Peabody Trust (202104507)

REPORT

COMPLAINT 202104507

Peabody Trust

5 February 2024

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

The complaint is about the landlord’s handling of the resident’s:
1. Request to have scaffolding removed from the property.
2. Concerns regarding fire safety.
3. Reports of flooding within the property.
4. Request for compensation related to personal injury.
5. Reports of anti-social behaviour from an upstairs neighbour.
6. Request for the shared garden to be equally divided.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is an assured tenant living in a one-bedroom flat with shared use of the back garden. The tenancy began on 9 March 2013.
The resident has been diagnosed with an autoimmune condition and the landlord was made aware of this as part of the correspondence and complaint in this case.
The resident’s complaint is multi-faceted and has included the following:
1. A complaint that scaffolding was erected around the property in April 2021, which remained in place until October 2022. The resident stated that this reduced light able to enter the property, which she reports aggravated her health conditions. Additionally, the resident felt that this scaffolding was restricting access and egress at the rear of her property, which may have impeded any emergency evacuation.
2. A complaint regarding fire safety concerns in the property. This included the scaffolding, but also encompassed a front fire door which required repair and the erection of a fence in the garden, which the resident stated preventing her escaping in that direction in the event of an emergency.
3. A request for compensation following flooding from the neighbour above, which took place on 2 January 2022 and 25 January 2022. The flooding caused damage to the resident’s bathroom lighting and hallway carpet, which she had laid herself at a cost of £253.
4. A request for compensation for personal injury, as the resident stated that her health conditions had been caused, or worsened, by the lack of light able to enter her property due to the scaffolding.
5. A complaint regarding anti-social behaviour, which included allegations that the alleged perpetrator (the upstairs neighbour) was repeatedly and intentionally flooding her property and was causing noise nuisances.
6. A complaint that the shared garden had been unequally divided between the resident and neighbour through the installation of a six–foot fence by the landlord. The resident calculated that her share of the garden was around 4.3m2, whereas the neighbour had been apportioned around 22.5m2, a portion over four times larger. The resident also felt that this fence prevented her leaving the property via the back garden in the event of an emergency, as no gate was installed.
The resident raised her stage 1 complaint via this Service on 25 May 2022. The resident was seeking a managed move to a different property and an investigation into the fencing, including the apportionment of the garden and the related safety concerns.
The landlord separated the complaint between two departments and issued two stage 1 responses as follows:
1. The first stage 1 response, issued on 15 July 2022, where it committed to further investigations into the safety issues raised. The landlord also stated that it did not have sufficient budget for soundproofing between the flats, but that it would contact the neighbour regarding the noise.
2. The second stage 1 response, issued on 26 July 2022, where the landlord apologised for the length of time the scaffolding had been erected at the property and committed to taking this down within 30 days. Additionally, the landlord committed to replacing the front door which was, at that time, being manufactured. The landlord said it was unable to consider further fire or safety-related adaptations to the rear of the property because this was not the nominated fire escape route. The landlord awarded £110 compensation for the delays in taking down the scaffolding and £50 for the delay in issuing its complaint response.
The resident escalated her complaint to stage 2 of the landlord’s complaint process on 26 July 2022 as she felt that the landlord had not fully addressed her primary complaint points, which included the division of the garden, damage from flooding and the effects on her health from the lack of light in her property, due to the scaffolding.
The resident remained dissatisfied and escalated her complaint to the Ombudsman on 4 November 2022, seeking an equal division of the garden and compensation for the delays with the other elements of her complaint.

Jurisdiction

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. After carefully considering all the evidence I have determined that some elements of the complaint, as set out above, are not within the Ombudsman’s jurisdiction.
As part of the complaint, the resident sought compensation from the landlord for the impact of her living situation on her health and welfare, this is known as a personal injury claim. In particular, the resident stated that she had contracted an illness because of living in relative darkness within the property, due to the scaffolding blocking out the light to the property.
Paragraph 42 (f) of the Housing Ombudsman Scheme states that “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, concern matters where the Ombudsman considers it quicker, fairer, more reasonable, or more effective to seek a remedy through the courts, tribunal or other procedure.”
This Service is unable to draw conclusions on the causation of, or liability for, personal injury, therefore we will not consider this element of the resident’s complaint. This Service can give an opinion as to whether the landlord responded in a reasonable manner to the resident’s reports of illness, however, claims of personal injury must be decided by a court of law who can assess specialist medical evidence and make a judgement on the merits of the case. The Ombudsman understands that this situation has been very stressful for the resident and therefore she may wish to seek independent advice on making a personal injury claim if she considers that her health has been affected by any action or lack thereof by the landlord.
Additionally, the resident has raised complaints regarding alleged anti-social behaviour from her upstairs neighbour and a request to divide the shared garden equally. These complaints were examined by the landlord in a separate complaint (by a different department) and, at the time of escalating the complaint to this Service, had not exhausted the landlord’s internal complaint procedure.
Paragraph 42 (a) of the Housing Ombudsman Scheme states that “the Ombudsman may not consider complaints which, in the Ombudsman’s opinion, are made prior to having exhausted the landlord’s complaint procedure.” For this reason the resident should consider escalating these complaints with the landlord. Should they remain unresolved, she may then refer her complaint to this Service. These elements of the complaint will not be considered within this determination.

