Origin Housing Limited (202303657)

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REPORT

COMPLAINT 202303657

Origin Housing Limited

31 May 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

1.             The complaint is about:

  1. The landlord’s response to the resident’s reports of disrepair, including damp and mould, structural issues and pest infestations affecting the property.
  2. The landlord’s response to the resident’s request for it to provide alternative accommodation until the reported issues were resolved.
  3. The landlord’s response to the resident’s request to stop charging her rent until the reported issues were resolved and to reimburse her for previously paid rent.
  4. The landlord’s response to the resident’s concerns about the quality of the information it provided to the Department of Work and Pensions (DWP) regarding her rent.
  5. The landlord’s decision to charge the resident service charges and annual rent increases.
  6. The proposed cost of major repairs as shown in a recent Section 20 notice.
  7. The landlord’s handling of the associated complaints.

Jurisdiction

2.             What the Ombudsman can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the 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.

3.             After carefully considering all the evidence, in accordance with the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:

  1. The landlord’s decision to charge the resident service charges and annual rent increases.
  2. The proposed cost of major repairs as shown in a recent Section 20 notice.

4.             These complaints are considered to be outside of the Ombudsman’s jurisdiction because paragraph 42f of the Scheme states: “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion…concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure”.

5.             Complaints related to the level, reasonableness, or liability to pay rent, service charges or major works costs are within the jurisdiction of the First-Tier Tribunal (Property Chamber). The First-Tier Tribunal can look at whether the resident was legally obliged to pay service charges under the terms of her lease, whether it was reasonable to charge the resident the annual rent increases and whether the proposed major works charges are reasonable in the circumstances. In this case, the view of this Service is that these matters are more appropriately dealt with by the FTT rather than by the Ombudsman.

Background

6.             The property is a ground floor, one–bedroom flat in a converted Victorian, end-of-terrace house. The landlord of the resident’s property is a housing association. The property is one of 4 flats in the building and the other 3 flats are privately owned. The resident has been a shared owner of the property since 14 December 1995. The property was purchased through the Government’s ‘do-it-yourself shared ownership’ (DIYSO) scheme.

7.             The DIYSO scheme allowed the resident to identify a property of her choice on the open market. The resident’s landlord then purchased the property and sold the resident a 25% share in the property, making it a shared ownership home. The landlord holds the unsold 75% share and the resident pays rent on the share it does not own. There is a lease between the landlord and the freeholder (the head lease) and a separate lease between the landlord and the resident (the sublease). The freehold interest for the resident’s property and for the whole building is owned by a private company.

8.             The building in which the resident’s property is located is managed on behalf of the freeholder by a managing agent. For brevity, the managing agent is referred to in this report as ‘the agent’.

9.             The landlord has stated that it does not have any vulnerabilities recorded for the resident.

10.        Under the terms of the head lease, the freeholder is responsible for:

  1. Maintaining the structure and exterior of the building, including the roof, external walls, rainwater pipes and gutters.
  2. Maintaining the communal areas, including the common entrance hall and staircases, boundary walls and fences.
  3. Maintaining any pipes, cables, drains and sewers that do not exclusively serve an individual flat.
  4. Insuring the building.

11.        The head lease states that the leaseholder (in this case the housing association) is responsible for the repair and maintenance of the resident’s property, including windows, doors, sewers, drains, pipes, cables and wires that are part of the property.

12.        The sublease states that the resident is responsible for:

  1. Payment of rent.
  2. To observe and perform all of the covenants and conditions that are shown in the head lease to be the responsibility of the leaseholder.
  3. To keep the property in “good and substantial repair and condition”.

Summary of events

13.        On 30 January 2019, one of the council’s Environmental Health Officers wrote to the freeholder of the property and copied in the landlord regarding an inspection he had carried out. The officer stated that rats had been entering the resident’s property from outside of the building and therefore the freeholder should ensure that the property was pest proofed from the outside. The Environmental Health Officer resent the email to the freeholder and the landlord on 7 February 2019.

14.        On 8 February 2019, the managing agent’s pest control contractor carried out various works to the building including proofing work to the roof and under the front steps and left bait stations in the external communal areas.

15.        During February and March 2019, the managing agent corresponded with the resident (and other leaseholders in the building) to confirm it had already checked the sewers and drains and to advise residents of the arrangements it had made for a pest controller to carry out treatment for the rat infestation.

16.        The resident wrote to the landlord on 5 March 2019 and stated that the rat infestation was making it untenable for her to remain in the property. She added that the black mould in the property had been caused by failed windows and lack of ventilation throughout the property. She mentioned that the strong smells (from the rat droppings) in the property were causing her respiratory issues. The landlord sent an internal email on 6 March 2019 (copied to the resident) stating that the resident had previously been advised that as a DIY shared owner, it was her responsibility together with the managing agent to deal with the issues.

