Tamworth Borough Council (202303925)

REPORT

COMPLAINT 202303925

Tamworth Borough Council

29 July 2024

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 response to:
1. The resident’s report that the contractor did not give him adequate notice of the additional work needed to his property or the impact of the work.
2. The resident’s report that the contractor damaged his property and possessions.

Background

The property is a one-bedroom flat on the 13th floor of a high-rise building. The resident has a secure tenancy which began on 17 May 2010. The landlord is a local authority.
The landlord has advised this Service that it has no vulnerabilities listed for the resident.
The tenancy agreement states that the landlord “shall make reasonable arrangements for entering the premises to inspect the state of repair or to carry out repairs or other works”.
The landlord’s repairs policy states: “On occasions, [the landlord] may require access to undertake essential repairs and maintenance…Access must be given and is detailed in tenancy agreements and leases.”.

Summary of events

In January-February 2023, the landlord circulated a newsletter to all residents in the block regarding the renewal of the soil vent pipe (SVP). The newsletter said “All residents will receive at least 21 days notice. This will have your start date and all the dates that we require access. You will also get a reminder letter the week prior to us starting”.
The contractor wrote to the resident on 20 March 2023 to advise that it needed access to his property on 24 March 2023 to complete the process of replacing the SVP from the flat above. The letter stated that the work would involve removing the wall in the resident’s drying cupboard and said the contractor would need 2 days maximum “at the resident’s convenience”. The letter stated that it was hand-delivered.
The resident submitted a stage one complaint on 22 March 2023 in which he stated the following:
1. The landlord’s contractor had completed work to his property during 18 January to 2 February 2023 as part of a major works project to replace the SVP running through the block.
2. On 17 March 2023, the contractor had contacted him to say that the contractor wanted to collect his keys to carry out further work in the property from 24 to 29 March 2023.
3. The resident had spoken to the contractor on 20 March 2023 and the contractor had advised him that the additional work would take a maximum of 2 days on 24 and 31 March 2023 and it would write to him that day confirming the arrangements. The resident stated that at the time of sending his complaint he had still not received the contractor’s letter.
4. The contractor had then contacted the resident again on 22 March to say they also needed access on 28 March 2023.
5. The resident said that the arrangements had caused him stress and therefore he was seeking an apology and compensation.
An internal email dated 22 March 2023 from the contractor stated that the resident had refused access from 27 to 29 March 2023 as he had appointments elsewhere.
The resident texted the contractor on 23 March 2023 stating that his solicitor would be taking legal action as the contractor had demanded access to his property on 28 March 2023.
The landlord and contractor wrote to the resident on 23 March 2023 to inform him that the contractor would be carrying out the final works to the SVP on 24, 28 and 31 March 2023. The letter stated that the resident had confirmed with the contractor that he was happy for them to work in the property throughout the day during 24and 28 March 2023 while he was at work.
The contractor’s records show that they spoke to the resident on 24 March 2023 and the resident had explained that he had been unaware he would be impacted by the asbestos removal from the flat above on 24 March. The contractor advised the resident that he had previously been informed. The landlord’s records confirm that the resident was unable to use his kitchen on 24 March 2023 due to the asbestos removal from the flat above.
The contractor wrote to the landlord on 28 March 2023 to advise that they had attended the property that day as agreed with the resident. The contractor said it had successfully carried out the work and would visit that afternoon to check there were no leaks.
The landlord sent its stage one reply to the resident on 29 March 2023 in which it stated the following:
1. Due to access issues with the flat above, the landlord’s contractor had not been able to complete a major project involving the replacement of the SVP.
2. The contractor now needed to access the resident’s property again even though the contractor had previously completed work in his property.
3. Asbestos had been removed from the flat above on 24 March 2023 and therefore the resident’s kitchen now needed to be closed off for approximately 15 minutes on 28 March 2023 for the contractor to reconnect the soil stack. The contractor would then need to make a further appointment to reinstate the wall in the resident’s property, which would take a maximum of 2 hours.
4. The landlord stated that it understood the arrangements had all been put in writing to the resident.
The resident wrote to the landlord on 2 April 2023 and stated that he was unhappy with the landlord’s stage one reply because:
1. He believed the contractor had made an error by completing the work in his property on 2 February 2023 and not leaving themselves access to remove the asbestos or connect the SVP to the flat above.
2. The resident said the contractor had demanded access to his property without notice and had demanded his keys. He said that he received a letter from the contractor at 3.30pm the day before the work was starting.
3. The resident stated that he had not been able to use his kitchen for 7 hours, even though he had been told by the contractor it would only be for a few hours.
4. The resident said one of his electric sockets and an ornament had been smashed.
5. The resident believed the contractor had “trashed” his flat.
6. The resident stated that the contractor should have arrived at this property at 9.45am on 31 March 2023 so that he could go to work. However, they did not arrive on time and therefore the resident said he was late for work.
7. The resident stated that he had received constant phone calls from the contractor.
On 11 April 2023, the contractor wrote to the landlord stating:
1. That it had not “demanded” anything of the resident. The contractor said that it had phoned the resident on 17 March 2023 to request access on 24 March 2023.
2. The contractor said that the resident had initially agreed to provide access but then later said he was unhappy as it was not his fault that the tenant above had not provided access. The contractor stated that they then made various calls to the resident to resolve the issue.
3. The contractor stated that it had not realised that a full asbestos encapsulation tent was needed and accepted this had been an error on its part.
4. The contractor accepted that its team had damaged a low-level electrical socket. However, the contractor said it had isolated this and then replaced the socket on the next day.
5. The contractor said that the resident had not previously mentioned a broken ornament.
6. The contractor stated that since 17 March it had received 4 incoming calls and made 3 outgoing calls to the resident to advise him of progress.
The resident wrote to the landlord on 13 April 2023 to say the contractor had visited him on that day. The contractor said it had apologised to him for its errors and had offered to glue the broken ornament.
The contractor wrote to the landlord on 13 April 2023 to confirm it had visited the property on that day. The contractor had seen the damaged ornament and said that the resident was also reporting that the contractor had damaged a mobile phone during the additional work.
On 19 April 2023, the landlord sent its stage 2 reply in which it stated the following:
1. The contractor had said that the resident had been happy with the initial work it carried out.
2. The contractor had then sent a letter to the resident regarding the secondary connection of the SVP to the flat above. The letter had stated that the contractor was happy to work around the resident’s convenience if required.
3. The landlord had not seen any mention of damage to the resident’s mobile phone in his stage 2 complaint. The contractor had denied causing any damage to the resident’s possessions or property, apart from damage to a socket, which it replaced on the same day.
4. The contractor now proposed a joint meeting with the resident at the property to discuss the issues.
5. The landlord stated that the contractor understood that the access issues regarding the flat above had caused the resident additional disruption and inconvenience.
6. The contractor had tried several times to access the flat above and had kept the resident informed of this.