Assessment and findings

Removal of scaffolding

The landlord is legally responsible, under Section 11 of the Landlord and Tenant Act 1985 for the upkeep of the structure and exterior of its properties, which includes the roof, walls and external fixtures. The landlord’s repairs policy states that both ‘programmed repairs’ and ‘specialist repairs’, including those to roofs where scaffolding is required, should be completed within 60 calendar days.
There is evidence that scaffolding was erected at the resident’s property in April 2021 to make a “moderate repair” to the roof. Later the scaffolding was expanded because the landlord’s contractors had noted that further works to the roof were required.
There is evidence of the resident contacting the landlord on numerous occasions to follow up on progress with the repairs and request that the scaffolding was removed. The resident notified the landlord that she felt the scaffolding was restricting light entering her property, which was exacerbating her health conditions. Additionally, the resident felt that the scaffolding restricted the space available to her at the rear of the property in her garden area.
In its stage 1 complaint response, the landlord explained that the scope of works had expanded, which required the scaffolding to be in place for longer, to enable it to undertake more extensive roof repairs. There is no evidence that the landlord had previously communicated this with the resident. The response also noted that the full scaffolding had only been in place since December 2021, as prior to this only a small scaffold had been in place at the rear of the property.
The landlord’s response apologised for the delay in removing the scaffolding, committed to removing it within 30 days and offered compensation of £110 for the inconvenience. The scaffolding was not removed within the timescale, which would undoubtably have caused additional distress, time and trouble for the resident in pursuing the matter.
The landlord’s stage 2 complaint response upheld the resident’s complaint because of the continued delays. The landlord was not able to give a date that the scaffolding would be removed. The landlord apologised for this and offered increased compensation of £300 for the delays, time, trouble and inconvenience, along with £147.20 to account for the resident’s loss of enjoyment of her property in this time. The £300 compensation also encompassed delays to installing a fire door.
The scaffolding was removed on 20 October 2022. This was around 17 months after it was first installed and around 10 months since the original scaffolding was expanded for the larger works to be undertaken. In both cases was a significant failure to deliver the repairs within the 60 day timescale for these types of works. The Ombudsman considers that the landlord unreasonably delayed removing the scaffolding from the property.
In addition to this, the lack of clear communication from the landlord about the increased scope of works, the expected length of time that the scaffolding would be erected for, and missing the deadline for removal offered in its stage 1 response adversely impacted the resident and exacerbated the distress and inconvenience she experienced.
Overall, given the length of time that the scaffolding was in place, the disruption that this caused the resident and the impact that this would have had on her enjoyment of the property, there was maladministration in the way the landlord handled this element of the complaint. In addition to this, the Ombudsman considers the landlord’s remedy was insufficient to address the failures this Service has found.