17.        On 6 March 2019, the resident wrote to the landlord and questioned why it had not provided her with any correspondence from the freeholder, nor passed on any of her enquiries to the freeholder about service charges, accounts, black mould, failed windows, the rat infestation and other matters.

18.        The landlord wrote to the resident on 7 March 2019 and advised her that she had adopted all of the responsibilities of the landlord by virtue of the sublease and therefore she should contact the managing agent or their insurers to enquire about the possibility of temporary accommodation until the rat infestation had been addressed.

19.        On 17 April 2019, the agent wrote to the resident and other leaseholders in the block regarding the rat infestation. The agent had arranged for proofing work to be carried out in January and February 2019. Various investigations were carried out by the agent’s pest controller and works were carried out to the drainage system. However, in April 2019 the agent found there were rats present in the basement flat (below the resident’s property) and they had moved to the other properties in the building. All properties within the building would therefore need to be treated.

20.        The resident wrote to the agent on the same day (17 April 2019) and requested the agent appoint an alternative pest control company. The agent forwarded the email to the landlord on the same day and requested it to advise the resident to channel all communications through the landlord rather than emailing the agent directly. The landlord wrote to the agent on 18 April 2019 and stated that its preference was for the agent to appoint the pest control contractor suggested by the resident.

21.        On 18 April 2019, the agent wrote to the resident to confirm it had instructed the resident’s nominated pest control contractor.

22.        On 20 April 2019, the resident wrote to the pest control contractor as one of its operatives had damaged the water mains in the resident’s property and caused flooding. The email was copied to the landlord.

23.        The agent wrote to the resident (copied to the landlord) on 23 April 2019 to inform her that the damage caused by the flood would be dealt with through the buildings insurance. The agent asked the resident to keep any receipts relating to temporary accommodation she had moved into. The agent also wrote to the resident on the same day to advise that the drains had been surveyed on 7 March 2019 and found to be running clear. The agent therefore disputed a previous report from the resident that that there had been raw sewage running in the communal area.

24.        The landlord wrote to the agent on 25 April 2019 to ask whether the freeholder’s insurers would assist the resident with her temporary accommodation costs following the flood damage. The landlord also asked whether works would be carried out to the resident’s property. The agent replied on the same day and confirmed that the loss adjuster would make these decisions.

25.        The agent wrote to the resident and the landlord on 25 April 2019 and confirmed it would pay the costs of the resident staying in a hotel until 20 May 2019.

26.        The resident wrote to the landlord on 26 April 2019 and stated that she had appointed her own surveyor as the managing agent had refused to inspect her property. She said it would also be beneficial for the landlord to inspect the property as she stated there was a rat infestation, failed windows, flood damage and “numerous structural and repair issues that [had] been neglected since 2012”. The resident advised the landlord that the issues had affected her health and therefore she had moved out of the property.

27.        On 14 May 2019, the resident’s solicitor wrote to the freeholder and the landlord stating that the property was in a serious state of disrepair, including water ingress from the roof, an unsafe boundary wall, rotten window frames, the rat infestation and “general neglect”. The solicitor stated that the resident’s property had been uninhabitable since the flood on 20 April 2019, which had caused damage to her personal belongings, furniture and had caused the floor in the property to collapse. The solicitor requested the freeholder to provide the resident with temporary accommodation.

28.        The agent forwarded the solicitor’s letter to the landlord on the same day (14 May 2019) and stated that all correspondence had to go through the landlord rather than coming directly from the resident or her solicitor. The agent confirmed that the loss adjuster had inspected the resident’s property and did not identify the need for alternative accommodation. The agent stated that the pest control contractor that had caused the flood had been suggested by the resident and agreed by the landlord. The agent confirmed that the pest controller had reported the building was now clear of any pests.

29.        On 16 May 2019, the loss adjuster appointed to assess the resident’s insurance claim wrote to the agent and stated that any alternative accommodation costs incurred by the resident were not as a direct result of the water leak and therefore could not be included in the insurance claim. The loss adjuster said its understanding was that the resident had vacated because of the smell from the rat infestation. He said that the smell was still present when he inspected the property.

30.        The resident’s solicitor wrote to the landlord on 31 May 2019 to report a leaking soil or waste pipe affecting the flat below the resident’s property. The solicitor stated that the pipe ran through the resident’s property. The landlord replied on the same day and stated that the leak appeared to be originating from the resident’s property and as such it was her responsibility to arrange repairs.

31.        On 6 June 2019, the landlord sent an internal email stating that the resident had reported “significant disrepair to the common parts” of the building. The landlord therefore requested one of its surveyors to inspect the property so that it could “challenge the freeholder to carry out works”.

