Southwark Council (202010590)

REPORT

COMPLAINT 202010590

Southwark Council

4 May 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 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 handling of:

the resident’s reports of damaged flooring in her bathroom and hallway;
the resident’s reports of a loss of heating;
the resident’s concerns about scaffolding being left up in her garden;
the resident’s anti-social behaviour reports;
the related complaints.

Background and Summary of Events

Background

The resident is a secure tenant living in a three-bedroom house with her son and his partner.
The resident’s son and his partner have acted as her representatives in dealing with the landlord.
In its repairs guide the landlord has a repairs policy which states the following:
1. Residents are responsible for repairs to flooring and “we are not responsible for repairing or renewing floor coverings such as carpets”.
2. Emergency repairs will be carried out within 24 hours, including “total or partial loss of heating or hot water between 1 October and 31 March”. It explains that an engineer should visit the property to progress the repair within that timescale.
The landlord has a Tenant Handbook which states that residents are responsible for the repair of floor tiles.
The landlord has an anti-social behaviour (ASB), policy that categorises neighbours playing loud music, having loud parties and being rowdy as “medium risk” ASB and that a resident complaining about any of these should expect the landlord to contact them within three working days.
The landlord has a Tenant’s Handbook, which states amongst other things, that it will do the following for its residents where ASB is reported:

Send an acknowledgement of the complaint.
Provide the resident with the name of the Resident Services officer dealing with the complaint.
Contact the ASB unit.
Send the resident an incident diary for them to keep a record as evidence of ASB.
Interview the resident to find out how they have been affected.
Agree an action plan with the resident.

The landlord has a two stage complaints policy, the “complaints” phase being stage one and the “review” phase being stage two. Its policy says that the landlord will acknowledge complaint within three working days. It will provide a full response to the complaint within 15 working days at stage one. If the resident remains unhappy and escalates the complaint to stage two, then it will provide its response within 25 working days. If after this the resident remains unhappy, they can refer the complaint to this Service.
The landlord has a compensation policy which allows it to pay compensation for delay and/or distress caused where it is unable to put the resident back into the position, they would have been in but for the landlord’s error. The amounts of compensation payable are split into three bands according to the impact of the error on the resident, these are:

Low impact, for which the landlord will pay £5 per week or up to £250 per annum.
Medium impact, for which the landlord will pay £10 per week or up to £500 per annum.
Major impact, for which the landlord will pay £20 per week or up to £1000 per annum.

Summary of Events

In July 2020, the resident reported ASB due to noise caused by loud music from one of her neighbours.
On 17 July 2020, the landlord sent the resident dairy sheets to complete in order to create a log of ASB incidents by her neighbour.
On 10 August 2020, the landlord sent more diary sheets to the resident as she had not completed any of the previous ones sent.
The landlord had put up scaffolding in order to carry out repairs to an adjacent property, part of that scaffold was in the resident’s garden. On 6 October 2020, the resident made a complaint that one of the landlord’s contractors had knocked on her door in order to get access to the scaffolding via the resident’s garden. Before she could answer the door however, the contractor had jumped over her wall and opened her garden gate to let himself and another person into her garden, leaving the gate open.
On 11 November 2020, the resident reported to her landlord that the heating had stopped working and also made a complaint about this.
On 12 November 2020, the landlord attended the property but it could not access the communal heating cupboard as there was a blockage caused by some boxing which had been put up covering the heating cupboard door.
On 16 November 2020, the resident complained that the scaffolding the landlord put up to complete repairs at an adjacent property had been left up in her garden for an extended period of time the without the landlord carrying out works. This meant she was unable to make full use of her garden.
The resident says that on 16 November 2020, she complained about the condition of the flooring in the hallway and bedroom saying that due to wear and tear it needed repair in order to be made safe. However the landlord said it received the complaint on 16 December 2020.
On 19 November 2020, the landlord received a complaint from the resident regarding its handling of her reports of ASB from her neighbour.
In the period covering November 2020 to January 2021, the resident’s representatives sent multiple emails to the landlord to try and ascertain when the heating would be fixed. This was because during this time the resident had not had any heating in the property and as it was winter the property was cold.
On 2 December 2020, a complaint was raised as the heating had not been fixed.
On 3 December 2020, the landlord sent its stage one response regarding the resident’s concerns about its handling of her reports of ASB. In its response the landlord stated that:

Following the resident’s reports of ASB the landlord provided the resident an action plan on how it intends to deal with the resident’s concerns via email on 17 July and 10 August 2020.
As part of those email it also sent the resident incident diary sheets to make records of incidents of ASB, to help the landlord form a plan of action. It asked that these were sent back to it every two weeks over a six week period, however none were returned.
Regarding the resident’s complaint about a lack of action from the landlord following her reports of persistent loud music from her neighbour, the Noise Nuisance team had been suspended because of public health advice. The service was reinstated on 10 August 2020 and operated between 7am and 12am seven days a week and the resident should contact them whenever she experienced noise nuisance.
If the resident had concerns about her safety she should contact the police. The landlord can only take enforcement action where the perpetrator has been prosecuted or found guilty by the police, so it is important that the resident reported her concerns.
It had spoken to the neighbour in question who has made allegations of harassment and drug use by the resident. It was obvious to the landlord that the neighbours did not like each other and in its opinion “what appears to be a lack of mutual respect for each other may have exacerbated the neighbour dispute”.
Due to a lack of evidence to corroborate either the resident or her neighbour’s account of the concerns raised mediation may be the best way of coming to a resolution. It asked the resident to confirm whether they would be willing to go through with this.

On 9 December 2020, the resident complained about remarks made by the landlord in its stage one response to her complaint about the handling of her reports of ASB, which she says were offensive.
On 15 December 2020, the landlord issued its stage one response regarding the resident’s concerns about scaffolding being left in her garden. In the response it said the following:

It apologised for the delay in responding to the complaint.
It said the method used by its contractors to access the residents garden was unacceptable and this had been addressed internally and with the person concerned directly.
Works would begin on 4 January 2021 and would take approximately one week to complete. It apologised for the time taken to source a contractor and to get the works completed.
It was not possible to have the scaffolding taken down and then re-erected.

On 19 December 2020, the landlord received a complaint from the resident about how it has handled her concerns about ASB. The resident says that the landlord already had the evidence required as she has reported ASB to its Noise Nuisance Team who has been out to the alleged perpetrator’s property three times.
In January 2021, the landlord told the resident that it required access to her property in order to get to the heating cupboard from the inside.
On 5 February 2021, works began to fix the heating.
Due to the resident complaining about ASB the environmental health team visited the neighbour’s residence on 8 February 2021 and issued her with a Community Protection Notice.
On 9 February 2021, the works to fix the heating were completed.
On 11 February 2021, the landlord issued its stage one response to the residents complaint about the lack of heating, in which it stated that:

The delays in completing the repair were due to internal miscommunication around how to access the communal heating cupboard.
There was also a need to obtain an asbestos survey on the cupboard.
Access was also needed to the resident’s property to complete the repair.
It was awarding the resident £220 in compensation for the 12 weeks of delay and £100 for the resident’s time taken to deal with the heating issues and the trouble caused to her.

On 17 March 2021, the landlord issued its stage two response addressing the multiple complaints the resident had made. Regarding the issues with the heating and the subsequent complaint handling it said the following:

It sent out its stage one response (about the heating outage) on 11 February 2021, which was late as it should have responded by 23 December 2020.
Delays with the heating repairs were caused by miscommunication about how to access the heating cupboard and the need for an asbestos survey, as well as needing access to the resident’s property.
In its stage one response the landlord awarded of £220 to account for 12 weeks of delay between 11 November 2020 and 3 February 2021. This award is in line with its medium impact tariff in its complaints policy. It agrees this was the correct decision as the high impact tariff is normally only used to compensate residents who are most vulnerable or where there has been an impact on a resident’s health.
In its first stage response it awarded £100 for time and trouble, it has a scale of £50-£250 which it awards in these circumstances dependent on the extent of the inconvenience suffered, as well as “other factors”. It did believe that further compensation should be awarded for time and trouble and so is awarding a further £120.
It can award compensation for time and trouble and as the initial response to the resident’s complaint was seven weeks late it was awarding a further £50 in compensation.

The landlord then went on to address the resident’s complaint about its handling of ASB, saying the following:

On 17 July 2020, it sent the resident an email detailing what action it planned to take in regards to ASB, which included the resident completing diary sheets and sending them to the landlord every two weeks. This was reiterated in another email sent on 10 August 2020. The purpose of the diary sheets was to collate further evidence so that it could determine whether it should take further action and if so, what action to take. It said without supporting evidence, it could not take further action.
It told the resident in its stage one response that the Noise Nuisance Team had been suspended due to public health advice and reinstated in August 2020. It gave the resident its contact number and advised that she contact them if the loud noises continued and to contact the police if she felt she was being harassed by her neighbour.
There have been no further reports of statutory noise nuisance against the resident’s neighbour since February 2021, if there were then the landlord would take the appropriate action.
The landlord thinks that mediation was the best option and this is still available should the resident want to pursue this.
Regarding harassment from her neighbour the landlord said this was difficult for it to address. It said that the resident could report it to the police if they thought it involved criminal activity. Any harassment can also be reported to the landlord so it can add this to its overall evidence.
It does not believe it has failed to respond to the residents’ reports of ASB, or that it has failed to follow its ASB policy.

