Welwyn Hatfield Borough Council (202216776)

REPORT

COMPLAINT 202216776

Welwyn Hatfield Borough Council

27 November 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

The complaint is about the landlord’s handling of the resident’s reports of:
1. its subcontractor removing and disposing of her furniture and personal belongings;
2. repairs.
The Ombudsman has also considered the landlord’s:
1. complaint handling;
2. record keeping.

Jurisdiction

What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to this service, the Ombudsman must consider all the circumstances of the case, as there are sometimes reasons why a complaint will not be investigated.
Having considered the available evidence, the Service will not investigate the complaint about the landlord’s handling of repairs. The resident informed the landlord and the Service that she was unhappy with the landlord’s handling of repairs at the property. While the resident’s concerns are noted, the evidence demonstrates that these concerns did not form part of the formal complaint she raised with the landlord. Paragraph 42(a) of the Scheme states that that the Ombudsman may not consider complaints that are made prior to having exhausted a member landlord’s complaints procedure. The Service considers that the resident’s original complaint, which progressed through the landlord’s complaint procedure, was about the subcontractor’s disposal of the resident’s furniture and personal belongings. The resident could consider making a further complaint to the landlord about its handling of repair issues if this is an ongoing issue. Should she remain dissatisfied with the landlord’s formal response(s), she would be able to refer her complaint to the Ombudsman.

Background

The resident is a secure tenant of a 3 bedroom house, owned by the landlord. The resident lives there with her children. At the time of the events relevant to this complaint, the landlord used a company to meet its repairs obligations. This company is referred to throughout this report as ‘the contractor’. The contractor had subcontracted out some repairs jobs to a different company, which is referred to throughout this report as ‘the subcontractor’.
On 11 July 2022, the subcontractor commenced 2 weeks of plastering works at the resident’s home. The resident had agreed with the subcontractor to stay in alternative accommodation for the duration of the works.
On 3 August 2022, the resident attended the landlord’s office. She explained that, on 27 July 2022, she had returned to her home and been informed that the subcontractor had mistakenly removed her furniture and personal belongings. The resident stated that all she had left was a fridge freezer, the carpets, and some shoes. On 4 August 2022, the resident completed the landlord’s online complaint form about the incident.
The resident stayed in a hotel until 10 August 2022 while work was completed to her home. The landlord arranged interim payments for essential items, worked to source temporary furniture and kitchen equipment, and provided details of the subcontractor’s insurance company to enable her to make a claim.
On 1 September 2022, the landlord called the resident to inform her that it would not be closing her complaint within usual timescales due to its complexity. The Service contacted the landlord on 31 October 2022 to request that it formally responded to the resident’s complaint by 14 November 2022.
On 23 November 2022, the resident received a negative decision on her claim against the subcontractor’s insurance. The resident made the landlord aware of this on 25 November 2022 and the landlord contacted the subcontractor, on her behalf, the same day.
On 15 December 2022, the landlord issued its stage 1 complaint response. It stated that it had been unaware of the resident’s agreement with the subcontractor to stay in alternative accommodation for the duration of the plastering works. It would not have agreed this arrangement and so did not accept liability for the subcontractor’s removal of her belongings. The landlord stated that the subcontractor had accepted liability and offered the resident a £15,000 settlement, which she had rejected. It had supported the resident and assisted with communication between relevant parties but said the matter was one for the resident and subcontractor to deal with. The resident contacted the landlord on the same day and requested that it escalate her complaint to stage 2 of its complaints procedure. In an email sent on 20 December 2022, she challenged the landlord’s refusal to accept liability for what had happened.
On 3 January 2023, the landlord issued its stage 2 response. It stated that it did not uphold the resident’s complaint. The landlord repeated its position as set out in its stage 1 response.
The landlord issued an additional letter to the resident on 27 January 2023. It stated it had taken the following actions to assist her:
1. Paid £1,000 to the resident immediately after the incident to replace school uniforms etc;
2. Paid a total of £567 in decant payments while she had to live elsewhere;
3. Provided the resident with temporary furniture and kitchen equipment;
4. Completed works to her home over and above normal the repairs standard as a gesture of goodwill;
5. Facilitated an offer of £2,500 from the subcontractor as an interim payment;
6. Liaised with the subcontractor on the resident’s behalf to get an insurance claim started and encourage discussions about a settlement figure;
7. Investigated the resident’s complaint.

The landlord stated that, as the resident had indicated £100,000 would be an appropriate settlement figure and the subcontractor had offered £15,000, the resident should provide a priced list of all items she had lost. It agreed to facilitate discussions between the resident and the subcontractor.