32.        On 6 June 2019, the landlord wrote to the resident’s solicitor and pointed out that it had acted as a “conduit” between the resident and the freeholder and had passed any correspondence from her to the freeholder. The landlord reiterated that all issues relating to the structure of the common parts should be referred to the freeholder. However, the landlord said that it wanted one of its own surveyors to inspect the property in order to prepare a comprehensive schedule of disrepair issues. The landlord confirmed that it had spoken to its insurers and they had confirmed that they could not arrange temporary accommodation. The landlord suggested that the freeholder’s insurers may be able to assist and therefore the resident should contact them as soon as possible.

33.        On 1 July 2019, the resident wrote to the freeholder and copied in the landlord requesting reimbursement for her alternative accommodation costs. She stated that her property was uninhabitable due to the flood damage and rat infestation. The agent wrote to the landlord on the same day and stated that any requests for reimbursement should come from the landlord rather than the resident. The agent stated that the landlord had not agreed the resident’s temporary accommodation nor had its insurers. The agent stated that the flood had caused very little damage to the property and the rat infestation had been a problem for a short period of time but had been dealt with.

34.        The resident wrote to the landlord on 15 July 2019 to report various issues, including the rat infestation, the damage caused to her property by the freeholder’s pest controller and a leaking soil pipe throughout the building. She emphasised that she was still homeless.

35.        Between 15 and 23 July 2019, the landlord liaised with the agent and the resident regarding the leaking soil stack and as a result the agent sent a plumber to repair the pipe.

36.        An internal email dated 5 August 2019 from the surveyor who had inspected the property in June 2019 stated that his findings were:

  1. The boundary wall in some parts showed signs of movement and some of the coping stones were missing.
  2. The windows were in need of decoration and some of the sash windows could not be opened.
  3. The boundary wall to the side had been demolished in 2016 and replaced with boards.
  4. The internal communal carpets needed replacing.
  5. There was an extension built by the neighbour and, as a result, the resident now had no access to the back garden.
  6. The resident was asking the freeholder to disinfect and chemically clean the rat infestations under her entire flat.
  7. The lease specified that the freeholder should carry out external painting every 5 years.
  8. The resident advised the surveyor that she was unable to use her bedroom and bathroom due to urine and droppings from the rat infestation under the flooring.

37.        The resident wrote to the landlord on 5 August 2019 requesting a copy of the surveyor’s report from the June 2019 inspection. She mentioned the need to include the impact of the sewage leak from the soil pipe, which she stated had been temporarily repaired by the freeholder 2 weeks earlier.

38.        A further internal email dated 5 August 2019 from the landlord stated that it was not under a legal obligation to pay for the resident’s alternative accommodation costs. The landlord mentioned that its surveyor did not consider the resident’s property to be uninhabitable. The landlord said its insurers had agreed that there was no decant liability on the landlord and the insurers had confirmed they would not pay for the alternative accommodation. The landlord also said it had replied to the resident’s solicitor to advise that the agent was responsible for dealing with the issue.

39.        On 5 August 2019, the agent wrote to the resident and the landlord and advised that any request for temporary accommodation for the resident would have to come from the landlord with supporting evidence. The agent sent a further email to the resident and the landlord on the same day and stated that the landlord had not reported the property as being uninhabitable. The agent also stated that the loss adjuster had not deemed the property to be uninhabitable.

40.        The resident’s solicitor wrote to the freeholder on 2 October 2019 and reminded him of the legal obligations to keep the exterior and structure of the property in good repair and to maintain other pipes, sewers and drains. The freeholder replied on 16 October 2019 and pointed out that it had no contractual relationship with the resident and that all correspondence should be through the landlord. The freeholder stated that his managing agent had responded in a timely way to the reports of pest infestation. (The resident’s solicitor sent the landlord a copy of the freeholder’s letter on 7 November 2019).

41.        On 4 November 2019, the resident’s solicitor informed the landlord that the agent had been expecting the landlord to obtain 2 quotes for the remedial work to the resident’s property. The solicitor stated that the resident had not been able to return to her property because the landlord had not supplied the 2 quotes or a copy of its surveyor’s report from the June 2019 inspection. The solicitor requested the landlord to provide the resident with temporary accommodation until her property was repaired.

42.        On 4 December 2019, the property was inspected by a surveyor who had been commissioned by the resident’s solicitor. The resulting report from the surveyor was dated 18 December 2019 and stated:

  1. There were various defects to the windows and only two of them were openable throughout the property. It also stated that various window sills were suffering from wet rot infestation due to a lack of paint. The lack of openable windows represented “a major obstruction to escape routes in case of fire” and meant the property was  inadequately ventilated. The report noted that the resident had reported the presence of black mould on the windows which she had previously arranged to be treated in 2017.
  2. The external door off the bedroom was unopenable due to distortion.
  3. There were substantial rat droppings under the hallway flooring and therefore decontamination work was needed.
  4. Various disrepair was noted to the communal and retained areas, including issues with the communal lighting, a lack of an accessible stop-cock in the communal area in case of emergencies, a leaking soil vent pipe discharging onto the paving, cracked paving and temporary hoarding was in place instead of a boundary wall.