Events after the landlord’s stage 2 letter

The resident wrote to this Service on 4 May 2023 and stated that he had been given insufficient notice in relation to the additional work. He also stated that the contractor broke an electrical socket, which he said was left all weekend with bare wires and the contractor damaged an ornament and a mobile phone. He said the contractor had taken the damaged phone and ornament for repair and had not returned them.
On 30 April 2024, the landlord advised this Service that the resident had been provided with a replacement mobile phone and his ornament had been repaired and was ready for him to collect.
The landlord wrote to this Service on 17 July 2024 and stated the following:
1. Although the resident could not use his kitchen on 24 March 2023 due to asbestos removal, the landlord had provided residents with the use of mini-kitchens and free food and drinks at the high-rise social club near the property.
2. The landlord said it had been assured by its contractor that it had offered the resident a replacement mobile phone on 13 April 2023 but the offer had not been taken up. The landlord confirmed that it could not provide evidence of the contractor’s offer of the phone to the resident. However, the offer remained available should the resident wish to accept it.
3. On 13 April 2023, the contractor had offered to repair the damaged ornament. The contractor therefore repaired the ornament and advised the resident that it was available for his collection. The landlord confirmed that it did not have evidence of the contractor’s offer to repair the ornament or its notification to the resident that he could collect the repaired ornament.
4. The landlord had questioned the contractor about whether its operative had arrived late on 31 March 2023. However, the contractor had not been able to provide evidence of the time it had arrived.
5. The damaged electrical socket was a fuse spur for a non-functional heater and was reported on 24 March 2023. It was made safe immediately by the contractor and was replaced on the next working day, which was 27 March 2023. The landlord accepted that it had not reflected this accurately in its stage 2 reply and apologised for this to the resident.
6. The landlord confirmed that it had no information about the joint meeting with the contractor that it had offered in its stage 2 reply.

