South Tyneside Council (202112662)

REPORT

COMPLAINT 202112662

South Tyneside Council

30 March 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

The complaint is about the landlord’s handling of:
1. The resident’s request for replacement windows at his property.
2. The associated complaint.

Background and summary of events

The resident is a tenant of the landlord. The resident lives in a house.
Between November 2018 and November 2019, the landlord’s records show it attended the property to repair the windows on five occasions. There are no further details in the records of what the repairs were.
On 2 November 2020, the repair logs show that a further repair was logged for windows at the resident’s property. No other details were provided in the landlord’s records.
There is no evidence of any further communication until 5 April 2021 in regard to the windows or any repairs completed.
The resident complained to the landlord on 5 April 2021 regarding his windows. The resident said he had contacted a surveyor who admitted repairs completed previously to his windows were ineffective. The resident said his windows were 25-30 years old and, therefore, were past their life expectancy. The resident identified numerous problems with the windows, such as:
1. Rusting to the windows, which let in cold air and, therefore, damaged the hardware;
2. No ventilation on the windows, which had led to condensation;
3. Frames and sills previously painted in gloss, instead of UPVC which led to mould and condensation;
4. Non-effective window seals;
5. Windows not retaining heat leading to excessive energy bills; and
6. Gaps in the window letting rain into the property.
The resident said he would be happy to provide energy bills which showed the excessive amount being paid because of heat loss from the property through the windows. The resident did not agree with short-term repairs being completed to the windows and believed the surveyor’s report was not acceptable.
The resident emailed the landlord on 27 April 2021 and said he had not received any response to his initial complaint and felt that it had not been dealt with and therefore the landlord had completely disregarded his complaint. The resident requested an escalation to stage two of the landlord’s complaints process.
On 13 May 2021, the landlord issued its stage one complaint response. It stated that a surveyor had carried out a report, which concluded that the windows were in a serviceable condition but did need repairs. The landlord said some of the repairs had been completed, but the resident refused other repairs to the windows. The landlord said it needed to attempt repairs to the windows in the first instance, before renewing the windows. The landlord apologised that the resident felt it had not provided a level of service which was satisfactory but concluded that it had followed its policy correctly and could not uphold his complaint.
The resident emailed the landlord on 26 May 2021 and requested for his complaint to be escalated, as the landlord had attempted to repair the windows on numerous occasions and had been unable to do so because the windows were unrepairable and past their life span. The resident felt that the response did not offer a satisfactory solution to the issues mentioned in his initial complaint, and the only satisfactory solution would be for the windows to be replaced.
The landlord received its surveyor’s report on 18 June 2021. The surveyor found that:
1. External silicon seals had broken down;
2. There was no seal to lower parts of the window;
3. There were internal gaps around window where the sill and UPVC joined;
4. Sashes bowed;
5. Opening sashes were difficult to open and lock;
6. Rubber seals had become hard and compressed; and
7. Window handles were loose and stiff.
The surveyor recommended to:
1. Rake out and reseal all external silicon sealant;
2. Install UPVC cover to the sill, window gap and external side of windows; and
3. Adjust all sashes and handles.
The surveyor expressed concern that if the windows were replaced, other tenants in the local area may want replacement windows for their properties also.
On 22 June 2021, the landlord issued its stage two complaint response by letter. It confirmed it had arranged for contractors to attend the property to carry out immediate repairs, but other jobs identified would be completed in due course. The landlord said some repairs, such as gloss-painting windowsills, were not its responsibility, as it was only responsible for ensuring the windows were functioning and, therefore, the resident would be responsible for decorating. The landlord explained that whilst it understood the resident wanted new windows, the surveyor who inspected the property was satisfied that the windows could be maintained and remain functional. The landlord also said whilst it understood previous repairs had been unsuccessful as the problem had reoccurred, it had to continue repairing the windows until it was no longer a viable option. The landlord said it had a duty to ensure that its budgets were spent responsibly and, therefore, it had to prioritise and justify its spending.
On the same day, the landlord received a surveyor’s report into the windows at the resident’s property. The report stated that the contractors said that the windows were working, but the inside had been painted with gloss, which was causing mould due to condensation. The surveyor could not see any water damage to the property but noted it had not rained for a while at the time of their visit.
The resident emailed the landlord on 25 June 2021 and said that the landlord’s contractors had showed up unannounced on two occasions, which led to the resident missing the appointments as he did not know about them. The resident was unhappy about this as he had not yet received his stage two complaint response from the landlord and felt that the contractors had been briefed to attend without his knowledge.
The resident emailed the landlord on 7 July 2021 and said he had not yet received his stage two response. He requested an update on the complaint and stated that to his knowledge the landlord had not met its target date. The landlord responded on the same day and apologised that it had not yet been received and attached its stage two response.
The resident emailed the landlord on 23 July 2021 and said that he found the stage two response and outcome unsatisfactory and that it did not resolve his complaint. The resident stated he had not seen the surveyor’s report, and he did not believe the surveyor could provide an objective opinion. The resident also said that the gloss paint on the window frames was done by a previous tenant and it could not be removed.
The resident emailed the landlord on 4 November 2021 and said this Service had advised that the repairs should be attempted and he therefore wanted an appointment booking for this to be completed.
On 10 November 2021, the resident emailed the landlord and said that contractors had attended his property but could not carry out the work required. The landlord responded on the same day advising it would investigate why this had occurred. Later the same day, the resident said that the contractors had returned to his property to attempt the repair.
The resident emailed the landlord on 23 November 2021 and explained that the contractors had resealed the edges of the windows inside and outside and fixed the handles; however, the operatives could not adjust the sashes and, therefore, there was a still a draft coming from the windows because the sealant was too damaged due to the age of the windows.
The landlord emailed the resident on 30 November 2021, apologising for not responding sooner. The landlord asked if he had received any update on the works to his windows. The resident responded on the same day and said he had not received any update on the works to his windows, but did say that, due to a recent storm, water had come through the windows.
The landlord’s contractors responded to it on 30 November 2021 stating that one window was not repairable and needed to be renewed.
On 1 December 2021, the landlord emailed the resident to query if he had reported the water damage and informed the resident that the matter was now with the Ombudsman and that this Service would be in touch soon. The resident responded on the same day advising that the water damage was a part of his original complaint. On the same day the landlord asked if it had affected any other parts of his home that were not included in the original complaint. In response, the resident attached pictures of the water damage and said that some parts of the wall would need repairing and he would report the damage to the wallpaper, which had occurred as a result of the water damage.
On 1 December 2021, the landlord engaged in mediation with this Service. It said that the windows were ‘due’ for renewal in line with its planned maintenance programme in 2024/25. The landlord proposed this as a solution to the resident’s complaint and enquired if this would be an acceptable outcome for him.
On 7 December 2021, the landlord’s contractors informed it that, at first, one of the windows was believed to be unrepairable but after working on the window it was able to be repaired so, as a result, no replacement was needed.
The resident rejected the landlord’s proposal on 15 December 2021. The resident said that he had been informed that the windows were due to renewal in 2020/21, which did not happen and, therefore, he was not confident that the renewal would be completed in 2024/25.
The resident remains unhappy that the landlord will not replace his windows, as he has been advised during several inspections that the windows are beyond repair. To satisfactorily resolve his complaint, the resident would like his windows replacing.