43.        On 15 January 2020, the resident’s solicitor wrote to the landlord and attached a copy of the survey report dated 18 December 2019. The solicitor stated the following:

  1. It considered the landlord to be responsible for repairing the window frames and rear bedroom external door and the landlord had failed to maintain them.
  2. By allowing rats to travel through the exposed manhole cover, the freeholder had caused a private nuisance and the landlord had “adopted the nuisance” by failing to take action against the freeholder.
  3. The items of general disrepair and defects to the communal and retained areas were the responsibility of the freeholder and the landlord had failed to enforce the covenant in the head lease.
  4. The surveyor’s report had concluded that it was not practicable for the resident to remain in occupation whilst the floor decking was lifted (to clean the underfloor areas).
  5. The solicitor requested the landlord to provide temporary accommodation until the flat was repaired and requested that it cease charging rent until the property could be occupied.
  6. The solicitor requested a copy of quotes obtained for reinstating the resident’s property and a copy of the surveyor’s report from June 2019.

44.        During the remainder of January 2020 and February 2020, the landlord’s solicitor and the resident’s solicitor exchanged further letters. The landlord’s solicitor wrote that it considered the resident to be responsible for the windows and external doors and the resident’s solicitor said that it considered the landlord to be responsible.

45.        On 5 April 2020, the resident’s solicitor wrote to the landlord’s solicitor and confirmed that both solicitors had agreed that the window frames and external doors were the responsibility of the freeholder to maintain. They had also agreed that the freeholder was responsible for the common parts, including the front entrance way, drainage system and the retaining wall. The solicitor said they had both agreed that the freeholder was in breach of its covenant to repair these items, including the drainage system which had caused the rat infestation. The letter concluded by confirming that the resident had no direct contractual relationship with the freeholder and was therefore unable to enforce the covenants in the head lease. The landlord, however, had the ability to enforce these.

46.        On 1 October 2020, a drainage engineer, who had been commissioned by the resident’s solicitor, wrote to the solicitor to confirm it had carried out a CCTV survey and found that the pipework surveyed was in a fair condition and there was no evidence of vermin activity in the underground drainage system. It noted that a screwed plug had been installed in the system to stop vermin from entering. It did, however, recommend further exploratory surveys, particularly to the basement property.

47.        The resident’s solicitor wrote to the landlord’s solicitor on 30 April 2021 and provided quotes from a contractor to decontaminate the property and make it habitable. The solicitor  requested confirmation that the landlord would pay for these works. The solicitor confirmed that the resident had reached a settlement with the pest controller’s insurers for the damage caused by the flood in April 2019. The solicitor requested the landlord to pay temporary accommodation costs until the property became habitable as the resident was living with her mother.

48.        The landlord’s solicitor wrote to the resident’s solicitor on 13 May 2021 and stated that the landlord would not be willing to pay for repairs to the windows or external doors as these were the responsibility of the freeholder. The solicitor added that it considered the resident to be responsible for keeping the property itself in a good state of repair. However, it agreed to cover the cost of £2,560 for decontaminating the property in order to avoid expensive litigation.

49.        The resident’s solicitor wrote to the landlord’s solicitor on 14 May 2021 and stated the following:

  1. It was agreed that the window frames, external doors and the common parts were the responsibility of the freeholder.
  2. The resident had no direct contractual relationship with the freeholder and was therefore unable to enforce the covenants in the head lease. The solicitor considered there to be an implied covenant in the sublease that the landlord would enforce the covenants in the head lease.
  3. The resident had repeatedly asked the landlord to take action to enforce the covenants.
  4. The solicitor requested information on the action the landlord had taken to ensure the freeholder complied with the obligations in the head lease.

50.        On 25 April 2023, the resident received an electronic message from the DWP stating that the landlord had returned and rejected the housing costs sent to them in relation to the resident’s Universal Credit (UC) claim. The landlord had stated that it did not recognise the property. (The resident uploaded additional information and the DWP was able to process the resident’s claim on 28 April 2023).

51.        The resident’s MP wrote to the landlord on 27 April 2023 and advised that the resident was unable to occupy the property because of the presence of rat faeces, black mould, broken windows and a persistent rat infestation.

52.        On 10 May 2023, the landlord wrote to the resident’s MP and explained that the landlord had very limited obligations in relation to the property. Some obligations were the responsibility of the freeholder and others were the responsibility of the resident. Therefore, the landlord stated that the resident’s dispute was with the freeholder and not with the landlord. The landlord stated that it would support the resident in her dispute with the freeholder, however, the onus was on the resident to list the issues and identify the solutions she was seeking. The landlord would then advise the freeholder accordingly.