On 6 March 2023, the landlord wrote to the resident and said its position remained unchanged. It provided the details of its insurance team but reiterated its insurer would not accept liability.
The resident asked the Service to investigate. She states her insurance claim remains unresolved. She wants the landlord to accept liability for the incident with the disposal of her belongings and deal with it accordingly.

Assessment and findings

Scope of investigation

The landlord is responsible for the carrying out of its statutory functions, including when they are contracted or subcontracted out to companies that do not have a legal relationship with the resident. During the course of the events described, the subcontractor accepted liability for the removal and disposal of the resident’s belongings. The Service is not in a position to dispute this. The landlord was therefore within its rights to refer the resident to the subcontractor’s insurer. It is outside of the Service’s remit to determine who is liable for the resident’s losses in July 2022. Such liability issues are more appropriately handled by another process, such as through an insurance company or by the courts. Therefore, it would be inappropriate for this investigation to determine whether the landlord or its contractor were negligent parties and liable for the costs incurred by the resident as a result of the disposal of her belongings. The Service will be able to consider the landlord’s handling of the matter, including the support it provided to the resident, and make a finding on this basis.
The events referred to in this complaint involve various third parties, including insurance companies and companies contracted to carry out functions on behalf of the landlord. The Housing Ombudsman Scheme provides for the Service to investigate and assess the actions of its members only, which in this case is the landlord. As third party companies such as contractors, subcontractors and insurance companies are not members of the Scheme, it is outside of our remit to directly assess their actions or inaction. This investigation will focus on whether the landlord handled relevant matters in an appropriate and reasonable way, including the actions of its contractors and in accordance with the landlord’s policies and/or legal obligations.

The landlord’s response to the resident’s report that a subcontractor had removed and disposed of her furniture and personal belongings, and its record keeping