Assessment and findings

Policies and procedures

The tenancy agreement states that the landlord will repair the structure and exterior of its homes. This includes window sills, window catches and window frames. The landlord will also give 24-hours’ notice if it needs to inspect the resident’s property. The resident is responsible for decorating the inside of the home.
The landlord’s complaint handling policy states that it will handle complaints in a two-stage approach:
1. Stage-one – the landlord will acknowledge the complaint within three working days and will provide a formal written response within ten working days.
2. Stage-two – the landlord will acknowledge the complaint within three working days and a formal written response within twenty working days.
If a response cannot be provided within the timescales, the landlord will contact the resident and provide an explanation for the delay and agree on a new response date.

The landlord’s handling of the resident’s request for replacement windows.

As above, in line with the tenancy agreement, the landlord is responsible for keeping the windows in the property in a good state of repair. However, social landlords have limited resources and are expected to manage these resources responsibly, to the benefit of all their residents. In view of this, landlords are entitled to opt to repair damaged items such as windows rather than replacing them. However, the windows should be replaced if they cannot be economically repaired. If it is not clear whether the windows can be repaired or should be replaced, the landlord should also hire a specialist surveyor to attend the property and assess the condition of the windows and give recommendations to the landlord on the next steps to take.
In this case, the landlord hired surveyors in 2019 and in 2021 to complete reports on the windows. This was an appropriate step for the landlord to take as it needed an expert opinion on the condition of the windows and the possibility of repairs. The surveyors concluded that the windows were old and did require multiple repairs but believed the repairs could be successfully completed; this set a basis for the landlord’s next steps in repairing the windows.
The landlord was entitled to rely upon its surveyors reports that the windows could be repaired in the first instance. The surveyors are experts in this area and the landlord had no reason to dispute their advice. However, it should have acknowledged that the number of repairs being completed on the windows over an extended period of time and the increasing complexity of these issues, could have potentially caused distress and inconvenience to the resident.
There is a difference between a problem being ongoing continuously and reoccurring after a long time. Repairs may not last forever and it could be reasonable for the landlord to attempt another repair, rather than offering replacement windows if the previous repair was carried out quite a long time ago and had only just reoccurred. However, if a repair failed after only a few months then it would be more reasonable to suggest replacement windows rather than further repairs at that stage as this would indicate that the windows could not be repaired effectively.
This Service was also provided with the landlord’s communication logs. These show that the landlord asked the resident in December 2021, if the recent weather (heavy raining and stormy weather) had affected his windows and property. The resident informed the landlord that water had leaked through the windows and damaged the brickwork and decorations in the property. The landlord responded that this matter was now with the Ombudsman and to await this Service’s response. It is unclear if the landlord has attempted to complete any repairs to the damaged brickwork and decorating in the property as a result of the leak. This highlights that the recent repairs in November 2021 had already failed within a month of being completed but the landlord apparently did not take further action once it was made aware the repair had failed. When the further leaks were reported by the resident, this matter was with the Ombudsman; however, this was not a sufficient reason for the landlord to not complete any further repairs to the property and it was not reasonable to leave the resident with windows that were allowing in water. The landlord should have offered for contractors to attend the property and assess the damage reported by the resident. The landlord remains responsible for keeping the property in a good state of repair regardless of the outcome of any investigation by the Ombudsman and it was not reasonable to advise the resident to wait for this Service’s response when repairs still needed to be completed. Therefore, this amounted in a failure by the landlord, and the landlord should pay compensation, as detailed below for the distress and inconvenience this caused to the resident.
This Service notes the surveyor’s comment that if the landlord replaced the resident’s windows, it could prompt other residents in the local area to request their windows be replaced. Each case requires an independent view of the resident’s and property’s needs. It is good practice for landlords to schedule major works such as window replacements in advance and to have a programme of such works so that multiple properties can be renovated at the same time. However, landlords are expected to carry out window replacements outside such major works programmes if it is necessary to do so based on the condition of that particular property. Whilst it is understandable the landlord may be concerned about other residents wanting their windows replaced, this is not a valid reason for deciding not to replace windows which should otherwise be replaced.