53.        On 8 June 2023, the managing agent sent a Section 20 letter to the landlord advising the landlord of various works it intended to carry out to the communal areas. The works included rebuilding the boundary walls, repairs to the roof, external decorating and internal fire safety and electrical work.

54.        On 12 June 2023, the landlord wrote to the agent and explained that the resident had taken on all of the landlord’s covenants specified in the head lease. It stated that therefore the resident’s dispute was with the freeholder rather than with the landlord.

55.        On 13 June 2023, the agent wrote to the landlord and stated that under the terms of the lease the landlord was prohibited from selling a share of the property and therefore the landlord was responsible for any leaseholder obligations shown in the head lease. The agent stated that the landlord had breached the terms of its lease by subletting the property and this was preventing the agent from undertaking major works. The agent advised the landlord that the property was falling into disrepair.

56.        The resident wrote to the landlord on 14 June 2023 and requested it to treat her email as her “final complaint”. She included the following points:

  1. The resident stated that she had been homeless since 23 April 2019 and that the landlord had been aware of various disrepair issues since 2008, including a flood, black mould, failed windows, failed fire escape, failed foundations and rat infestations.
  2. The resident stated that the landlord had refused to confirm to the DWP that she was a tenant and this had affected her benefits.
  3. Her lawyers had written to the landlord during 2019 to 2021 and made the landlord aware of the solutions she was seeking. These included:
    1. The landlord enforcing the terms of the lease it held with the freeholder;
    2. Offering the resident immediate alternative accommodation;
    3. Repairing and decontaminating her property;
    4. Financially addressing the repair delays; and
    5. To stop charging her rent until the issues had been resolved.
  4. The resident set out various actions she wanted the landlord to take in order to address the reported repair and infestation issues.

57.        On 17 June 2023, the resident wrote to the local authority and stated that she had been homeless for 4 years due to the condition of the property and had been staying with her elderly mother. She listed various medical conditions. The resident also stated that she had received a Section 20 notice from the freeholder for major works estimated to cost between £150,000 and £200,000. She stated that she had previously been notified that the cost would be approximately £40,000.

58.        On 17 June 2023, the resident wrote to the landlord to express her concerns about the officer chosen to investigate her complaint. She referred to the officer’s “inappropriate conduct and inadequate handling of the property issues and complaints”. She requested that the landlord explain why it considered the officer to be the best placed person to investigate her complaint. The resident sent a further email on the same day requesting copies of the Section 20 correspondence between the landlord and the freeholder.

59.        The officer in question wrote to the resident on 21 June 2023 and advised that as the property was part of the DIYSO scheme, there were few obligations on the landlord and any such obligations were transferred to the freeholder. In relation to the resident’s concerns about him investigating the complaint, he assured the resident that he would fully consider the circumstances and issues involved and try to achieve a solution.

60.        The landlord wrote to the resident on 28 June 2023 and stated the following:

  1. The landlord proposed that one of its surveyors would inspect the property and produce a “schedule of dilapidations”. It stated that the freeholder was responsible for external repairs and the resident was responsible for internal repairs (unless caused by the freeholder’s failure to carry out external repairs).
  2. Structural failures would be the responsibility of the freeholder and were covered by an appropriate insurance policy, which the freeholder was responsible for obtaining. The landlord agreed to obtain copies of the insurance policies from the freeholder.
  3. The landlord stated that it was not responsible for providing alternative accommodation for the resident as she was not a tenant, shared owner or leaseholder in one of its schemes. However, the insurance policy may provide for alternative accommodation to be offered in the event the property becomes uninhabitable.
  4. The landlord felt it had previously interpreted the head lease and the sublease correctly and had responded to the points raised by the resident’s solicitor.
  5. The landlord stated that it did not know which DWP or UC issue the resident was referring to in her complaint. It therefore requested the resident to clarify.
  6. The landlord requested the resident to confirm whether she agreed with the proposal for a surveyor to inspect the property.

61.        On 10 July 2023, the resident replied to the landlord and asked for her complaint to be escalated. The resident attached 23 documents, 3 voice recordings and included the following points:

  1. The resident stated that she had been homeless since 23 April 2019 and was unwell.
  2. The resident stated that the landlord had not addressed the individual points of her complaint in its stage one response.
  3. The resident stated that neither the landlord nor the freeholder had addressed the condition of the property since 2008.
  4. She requested an action plan to address the reported disrepair, health and safety issues and her homelessness.
  5. The resident’s view was that under the terms of her lease the housing association was her landlord, rather than the freeholder. The resident stated that the landlord had been made aware that the freeholder had refused to engage with her.
  6. The resident disputed the landlord’s statement in its stage one reply that she was not one of the landlord’s tenants, shared owners or leaseholders in one of its schemes.
  7. The resident stated that the landlord had not enforced the terms of its lease with the freeholder, despite her requesting this since 2008. She stated that the freeholder had failed to address structural issues, problems with her windows and door, and the boundary/retaining walls in the garden. She added that there were also problems with rat and moth infestations and black mould.
  8. The resident stated that she was dissatisfied that the landlord had not offered her alternative accommodation.
  9. She stated that the landlord had not addressed the element of her complaint relating to reimbursement of the rent as she had reported the property was uninhabitable. In addition, she had requested information about the service charges as she believed there was no provision within the lease for the landlord to levy service charges.
  10. The landlord had met with the resident in December 2019, however, the resident stated that there was no follow-up action taken by the landlord.
  11. The resident stated that she had repeatedly requested a copy of the report from the survey carried out by the landlord in June 2019.
  12. The resident proposed that the landlord commission her independent surveyor to inspect the property. The resident said she had provided the landlord with independent survey reports on 15 January 2020, throughout 2020 and 2021 and in 2023. The resident stated that the landlord had not used these reports to enforce the lease conditions with the freeholder.
  13. The resident believed it to be inappropriate for her complaint to be investigated by a staff member whose conduct and performance she had complained about. She referred to an incident in 2019 when she stated the officer had “threatened” to force entry to her property.
  14. The resident confirmed that she had previously submitted an insurance claim in 2019 to cover the cost of alternative accommodation, however, this had been rejected by the insurers.
  15. The resident believed that the landlord had not addressed the problems relating to the Section 20 notices. She also explained that the estimated costs of works to the building were £150,000 to £200,000 compared to £12,000 in 2012/13. She added that the costs had increased due to delays by the landlord and the freeholder.
  16. The resident stated that the landlord had repeatedly failed to provide the DWP with the necessary information on annual rental increases so that she could receive the correct benefit. She said that this failure had caused her “financial loss, severe distress, and inconvenience”.
  17. In conclusion, the resident stated that the landlord’s letter of 28 June 2023 had not addressed a flood, black mould, failed windows, failed fire escape, failed foundations, a failed boundary wall and the reported rodent infestations.

62.        The resident wrote to the landlord on 11 July 2023 and asked for her complaint to be escalated to stage 2 of the complaints process. The landlord confirmed on 13 July 2023 that the resident’s request had been forwarded to its complaints team.

63.        On 21 July 2023, the landlord wrote to the resident to acknowledge her complaint and to confirm it would be dealt with at stage one of its complaints process.

64.        The landlord spoke to the resident on 25 July 2023 and she expressed her dissatisfaction that the landlord had not escalated her complaint to stage 2 of the process.

65.        The resident’s MP wrote to the landlord on 25 July 2023 and advised that the resident needed emergency accommodation as she was homeless. The MP stated that the resident did not believe it was appropriate for an in-house surveyor to inspect the property as this had occurred 4 years earlier.

66.        The resident wrote to the landlord on 26 July 2023 and included the following points:

  1. She had received a rent statement, which she said incorrectly showed that the landlord had not received any housing benefit payments from her. She said that the DWP had written previously to seek the landlord’s cooperation in resolving the issues.
  2. The resident requested the landlord to consider the impact of the reported issues dating back to 2008.
  3. The resident said she had been homeless for the last 4 years and 3 months and her health had been damaged by the issues.
  4. She stated that there had been “an unwarranted threat of violence to [her] home”.
  5. The resident said she was therefore seeking proportionate redress for the distress and losses she had experienced.

67.        The landlord acknowledged the stage 2 complaint on 26 July 2023 and wrote to the resident on 3 August 2023 to set out its understanding of her stage 2 complaint. The landlord said it understood the resident was dissatisfied because she believed the landlord had not responded to much of her complaint. Therefore, she was seeking a full response and proposed solutions in relation to each of the points she had raised.

68.        The resident wrote to the landlord on 7 August 2023 and referred to previous correspondence and survey reports, which she said identified various issues relating to the condition of the property. She referred to dilapidation and health and safety issues in relation to the property. In addition, the resident said her complaint included the following:

  1. The landlord had not provided an adequate and fair response at stage one, nor proposed solutions.
  2. The resident stated that her complaint had been investigated by the person whose conduct she had complained about.
  3. The resident requested an explanation as to why her complaint had been investigated at stage one when it should have been investigated at stage 2 of the process.

69.        The landlord sent its stage 2 reply on 23 August 2023 in which it included the following:

  1. The landlord accepted that it had placed more emphasis on the resident’s repair obligations, rather than on offering advice and support or on rectifying the problems.
  2. The landlord stated that it would produce an action plan by 30 September 2023 to address all of the issues raised by the resident in her letters of 14 June, 17 June and 10 July 2023. The landlord agreed to provide the resident with monthly updates on progress.
  3. The landlord requested the resident to allow one of its surveyors to inspect the property to produce a “schedule of dilapidations”.
  4. The landlord stated that the resident’s complaint had highlighted the need for it to take a more active interest in DIYSO properties.

