Torus62 Limited (202109613)

REPORT

COMPLAINT 202109613

Torus62 Limited

23 June 2023

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

This complaint is about the landlord’s handling of the resident’s requests for a renewal of her kitchen.
This investigation has also considered the landlord’s handling of the associated complaint.

Background

The resident is an assured tenant of the landlord. The tenancy started on 16 March 2020. The property is a four-bed house.
The landlord has no recorded vulnerabilities for the resident, but is aware that the resident has indicated that her family members are vulnerable.
Before sending her complaint to the landlord and Ombudsman, the resident sent the landlord a letter of claim dated 6 January 2021, which said there was disrepair in the property. With regard to the kitchen, the resident said there was damp, but raised no further issues. The letter of claim also referred to a pest infestation. That claim was resolved by way of a Part 36 offer from the landlord, which the resident accepted in full and final settlement of the claim before any proceedings were issued.
After the resident referred her complaint to the Ombudsman, she sent a second letter of claim to the landlord. With regard to the kitchen, that letter of claim referred to defective kitchen units and flooring, and an infestation of mice. That claim was resolved by way of a Part 36 offer from the resident, which the landlord accepted in full and final settlement of the claim before any proceedings were issued.

Policies and Procedures

The landlord has not provided any policies or procedures which set out the frequency of its home renewal or refurbishment programmes. However, the Decent Homes Standard says that the lifespan of a kitchen is around 30 years, and that a kitchen which is less than 20 years old is considered ‘reasonably modern’. As such, those timeframes are taken in this investigation as a broad guideline as to how often kitchen refurbishments should ideally be undertaken.
Under the terms of the tenancy agreement, the landlord is responsible for repairs to the structure and exterior of the property. The landlord’s repairs policy says that when repairs are the landlord’s responsibility, they will be carried out in the following timeframes:
1. Emergency repairs will be carried out within 24 hours;
2. Arranged repairs, for example leaking gutters, will be carried out within 20 days;
3. Programmed repairs – those which are not urgent but can be complex in nature – will either be carried out within 60 days, or added to the landlord’s planned and cyclical improvement works, which should be completed within a reasonable timescale.

The policy says that the landlord can recharge residents for any repairs carried out which are not the landlord’s responsibility.

The landlord has a two-stage complaints process. Stage one responses must be given within 10 working days, and stage two responses must be given within 20 working days of an escalation request. The policy also sets out examples of reasons the landlord will not apply the complaints policy, such as when legal proceedings about the subject matter of the complaint have started.

Scope of the investigation

Paragraph 42(a) of the Housing Ombudsman Scheme (the Scheme) says the Ombudsman will not investigate complaints which have not yet exhausted the landlord’s internal complaints process. The Ombudsman understands that the resident has made further complaints to the landlord about the condition of the property and the conduct of the landlord’s surveyor. Those complaints had not completed the landlord’s internal complaints process at the time this complaint was referred to the Ombudsman. As such, those complaints will not be considered as part of this investigation.