The tenancy agreement states that the landlord will give 24-hours’ notice if it needs to inspect the resident’s property. The landlord should make residents aware when it is attending properties while residents should ensure that they are available and can allow reasonable access to the landlord’s contractors to complete repairs. However, evidence has been provided to this Service that the landlord did not inform the resident that contractors would be attending his property to attempt to repair the windows on at least two occasions. This would have inevitably caused an inconvenience to the resident as he was unable to allow access and this meant the repairs were delayed.
The landlord has not provided this Service or the resident an explanation as to why the repair contractors turned up unannounced or why he was not informed prior to the visits, despite this being raised with the landlord. The landlord should have offered the resident some form of redress for these missed appointments and should have responded to the resident’s concerns about this, but it did not. Therefore, this amounted to a failure and it has been considered in this Service’s compensation order as detailed below.
Whilst this Service understands that décor and decorations are usually the resident’s responsibility to maintain and repair, the landlord should repair or compensate for any damage to the décor which has occurred due to the landlord’s failure to complete the repair satisfactorily or if the repair failing to rectify the issue. This is in line with the expected good practice for landlords and the Ombudsman’s established approach.
The resident informed the landlord in his initial complaint that the windows were allowing water to penetrate into the property, due to the gap between the window and the wall. The landlord did not address this in its complaint response and, therefore, no remedy was offered to the resident for any damage that occurred as a result of the leak from the damaged windows. The landlord should have responded to this concern and advised the resident on the next steps it would take to remedy any damage that occurred as a result of the water leaking through the windows.
The resident requested that the landlord consider the increase in his energy bills due to the property losing heat through the draughty windows. In order for the landlord to determine whether this request was reasonable, it would need sight of the resident’s utility bills for the period whereby the windows needed repairs and utility bills from a similar time period in a year when the windows were not in need of repair in order to determine what changes in energy usage could be attributed to the window repairs.
No evidence has been provided which suggests that this information was provided or requested during the complaint process. However, it would be appropriate for the landlord to write to the resident and request him to provide it with any evidence he has that shows an increase in his energy bills and then review its compensation offer based on what evidence it receives. The resident can bring a separate complaint to this Service about the landlord’s response to the energy costs if he remains dissatisfied once the landlord has responded to this issue through its complaint’s procedure.
The landlord failed to provide a copy of the surveyor’s report to the resident when this was requested during the complaints process. This would have caused inevitable frustration to the resident. The resident would reasonably have expected the full outcome of the report to have been offered to him following the inspection or an explanation of why this could not be provided. Based on evidence seen by this Service, the landlord has offered no reason to the resident as to why it has not provided the report. Therefore, the resident should be provided with the surveyor’s report if the landlord has this available and if it cannot be provided, the landlord should explain why to the resident.
The landlord should replace the resident’s windows as it does not appear they can be successfully repaired; the landlord should repair any damage to the interior of the property due to the leaks from the windows.
The landlord should pay £400 compensation to the resident for the inconvenience caused by errors in its handling of his request for the windows to be replaced. This is in line with the Ombudsman’s remedies guidance (published on our website) which suggests that the Ombudsman may award compensation of between £250 to £700 for instances of where we have found considerable service failure or maladministration by the landlord, but there may be no permanent impact on the complainant. Examples could include:
1. A complainant repeatedly having to chase responses and seek correction of mistakes, necessitating unreasonable level of involvement by that complainant; and
2. Failure over a considerable period of time to act in accordance with policy – for example to address repairs.