Events after the landlord’s stage 2 reply

70.        Following the landlord’s stage 2 reply, the landlord exchanged further correspondence with the resident and her MP. It had attempted to arrange a meeting with her and the freeholder but the freeholder had declined the meeting and redirected the landlord to the managing agent. The landlord said it wanted to use the meeting to formulate an action plan.  The landlord advised the resident that the agent would be arranging works to the boundary wall to start in March 2024.

71.        The resident and her MP continued to raise issues around the condition of the property, which they reported was still uninhabitable. The resident advised the landlord that she wanted to see a draft action plan before attending a meeting and wanted the freeholder to attend.

72.        On 20 February 2024, the local authority wrote to the landlord and confirmed that the property had been inspected by its Environmental Health team on 4 December 2023 and found various issues, including disrepair to the windows, rear door to the garden could not be opened, areas of the flooring had not been restored following water damage and pest control work carried out, disrepair to the retaining walls in the garden and signs of rodent droppings throughout the property.

73.        The landlord confirmed to this Service on 20 March 2024 that it had not issued a stage one reply to the resident’s complaint. However, it was subsequently decided that the landlord’s letter dated 28 June 2023 would be treated as its stage one reply. The landlord confirmed that it had sent a surveyor to inspect the property in 2019, however, the surveyor had since left the organisation and the landlord no longer had the information relating to the inspection.

74.        The landlord also advised this Service on 20 March 2024 that it had no specific policies and procedures relating to the DIYSO scheme and instead used the Government guidance.

Assessment and findings

Scope of the investigation

75.        The resident advised the landlord on various occasions that the condition of her property had affected her health and the health of her cats. The Ombudsman does not doubt the resident’s comments regarding her health and that of her cats, but this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be better dealt with as a personal injury claim through the courts. The resident may wish to consider taking independent legal advice if she wishes to pursue this option. Whilst this Service is unable to evaluate medical evidence, the evidence has been taken into account when considering the resident’s circumstances.

76.        The resident has advised this Service that she is seeking damages from the landlord for distress and inconvenience. 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. Similarly, this Service does not look at claims the way an insurance provider would, or award financial redress for damage to items which should be covered by insurance. The Ombudsman has, however, assessed whether the landlord appropriately considered matters within the timeframe of the complaint, and reasonably responded, applied its policy and procedure, complied with any relevant legislation and followed good practice when reaching decisions.

77.        The resident advised the landlord on various occasions that her property was uninhabitable and she had therefore been homeless since April 2019. The Ombudsman does not have the expertise to determine whether the property was uninhabitable. The role of this Service is to establish whether the landlord’s response was in line with its legal and policy obligations and whether its response was fair in all the circumstances of the case.

78.        On 14 June 2023 and on subsequent occasions, the resident wrote to the landlord and stated that it had been aware of various disrepair issues affecting the property since 2008. The Ombudsman encourages residents to raise complaints with their landlords in a timely manner. This is because with the passage of time, evidence may be unavailable and personnel involved may have left an organisation, which makes it difficult for a thorough investigation to be carried out and for informed decisions to be made. Therefore, taking into account the availability and reliability of evidence, this assessment has not investigated any events prior to 2019. Reference has, however, been made to some events that occurred before 2019 in order to provide context.

79.        The resident has advised this Service of events relating to her property that took place after the landlord sent its final complaint response on 23 August 2023. A key part of the Ombudsman’s role is to assess the landlord’s response to a complaint and therefore it is important that the landlord has had an opportunity to consider all of the information being investigated by the Ombudsman as part of its complaint response. It is therefore considered fair and reasonable to only investigate matters up to the date of the final response.

80.        In its letter dated 15 January 2020, the resident’s solicitor stated that the freeholder had caused a private nuisance by allowing rats to travel through the exposed manhole cover. The Ombudsman has no jurisdiction in relation to the freeholder or the managing agent and has therefore not investigated their actions. Reference has, however, been made to the action taken by them as this provides important context in the Ombudsman assessing whether the landlord acted reasonably in the circumstances.

The landlord’s response to the resident’s reports of disrepair, including damp and mould, structural issues and pest infestations affecting the property

81.        The landlord’s Responsive Repairs Policy states: “We will not carry out repairs for leaseholders where the terms of the lease state that such repairs are the responsibility of the leaseholder. Unless in exceptional circumstances approval is sought by the Head of Property/Head of Housing /Head of Care and Support, to carry out specific works”. In this case, the landlord had no repair responsibilities as the freeholder was responsible for maintaining the structure, exterior, shared pipes and common areas and the resident was responsible for all internal repairs to the property.

82.        During the period of the resident’s complaints, the landlord’s website stated that homeowners and shared owners were responsible for dealing with pests within their property.