Summary of events

The landlord’s repair logs show that on or around 19 May 2020, the resident reported there were rats in the property. The landlord arranged a pest control appointment for 4 June 2020, but when pest control attended the resident said they were no longer required.
On or around 14 August 2020, the resident reported rodents in the property again. The landlord’s repair logs show the landlord’s contractor attended on two occasions to block any rat or mouse entry holes, and that this was completed on 4 September 2020.
On 5 January 2021, the resident told the landlord that she had constantly reported damp and mice. On 12 January 2021, the resident’s solicitors sent the landlord a letter of claim dated 6 January 2021 which alleged there was disrepair in the property. This included allegations of damp in the kitchen and a rodent infestation.
On 15 February 2021, the landlord’s surveyor produced a report regarding the alleged disrepair at the property. The resident had arranged for her own surveyor to carry out an inspection. The surveyors identified that an ongoing leak was impacting the kitchen and recommended repairs to the ceiling and plaster. Both surveyors agreed that there was no evidence of any rodent infestation, and that no works regarding pests were required. On 12 April 2021, the landlord made a Part 36 offer to resolve the entire claim, which the resident accepted via her solicitors on 20 April 2021. The landlord then carried out various works.
On 29 June 2021, the resident made a complaint to the landlord about disrepair in the property. The resident also contacted the Ombudsman. She told the Ombudsman her kitchen was too small, and she wanted the whole kitchen to be renewed with a kitchen extension, more cupboards, and for the new cupboards to be of higher quality.
On 1 July 2021, the Ombudsman referred the resident’s complaint to the landlord. On 8 July 2021, the landlord wrote to the resident and advised it would not respond to her complaint because it was related to her disrepair claim. On 13 July 2021, the landlord told the Ombudsman that the issues raised were subject to a legal disrepair claim so fell outside of its complaints policy.
On 23 July 2021, the resident sent a further complaint to the Ombudsman. She said:
1. She had complained to the landlord many times about a kitchen renewal but the landlord would not help.
2. Mice had been coming into the property and had died behind the kitchen cabinets. She was afraid to store food in the cupboards because of mice.
3. The kitchen cupboards were of poor quality. The landlord had arranged a survey and said it would replace one kitchen cupboard door. It had said the kitchen was otherwise in good condition, and it would not replace it.
4. To resolve her complaint, she wanted the landlord to remove the existing kitchen, build a kitchen extension and install an increased number of kitchen units and cupboards in her preferred style.
On 29 July 2021, the Ombudsman referred the resident’s complaint to the landlord and asked it to respond. The landlord replied that it would not investigate due to the resident’s disrepair claim, which it said took the complaint outside of its complaints policy.
On 8 September 2021, the resident wrote to the Ombudsman. She said that her disrepair claim had never gone to court. She said she was not happy with her living conditions, and her needs were not being met. She said she had repeatedly complained about mice but the landlord did not care, and that she wanted a kitchen renewal. On the same day, the Ombudsman explained to the landlord that there were no legal proceedings taking the matter out of the complaints process if a claim had not been issued at court. The landlord replied that proceedings were advanced, disrepair works were complete, and damages had been paid. The Ombudsman explained that the landlord would still be required to give the resident reasons it would not consider the complaint, as well as referral rights to the Ombudsman.
On 1 October 2021, the landlord wrote to the resident to explain it would not accept her complaint. It said she had already received a payment for the issues complained of as part of her disrepair claim. The resident said she was dissatisfied with the decision. She said she would complain further as the issues with the kitchen cupboards were still not resolved to her satisfaction.
On 4 October 2021, the landlord accepted the resident’s complaint under the complaints process. It booked a surveyor to assess the kitchen and pest control contractors to investigate the reports of mice.
On 7 October 2021, the landlord’s pest control contractor placed bait in the loft. They sent the resident a message on 14 October 2021 to ask if they could come back and check the loft the following day. Their notes state they received no reply from the resident.
On 18 October 2021, the landlord wrote to the Ombudsman. It said it had sent drainage contractors to the property to investigate reports of pest activity, but the contractors had difficulty accessing the drains. It said arrangements were being made to lift some tiles for access, but it was unable to issue a complaint response until its ongoing investigations were completed.
