Southwark Council (202109861)

REPORT

COMPLAINT 202109861

Southwark Council

29 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

1. This complaint is about:
   1. The landlord’s decision not to carry out previously agreed repairs to paintwork in the block’s communal areas on cost grounds;
   2. The landlord’s complaint handling.

Background and summary of events

Background 

2. The resident is a leaseholder of the property, and the lease began on
   3 October 1988. The property is a three-bedroom flat on the second floor of a block. The resident is the chair of a residents’ association, but he brought an individual complaint to the Ombudsman. The landlord is the resident’s local authority.
3. The lease agreement shows the landlord is obliged to keep the common parts of the building “in repair”. It also shows it is obliged, “As often as may be reasonably necessary to paint in a good workmanlike manner with two coats of good quality paint… all internal common parts of the building usually painted”.
4. The resident contributes towards the landlord’s costs, broadly maintenance and management, through annual service charges. The lease agreement shows the landlord may require the resident to pay a reasonable contribution towards “major expenditure”. This includes “periodic redecoration” of the building or “any other major repair or renewal of any part of the building”.
5. The landlord’s repairs guide confirms how different types of repairs are prioritised. It shows the landlord should respond to non-urgent repairs, such as “collapsed plaster” within 20 working days. Decorating works are not included in of its defined repair categories and no corresponding response timescale is provided.
6. The landlord operates a two stage complaints procedure. Its complaints policy document shows it aims to respond to complaints in 15 working days at stage one. At stage two it aims to respond in 25 working days. It will acknowledge complaints in writing within three working days at both stages. The Ombudsman was unable to find a more relevant document online.

