident’s Solicitor. It asked that the resident re-submit his claim to its legal team.
6. As confirmed in the stage two response, it reiterated that this matter had not been managed as effectively as it should have been. This resulted in the resident not having the full enjoyment of his home caused by a lack of co-ordination in managing the treatments that should have been applied. It apologised for this and increased its compensation offer to:

(1) £100 complaint handling

(2) £100 lack of communication

(3) £600 time, trouble and inconvenience

(4) £522.45 rent rebate based upon a 15% reduction in the weekly rent for period 2 September 2019 to 15 March 2020.

(5) The total compensation was now £1322.45

It reiterated that it would consider the cleaning costs incurred by the resident, and it asked that he provide a receipt showing the total expenditure.

The resident remained unhappy and responded on 12 April 2020 repeating his dissatisfaction about the landlord’s handling. He then wrote to the landlord’s CEO office on 9 May 2020 and this Service as he had not had a response. The landlord issued a further complaint response on 22 May 2020:
1. It confirmed that the final communal cleaning was done on 17 April 2020.
2. It repeated its findings from the previous complaint responses.
3. It repeated its offer to consider the cleaning costs incurred by the resident.
4. As for any legal claim being made by the resident, this would need to be dealt with by its legal team and not the complaints process.
5. It explained that this was now the end of the complaints process and if the resident wished to pursue legal action, he would need to contact the landlord’s legal team.

Assessment and findings

Policies, procedures, and agreements

Pest control policy:

The landlord’s aim is stated as ‘To respond promptly to any statutory or qualifying pest infestation in any of our communal areas or properties’. It also states that it will ‘Respond to a qualifying pest infestation in a communal area within 7 working days’.

Decant policy:

This states that ‘We will provide a food allowance to those staying in hotel accommodation (maximum £15 per person per day…) where they do not have access to a kitchen. Depending on individual circumstances, we may reimburse tenants…for other costs, such as laundry, phone calls, and additional travel costs’.

Repairs policy:

This states that the landlord will respond differently to different types of repair, there are four different categories of repair:
1. Emergency Repairs – needed to avoid an immediate danger to personal health or safety or serious damage to property. We will repair or make safe these works within 24 hours.
2. Routine Repairs – standard repair where no risk exists to either the customer or Peabody’s asset. These will be completed within a maximum of 35 days…
3. Communal Repairs – Peabody will take reasonable care to keep the areas and facilities you share with your neighbours…in reasonable repair. Peabody aims to carry out communal repairs proactively, to the time scales set out above and to a good standard.

Compensation policy:

The landlord’s compensation policy states that ‘payments are made when a person has experienced a delay or has incurred additional costs because of a service failure on our part or if we have failed to carry out a service within our published guidelines’. For example:
1. inability to use part of a property
2. a failure to meet agreed standards of service
In assessing a claim for compensation, the following factors will be considered:
1. The severity of the time, trouble and inconvenience suffered and whether this was reasonably foreseeable by us.
2. We have already provided non-financial compensation e.g. repairs carried out.
3. An assessment of whether the loss or inconvenience could be reconciled in any other manner by the resident.
4. Any known costs that have been reasonably incurred.
5. Recognition of any failure to follow policies and procedures.
6. The time taken to resolve the matter.
The policy has a limit of £400 compensation for time and trouble, but it also states that ‘we may at times provide compensation over the above-mentioned limits if deemed fair and reasonable to do so…’
The compensation policy also allows for a ‘Room Loss Allowance’. It states that for each unusable room, a resident can receive a percentage of the weekly rent as compensation. The maximum that can be claimed is 50% of weekly rent. As an example, loss of living room would attract a rent reduction of 10%.

Landlord’s handling of the infestation:

The Ombudsman’s role is to consider whether the landlord’s handling of the infestation was in accordance with its policies, procedures, and any agreements it has with the resident, and whether it acted reasonably, taking into account what is fair in all the circumstances of the case. In doing so, the Ombudsman will not only consider the landlord’s response to the substantive issues, but also the actions it took within its complaints process.
The landlord has demonstrated in its complaint responses that it has formally acknowledged and accepted its service failures with regards to its handling of the matter. It has acted appropriately by apologising for the service failures and offering compensation in recognition of the errors.
It is noted that the landlord has offered the resident £600 compensation in recognition of his time, trouble and inconvenience he experienced. It has also offered him £522.45 as a rent rebate based upon a 15% reduction in the weekly rent for the period 2 September 2019 (when the infestation report was made) to 15 March 2020 (when the Stage 2 complaint response was issued) for the partial loss of use of the flat.
The resident has rejected this offer and has requested compensation of £3000 for the distress and inconvenience he has been put through. Together with around £2700 for refurbishing the flat; and £2170 for replacing contents (e.g. furniture) that he said he had to dispose of due to contamination.
The issue the Ombudsman needs to consider is whether or not the landlord’s offer of compensation is reasonable redress for the identified service failures.
In considering whether or not the landlord’s offer of compensation is reasonable, the Ombudsman has taken into account the landlord’s compensation policy, and this services’ own Dispute Resolution Principles (be fair, put things right and learn from outcomes) and our published Remedies Guidance.
In particular, the ‘Remedies Guidance’ explains that where there have been service failures by the landlord, if the landlord has recognised the failures itself and has taken appropriate action to put this right, including offering reasonable compensation, then the Ombudsman will not necessarily require that the landlord do anything more. One of the factors that the Ombudsman considers is whether the redress is proportionate to the severity of the service failure by the landlord.
The Ombudsman understands that while the landlord has a pest control policy, this does not set out any specific procedure detailing how it handles infestations as seen in this case. In the absence of the landlord’s defined policy on how to handle such infestations, the Ombudsman has considered the matter in light of the landlord’s pest control and repairs policies, and in accordance with the landlord’s general legal obligations to ensure a safe and habitable environment and what the Ombudsman considers to be reasonable in the circumstances.
The ‘Housing Health and Safety Rating System’ guidance sets out a general duty on landlords to ensure that the property is habitable and safe to live in. This includes ensuring that the property is free from hazards (such as infestations) that could potentially lead to infections.
In this case, the resident reported an infestation of maggots, flies, rodents, and other insects in his flat and within the communal area outside the flat. This report was made approximately two weeks after a tenant in the next door flat had died, and whose body had been decomposing within the flat. The resident has said that the infestation was made worse by the hot weather. The Ombudsman has not seen any evidence to show that the initial infestation was caused by any failing or inaction on the part of the landlord.
However, once the landlord was notified of the reported infestation, it was reasonable to expect it to have properly investigated the report and carried out any necessary decontamination and remedial works promptly to ensure that the flat and the communal arears affected were free from any infestation hazards and were habitable. Especially given the probable cause and the nature of the infestation being related to the discovery of a decomposing body.
Looking at the evidence that is available for this case, the Ombudsman has noted that there is a lack of detail in the landlord’s submissions. A landlord’s record keeping is a crucial aspect of its overall service delivery. Maintaining accurate and contemporaneous records assist a landlord to provide an efficient and timely service and also provide an audit trail of its decision making after the event. The landlord is therefore reminded of the need to ensure that its records are sufficiently detailed and thorough.
From what can be ascertained from the landlord’s records, the Ombudsman is of the view that the landlord acted appropriately in its initial response to the resident’s report. It arranged for a contractor to attend the same day and it also acknowledged the need for specialist contractors to be used. It is noted that the landlord swiftly arranged for the resident to be decanted to a hotel.
However, following these initial steps it has not been able to demonstrate that it continued to act proactively or in a timely manner in its ongoing handling of the infestation. Given the circumstances of the infestation, there is no evidence to show that the landlord arranged the necessary decontamination and cleaning works with the appropriate urgency and as a priority due to the potential health risks. The landlord has not shown that it took steps to address the resident’s concerns or that it carried out any particular actions to try and identify if there were any potential health and safety concerns.
Its records show that its contractors attended on the day the report was made and they noted the presence of live maggots within the lights in the communal area, which had come from the deceased tenant’s flat. It was noted that specialist contractors needed to be appointed to treat this. However, it is not clear from the landlord’s submissions why this was not actively pursued. Its records show that a week later, on 9 September 2019, its contractors once again confirmed that there were maggots not only within the communal area but also affecting three flats (including the resident’s flat). There is no evidence of any treatment works having been done during this period.