On 27 October 2021, the pest control company went to the property and replenished the bait. The landlord emailed the resident on the same day and confirmed that the pest control contractors would attend on 1 November 2021 to work on the drains. The resident confirmed receipt of the appointment details and asked when the kitchen would be renewed. The landlord replied on the same day to confirm that it had carried out all kitchen repairs and there was no replacement scheduled. The landlord’s logs show that its pest control contractors went to the property on 1 November 2021, but the resident did not provide access. The landlord closed the case as it said there had been numerous failed attempts to carry out the works.
On 5 November 2021, the landlord issued its stage one response. It said:
1. It had tried to arrange a post-inspection of the disrepair works but had been unable to contact the resident.
2. It had tried to arrange a CCTV survey of the drains to check for rodent access, but this had not been possible because the resident did not provide access. It had spent three weeks trying to arrange an appointment before that point and had therefore cancelled the works due to the lack of access.
On 17 November 2021, the resident contacted the landlord again. She said the cupboards were broken and had been eaten by mice in parts. She said it was unfair that her kitchen was not being renewed when her neighbour had been given a kitchen renewal after making a complaint. She said she did not want any more pest control visits and the landlord should ‘just leave it because there isn’t any more’.
On 26 November 2021, the landlord responded to the resident. It said it had arranged three pest control appointments, but as the resident had not provided access those works had been cancelled. It said no kitchen renewal had been recommended by the surveyors, and,following the resident’s comments on 17 November 2021, it considered the pest issues resolved.
On 7 December 2021, the resident made a further complaint to the landlord about its decision not to renew the kitchen. She repeated her previous complaint and added that there were flies in the light fitting. The landlord replied on 8 December 2021, and stated that it would inspect the kitchen and light fitting.
On 10 December 2021, the resident’s solicitors sent the landlord a further letter of claim setting out a number of defects. With regard to the kitchen and pests, the letter of claim stated that the kitchen had defective units and flooring, and that there was a mouse infestation in the kitchen.
The resident and landlord each instructed a surveyor to inspect the property in January 2022. The resident’s surveyor found that the units under the kitchen sink were water damaged. They said the other units were ‘heavily begrimed’ and had some damage, but the cause was unclear. They recommended the replacement of some of the damaged areas, and confirmed this did not fall under the landlord’s statutory repair obligations. The landlord’s surveyor found that one kitchen unit was damaged in an isolated area. Neither surveyor recommended a kitchen renewal or identified an infestation of flies. Both surveyors said there was no evidence of any rodent activity.
On 17 January 2022, the resident made a further complaint about the condition of the kitchen. She said the units were ‘dangling out’ but the surveyor said the kitchen was fine. She said she wanted the landlord to send a different surveyor to inspect the kitchen. On 20 January 2022, the landlord wrote to the resident. It said three surveyors had all agreed that the kitchen did not need renewal and the cupboards were in working condition. It said it would not arrange a fourth surveyor inspection.
On 9 February 2022, the landlord issued its stage two response. It said three surveyors had attended at various times and none of the surveyors had recommended replacement of the kitchen. It said a disrepair manager had also visited on 2 August 2021 and found the units were fit for purpose. It said it had responded in a reasonable way and a kitchen replacement was not required.
On 16 February 2022, the resident contacted the Ombudsman again. She said the landlord should build a kitchen extension and renew the kitchen because there were rats and mice living in it. She said the cupboards were ‘disgusting’, there was damp and mould everywhere, and that if it would not renew the kitchen, the landlord should move the resident to a nicer house with four bedrooms and two bathrooms. The resident also made a further complaint to the landlord on the same day. She said the surveyor lied when he said there were no mice.
On 23 February 2022, the resident made a Part 36 offer to settle her second claim, which the landlord accepted.
On 28 April 2022, the resident wrote to the Ombudsman. She said the kitchen was falling down but the landlord was ‘lying’ by saying there was no issue. She said all her neighbours had their kitchens renewed after complaining to the landlord, and she had to hide her kitchen from visitors.
On 16 August 2022, the landlord’s internal surveyor issued a report. The report said:
1. They carried out an inspection on 10 December 2021.
2. The sink base unit, the wall unit above the sink, and the worktop were all badly decayed as a result of the tenant allowing water to spill over from the sink without drying it up in a timely manner.
3. The resident had said water spilled everywhere because the sink was too small.
4. Replacement of the units and worktop were rechargeable repairs. The resident declined this as she wanted the landlord to pay for a full kitchen replacement.
On 20 December 2022, the landlord carried out a post-inspection visit regarding the disrepair works. Both the landlord and resident signed a document to confirm that all disrepair works had been completed, and that there were no ongoing issues with the property save for a new shower mixer tap fault.