Fire safety

The Regulatory Reform (Fire Safety) Order 2005, as amended by the Fire Safety Act 2021 for flats and other properties with multiple dwellings, places legal obligations on landlords to take general fire precautions, such as assessing the risk of fire, ensuring there are adequate means of escape and having appropriate firefighting equipment in place.
The resident’s complaint was two-fold. The first element related to a replacement front door, which served as the primary fire door in the property. The second element raised a concern that her back garden, which she regarded as an alternative fire escape, had been blocked and restricted by the installation of a fence and the scaffolding. The fence had been installed without a gate or similar exit point.
The fire brigade attended the property on 25 January 2022 following flooding from the upstairs neighbour, which the resident stated made a light within her property ‘spark’. During the attendance, the fire brigade:
1. Disconnected the light to make it safe.
2. Advised that the front fire door was not compliant with current regulations due to seals around the edging.
3. Advised that the rear kitchen door, leading to the garden, was not suitable for use as an alternative exit.
The landlord was advised of these actions on 30 January 2022. In response it:
1. Opened a fire safety case the following day.
2. Commissioned a post-installation inspection of the fire door, as it had been recently installed.
3. Identified that a new fire door was being manufactured, but that it was awaiting confirmation of when this would be delivered and installed.
The landlord confirmed in its stage 1 complaint response that the resident’s front door is the single, nominated fire escape for the property. It stated that it would not consider further works to the back door or back garden, such as installing a gate, as this was not a nominated escape route. The response confirmed that a new front fire door was being manufactured and would be installed in due course.
The Building Regulations 2010 – Approved document B specifies that a single escape route is permitted on ground floor or single storey properties, which are less than 4.5m above ground level. The Ombudsman considers on this basis that the landlord is justified in only committing to renew the front door.
The landlord’s stage 2 complaint response offered £300 compensation for the delays, as well as the time and trouble related to the installation of the fire door and the scaffolding issue.
There is some evidence of the landlord following up with the contractor to expedite the installation and ultimately it appointed a new contractor to the project. In recognition of this, the landlord offered an additional £200 compensation in March 2023, calculated as £25 per month since the landlord’s stage 2 complaint response, up until the expected installation date.
The fire door was installed in mid-2023, around 1 year after first being raised by the resident. The length of time taken to install the new door was excessive and caused the resident additional time and trouble in pursuing the complaint. The fire brigade had previously advised that the door was unsafe and did not conform to current standards. Therefore this delay also left the door in an unsafe condition for an extended period. This was inappropriate and is maladministration. In addition, the redress offered by the landlord was not sufficient to address the impact its failures had or might have had on the resident in the event of a fire, particularly given the ongoing flooding and possible complications with electrics within the property.

Flooding in the property

The resident asserted that flooding damage from the upstairs neighbour had caused water damage to the flooring within her property in January 2022. The flooding also damaged the bathroom light. Due to this, the resident requested compensation of £235 to the full value of the flooring, which she had installed.
The resident reported a further flood on 25 January 2022. During this flood she stated that she saw sparks coming from a light fitting and called the fire brigade. This was reported to the landlord on 30 January 2022.
The evidence shows further contact from the resident to the landlord in March, May and July 2022, prior to her raising her formal complaint in July. There is no evidence that the landlord attended the property in respect of the flooding, undertook any assessment of the damage or provided any advice to the resident regarding insurance or compensation until the stage 2 complaint response.
Whilst this type of claim would usually be subject to the resident’s contents insurance, the landlord offered the full requested amount of compensation in its stage 2 complaint response. It said it did not feel it was reasonable for the resident to make this claim on her own insurance or need to pursue a separate claim with the landlord’s insurer. The Ombudsman notes that the landlord used its discretion as a gesture of goodwill to offer the resident more than it was obligated to under its repairs policy. Given that the full amount of compensation requested was paid by the landlord, the Ombudsman considers this was reasonable in the circumstances.
Whilst outside the scope of this investigation, the evidence shows that the flooding has continued as recently as November 2023. The resident has stated that her property was flooded with foul water and sewage from the neighbour’s property which caused damage and a foul smell in the resident’s flooring. At the time of investigating there is no evidence that the landlord attended to assess this damage, nor has it provided any compensation or remedy.
The effects of continued flooding, particularly those involving foul water and sewage will undoubtably have caused the resident acute distress and inconvenience. Additionally, the resident told this Service damage has been caused to her flooring. This Service considers that the resident’s overall enjoyment of the property will have been negatively affected by this. This was inappropriate and was maladministration. In addition, the Ombudsman considers that the redress offered by the landlord was not sufficient to address the impact its failures had on the resident.