The landlord’s handling of the associated complaint

The landlord did not act in line with its complaints policy as it did not provide any acknowledgement email to the resident at both stages of the complaint procedure. It also did not provide a response to the resident’s initial complaint until 28 working days after the resident submitted it. The resident also had to chase the landlord for a response to his complaint at stage one of the complaints process. This delay would have inevitably caused distress and inconvenience to the resident, as he had to chase the landlord for a complaint response. The landlord did not provide an explanation for the delay and did not offer the resident any type of redress such as compensation or an apology. The landlord should pay the resident £100 compensation for any distress and inconvenience he experienced as a result of these errors in complaint handling. This is in line with the Ombudsman’s remedies guidance which suggests that we may award between £50 and £250 compensation for instances where there has been service failure by the landlord which had an impact on the complainant but was of short duration and may not have significantly affected the overall outcome for the complainant. The delays to the landlord’s complaint responses would have caused some inconvenience to the resident but this did not affect the overall outcome of his complaint.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way the landlord handled the resident’s request for replacement windows.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was maladministration by the landlord in way the landlord handled the associated complaint.

Reasons

The landlord had the opportunity to complete multiple repairs to the resident’s windows, and the repairs have subsequently ended in the need for further repairs. The landlord did not show it had considered the inconvenience or distress that the repairs would have caused the resident or the damage that had occurred in the property and offered no remedy for this. This led to a failure in the way the landlord handled the resident’s reports of damage to his windows and the landlord should pay compensation to the resident as detailed below in view of the distress and inconvenience caused by these errors.
The landlord did not address the resident’s complaint initially and did not address all points raised, specifically, the damage to the resident’s décor as a result of leaking via the windows. This amounted to a failure by the landlord and it should pay compensation in view of this.

Orders

The Ombudsman orders the landlord to pay:
1. £400 compensation for its failures in dealing with the resident’s reports of damage to his windows.
2. £100 compensation for failures in its complaint handling.

56. the compensation should be paid within four weeks of the date of this decision.

57. Within four weeks of today’s date, the landlord should also provide the resident with a copy of the surveyor’s report, if not already provided. If this is not possible, the landlord should explain why this report cannot be provided.

The landlord should replace all of the resident’s windows within three months of this report and confirm to the Ombudsman when it has done so.
The landlord should carry out repairs and/or redecoration of any areas damaged by the leak, within four weeks after the windows are replaced.

Recommendations

The landlord should address the resident’s concerns regarding his energy bills and explain its position regarding this. The landlord may require evidence of the extra costs from the resident such as copies of his energy bills for the relevant period.