Summary of events

7. The landlord’s repairs history shows a works order was raised in connection with the block’s communal area on 19 September 2019. This was to remove loose rendering; re-apply Artex to the affected patches; seal and decorate in type 0 (understood to be fire resistant) paint. The order was marked complete on 22 July 2020.
8. On 22 February 2021 the resident gave his local councillor a letter detailing his concerns about the common areas of the estate. He said the communal areas were in “very poor condition” with damaged render, peeling paint, rusted handrails and “spalling” concrete. The main points were:
   1. A Freedom of Information request had confirmed the block was last painted in 2001. Similar timescales also applied to the other buildings in the estate. It was considered good practice to redecorate external painted areas around every eight years.
   2. The landlord’s contractor damaged walls in the communal areas during a programme of works, entitled Warm, Dry and Safe (WDS), completed between 2015 and 2017. The contractor should have rectified the damage accordingly during the programme.
   3. An upcoming major works programme, entitled the Quality Homes Investment Programme (QHIP), was due to redecorate the estate’s communal areas. However, it was not due to begin until around 2022.
   4. Following a formal complaint in 2019, the landlord inspected the block and identified several areas in need of repair and redecoration. The works required were “minimal” and included plastering and painting to the areas most damaged by the WDS works.
   5. The identified remedial works were not completed to a reasonable standard. The contractor was therefore re-called to rectify various issues. When the contractor returned, it repainted an entire communal staircase (one of two in the block).
   6. No preparation works were undertaken to the surface and the new paintwork soon began to deteriorate. Given the large areas of peeling paint, the staircase now looked worse than before the redecoration.
   7. Residents had been advised expensive fireproof paint was required, but the contractor used normal paint. The contractor was therefore responsible for the damage and repairs should be done immediately to bring the block in line with a reasonable standard of decoration. The remaining communal areas could be addressed as part of the scheduled QHIP works.
9. The landlord responded to the councillor informally around 27 February 2021. It agreed the block needed decorating and associated works. However, it said its position hadn’t changed and the works would be undertaken during the QHIP in 2022-23. Through this programme the landlord was working through all its blocks in the borough. Further, redecoration works were not within the scope of the previous WDS programme. This prompted the councillor to reply that the resident had raised a formal complaint and the landlord should respond accordingly.
10. The resident emailed the councillor the same day to escalate his complaint. He said the contractor’s second attempt at repainting was the cause of his current concerns. Further, the “extremely poor condition” of the communal stairwell and other areas was due its poor workmanship and use of incorrect materials. He disputed that redecoration was never part of the previous works programme. Overall, he said the council should immediately make good the damage caused to the communal areas.
11. The landlord acknowledged the resident’s complaint on 3 March 2021. It said the complaint had been allocated to its Major Works team, which would respond at stage one by 24 March 2021.
12. The resident replied the following day. He said he had expected the landlord to review the complaint at stage two given it responded informally to the councillor. The landlord’s internal correspondence shows it ultimately decided against responding to the complaint at stage two. This was on the basis it was apparent a full stage one response had not been issued.
13. The landlord issued a brief stage one response by email on 25 March 2021. It said that the landlord’s records showed it had responded to the resident’s concerns in June 2019. Since the resident was previously advised he could escalate his complaint if he was dissatisfied, the landlord had arranged for his complaint to be considered at stage two. However, the block was included in the landlord’s major works programme scheduled for 2022-23.
14. On 9 April 2021 the landlord acknowledged the resident’s escalation request. It said it aimed to respond at stage two by 17 May 2021. The Ombudsman has not seen the resident’s escalation request and was unable to confirm the date it was sent.
15. The landlord’s internal correspondence from 29 April 2021 shows the landlord was unable to bring forward programmed works to a block unless it was scheduled for the current year.
16. The landlord’s internal correspondence between 7 and 12 May 2021 shows it made enquiries as to whether the contractor could be re-called to address the peeling paintwork. It said the contractor painted an entire staircase contrary to the landlord’s instructions. The information shows the contractor was not paid for these additional works. The landlord was therefore unable to compel it to carry out any remedial works regardless of the usual warranty period.
17. The landlord issued a stage two response on 14 May 2021. A delay in escalating the resident’s complaint was acknowledged. The main points were:
    1. A stage one response was issued on 25 March 2021, which included a related stage one response from August 2019. While the latest response hadn’t added anything new, it was necessary given the time that passed since the original complaint.
    2. The landlord misunderstood the resident’s complaint at stage one and allocated it to the wrong team.  This was because decoration works were not typically the responsibility of its Repairs Team. However, it was clear the interim communal repairs, prior to the QHIP works, needed to be reassessed.
    3. The damage was assessed by the landlord’s technical quality specialist. The inspection found paint was only flaking in certain areas, which could be due to friction from objects rubbing against the wall, poor preparation, use of incorrect paint or a combination of these factors.
    4. The landlord had found issues with the contractor. Since it diverged from the specified decorating works, the parties were in dispute and the contractor would not be paid.
    5. Given the dispute, the landlord was unable to recall the contractor to complete the repairs. However, it could arrange the repair again because the budget for the works had not been used.
    6. The landlord agreed to arrange a contractor to complete remedial works to the affected areas. It did not agree to redecorate the communal areas and any further decoration works would fall within the scope of the upcoming QHIP. The resident would be updated about the landlord’s progress in due course.
    7. The resident’s complaint was upheld, and landlord’s investigation had shown he should be restored to his original position (in that the previously agreed repair works must be rearranged).
18. On 19 May 2021 the resident responded to the landlord’s findings. He said he had concerns over its proposed course of action. Since the contractor applied paint incorrectly throughout the stairwell, he expected other areas of paintwork to deteriorate over time. He therefore felt all the substandard paint should be removed and the surfaces should be properly prepared. Further, the landlord should ensure a good colour match between the repaired sections and the surrounding paintwork. This was on the basis previous repairs to the stairwell ‘looked awful’.
19. The landlord’s repairs history shows a works order was raised on 17 May 2021. It said flaking paint on the communal staircase was to be rubbed down and repainted in class 0 paint to address a stage two complaint. It also said the paint should match the existing paintwork as close as possible.
20. The landlord’s internal correspondence from 19 May 2021 shows it had conducted a joint inspection of the damage with a contractor. It said the contractor advised water-based class 0 paint would be required. Since the staircase was exposed and open to wet weather, the paint was likely to absorb moisture and begin peeling again.
21. The contractor also felt the original paint may contain a repellent anti-graffiti coating. It said areas where the paintwork was intact had been re-Artexed, which supported this finding. The contractor advised it could test the paintwork and Artex to establish what could be done, along with the relevant costs. However, it said the whole staircase should really be done to avoid the issue reoccurring.
22. The landlord’s external correspondence shows another contractor attended the block on 7 June 2021. It shows the contractor requested a variation to the landlord’s works order to ensure works could be completed to the required standard. It said an area of 20 square metres needed ‘scraping back, stabilising and preparing for painting’. Works would not proceed until the landlord agreed to the variation.
23. The resident asked the landlord for an update on 16 June 2021. He said the staircase was deteriorating rapidly and the stairs were “littered with flakes of plaster.”
24. The landlord responded on 24 June 2021. It said its contractor surveyed the walls and reported they had failed an adhesion test. Painting over them would therefore be insufficient to repair the damage. It said the contractor confirmed all surfaces would need to be completely stripped back. A ‘three-part system would then need fitting to comply with the class 0 paint and anti-graffiti specification’. The landlord advised the contractor would submit a quote for the works in due course. The quote would then be subject to approval from its communal repairs leader.
25. The landlord’s internal correspondence from 16 July 2021 shows it received a quote from the contractor. It said the quote was for both staircases, but the contractor had been asked to separate the costs out into single units. However, on the basis the costs for both staircases were likely to be similar the estimate would be around £25K per staircase.
26. The resident asked for a further update on 26 July 2021. The landlord replied the following day and confirmed it was considering a quote for a significant amount. It stressed “the amount being quoted is extremely high” and, as a result, may not be authorised. This prompted the resident to respond that the landlord was obliged to maintain the common parts of the building in reasonable condition. He also said failure to complete the repairs now would result in additional deterioration. The costs of the QHIP works would therefore increase.
27. On 27 July 2021 the landlord advised the repairs were not authorised on cost grounds. It said internal decorations would be undertaken during the upcoming major works programme, which was likely to be considerably cheaper given the scale of the project. It said the single cost of the repairs ‘far exceeded’ its expectations and it was therefore reasonable for the work to be completed during the project. The resident brought his complaint to the Ombudsman the same day.
28. The resident updated the Ombudsman on 12 October 2021. He said the landlord previously commissioned an independent surveyor to inspect a different block on the estate. This was in response to a legal dispute with another resident. He said the surveyor’s report found the relevant communal areas were in poor condition and the findings were representative of the overall condition of the estate. This lack of general maintenance represented a breach of the landlord’s obligations under the lease agreement.
29. Further, the landlord allowed the general fabric of the estate’s buildings to deteriorate, by not fulfilling its obligations. While the communal areas were neglected for around 20 years, leaseholders were expected to contribute towards the cost of repairs and redecoration. As a result, they were effectively paying for deterioration caused by the landlord’s lack of maintenance. He therefore felt the Ombudsman should ensure residents were not charged for any works relating to communal areas following the QHIP.