The landlord does not have a policy that sets out its approach to the specific event that occurred in this case, such is the unusual nature of it. Therefore, the Service can only assess the reasonableness of the landlord’s response to the resident’s report of all her belongings being disposed of by its subcontractor. As the landlord was responsible for the functions that the subcontractor was employed to carry out, it had a responsibility to appropriately handle the matter in the interim, while an insurer(s) processed the resident’s claim. As the resident had been left with an empty house, her home was uninhabitable in the short term due to a lack of essential furniture, such as beds. The resident and her family were also left without other everyday essentials such as clothes, including school uniforms. The landlord had a responsibility to take reasonable steps to minimise the hardship that had been caused to the resident and her family.
It is unclear when the resident first reported the incident to the landlord. According to an internal email, dated 4 August 2022, in which the landlord summarised a visit from the resident to its office the previous day, she had discovered the removal of her personal belongings on 27 July 2022. However, there is no evidence of any contact until the landlord sent an email to the resident a week later, on 3 August 2022, offering its assistance. It is unclear whether the resident delayed in reporting the incident to the landlord, the landlord delayed in responding, or if the records of the initial contact were not accessible. If it was due to a lack of, or inaccessible, records, the landlord should ensure that it keeps clear, accessible records of all contacts with residents.
The landlord’s email of 3 August 2022 introduced 2 members of its staff that would be assisting the resident to facilitate her return home. It expressed empathy with the difficult situation the resident had found herself in. It stated that it would source essential items for her home as soon as possible and that it would expect the resident to return home, once these were in place. It reassured the resident that these items would not be intended to replace her belongings and would not form part of any claim she made to the landlord’s or subcontractor’s insurers. This email demonstrates that the landlord had allocated a point of contact to the resident and expected to spend a significant amount of time assisting her. It had an initial plan in place to start to resolve the issue. This was an appropriate response from the landlord.
According to the resident’s emails and texts sent to the landlord, she had been staying in a hotel for a period of time, following the incident. On 9 August 2022, she asked the landlord if the cost of the hotel stay and “decant payments” would be deducted from any final settlement figure she would be offered to cover her lost items and the stress caused. On 10 August 2022, the resident informed the landlord she had checked out of the hotel but was unsure what to do as works at her home were still ongoing. This suggests there had been poor communication from the landlord in advance of the end of her hotel stay. In the circumstances, it would have been reasonable for the landlord to contact the resident before she left the hotel to update her on the ongoing works and confirm whether it was safe for her to return.
Had the resident not mentioned her hotel stay in the aforementioned emails, the Service would not have seen any evidence of it. It is unknown what date the resident moved into the hotel. The evidence provided from this time also makes no other reference to decant payments, what these were intended for, or when they were paid. The landlord’s letter, dated 27 January 2023, indicated these payments had totalled £567. Communication between the resident and the landlord on 10 August 2022 also demonstrated the landlord’s intention of making a £2,500 interim payment to her. The landlord’s letter indicated that it had not made the payment, but that it had arranged for the contractor to pay this. The letter also referred to a £1,000 payment made “immediately” after the event. This Service has not seen any evidence of this payment or any earlier reference to it.
This demonstrates inadequate or inaccessible record keeping. The landlord should have reasonably ensured that it kept a clear audit trail of the actions it had taken once made aware of the resident’s situation. This would include any payments offered and processed, and the provision of furniture or equipment. The landlord should be able to demonstrate its own actions without relying on the resident to refer to them in her communications with it. Considering the landlord was able to refer to these actions months later, and these statements were not disputed by the resident, it suggests that records are likely to exist but had not been provided to the Ombudsman for the purpose of this investigation. This may have been an omission or because the records were not adequately accessible to appropriate staff members. It will be necessary for the landlord to review its record keeping practices to ensure adequate and accessible audit trails are being kept of its actions and communications.
Despite the resident having asked for further assistance with temporary accommodation, there is evidence that the landlord encouraged the resident to stay with family for the weekend, following her check out from the hotel on 10 August 2022. The landlord then mentioned websites where the resident could purchase beds and asked her to let it know when she had received the interim payment. Therefore, it is clear the resident had not yet received the payment she needed to purchase essential furniture and her home was not yet inhabitable as a result. In the circumstances, it would have been reasonable for the landlord to consider extending the resident’s hotel stay. It is unclear why it did not. However, that it did not, and instead encouraged her to stay with family was a failure. It was not the resident’s responsibility, nor her family’s, to source or provide temporary accommodation.
On 11 August 2022, the landlord provided the resident with the details of the contractor’s insurer. It also asked her to provide a list of what temporary furniture and kitchen equipment the landlord needed to source for her. While it was appropriate for the landlord to take this action, it did this more than 2 weeks after the incident and more than a week after the resident had visited the landlord’s office. It is unclear why these basic actions were not undertaken sooner. It would have been reasonable for the landlord to provide relevant insurer details and make basic enquiries as to what equipment the resident needed a lot sooner than it did. This would have enabled a speedier progression of her claim and return home.