Assessment and findings

Scope of the investigation

The resident has requested compensation for damage to personal property, including an ornament. The Ombudsman’s view is that disputes regarding a landlord’s liability for property damage, should be arbitrated via the legal system as the courts are better placed to make a binding judgment of liability. It is not within the Ombudsman’s authority to determine negligence or liability in the same way as the courts, or to order damages in relation to these, only a court can offer a definitive and legally binding decision.
Whilst this Service is unable to make a direct finding of liability, the Ombudsman has investigated how the landlord managed the resident’s complaint about property damage.

The resident’s report that the contractor did not give him adequate notice of the additional work needed to his property or the impact of the work

The contractor’s newsletter dated January/February 2023 stated: “All residents will receive at least 21 days notice. This will have your start date and all the dates that we require access. You will also get a reminder letter the week prior to us starting”.
The contractor hand-delivered a letter to the resident on 20 March 2023, which advised him that it would need access to the property starting from 24 March 2023 to complete the SVP replacement in the flat above. The letter stated that the work would involve removing asbestos and fire stopping precautions. The letter stated that it would require 2 days maximum at the resident’s convenience. The resident also confirmed in his stage one complaint dated 22 March 2023 that he had spoken with the contractor on 17 March 2023 and the contractor had advised him it wanted to carry out additional work in the property from 24 to 29 March 2023.
The tenancy agreement states that the landlord, and by extension its contractors, will make reasonable arrangements for entering the premises to carry out works. The repairs policy adds that it will provide reasonable notice in cases where it needs to enter the property to carry out repairs and maintenance.
In this case, the landlord’s contractor had verbally given the resident a week’s notice on 17 March 2023 and 4 days’ written notice on 20 March 2023. The contractor had been trying to access the flat above the resident’s property for some time and had managed to arrange access. Therefore, it is understandable that the contractor wanted to complete the works without further delay. Nevertheless, as the contractor had already carried out work in the resident’s property from 18 January to 2 February 2023, it was incumbent upon the contractor and landlord to minimise further disruption to the resident by providing adequate notice.
The letter dated 20 March 2023 stated that the contractor would work with the resident to minimise disruption and that 2 days were required for the works at the resident’s convenience. The letter also gave a named contact and mobile number of someone the resident could contact if there were any queries or problems. The Ombudsman view is that the amount of notice given to the resident regarding the start date was relatively short compared to the 21 days’ notice the contractor had said in its January/February 2023 newsletter would be given to residents.
However, in the Ombudsman’s opinion, the tone of the contractor’s letter was reasonable and did not demand access. There was a named contact that the resident could have spoken to had he not been available on 24 March 2023. Therefore, although it was a shortcoming that the landlord had not provided more notice, it had given the resident reasonable opportunity to raise any concerns if the date had not been suitable.
In his stage one complaint on 22 March 2023, the resident said that he had originally been told the work would take a maximum of 2 days on 24 and 31 March 2023. However, he had then been contacted on 22 March 2023 to advise him that the contractor would also need access on 28 March 2023. This information is in line with the landlord’s letter dated 20 March 2023, which stated that the work would take a maximum of 2 days. The contractor then wrote to the resident on 23 March 2023 and stated that it would need access on 24, 28 and 31 March 2023.
The Ombudsman understands that unforeseen issues may arise when carrying out major works projects and this may lead to changes to work schedules and timescales. However, where this occurs, it is important to acknowledge any disruption and inconvenience caused to residents. In this case, the resident received less than a week’s verbal notice on 22 March and written notice on 23 March 2023 that the contractor would need additional access to his property on 28 March 2023. The Ombudsman’s view is that it was inappropriate to give the resident such short notice regarding the change in the schedule for the works. The resident’s stage one complaint and his text message to the contractor on 23 March 2023 show that he was unhappy that the arrangements had changed to include 28 March 2023.
In his stage 2 complaint, the resident reported that the contractor had arrived at his property later than the agreed time of 9.45am and this had caused him to arrive late at work. This point was not addressed in the landlord’s stage 2 reply, which was inappropriate as it was linked with his dissatisfaction regarding the arrangements for the additional works. The landlord has also confirmed to this Service that it cannot evidence the time that the contractor arrived.
The resident stated in his stage 2 complaint that he had not been able to use his kitchen for 7 hours on 24 March 2023. He said he had been told that it would only take a few hours. The contractor’s records confirm that the resident said on 24 March 2023 that he had not previously been made aware of the impact the asbestos removal would have on him. The resident’s statement is supported by the landlord’s and contractor’s letter dated 23 March 2023, which did not mention the need to seal the kitchen because of the asbestos removal. It was unreasonable that the landlord had not given the resident notice that he would not be able to use his kitchen on 24 March 2023, which the resident said was for about 7 hours. The Ombudsman has noted, however, that it had provided alternative facilities for residents to use, including use of mini-kitchens and free food and drinks at the high-rise social club near the property.
The contractor advised the landlord on 11 April 2023 that it had not realised the work on 24 March 2023 would require a full encapsulation tent in the resident’s property. It accepted that this had been an error on its part.
When considering how a landlord has responded to a complaint, the Ombudsman considers not just what has gone wrong, but also what the landlord has done to put things right in response to a complaint. This includes the steps the landlord has taken to address the shortcoming and any compensation offered. In this case, the landlord’s stage 2 reply did not mention the lack of information given to the resident regarding sealing off his kitchen and the short notice given to him regarding the contractor’s attendance on 28 March 2023. As a result, the landlord did not use the complaints process to put things right by offering any financial redress to recognise the additional inconvenience caused to the resident.
The Ombudsman has therefore found there was a service failure by the landlord because:
1. The contractor had not given sufficient notice about the need for access to the property on 28 March 2023.
2. The landlord did not respond in its stage 2 reply to the resident’s point that the contractor had arrived late on 31 March 2023 and this had caused him to be late for work.
3. The contractor had not given the resident appropriate notice that he would not be able to use his kitchen on 24 March 2023.
4. The landlord had not used its stage 2 reply to acknowledge the contractor’s error in not advising the resident about the need for a full asbestos encapsulation tent.
This Service has ordered the landlord to pay the resident compensation of £100, which is within the range of financial redress stipulated in the Ombudsman’s Remedies Guidance for a service failure.

