Royal Borough of Kensington and Chelsea (202117265)

REPORT

COMPLAINT 202117265

Royal Borough of Kensington and Chelsea

9 August 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

The complaint is about the landlord’s:
1. Handling of the resident’s reports of a lighting fault.
2. Complaints handling.

Background and summary of events

Background

The resident is a secure tenant of the landlord, which is a council. The property is a one-bedroom flat within a block.
The landlord has no vulnerabilities recorded for the resident. The resident says he suffers from narcolepsy, a condition which affects a person’s ability to control when they sleep and can include falling asleep suddenly, drowsiness and temporary loss of muscle control. The resident disclosed this condition within the disabilities section of his tenancy agreement.
Section 11 of the Landlord and Tenant Act 1985 implies into the tenancy agreement the landlord’s obligation to maintain the property including “to keep in repair and proper working order the installations in the dwelling-house for the supply of water, gas and electricity”. The Housing Health and Safety Rating System (HHSRS) lists lighting as a potential hazard affecting physical and mental health if lighting is inadequate. Landlords are obligated to remove or reduce the risks set out within the HHSRS.
The landlord’s repairs policy confirms that it is responsible for repairing faults related to the supply of electricity inside the property. The policy defines responsive and planned repairs. Responsive repairs include works to repair damaged or defective electrical systems. Responsive repairs are categorised by seriousness as critical (repair within four hours), emergency (repair within 24 hours), urgent (repair within five working days) or routine (repair within 20 working days). Emergency repairs cover issues such as total loss of power to a property, urgent include minor leaks and routine include repairs to plaster or renewing tiles. The landlord also operates an out of hours service for repairs which cannot wait until the following day to be resolved, such as critical repairs.
The landlord’s complaints policy defines a complaint as “an expression of dissatisfaction, however made, about the standard of service, actions or lack of action by the council, its own staff, or those acting on its behalf, affecting an individual resident or group of residents.”
The landlord operates a two stage complaints process. It will respond to stage one complaints within ten working days, but if it is unable to it will write to the resident to explain and provide a new response date. If the resident is dissatisfied with the response, they can ask to escalate their complaint within 20 working days. The landlord will provide its stage two response within 20 working days unless it agrees a different response date with the resident. The policy says if the resident is still not satisfied, they can approach this Service. The policy also contains reasons why the landlord may not accept a complaint through its complaints process, which include serious complaints about a member of the landlord’s staff that would more properly be dealt with through the landlord’s disciplinary code and procedure.
The landlord has a compensation policy which sets out when the landlord will consider making an offer of compensation, which include when “failure to identify the correct issue or carry out repairs in a satisfactory manner or complete repairs within agreed timescales causes inconvenience or loss.” The landlord can make discretionary compensation payments following a complaint where there has been a service failure. The policy does not include any guidelines on compensation amounts.