Assessment and findings

30. The resident has provided numerous images of surface damage to the paintwork and plaster in the block. The images suggest multiple small sections of plaster are affected. It is recognised the resident feels the condition of the communal areas gives the impression the block is an unpleasant place to live. Further, that improving the condition of the decoration may encourage residents to feel better about their surroundings, leading to an overall increase in standards.
31. In this case, the landlord did not dispute repairs were needed to the decoration, or that it was obliged to carry out repair works in line with the lease agreement. No evidence was seen to show the damaged communal areas represented a risk to the health and safety of residents. Nor was any information seen to show significant further damage was likely to occur if the identified repairs were not completed immediately.
32. The lease agreement didn’t specify, in terms of a specific timescale, how often the communal areas should be painted. It was noted the wording of the agreement suggests a tendency towards reactive, rather than proactive, repairs or maintenance. This assessment was unable to find a significant body of relevant case law concerning maintenance. The resident’s assertion that the landlord breached the lease agreement by failing to carry out sufficient maintenance is therefore likely to need consideration by a court.
33. Though its actions were prompted by the resident’s complaint, the timeline shows the landlord correctly agreed to undertake his requested repairs. It arranged an external contractor to inspect the damage and quote for the remedial works accordingly. From the information seen, it was apparent the landlord could not complete a successful repair without incurring significant expense. The evidence shows this was around £25K to repair one communal staircase and this greatly surpassed the landlord’s reasonable expectations. No evidence was seen to show completing the repairs would prevent other sections of the paintwork from deteriorating over time.
34. Ultimately, the landlord’s decision not to proceed with the repair works was based on both the professional opinion of the external contractor and its subsequent quotation. The landlord was entitled to make this decision and the evidence suggests it fully considered the relevant circumstances. The Ombudsman is unable to determine whether the landlord’s decision breached its repair obligations as defined in the lease agreement. This matter is likely to need consideration by either the First Tier Tribunal (Property Chamber) or a court.
35. The lease agreement shows the resident contributes towards the landlord’s costs through his service charge. It is reasonable to conclude this arrangement applies to other residents of the block. The wording of the agreement suggests there are circumstances where, if the repairs were completed in line with the contractor’s recommendations, residents could end up contributing towards both the repairs and a full redecoration, due under the QHIP in 2022-23, within a short period of time. It is questionable whether this outcome would represent good value for residents, and this may have been a factor in the landlord’s decision making. The evidence seen suggests the resident would not be satisfied with a temporary repair that, once again, used incorrect materials.
36. Given the above, the landlord was entitled to make a decision whether or not to proceed with the agreed repair works. This is because the block was due to be fully redecorated under the QHIP scheduled for 2022-23. However, the timeline confirms the landlord gave the resident incorrect information about the repairs. This is because it committed to completing the repairs before it was aware of the full cost implications.
37. While the commitment was understandable given the circumstances, and would typically be the correct approach, it later reached a different decision based on new information from the contractor. The resident was naturally disappointed with this outcome given the landlord’s position changed. The timeline shows he also spent time chasing the landlord for updates which turned out to be unnecessary.
38. Overall, this incorrect information was found to represent service failure on the part of the landlord. The pending redecoration of the block’s communal areas under the QHIP was a key factor in reaching this decision. It is recognised these works were not due imminently when the resident first brought his complaint to the Ombudsman.
39. This assessment considered the landlord’s complaint handling in conjunction with the Housing Ombudsman’s Complaint Handling Code (published July 2020).
40. Section 3.11 of the Code sets out the Ombudsman’s expectations in terms of response timescales. It shows landlords should respond within ten working days at stage one and within 20 working days at stage two. If this is not possible landlords should contact the complainant and provide an explanation along with a new response date. This should not exceed ten working days.
41. It was noted the landlord’s published timescales were not compliant with the Code. These timescales were also found on the landlord’s website at the time of the assessment. The landlord was unable to meet its own timescales at either stage of its process. No information was seen to show the resident was made aware of the complaint handling delays, which amounted to several weeks overall. This is based on the period between 22 February 2021 and 25 March 2021, and the period between 9 April 2021 and 14 May 2021.
42. A significant portion of this delay occurred at stage one. This is because the landlord failed to identify the resident’s letter, received through the councillor, was a formal complaint or treat it accordingly. The landlord’s subsequent decision to respond to the complaint at stage one was reasonable given the time that passed since the resident’s related complaint from 2019. However, this rationale was undermined when its brief stage one response, on 25 March 2021, escalated the complaint anyway. The wording of the response indicated minimal investigation work took place before this escalation. No delays were recognised at this stage, so no apology was offered.
43. Given the above this assessment found there was service failure in respect of the landlord’s complaint handling. This is because a number of unnecessary delays and failures were identified during the complaint journey. It is reasonable to conclude they impacted the resident. The landlord failed to recognise the full extent of the delays and apologise accordingly.