Regarding the resident’s complaints relating to the scaffolding the landlord said:

It agreed with what was said in its stage one response, delay were caused due to the lockdown restrictions and a high level of repairs following its reduced service. As further work needed to be done it decided against taking the scaffold down and then reinstating it in order to avoid further costs that would be passed on to residents in the form of increased service charges.
Regarding the issue about the landlord’s representative accessing the resident’s garden without permission to access the scaffolding, the issue was raised with its contractor. It was for the contractor to address this with the operative and it cannot say more about the outcome of the investigation as this would be a breach of Data Protection and GPDR.
It issued an apology for sending its first stage response five days late and had apologised for this which was an appropriate response.
The works which were due to start on 4 January 2021, have now been completed and the scaffolding removed.

Regarding the resident’s complaint about the landlord’s handling of her reports of damaged flooring in her hallway the landlord has said the following:

It inspected the damaged flooring on 16 December 2020, and raised an order for floor tiles to be replaced. The government lockdowns have prevented the work from taking place and will be completed, as the work is not essential it will be completed once the lockdown restrictions have lifted.
As tiles were damaged as a result of a leak which it had repaired on 4 August 2020, it has agreed to replace them, however “floor coverings” are normally the responsibility of the tenant as per the tenant’s handbook.
It does not believe there have been any failings in the way it has handled issues relating to the leak or the flooring.

Regarding the related complaints the landlord said:

The reason that it separated the resident’s complaints is because she had complained about a variety of issues which are dealt with by various departments within the landlord. Therefore, separating the resident’s complaints allowed the people best placed within the landlord to be the ones responding to complaints within their area of expertise. If complaints are escalated by the resident to stage two then the landlord will review the complaint to see whether it was handled correctly.

In April 2021,the resident escalated the complaint to this Service as she remained unhappy with the landlord’s response.

Assessment and findings

Damage to the flooring in the hallway and bedroom

The landlord believed that the damage was caused by a leak the landlord fixed on 4 August 2020. On that basis it agreed to replace the damaged flooring in the hallway and bathroom even though it says that under normal circumstances, the replacement of flooring is the resident’s responsibility. The resident however states that the flooring damage was not caused by the leak but that the flooring is worn due to age and is in need of repair to make it safe. The landlord says that it raised the orders for the tiles to be replaced after an inspection which took place in approximately December 2020, but due to the national lockdown restrictions the work was not carried out. It says as the works are not ones it considers essential that it would be completed once the lockdown restrictions were lifted.
The landlord has a Tenants Handbook which contains a section outlining repairs that a resident is responsible for. On page four it lists “floor tiles” as one of the items a resident is responsible to repair. This is expanded on in its Tenants guide which when talking about the responsibility for repairs to the floor states that “we are not responsible for repairing or renewing floor coverings, such as carpets.” The resident has said the repairs are needed because of wear and tear due to the age of the floor therefore, according to the landlord’s policy it would not under normal circumstances be responsible for those repairs. However, the landlord has agreed to replace the flooring treating it as a non-urgent repair which it would complete once the national lockdown restrictions were eased.
It is unfortunate that the national lockdown restrictions have caused delays in regards to it completing the repair to the floor. But these delays were beyond the landlord’s control and it committed to completing the works once it was able to do so. Considering that the landlord was not under any obligation undertake the repairs itself, the landlord’s actions regarding the repairs to the flooring have been reasonable.