The landlord emailed the resident on 12 August 2022 and provided reassurance that she did not have to worry about any costs it incurred as a result of the subcontractor’s error. It also confirmed that they would not form part of the resident’s insurance claim. The email was empathetic and also signposted the resident towards agencies that could assist with independent legal advice or other help. It was appropriate that the landlord responded to the query that the resident had raised, in this manner and provided the information that it did. However, it would have been appropriate for the landlord to have made this clear to the resident a lot sooner. It should not have been necessary for the resident to contact the landlord for reassurance on this matter.
There is no evidence that the landlord contacted the resident between its email of 12 August 2022 and 25 November 2022, when the resident attended its office. The only exception was a record of a call made to her on 1 September 2022 to discuss her complaint. The landlord’s record of this call also indicated that a visit to the resident’s property had been arranged for 5 September 2022. There are no records of whether this visit went ahead as arranged, what was discussed, or the outcome of the visit. The landlord stated to the Service, on 1 November 2022, that the resident had received regular calls and updates; however, it has failed to provide any evidence to support this. It is unclear whether the landlord failed to document or adequately record its interaction with the resident for more than 3 months, or whether it has failed to provide those records to the Ombudsman to support this investigation. On 5 February 2023, the resident stated in an email to the landlord her own belief that the landlord had not input records into its systems.
In its stage 1 complaint response, dated 15 December 2022, the landlord stated that the subcontractor had accepted liability for the disposal of the resident’s belongings. It stated that the subcontractor had offered the resident £15,000 and that she had rejected this offer. The landlord said that it had supported communication between the various involved parties, which was appropriate for it to do. The stage 1 response was reasonable. However, it had failed to provide sufficient records that supported these statements, although the resident has not disputed them. It has provided evidence of one email that it sent to the subcontractor on 25 November 2022. This is further suggestion of poor record keeping practices by the landlord.
In the absence of multiple relevant records, there was maladministration with respect to the landlord’s record keeping. It will be necessary for the landlord to review its record keeping practices, and identify and address any relevant staff training needs. Given the failings identified by the Service and that the landlord has been unable to evidence that it kept the resident updated regularly, it would be appropriate for it to compensate the resident for the inconvenience she has been caused. The Ombudsman’s Guidance on Remedies (published online) sets out the Ombudsman’s approach to putting things right when they have gone wrong. It suggests awards of £250 would adequately remedy maladministration where there has been no permanent impact on the resident.
A central part of the resident’s complaint to the landlord and to the Service focuses on the landlord’s refusal to accept liability for the disposal of her belongings. She had presented an argument for why she believed the landlord was liable. This argument included that the landlord should have been aware of the agreement that she left her home for the duration of the plastering works in July 2022, had there been adequate record keeping. The landlord advised the resident that, as the subcontractor had accepted liability for the incident, it would therefore not be liable for what had happened. It stated that any claim the resident made to its insurer was likely to be refused on that basis. The landlord was within its rights to give the resident this advice and to signpost her to the subcontractor’s insurer for a resolution. However, the resident had asked the landlord on multiple occasions for details on how to make a claim to its own insurer. She had made it clear on multiple occasions that she would like to make a claim on the landlord’s insurance regardless of its own assessment of the situation.
While the landlord provided the resident with its insurance team’s details on 6 March 2023, this was more than 7 months after the incident. It would have been reasonable for the landlord to have provided these details to the resident upon her asking for them. There was no reason why the resident could not have made a claim to its insurer and engaged in discussion with it about the situation. In the event of the landlord’s insurer refusing the resident’s claim, it may have explained the reasons for its decision. This may reasonably have provided more reassurance to the resident of the appropriate route to progress a satisfactory resolution. The landlord should not act on behalf of its insurer and should not unreasonably withhold its details.
A letter sent by the landlord to the resident on 27 January 2023 listed the actions it had taken to assist the resident in the aftermath of the disposal of her belongings. While there are insufficient records of these actions, the resident generally did not dispute them and the Service acknowledges that the landlord accepted a responsibility to support the resident following its subcontractor’s error. In an email response to the landlord on 10 February 2023, the resident stated that the landlord’s initial payment of £1,000 to cover essential items had not been made “immediately” as it had claimed. While the landlord generally took appropriate action, there is evidence of some avoidable delays and of poor communication, which amount to a service failure. It also failed to reasonably extend the resident’s hotel stay in August 2022 when it should have done so. It will be appropriate for the landlord to apologise to the resident and to make a further payment of £250 in line with the Guidance on Remedies to recognise these service failures.
The resident has informed the Service that there has been no recent progression with her insurance claim. The landlord has provided evidence of the resident providing a 25 page inventory of items that were disposed of. However, the Service notes that this was not provided with estimated costs nor was it accompanied with reasonable evidence, as requested by the subcontractor’s insurer. While the landlord has previously provided assistance, it would be reasonable for it to contact the resident again following the conclusion of this investigation. It should re-offer appropriate help with progressing her claim with the subcontractor’s insurer.

