Peabody Trust (202205611)

REPORT

COMPLAINT 202205611

Peabody Trust

20 February 2023

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 response to the resident’s request for replacement flooring in her bedroom.

Background

2. The resident is an assured tenant of the landlord. The landlord is a registered provider of social housing.
3. On 2 November 2021, the resident requested that the lino flooring in her bedroom be replaced. On 3 December 2021, the landlord’s telephone operative subsequently advised that the landlord would replace the floor.
4. The resident raised a formal complaint on 16 January 2022. She noted that despite the landlord confirming it would replace the floor, and her subsequent requests for updates, her flooring had not been replaced. As a resolution the resident requested for the work to be completed.
5. The landlord provided its stage one response on 28 January 2022. It advised that after reviewing the repair, its position was that “we do not fix or replace flooring in a bedroom.” It apologised that its telephone operative had given the incorrect information and offered the resident a £20 voucher as a good will gesture for the inconvenience caused.
6. The resident escalated her complaint on 31 January 2022. She noted that while the landlord’s repair policy for social housing stated flooring was the resident’s responsibility, its policy for ‘key worker housing’ was that it would replace the flooring. She advised she considered had a ‘key worker tenancy’ and that the landlord should therefore be responsible for replacing the flooring.
7. The landlord issued its final response on 23 March 2022. It advised its repair responsibilities were based on the terms of the tenancy. It advised it considered the resident to have an assured tenancy and that other types of tenancies for key workers and for market rent properties had different terms. It therefore considered “floor coverings” to be the resident’s responsibility. It reiterated its apology for its earlier misinformation, and reiterated its offer of goodwill compensation.
8. The resident referred the complaint to this service on 17 June 2022. The resident remained unhappy with the landlord’s refusal to replace her bedroom flooring, as she believed that she had a ‘key worker tenancy’, due to her original tenancy being with a key worker housing association with the building being for key workers only. As a resolution, the resident would like her original tenancy agreement upheld and the floor to be replaced.

Assessment and findings

Policies and procedures

9. The present landlord is not the same landlord that the resident originally entered into the tenancy agreement with. The landlord has advised it does not have a copy of the original tenancy agreement in its records, but has provided a copy of a similar tenancy agreement which it has advised contains similar terms.
10. The resident has confirmed that there were some slight variations between the tenancy agreement provided by the landlord and her original tenancy agreement, but that the terms relating to flooring are the same.
11. The tenancy agreement states it is an “assured weekly/monthly tenancy.” The tenancy agreement is not referred to as a ‘key worker tenancy’ at any point within the text of the tenancy agreement.
12. The tenancy agreement states that it is the landlord’s responsibility “to keep in good repair the structure of the premises, including – internal floors, but not including internal painting and decoration.” The tenancy agreement does not specifically refer to floor coverings.
13. The landlord’s repair policy notes that for social housing, “flooring” in rooms other than the kitchen or bathroom are the resident’s responsibility. For ‘key worker’ and market rent tenancies, the landlord is responsible.

Assessment

14. As noted above, the tenancy agreement states that “floors” are the landlord’s responsibility. The landlord’s repair policy states that “flooring” is the resident’s responsibility. Throughout its early correspondence with the resident, the landlord repeatedly uses the word “flooring,” only clarifying that it considered the lino to be a ‘floor covering’ in its stage two response.
15. In the Ombudsman’s experience, the difference between flooring and a floor covering is not clearly defined. Similarly, where a landlord considers a floor covering not to form part of the structure, the Ombudsman considers it best practice for a landlord to identify this during its voids process and to formally agree who is responsible should the floor coverings remain. It is not evident any such agreement was made in this case.
16. The Ombudsman is unable to definitively determine the meaning of contractual terms when they are in dispute. It is evident that throughout the period of this complaint, what is meant by “flooring” has remained in dispute. A definitive determination about what is meant by a “floor” in the tenancy agreement, and whether the lino in this instance is affixed such that it forms part of the structure of the building is beyond the jurisdiction of this service and is more appropriate for a court. Should the resident wish to pursue this element of the complaint, she has the option to seek further legal advice.
17. Where a resident reports a repair issue to a landlord, the Ombudsman expects a landlord to carry out a reasonable investigation into whether it is responsible for the repair, and to clearly articulate its position if it determines it is not responsible.
18. In this case, following the resident’s reports, the landlord’s telephone operative initially confirmed the landlord was responsible for the flooring. The landlord’s complaints team later advised the landlord was not responsible for the flooring. This position was based only on its policies. At no point did the landlord attend the property to investigate the resident’s reports to support its position. Given the above noted circumstances in which a floor covering may be fundamentally affixed to the building structure, it would have been appropriate for the landlord to have investigated the resident’s flooring to satisfy itself it was not responsible, which it did not do.
19. The resident has also disputed throughout this case that her tenancy agreement should be considered a ‘key worker tenancy’, and thus be subject to the repair policy for this type of tenancy. The landlord has given its position that while the resident may be a key worker, and that the purpose of the building was initially for key workers, it did not consider her tenancy to be a what it referred to as a ‘key worker tenancy’. It advised that this distinction was based on terms of a tenancy agreement, and not the circumstances of a resident.
20. Only following the landlord’s final response, however, did it seek a copy of the original tenancy agreement, having noted it did not hold a copy. It therefore did not include any relevant terms from the resident’s original tenancy, or how they may differ from a ‘key worker’ tenancy, to further articulate its position. While it may be the case that her tenancy was not what it considered to be a ‘key worker tenancy’ for the purposes of its policy, other than simply stating this to be the case, the landlord’s response fell short of providing reasonable detail to help her understand its position.
21. Finally, as acknowledged by the landlord, its telephone operative unreasonably raised her expectations that her floor would be replaced. The landlord appropriately acknowledged that (based on its position) this information was incorrect and shouldn’t have been given. It is still the case, however, that following its initial decision that it was responsible, it failed to provide any follow up communications or indicative timeframes for inspections or works, and it also failed to respond to her request for an update, leading her to make a formal complaint. The landlord did not acknowledge these delays or offer an apology.
22. While the landlord offered goodwill compensation in relation to its initial misinformation, given its failure to demonstrate it carried out a reasonable investigation of the resident’s reports to satisfy itself it was not responsible, its failure to provide sufficient information about why the resident’s tenancy agreement was not a ‘key worker tenancy’ for the purposes of its policies, and its failure to acknowledge the delays to its responses, there was service failure by the landlord. An amount of £100 compensation is appropriate to reflect the distress and inconvenience this has caused to the resident.

Determination

23. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord for its response to the resident’s request for replacement flooring in her bedroom.

Orders

24. The landlord is ordered to pay the resident £100 compensation. If the landlord has already provided the resident with the £20 voucher offered, this can be deducted from the £100. This should be paid within four weeks of this report.

Recommendations

25. It is recommended that:
    1. the landlord reiterate its request for a copy of the resident’s original tenancy agreement so it can provide its opinion on the terms therein and explain why they differ from a tenancy agreement for a ‘key worker tenancy’;
    2. carry out an inspection of the resident’s floor so it can satisfy itself regarding its repair responsibilities, and provide follow up correspondence to the resident clearly explaining its position;
    3. review its repair policies to make it clear where it is referring to a ‘floor covering’ and not a structural floor.