The resident’s reports of loss of heating

The resident first reported that the heating had stopped working on the 4 November 2020. The landlord’s repairs policy states that “total or partial loss of heating or hot water between 1 October and 31 March” should be treated as an emergency repair and attended by the landlord’s engineer within 24 hours to progress the repair. However, the resident’s heating was not fixed until 3 February 2021. The landlord does not dispute the fact that there were delays in fixing the heating. It says that the delays were caused by internal communication issues around access to the heating installation, queries over whether and asbestos removal was needed, and the need to access the resident’s property to complete the repairs. When the resident complained about the delays the landlord upheld the complaint. It paid the resident £120 for the delays she experienced and a further £100 for the resident’s time and the trouble caused to her in dealing with the heating issues. This made a total of £220 in compensation at stage one.
The complaint was escalated to stage two where, on review, the landlord paid the resident an additional £120 in order to better reflect the time spent and the trouble caused to the resident. This bought the compensation figure, in total to £340, which the landlord says is in line with its compensation policy. The resident remained unhappy as she did not feel this reflected the distress that the delay had caused as they were without heating during the winter months.
The landlord’s compensation guide sets out the amounts of compensation it can award and in what circumstances this compensation can be paid. This is broken down into compensation paid for delays and then a separate range for compensation for time and trouble. In regards to delays the landlord has considered 12 weeks of delay in completing the repair under its “medium impact” banding, which has a compensation rate of £10 per week for delays. It says it did not use the “major impact” band as it uses this only for very vulnerable residents. Based on what this Service has seen the landlord was not made aware of any vulnerability with the resident prior to its final response being issued. Therefore the landlord has been reasonable in the way it has considered the delay and by awarding the resident £120 for the delays she experienced, it has compensated the resident appropriately.
Regarding the time the resident spent and the trouble caused to her in dealing with the heating issues. The evidence shows that from 4 November 2020, the resident contacted the landlord multiple times to try and find out when the repair would be carried out. Having not received a clear answer she made a complaint on 2 December 2020, which was not responded to until 11 February 2021. This was 11 weeks after the stage one response was due and after the heating had already been fixed.
At stage one as part of the compensation the landlord awarded the resident £100 for the resident’s time and trouble in dealing with the heating issues. On review at stage two, the landlord increased that amount to £220. It said that it has a scale of £50-£250 for time and trouble and it believes the increased amount better reflects the residents time and trouble, and the distress caused by the issues of the complaint. Considering the £50-£250 range set out in its compensation policy it was reasonable that the landlord reviewed the amount it had initially awarded the resident for her time and trouble. The amount of £220, which is near the top of the landlord’s compensation range, is an appropriate reflection of the issues the resident faced.
In summary, the service that the resident received was below what she should have expected. However by awarding the resident £340 in total compensation the landlord has demonstrated appropriate consideration for the delay in fixing the heating and for the resident’s time and the trouble caused to her. The compensation the landlord has awarded is reasonable, and in line with its compensation policy.
The service the resident received was below that was she should have expected. However the landlord has awarded £220 in compensation which is an amount that is at the top end of its scale for these types of issues. By doing so it has demonstrated appropriate consideration for the detriment caused to the resident and awarded her an amount of compensation that is reasonable, in line with its compensation policy.

Scaffolding in the residents garden

In August 2020, the landlord put up scaffolding in order to complete repairs on a property adjacent to the resident’s home. As a result some of the scaffolding was put up in the resident’s garden. The resident complained that the scaffolding was left up when no works were being undertaken causing her to lose the use of part of her garden which caused particular inconvenience because of the national lockdowns that were taking place due to COVID-19. In its stage one response the landlord apologised for the delay and explained that the works would now begin on 4 January 2021 and take around one week to complete. It said that the delays were caused by the national lockdowns, but also “the backlog of works and sourcing a contractor to carry out the specifics”.
The complaint was escalated as the resident remained unhappy and in its stage two response the landlord reiterated its position, that the national lockdowns prevented it from being able to carry out the works sooner. It says that it did not take down the scaffold in the interim in order to avoid incurring additional costs reinstating the scaffolding, costs which it would then have to pass on to the residents. It noted that the works scheduled to start on 4 January had been completed and the scaffolding removed.
The scaffolding was put up by the landlord in August 2020. At the time the COVID-19 lockdown restrictions had been eased by the Government and that easing of restrictions did not change until the 14 September 2020. This means that the scaffolding was put up a few weeks before further lockdown measures were imposed. The landlord confirmed in its stage one response that outstanding works would take one week to complete. Whilst the landlord cannot reasonably be held responsible for the COVID-19 lockdown restrictions, or the delays these caused, it is responsible for any delays incurred in the period of time between the scaffolding being put up and the further lockdown restrictions coming into effect.
In its stage one response on 15 December 2020, the landlord apologised for the contractor’s actions when it jumped over her fence and left her back gate open and said that the issues had been addressed internally with the operative in question. The resident remained unhappy and escalated the complaint, she replied to the landlord on 16 December 2020 asking the following questions:

What are the lessons that have been learned from this?
What action will the landlord take to prevent this from reoccurring?