According to the landlord’s records, the first treatment work was not carried out until 18 September 2019, approximately 16 days after the infestation had been reported. The contractors then re-attended on 24 September 2019 to complete the treatment work and removed the dead maggots. It is noted that further treatments were required in respect of removing dead flies from within the light fittings inside the flat. It is not clear from the landlord’s records when this treatment took place, and whilst its records show that all the treatment was completed by 8 October 2019, it has failed to demonstrate exactly what works were carried out.
The landlord made the decision to end the temporary decant on 13 October 2019 on the basis that the flat was now free from infestation and all the necessary works and treatments had been carried out successfully, and the flat was deemed to be habitable. It has shown that a treatment plan for the maggots was completed, but it has not shown that all the other issues raised by the resident had been properly addressed. For instance, there is no evidence to show that the landlord inspected the flat and/or carried out any assessment of the condition of the flat prior to making the decision that it was now habitable again. Nor has it demonstrated that any specific cleaning was carried out.
The resident had raised a formal complaint on 11 October 2019 and had questioned whether it was safe to return to the flat. Whilst the landlord had acknowledged in its complaint response that its handling of the matter had been unsatisfactory, and it had agreed to carry out further treatments, the only additional work that was carried out was rodent proofing on 13 December 2019.
The landlord’s records show that it was of the view that no further works were required to the resident’s flat and that it was habitable again by 13 October 2019. The resident disagreed with this conclusion and he chose not to move back into his flat until 11 January 2020 after he had refurbished it. The decision not to move back in after the decant had ended and to refurbish the flat was solely the resident’s decision. His reasons for doing so are noted, but there is no evidence to suggest that the flat required a full refurbishment due to the infestation. Furthermore, the landlord is not obliged to carry out internal refurbishment of the flat, and nor is it responsible for maintaining the internal décor or the furnishings.
The resident has said that due to the landlord’s inaction and/or unwillingness to take the appropriate action to make his flat safe, he had to carry out cleaning works at his own cost. It is noted that the landlord has already agreed to consider this cost as a gesture of goodwill and has asked the resident to provide evidence of his expenditure, which is appropriate.
The landlord acted appropriately by arranging an inspection by the local authority EH team and it fully accepted the EH recommendations and has said that it has used this to make changes and improve its service provision in the future. The landlord’s willingness to learn from this incident is in accordance with the ombudsman’s Dispute Resolution Principles – one of which is to learn from the complaint outcome. In terms of learning, given the dispute about the end of the decant, it could have arranged an inspection of the flat at that time. Had it done so, this would have reassured the resident that his concerns were being fully considered.
The landlord has not demonstrated that it had a cohesive plan of action to tackle the infestation and its records suggest that it responded on an ad-hoc basis. Its handling has resulted in the necessary treatment of the infestation being delayed and has meant that the resident was away from his home for longer than was reasonable. However, it is also noted that the landlord’s offer of a rent rebate covers a period in excess of the time the resident was away from his flat. The resident moved back in on 11 January 2020 and the landlord’s rent rebate was up until 15 March 2020, which was more than reasonable.
The Ombudsman has considered the landlord’s assertion that its service failures were in part due to the fact that it had not dealt with incidents of this type of infestation previously. However, the fact remains that the landlord has a responsibility to ensure that it has policies in place to deal with cleaning and decontaminating its properties after the death of a tenant in a property. To this end, the Ombudsman recommends that the landlord review its existing policies for dealing with infestations and consider whether they need to be amended to include such situations in the future.
Taking an overall view on the matter, the Ombudsman is satisfied that there were service failures in the landlord’s handling of the infestation, but it has accepted this and has offered the resident reasonable redress. In the Ombudsman’s view, the offer of compensation recognises the service failures noted above and represents proportionate and reasonable redress for the service failures.
The Ombudsman understands that the resident is seeking to pursue a legal claim against the landlord for his losses and expenses, which include the refurbishment of the flat, replacing contaminated furnishings and for his associated losses and expenses. It is not clear from the available evidence at what stage this legal claim is at, but it is noted that the landlord has asked the resident to submit full details of his claim to its solicitors for due consideration. The Ombudsman is not in a position to determine whether or not the landlord has acted negligently, and as such, matters of legal liability are more appropriate for the legal process and not the Ombudsman.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme the landlord has made a reasonable offer of redress in respect of its handling of the resident’s concerns regarding how it dealt with an infestation at the building following the discovery of a decomposing body in a neighbour’s flat.

Reasons

The landlord has acknowledged the resident’s concerns and has accepted that there were service failures in its handling of this matter. It has apologised for the identified service failures and it has accepted responsibility for this. It has offered a compensation package which the Ombudsman considers to be reasonable and proportionate redress for the service failures in this case.

Recommendations

The landlord to review its existing policies for dealing with infestations and consider whether they need to be amended to include decontamination of properties and removing hazardous waste materials following a death of a tenant in a property.
If it has not already done so, the landlord to pay the resident the compensation detailed in its final complaint response.