The resident’s report that the contractor damaged his property and possessions

The landlord’s repairs policy identifies 3 timescales for responsive repairs:
1. Emergencies are made safe within 3 hours and then completed as soon as possible thereafter.
2. Appointed repairs are completed within 5 working days.
3. Routine repairs are completed within 26 working days.
In his stage 2 complaint on 2 April 2023, the resident reported that the contractor had damaged a plug socket and an ornament on 24 March 2023 while installing the asbestos encapsulation tent. The contractor accepted that its team had damaged the plug socket and advised the landlord on 11 April 2023 that it had isolated the socket on 24 March and replaced it on the next day. However, the resident advised this Service that the damaged socket was not repaired until after the weekend and had been left with bare wires. The landlord has confirmed to this Service that it made the socket safe immediately and repaired on 27 March, which was the next working day after Friday, 24 March.
As the contractor had advised the landlord that it had isolated the electrical socket, the landlord was entitled to rely on the advice of its contractor that it had made the socket safe, pending the replacement of the socket. The Ombudsman has not seen any evidence that the socket had been left in an unsafe condition by the contractor.
Based on the resident’s information and the information provided to this Service by the landlord, the socket was replaced within 3 working days. If the socket had been made safe by the contractor, under the landlord’s repairs policy it would be categorised as an appointed job (to be completed within 5 working days), rather than an emergency. Therefore, based on the evidence seen, the landlord’s contractor acted appropriately by making the socket safe and then replacing it on the next working day.
The resident stated in his stage 2 complaint on 2 April 2023 that the contractor had damaged an ornament during the works on 24 March 2023. The contractor visited the property on 13 April 2023 and saw the damaged ornament. The resident wrote to the landlord on the same day and said the contractor had offered to glue the ornament. The landlord stated in its stage 2 reply that the contractor had denied damaging the ornament. However, the landlord did not mention the contractor’s intention to glue it. The landlord confirmed to this Service on 30 April 2024 that the ornament had been repaired and was ready for the resident to collect.
The Ombudsman’s view is that the landlord did not use the complaints process to offer a reasonable solution to the resident regarding the reported damage to the ornament. The contractor had denied damaging the ornament and therefore in these circumstances the Ombudsman would expect the landlord to have given the resident the option of making a claim against the contractor’s (or its own) liability insurance. Although the contractor had offered to glue the ornament, any such repair would probably have affected the value of the ornament and therefore the Ombudsman does not consider this to have been a satisfactory resolution.
The resident informed the contractor on 13 April 2023 that its team had also damaged his mobile phone during works carried out on 24 March 2023. The contractor again denied causing the damage and the landlord stated in its stage 2 reply dated 19 April 2023 that the resident had not mentioned the mobile phone in his stage 2 complaint.
The Ombudsman has reviewed the resident’s stage 2 complaint and can confirm that he did not mention the phone as part of his complaint. Therefore, the landlord’s response in its stage 2 reply was reasonable. However, the landlord advised this Service on 17 July 2024 that although the contractor had said it had provided the resident with a replacement phone, neither the landlord nor the contractor could evidence this. The landlord has, however, stated that the offer of the replacement phone is still open should the resident wish to accept it. The Ombudsman has therefore recommended that the landlord reoffer the resident a replacement phone. The recommendation has been made rather than an order because the Ombudsman has not concluded there was a failing on the landlord’s part in relation to the mobile phone.
Overall, the Ombudsman has found there was a service failure in relation to the landlord’s response to the resident’s report that the contractor damaged his property and possessions. This is because the landlord did not offer the resident the option of claiming for the damaged ornament against the contractor’s or its own liability insurance. Given the time that has elapsed since the reported damage to the ornament, the Ombudsman has ordered the landlord to pay the resident £50 compensation rather than now assisting him to make an insurance claim. The sum of £50 is within the stipulated range of financial redress in the Ombudsman’s remedies Guidance for service failures.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in its response to the resident’s report that the contractor did not give him adequate notice of the additional work needed to his property or the impact of the work.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was a service failure by the landlord in its response to the resident’s report that the contractor damaged his property and possessions.

Reasons

The landlord had not given sufficient notice for the work on 28 March 2023. The landlord did not respond in its stage 2 reply to the resident’s point that the contractor had arrived late on 31 March 2023 and the contractor had not given the resident notice that he would not be able to use his kitchen on 24 March 2023. Furthermore, the landlord had not used its stage 2 reply to acknowledge the contractor’s error in not advising the resident about the need for a full asbestos encapsulation tent.
The landlord did not offer the resident the option of claiming for the damaged ornament against the contractor’s or its own liability insurance. The contractor’s offer to repair the ornament was unsatisfactory in the circumstances.

Orders

The landlord is ordered within 4 weeks of this report to:
1. Write to the resident to apologise for the failings identified in this report.
2. Pay the resident £100 in relation to the failings around the additional work carried out in his property.
3. Pay the resident £50 in relation to the landlord’s response to the damaged ornament.

Recommendation

The landlord should reoffer the resident a replacement mobile phone and arrange for him to collect the repaired ornament if he wishes to do so.