The landlord gave its stage two response on 17 March 2021, reaffirming what it had already said in its initial response. It also added that because of GDPR and Data Protection laws it could not disclose anything further to the resident.
The landlord’s internal records do show that it confirmed with its contractor that the issued had been addressed with the individuals concerned. It is understandable however, that the resident wanted more information than the landlord had provided her . It would have been helpful to explain to the resident what expectations the landlord has for contractor’s behaviour and to give her reassurances over how it would handle any issues raised. concerned.

ASB Reports

The Ombudsman considers complaints about how a landlord has responded to reports of a problem. It is not the Ombudsman’s role to decide if the actions of the alleged perpetrators amounted to ASB, but rather, whether the landlord dealt with the resident’s reports about this appropriately and reasonably.
The landlord’s ASB procedures set out what it should do when it receives an ASB report, within those procedures it says the following:

Discuss with residents their expectations on how a case is to be managed and be clear from the outset of the likely outcomes that can be achieved, including timescales.
Encourage the victim or witness to keep an ASB Diary and explain that this could be used to build a case for enforcement.

In regards to the issuing of warning letters the landlord’s policy says that these can be issued to advise a perpetrator that their behaviour is not acceptable and that further action will be taken if the behaviour continues.
The resident has said that the ASB has been going on for some time which includes loud music and things being thrown into her garden from the resident’s balcony above. It is understandable then that she would want the landlord to take further action. However, some actions that a landlord may need to take to address ASB can have legal implications, where the standard of evidence required from a landlord is extremely high. Therefore, it is reasonable, for a landlord to require evidence from the resident in the form of a diary sheet log order to aid the landlord in assessing what further action it may need to take to address the ASB. As the landlord has not received any completed diary sheets from the resident and has had no further ASB reports about the alleged perpetrator from other residents it has not been able to proceed with any further action. The landlord offered to attempt mediation as a way to resolve the issues between the resident and her neighbour which was not unreasonable in the circumstances.

Complaint handling

The resident complained about the delay in fixing her heating on 11 November 2020. The final response from the landlord was due on 2 December, but it was not sent until 11 February 2021. The landlord said in its final response that the complaint was not allocated to a member of staff until 2 December 2020. The resident is unhappy as there has been no explanation as to why it was the complaint was not allocated to a member of staff for three weeks. The landlord has compensated the resident and apologised for the overall delay. It would have been helpful for the landlord to explain the reason for the delay to demonstrate it was learning from its complaints to improve its services.
The resident has said that she is unhappy that her complaint was split into multiple parts meaning that she received multiple responses from the landlord to the complaints that she raised. The landlord explained that this is due to it having multiple departments with its staff trained to deal with specific areas. It said splitting the complaint meant it was able to have to most appropriate person provide a response to each area. If a complaint gets to stage two then it is at this stage a single team will review the entire complaint.
It is understandable that the resident may feel that having one complaint response would have been more manageable. However, the landlord is entitled to decide on the structure it believes is best in order to manage its service and respond to complaints in line with its complaint handling procedure.
The resident said that she was unhappy with the way her complaint about ASB was handled particularly with comments made by the landlord regarding the resident and her relationship with her neighbour in its stage one response on 3 December 2020. Whilst the comments included in the complaint response evidently expressed the opinion of the landlord as to why there may be a dispute between the neighbours it is understandable why the resident was unhappy with such comments. The Complaint Handling Code states under section 3.2, that a landlord should “be able to act sensitively and fairly” in dealing with complaint. On this occasion the landlord’s behaviour fell short of this standard.

Determination

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s reports of a leak into her bathroom and hallway.
In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion there was reasonable redress offered by the landlord for its service failure in respect of it’s handling of the resident’s reports of a loss of heating.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the concerns about scaffolding being left up in the resident’s garden.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its handling of the resident’s anti-social behaviour reports.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the related complaints.

Reasons

The landlord was not obliged to complete repairs to the floor but agreed to do so once the national lockdown restrictions had eased.
The landlord has demonstrated that it considered the issues the resident raised regarding the loss of heating and compensated her appropriately in line with its compensation policy.
The landlord has outlined its process for dealing with ASB reports and it is reasonable not to take any further action without supporting evidence.
It did not fully explain its delays in dealing with the resident’s complaint. It also made personal remarks about the resident in its final response letter.

Orders

The landlord to pay the resident £50 in compensation for its service failures in its handling of the concerns about scaffolding being left up in the resident’s garden.
The landlord to pay £100 for its service failure in the landlord’s handling of the related complaints.
The landlord to review its complaints processes against the updated Complaints Handling Code section 3.2 which states that a landlord should “be able to act sensitively and fairly” in dealing with complaint. The landlord must confirm what action it intends to take.

The landlord should confirm compliance with this order to this Service within four weeks of the date of this report.