Complaint handling

The landlord’s complaints policy states it will acknowledge new or escalated complaints within 3 working days of receiving them and will include details of who is dealing with the complaint. It states that, at stage 1 of its complaints process, it will “send a detailed response within 10 working days from the date the complaint was allocated to the investigating officer”. If a complaint is escalated to stage 2, the landlord will send a detailed stage 2 response within 10 working days from the date the complaint was allocated to the investigating officer. At both stages, the policy states that the response period “may be extended up to a further 10 working days” and the landlord will explain the reasons for this to the resident. Any further extensions would be agreed with the resident.
The resident completed an online complaint webform on 4 August 2022. The landlord issued its stage 1 complaint response on 15 December 2022. According to the landlord’s complaints procedure, the landlord should have issued the response by 23 August 2022, allowing for 3 working days for the complaint to be allocated to an investigating officer. If an additional 10 working days had been agreed, the response should have been issued no later than 6 September 2022.
The stage 1 response was therefore significantly delayed and it had also been necessary for the Ombudsman to intervene on the resident’s behalf in order to get the complaint progressed. This was poor complaint handling by the landlord. It stated that it had delayed responding to the complaint because it was complex and to ensure the issue was first resolved with a satisfactory offer from the insurer. The landlord’s position was understandable. However, there is no such provision in its complaints policy or the Code for indefinite extensions for complex complaints or those with issues that may take a substantial amount of time, or input from a third party, to resolve. The resident was entitled to expect responses in line with its published policy, regardless of the complexity of her complaint. It is not necessary for landlords to wait until they have completed required actions before issuing their complaint responses.
There is also no evidence that the landlord made efforts to agree with the resident any extensions to her complaint or any timescales for a stage 1 response. It called the resident on 1 September 2022, after the response would ordinarily have been due, to explain it would not be handled within a normal timeframe due to its complexity. There is no evidence that the resident agreed to this or that a revised deadline for a stage 1 response had been agreed, as set out in the Code. In an email from the landlord to the Service on 1 November 2022, the landlord stated that it had since kept the resident updated. It is not clear if the landlord meant it had kept the resident updated on the resolution of the substantive complaint issue or specifically on its stage 1 response. However, it has not provided evidence that it updated the resident on when she could expect a formal response to her complaint. This was poor complaint handling and delayed the resident exercising her right to have her complaint investigated by the Ombudsman.
The resident asked the landlord to escalate her complaint on the same day she received the stage 1 response, on 15 December 2022. The landlord responded the following day to acknowledge the resident’s request and confirm its escalation. The stage 2 response was issued on 3 January 2023. This was in accordance with the landlord’s complaints policy and the Code, which was appropriate complaint handling.
However, the stage 2 response was comparatively short in length. It consisted of a repetition of information in the stage 1 response and did not provide any new detail. There is no evidence that the landlord contacted the resident in an attempt to further understand the concerns she had with its stage 1 response. The response failed to address the points raised by the resident in emails dated 20 December 2022 and 30 December 2022, in which she challenged the landlord’s refusal to accept liability for the incident. Despite being issued in a timely manner, the stage 2 response was inadequate and failed to demonstrate any empathy with the resident’s experiences. It did not attempt to engage meaningfully with her concerns following its stage 1 response. The landlord should have contacted the resident to discuss her complaint or at least responded to the points she had raised in her emails at stage 2. This was further poor complaint handling by the landlord. It should ensure that its complaint responses demonstrate it is engaging meaningfully with the substance of a complaint. Stage 2 responses should not repeat stage 1 responses where the resident has raised new points. The Code states that “landlords shall address all points raised in the complaint”.
On 27 January 2023, the landlord issued a further letter to the resident. It stated it had spoken with the resident by telephone the previous day. It demonstrated some empathy with her experience. It listed the actions it had taken to assist the resident since the incident and provided her with updated advice with the aim of resolving the situation. While this was not a formal complaint response, it was appropriate that the landlord sent this to the resident considering the inadequacies of its stage 2 response less than a month earlier. The landlord also issued a similar letter to the resident on 6 March 2023. Although these letters did not contain evidence of a change in the landlord’s position, which was what the resident was hoping for, they did go some way to remedy the poor complaint response she received at stage 2.
However, it will be appropriate for the landlord to offer further remedy to the resident for its complaint handling failures. None of its letters to the resident acknowledged its failure to act in accordance with its complaints policy or offer a remedy for this. An award of financial compensation will be necessary to recognise the distress and inconvenience caused by the significant delay to the stage 1 response and the poor stage 2 response. The Guidance on Remedies suggests an award of £300 would appropriately remedy maladministration, such as a failure over a considerable period of time to act in accordance with policy or a failure to meaningfully engage with the substance of a complaint. It will be appropriate for the landlord to apologise to the resident and pay this award directly to her.

Determination

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the landlord’s handling of the resident’s reports of a subcontractor removing and disposing of her furniture and personal belongings.
In accordance with paragraph 42(a) of the Housing Ombudsman Scheme, the complaint about the landlord’s handling of the resident’s reports of repairs is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s record keeping.

Orders

The landlord must provide evidence of compliance with the following orders within 28 days of the date of this determination.
1. The landlord must pay £800 directly to the resident, comprised of:
  1. £250 for the failures identified in the landlord’s initial response to the incident.
  2. £300 to recognise the distress and inconvenience caused by the landlord’s complaint handling failures.
  3. £250 for poor record keeping.
2. Apologise to the resident for the service failures and maladministration identified in this report.
3. Review its record keeping practices with relation to resident communication and the actions it takes in response to resident communications. The landlord must identify any relevant staff training needs and come up with an action plan to address these. The action plan should be shared with the Ombudsman within 8 weeks of the date of this report.
The landlord must review this case and identify opportunities for learning and improvement. Where those areas are identified, it must come up with an action plan, including timescales, to address them. The review and action plan must be carried out by a senior figure at the organisation and be shared with the resident and the Ombudsman within 12 weeks of the date of this determination.

Recommendations

The landlord should contact the resident and offer assistance with progressing her claim with the subcontractor’s insurer.