Summary of events

On 28 July 2021 the resident called the landlord to report that his lights were not working, and the landlord logged a repair with its out of hours service.
The resident reported to the landlord that his lights were still not working the following day. A contractor attended but could not repair the issue and said it may have been caused by works having been carried out in the flat above.
The landlord booked an appointment for 4 August 2021 and a contractor attended. The contractor reported that an electrical test was needed and left a temporary light. On the same date the landlord emailed the resident of the flat above, who will be referred to in this report as the neighbour and asked that the works stop while it investigates the electrical issue.
The landlord sent an internal email on 9 August 2021 to say that the neighbour’s flat had been checked. On 31 August 2021 the landlord sent further internal emails to request a joint inspection of the property and the neighbour’s flat.
On the same date, 31 August 2021, the resident completed the landlord’s online complaints form to make a stage one complaint. In his complaint he said he:
1. Had spoken to a member of the landlord’s staff about his lighting, who had been rude, accused him of shouting and had ended the call.
2. Had had no lighting for five weeks and did not know when the repair was going to be done.
3. Suffered from narcolepsy and that he needed to have adequate light to “be able to live with any sense of normality” and the lack of light was having a severe impact on him.
On 2 September 2021 the landlord and its contractor exchanged emails. In these emails the landlord arranged for the contractor to attend on 7 September 2021 to resolve the lighting fault.
The contractor attended on 7 September 2021 to rewire the lighting and resolved the fault. The contractor emailed the landlord the following day to say it had restored lighting in the property.
The landlord called the resident on 8 September 2021 and followed this with an email. In the email it apologised for the inconvenience caused by the lack of lighting and offered £150 in compensation. It said if the resident was not satisfied with this, he could make a formal complaint.
On 16 September 2021 the landlord called the resident and followed this with an email. It acknowledged the issues the resident had raised and confirmed that it would respond to his stage one complaint by 30 September 2021.
The landlord provided its stage one response on 1 October 2021. In its response it:
1. Referred to correspondence on 14 September 2021 as being the resident’s stage one complaint.
2. Said the complaint was about the resident:
  1. Having been without lighting for six weeks.
  2. Not being satisfied with the compensation offered.
  3. Being dissatisfied with the conduct of a member of the landlord’s staff.
3. Apologised for the lack of lighting and said that it was a serious issue. It also said that it had taken too long to resolve the issue, which it said was due to needing to liaise with the neighbour and book an appointment with the contractor.
4. Offered increased compensation of £250 due to the extended period the resident was without lighting.
5. Said it was unable to give feedback on the resident’s complaint about the member of staff’s conduct “because the concerns you have raised are dealt with in accordance with human resources procedure and need to be treated with confidentiality”.
6. Gave information on how to escalate the complaint if the resident remained dissatisfied.
On 8 October 2021 the resident emailed the landlord and asked for his complaint to be escalated to stage two. He said:
1. The landlord had discussed an offer of £500 in compensation with him, but this was not included in the complaint response.
2. He had not been given a copy of the landlord’s compensation procedure even though he had asked for this, but he had been given a copy of the policy.
3. He had not been provided with any explanation on how the compensation amounts had been calculated. He believed the landlord had not taken his narcolepsy into account and this had made not having lighting worse for him.
4. He had not been contacted or helped by the landlord with his complaint.
The landlord emailed the resident on 12 October 2021 to acknowledge his stage two complaint and called him the following day to discuss the complaint. The landlord’s note of the call says that the resident had asked for the compensation procedure and was told it did not exist. The landlord confirmed that the procedure was still under review. The resident said he did not think £500 compensation was enough to reflect the impact of not having lighting had had on him.
The landlord emailed the resident again on 15 October 2021 to say that it would provide its stage two response by 5 November 2021.
On 19 October 2021 the landlord provided its stage two response. In its response it upheld the complaint and:
1. Confirmed the complaint had been escalated on 8 October 2021 and that the stage one complaint was made on 14 September 2021.
2. Apologised for the delay in resolving the lighting issue and said it had raised this with senior members of staff.
3. Said that it should have asked its contractors to have tested the electrics in his property at the start so the issue could have been repaired more quickly.
4. Said it was going to form a plan to rewire its properties as the wiring comes to the end of its lifespan to try to avoid failures in the future.
5. Agreed that the previous offers of compensation were two low to reflect the impact the fault had had on the resident.
6. Agreed that its compensation policy referred to a procedure which did not exist and said this was due to a member of its staff having left and no-one having taken the project forward. It said it was now finalising the procedure and including a section on compensation for lighting failure.
7. Said it had reassessed the compensation offered in line with its policy and included a copy of the table used to do this within the complaint response. It said it had been at fault for the service failure and the impact on the resident had been high. Within the banding for this of £500 to £1,000, the landlord offered £750 in compensation.
8. Gave information on how to contact this Service if the resident remained dissatisfied.

Events after the end of the landlord’s complaints process

The resident approached this Service and with the Ombudsman’s assistance tried mediation with the landlord. The landlord made a final offer of £1,000 in compensation however the resident rejected this and said he believed the figure still did not represent the impact the failure had had on him. The resident said he had not been able to cook or clean after 5.30pm each day for two months and that he had to buy five lamps.

Assessment and findings

The landlord’s handling of the resident’s reports of a lighting fault

The resident reported to the landlord that his lights were not working on 28 July 2021. The report was passed to the landlord’s out of hours repairs service, but it is not clear if a contractor attended. A loss of lighting is not included as an example within the landlord’s repair policy categorisation of repairs. Total loss of power is considered an emergency repair and so it is reasonable to assume that a loss of lighting would be considered an urgent repair. However, as the landlord passed the repair to its out of hours service, the resident may have expected a contractor to have attended out of hours which it did not. Regardless, the landlord should have followed up the following day with the resident, which it failed to do. This meant the resident had to report the issue again, which was attended by the landlord’s out of hours repairs contractor but could not be repaired.
On 4 August 2021 the landlord’s contractor told the landlord what works were needed to resolve the issue. There was then confusion over whether works in the neighbour’s flat were the cause of the issue. The landlord delayed in making a further appointment to repair the lighting, which it said was due to having to gain access to the neighbour’s property although evidence seen by this Service would suggest that this is not the case.
Following the repairs being completed on 7 September 2021, the landlord called and emailed the resident to apologise for the delay in repairs and to offer £150 compensation. While the resident had already made a complaint on 31 August 2021, it appears from the evidence that the landlord was not aware at this time as its email advises the resident to make a complaint if he was not satisfied with the offer made. The apology and offer of compensation were a positive and solution focused approach for the landlord to have taken, to show that it realised there had been a failure on its part. However, its offer of compensation was far too low to show that it wanted to put things right for the resident.
In its stage one response on 1 October 2021, the landlord accepted that there had been a failure and that the repairs should have been completed more quickly and apologised for this. It said that it treated this as a serious issue and offered increased compensation of £250. Following the table provided as part of its stage two response, this amount would represent full responsibility of the landlord with medium impact to the resident.
After the resident asked to escalate his complaint on 8 October 2021, the landlord called him to discuss his complaint, which showed it wanted to understand the issues and how it could resolve them.
In its stage two response on 19 October 2021 the landlord again accepted that there had been a failure and that is should have resolved the issue much quicker. It upheld the complaint and agreed that its previous compensation was too low to reflect the impact the lack of lights had had on the resident. It explained its compensation figure as reflecting full responsibility of the landlord with high impact to the resident within its compensation table and offered £750.
In relation to the landlord’s failures, the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the resident’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles and guidance on remedies. Through the complaints process the landlord has accepted responsibility for its failing, apologised and recognised its impact on the resident. Its stage two offer of compensation of £750 was within its policy. Following the end of the landlord’s complaints process the landlord and the resident engaged in mediation facilitated by this Service and the landlord made a final compensation offer of £1,000. Having had an opportunity to carefully consider all the facts of the case by way of an investigation, the Ombudsman is satisfied that the £1,000 offered fully reflects the impact on the resident and would put things right. The complaint was resolved with intervention.