Determination (decision)

44. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure on the part of the landlord in respect of:
    1. The landlord’s decision not to carry out previously agreed repairs to paintwork in the block’s communal areas on cost grounds.
    2. The landlord’s complaint handling.

Reasons

45. The landlord was entitled to make a decision not to proceed with the agreed repairs based on the information it subsequently received from an independent contractor. However, the landlord gave the resident incorrect information when it committed to the repairs in response to his formal complaint. The resident then spent time chasing the repairs unnecessarily. The pending redecoration of the block under the QHIP scheduled for 2022-23 was a key factor in the Ombudsman’s decision.
46. Delays occurred throughout the landlord’s complaint handling timeline. This was partly because it initially failed to identify the resident’s formal complaint or treat it accordingly. This was despite the fact the complaint was brought by a councillor acting on the resident’s behalf. The landlord also failed to recognise the full extent of the delays or apologise accordingly. The landlord’s response timescales are not compliant with the Housing Ombudsman’s Complaint Handling Code.

Orders and recommendations

Orders

47. The Ombudsman orders the landlord to review the QHIP works schedule within four weeks and prioritise the resident’s block so that works take place as soon as possible in the 2022-23 year. Following the review, the landlord must write to the resident and the Ombudsman confirming when it expects the works to begin.
48. The Ombudsman orders the landlord to pay the resident £100 in compensation within four weeks comprising:
    1. £50 for any distress or inconvenience caused to the resident as a result of being given incorrect information about the repairs.
    2. £50 for any distress or inconvenience caused to the resident by the above identified complaint handling failures.
49. The Ombudsman orders the landlord to review its complaints policy in conjunction with the Housing Ombudsman’s Complaint Handling Code within four weeks. This is to ensure the document is compliant and compatible with the Code. The landlord must notify the Ombudsman of the steps it will take to ensure compliance and give a timescale as to when its policy will fully conform to the Code.

Recommendations

50. The landlord to provide targeted training to ensure its representatives can confidently identify any complaints and are aware of the necessary steps to log them.
51. The landlord should provide evidence of compliance with the above orders and confirm its intentions regarding the recommendation within four weeks of the date of this report.