Assessment and findings

Renewal of the kitchen

In accordance with the Decent Homes Standard guidance, the expected lifespan of a kitchen is 30 years, and a kitchen less than 20 years old is considered ‘reasonably modern’. If a kitchen is damaged before that period and cannot be economically repaired, a renewal may be required at an earlier date. As such, when a resident requests the renewal of a kitchen due to its condition, the landlord would be expected to arrange an inspection of the kitchen to assess whether any damage can be economically repaired, or if the kitchen needs to be renewed.
The resident made a complaint about the condition of the kitchen at the end of June 2021, shortly after her initial disrepair claim was settled. The resident’s complaint was that the kitchen was too small, there were insufficient cupboards, and the kitchen was overcrowded. In July 2021, the resident then complained that the landlord would not renew the kitchen.
While the Ombudsman appreciates that the resident feels the kitchen is too small for her needs, the landlord has no obligation to extend the kitchen or to increase the number of cupboards, as that would be an improvement rather than a repair.
With regard to the request for a renewal of the kitchen, multiple surveyors have inspected the property as part of the resident’s disrepair claims. Some were instructed by the resident, and some were instructed by the landlord. The surveyors who inspected the property at the start of 2021 identified a number of additional repairs not included in the resident’s letter of claim. Neither surveyor identified any issues with the kitchen units nor recommended that the kitchen be renewed. Both also confirmed there was no evidence of any rodent-related activity.
When two surveyors inspected the property at the start of 2022, the landlord’s surveyor said the kitchen units appeared to be around ten years old, and there was some isolated damage to a base unit. The resident’s surveyor said the base units under the sink were heavily water damaged and that the water damaged units should be replaced, subject to liability under the lease. Neither surveyor recommended that the kitchen be renewed, and both confirmed there were no signs of any pest-related activity.
It is not the role of the Ombudsman to determine whether the resident’s kitchen was in need of renewal. It is the Ombudsman’s role to assess whether the landlord’s response to the resident’s request for a renewal was reasonable based on the evidence available to it, taking into account its policies and good industry practice.
The landlord was entitled to rely on the conclusions of its surveyor as to the condition of the kitchen. Neither its own surveyors nor either of the resident’s surveyors had recommended that the kitchen be renewed, and the landlord would not need to replace the resident’s kitchen outside of any planned schedule of renewals unless it was beyond economic repair. Given that there was no suggestion from any of the surveyors that the kitchen was beyond economic repair, and that the kitchen would still be classed as ‘reasonably modern’ under the Decent Homes Standard, the Ombudsman has seen no evidence which suggests the landlord acted inappropriately when deciding not to renew the resident’s kitchen.