The landlord’s complaints handling

The resident made his complaint via the landlord’s online complaints form on 31 August 2021. However, in its stage one and two responses the landlord said that the resident made a complaint in “correspondence dated 14 September 2021”. This Service has not been provided with this correspondence and this may have been a mistake made by the landlord. The landlord provided its stage one response on 1 October 2021, which was 24 working days after the complaint was made; if the complaint had been made on 14 September 2021 this would have been 14 working days. In either case, the landlord exceeded its stage one response timeframe of ten working days and that was a failing.
Within its stage one response, in relation to the resident’s complaint about a member of its staff, the landlord said it was not able to comment on this aspect because this was a human resources matter needing confidentiality. The landlord’s complaints policy says that serious complaints about a member of the landlord’s staff will not be considered as part of the complaints procedure. While ‘serious’ is open to interpretation, it would have been more reasonable for the landlord to have said what, if anything, it had done to investigate the resident’s complaint. It could have said whether it had listened to a recording of the call or if one was available for example. Considering the Ombudsman’s Dispute Resolution Principles to be fair and put things right, the landlord did not show that it had done this and that was a failing.
The landlord provided its stage two response on 19 October 2021, within eight working days of the resident’s request to escalate the complaint. The landlord again apologised for its failings and explained how it would try to prevent similar failings in future, through a proactive maintenance plan which showed learning from the complaint.
It also answered the resident’s question asked during his request to escalate about the landlord’s compensation procedure. The landlord was frank about the status of its procedure, although it is concerning that one member of its staff leaving had had such an impact upon its work on a procedure. However, the landlord set out how it would resolve the issue and the steps it was going to take, which again was solution focused and showed it had learned from the complaint outcome. The landlord fully explained how it calculated its new compensation offer, showing a transparent approach. However, the large difference in compensation offered at stage two of £750, from that offered at stage one of £250, demonstrated that its stage one offer was inappropriately low. Had the landlord made a more appropriate solution focused offer, it may have prevented the need for the resident to progress his complaint with the additional time and trouble involved in this.
Overall, the landlord had failed to reply to the stage one complaint within its timeframe and used an incorrect date for the complaint being raised. It did not fully address the resident’s complaint about a member of its staff. However, the repair had been completed before the landlord’s stage one response and so the resident was not left waiting for a resolution to his main issue. Despite this, the delay in response and not having responded fully would have caused additional inconvenience, time and trouble and so there was service failure. An order has been made that the landlord pay £100 to reflect the impact this had on the resident.

Determination (decision)

In accordance with Paragraph 52 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s complaints handling.
In accordance with Paragraph 53 of the Housing Ombudsman Scheme, the resident’s complaint about the landlord’s handling of the resident’s reports of a lighting fault was resolved with intervention.

Reasons

There was service failure as the landlord was late in its response to the resident’s stage one complaint and it did not provide a full response to every aspect of the complaint. However, the repairs issue had been resolved and these failings did not affect the outcome of the complaint.
The resident’s complaint about the landlord’s handling of the resident’s reports of a lighting fault was resolved with intervention. This is because the landlord accepted it was at fault, explained how it had learned from the complaint and what it would do to try to prevent a similar failing happening in future. Its offer of compensation made as part of mediation facilitated by the Ombudsman was reasonable and appropriate.

Orders

Within four weeks of the date of this report, the landlord is ordered to:
1. Provide a written apology to the resident for the complaints handling service failure detailed in this report.
2. Pay directly to the resident compensation of £100 to reflect the inconvenience, time, and trouble caused by its complaints handling service failure.
3. Confirm compliance to this Service.

Recommendations

It is recommended that the landlord:
1. Reoffer the compensation of £1,000 to the resident previously offered during the mediation process facilitated by the Ombudsman.
2. Review its processes when investigating electrical lighting faults and prioritise appointments for residents who have vulnerabilities or disabilities.
3. Add the resident’s vulnerability to the landlord’s record for the resident.