Complaint handling

The landlord operates a two-stage complaint policy in which it commits to acknowledging complaints within three working days and issuing a response within 10 and 15 working days at stage 1 and stage 2 respectively.
The resident received responses to her complaints after 42 working days at stage 1 and 34 working days at stage 2. Both of these responses were in excess of the landlord’s policy timescales, and this is not disputed. In recognition of the delays, the landlord apologised, provided an explanation and offered compensation of £50 at stage 1, which was later increased to £200 at stage 2. Given the relatively short delays, the Ombudsman considers that this is an appropriate remedy to address the failure to meet its policy timescales.
In addition to the delays, it is unclear why the landlord divided the resident’s complaint into two elements. The landlord stated that this was to enable different teams to respond, with the hope of reaching a ‘local resolution’. Whilst this may have been an appropriate resolution for the complaint regarding anti-social behaviour, it is unclear how this would have resolved the issue around the erection of the fence and the unequal division of the garden. This was also not communicated effectively to the resident prior to the stage 2 complaint response being issued. The landlord should review its processes for allocating complaints and how it communicates this with residents to avoid unnecessary delays and distress in future. The landlord must also allow the resident to escalate the outstanding elements of her complaint, if she has not already done so.
The landlord should review its processes for allocating complaints and how it communicates any intention to divide complaints with residents. This is to avoid unnecessary delays and possible confusion in future as well as to ensure residents are clear where their complaint sits within the process as well as who has ownership of it. The landlord must also allow the resident to escalate the outstanding elements of her complaint if she has not already done so.
Overall, whilst the responses were clear and provided adequate detail, the actions that the landlord committed to were not followed through. This was particularly important in the case of the missed deadline for removal of the scaffolding. This indicates that the complaint process is not operating in an effective way to resolve resident’s complaints without delay. It also shows a lack of learning on the part of the landlord, which caused the resident further time and trouble in pursuing the matters further. The Ombudsman considers that this amounts maladministration in the landlord’s complaint handling.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme here has been:
1. Maladministration in the landlord’s handling of the resident’s request to have scaffolding removed from the property.
2. Maladministration in the landlord’s handling of the resident’s concerns regarding fire safety.
3. Maladministration in the landlord handling of the resident’s reports of flooding in the property.
4. Maladministration in the landlord’s handling of the complaint.
In accordance with paragraph 42(f) of the Housing Ombudsman Scheme the resident’s complaint regarding compensation for personal injury is outside of the Ombudsman’s jurisdiction to consider.
In accordance with paragraph 42(a) of the Housing Ombudsman Scheme the resident’s complaints regarding alleged ASB and the division of the shared garden are outside of the Ombudsman’s jurisdiction to consider.

Orders and recommendations

Orders

Within 28 days of the date of this determination, the landlord must:
1. Provide a written apology from a senior member of staff to the resident for the delays in removing the scaffolding and replacing the fire door.
2. Permit the resident to escalate the outstanding elements of her stage 1 complaint, which were divided into a separate complaint by the landlord and provide a stage 2 response.
3. Pay the resident £1,250 compensation comprised of:
  1. £400 for the distress and inconvenience caused to the resident by delays in removing the scaffolding.
  2. £350 for the inconvenience, time and trouble caused to the resident by needing to pursue the installation of the fire door over an extended period.
  3. £400 for the distress and inconvenience of repeated instances of foul water flooding into the property between January and November 2022.
  4. £100 compensation for the landlord’s poor complaint handling practices which frustrated the resident being able to pursue and escalate her complaint.

This compensation is in addition to the previous compensation offers made by the landlord, which must also be paid, if the landlord has not already done so. All payments must be paid directly to the resident and not credited to the rent account, unless otherwise agreed by the resident.

Assist the resident to make a claim to its insurer for damage to her personal belongings which were damaged by flooding or consider compensation for such damage outside its insurance coverage.
Undertake a case review to understand the reasons behind the extended delays in removing the scaffolding and installing the fire door and provide this service with an action plan to prevent a similar reoccurrence in the future.
Review its complaint handling processes to ensure that complaints are addressed in full, rather than being divided, wherever possible. The landlord must ensure that if complaints require delegating to separate teams it has a clear policy for this. In particular, this policy must detail the need for communication with the resident about this as an intended course of action at an early stage.

Within six weeks of the date of this determination, the landlord must undertake a survey of the drainage and associated plumbing in the neighbour’s property. Within 10 days of the survey, the landlord must provide the resident and this Service with a schedule of works to prevent a reoccurrence of flooding. The landlord must then use its best endeavours to complete these works within a reasonable timeframe, but no greater than two months from the production of a schedule of works.
Within one month from the date of this determination, the landlord must undertake a survey of the resident’s property to assess the damage caused by grey and foul water flooding. Within 10 days of that survey, the landlord must provide the resident and this Service with a schedule of works to rectify any damages caused. The landlord must then use its best endeavours to complete these works within a reasonable two months of the provision of a schedule of works.
The landlord must provide evidence of compliance with these orders to the Ombudsman.

Recommendations

The landlord should review its training for staff handling complaints to ensure that these are responded to within its policy timescales.