Complaint handling

The resident sent a complaint to the landlord on 29 June 2021. The complaint was about the landlord’s handling of a number of repairs in the property, as well as pests. On the same day, the resident sent a further complaint about the renewal and size of her kitchen to the Ombudsman, which the Ombudsman referred to the landlord. The resident sent the Ombudsman a further complaint regarding the same issues on 23 July 2021, which the Ombudsman also forwarded to the landlord. The landlord told the Ombudsman and the resident it would not respond to the complaint as it related to legal proceedings.
After the resident confirmed that court proceedings had not been issued, the Ombudsman explained to the landlord that there were no legal proceedings if a claim had not been issued at court, and that if it wanted to decline the complaint, its letter doing so needed to include referral rights to the Ombudsman. The landlord told the Ombudsman that legal proceedings were advanced and damages had been paid, and asked the Ombudsman to consider closing the complaint. The Ombudsman explained that the landlord still had to give the resident reasons it was not accepting the complaint, as well as providing referral rights to the resident.
On 1 October 2021, the landlord wrote to the resident to confirm it would not accept her complaint as her disrepair claim had been settled. It then decided to accept the resident’s complaint three days later on 4 October 2021. It issued a stage one response on 5 November 2021, and a stage two response on 9 February 2022.
The Ombudsman’s October 2021 guidance on the pre-action protocol for housing conditions claims explains that when a landlord receives correspondence initiating the protocol, it is important that the landlord does not disengage from either the internal complaints process or the repair issue itself. The guidance also explains that claims started under the pre-action protocol do not become ‘legal proceedings’ until the claim has been issued at court. The issuing of proceedings involves filing details of the claim, such as the claim form and particulars of claim, at court, and those documents being served on the respondent party by the court.
While the resident had sent the landlord a letter of claim, she had not issued a claim at court. As such, there were no ‘legal proceedings’ which took this complaint outside of the landlord’s complaints policy. Furthermore, the resident’s complaint about the kitchen renewal did not form part of her disrepair claim. As such, the landlord’s initial decision not to respond to the complaint was not in line with either its policy or good practice.
When the landlord responded to the complaint, it did not do so within a reasonable timescale. It had already unreasonably delayed its response for three months when it decided to accept the complaint, and did not issue its stage one response for another month. The landlord indicated this was because it was trying to contact the resident to arrange an inspection. However, while an inspection may have been useful, it was not required before the landlord could issue its stage one response to the complaint.
When it issued its response, it did not respond to the majority of the resident’s complaint. In its stage one response, it referred to a post-inspection of the disrepair works and also the reports of pests, but it did not respond to the complaint about the kitchen renewal and size of the kitchen. In its stage two response, it did not address the complaint about pests and instead only commented on the kitchen renewal.
While the Ombudsman notes that many of the issues raised formed part of the resident’s disrepair claim, which was settled before proceedings were issued, the Ombudsman would have expected the landlord to set out its position with regard to all of the complaints raised by the resident when sending its stage one and stage two responses to her complaint. It has not done so, so its complaint handling was inappropriate.
The landlord has advised that it has now updated its complaints policy as a result of its conversations with the Ombudsman. However, it has not offered any redress to the resident for the failings identified above. The Ombudsman therefore considers there has been maladministration by the landlord with regard to its handling of the resident’s complaint.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its handling of the resident’s request for a renewal of her kitchen.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there has been maladministration by the landlord with regard to its handling of the associated complaint.

Reasons

The resident’s request for an extension to the kitchen and for more cupboards to be installed was a request for an improvement rather than a repair, and the landlord was not obliged to carry out improvements. None of the surveyors who inspected the property identified pest issues or considered that the kitchen should be renewed rather than having some repairs carried out, and the kitchen was within the guideline age range set out in the Decent Homes Standard. The landlord had therefore seen no evidence to suggest the kitchen needed to be renewed.
The resident had not issued proceedings for her disrepair claim, and parts of the resident’s complaint did not fall within her disrepair claim. As such, there were no ‘legal proceedings’ and the complaint therefore did not fall outside of the landlord’s complaints policy. When the landlord accepted and responded to the complaint, it did not deal with all of the complaints raised by the resident, and did not issue its stage one response in the timescales set out within its policy.

Orders

Within four weeks of the date of this report, the landlord is ordered to:
1. Apologise to the resident for the failings identified regarding its complaint handling;
2. Pay the resident £150 compensation for the inconvenience caused by its maladministration in complaint handling.
The landlord is to reply to this Service to provide evidence of compliance with these orders within four weeks of the date of this report.

Recommendations

It is recommended that the landlord arrange refresher training for its complaint handling staff. The training should include:
1. The importance of responding to all complaint points when issuing a response to a resident’s complaint.
2. The importance of ensuring that complaints are not unreasonably rejected or delayed when a resident has sent a letter of claim but has not yet issued proceedings. As part of this, the landlord should review the Ombudsman’s October 2021 guidance on the pre-action protocol for housing conditions claims and ensure its staff are aware of that guidance.
The landlord should reply to this Service within four weeks of the date of this report to confirm its intentions in regard to the above recommendation.