83.        The council’s Environmental Health team wrote to the freeholder and the landlord on 30 January 2019 to inform them that rats had been entering the resident’s property from outside of the building. The team wrote again on 7 February 2019. As the freeholder was responsible for managing the communal areas, its managing agent arranged for a pest control contractor to carry out proofing work and baiting on 8 February 2019. It was therefore unnecessary for the landlord to take any action in relation to the reported rat infestation at this stage.

84.        The resident contacted the landlord on 5 March 2019 and explained that there was still a rat infestation problem and this was making it “untenable” for her to remain in the property due to respiratory problems. The Ombudsman has not seen any evidence that the landlord contacted the freeholder or the agent to pass on these concerns or to request further treatment of the reported pest problems. Instead, the landlord wrote to the resident on 7 March 2019 to advise her to contact the agent or the freeholder’s insurer to enquire about temporary accommodation until the rat infestation had been addressed.

85.        In the Ombudsman’s view, the landlord acted unreasonably by failing to contact the freeholder or the agent about the infestation. The landlord was the named leaseholder in the head lease and therefore should have reported the ongoing problem and satisfied itself that the freeholder/agent were taking appropriate action to safeguard the resident and her property.

86.        The agent wrote to the resident on 17 April 2019 and explained that although its contractor had carried out proofing, baiting and work to the drainage system in January and February 2019, rats had been found in the basement flat in April 2019. The agent had therefore arranged for all properties in the building to be treated.

87.        The agent identified a pest control contractor, however, the resident requested the agent use an alternative contractor. The landlord wrote to the agent on 18 April 2019 and stated that it agreed with the resident’s choice of contractor. The landlord acted reasonably by listening to the views of the resident and contacting the agent in a timely manner to confirm its agreement for the resident’s nominated contractor to be appointed.

88.        The evidence shows that the nominated pest control contractor carried out the treatment in April 2019 and, as a result, in May 2019 the agent confirmed that the contractor had reported the building was clear of pests.

89.        The Ombudsman has not seen any evidence showing that there were subsequent rat infestation problems affecting the property and the building. In fact a drainage engineer, who had been commissioned by the resident’s solicitor, carried out a drainage survey and wrote on 1 October 2020 that he had found no evidence of vermin activity in the drainage system.

90.        The resident did, however, advise the landlord, the freeholder and the agent on various occasions that she could not remain in the property due to the pungent smell from rats’ urine/droppings under the floorboards in her property. The resident’s solicitor stated on 15 January 2020 that the freeholder had caused a private nuisance by allowing the rats to enter via an exposed manhole cover. It had also stated that the landlord had ‘adopted’ the nuisance by failing to take action against the freeholder. The landlord and its solicitor denied liability and, as previously stated, it is not within the Ombudsman’s powers to determine such liability as this would be a matter for a court to decide.

91.        The Ombudsman has, however, noted that on 13 May 2021 the landlord offered to contribute £2,560 towards decontaminating the property. This was a positive step given that it had not accepted liability for the rat infestation or the mess created by the rats.

92.        In terms of repairs, the resident reported on various occasions that there were problems with the windows, the backdoor to the garden and the retaining/boundary walls in the garden. For example, she wrote to the freeholder and the landlord on 14 May 2019 to report rotten window frames, an unsafe boundary wall, water ingress from the roof and “general neglect”. In addition, the resident’s solicitor wrote to the landlord on 31 May 2019 to report a leaking soil pipe, which was affecting the flat below her property.

93.        The landlord agreed to arrange for one of its surveyors to inspect the resident’s property. Although the freeholder was responsible for maintaining window frames, the boundary wall and the roof, it was reasonable for the landlord to arrange for one of its surveyors to inspect the property. An inspection would enable the landlord to understand the conditions in the communal areas and within the resident’s property. The landlord would then be in a more informed position to contact the freeholder about the conditions within the property.

94.        The landlord’s surveyor inspected the property in June 2019 and identified that some of the windows in the resident’s property could not be opened, the boundary wall showed signs of movement, the resident did not have access to the garden and the communal carpets needed replacing. The surveyor also noted the resident’s comments that she could not use her bedroom and bathroom due to the rats urine and droppings under the flooring.

95.        The Ombudsman has not seen a detailed report from the June 2019 survey and the landlord has advised this Service that it does not have the information from the inspection. The resident had informed the landlord on 26 April 2019 that the condition of the property had affected her health and therefore she had moved out. In these circumstances, the Ombudsman would have expected the landlord’s surveyor to have carried out a thorough inspection of the premises, clearly setting out his findings and recommendations. Instead the surveyor produced a brief set of bullet points, which the Ombudsman has seen.

96.        It was therefore a missed opportunity for the landlord to understand the condition of the premises, the impact on the resident and to identify any action it needed to take. The landlord’s failure to produce such a report was unreasonable given that the resident had reported being homeless as a result of the conditions.

97.        The Ombudsman has also noted that the landlord was not transparent in terms of the surveyor’s findings. For example, the landlord did not share the surveyor’s findings with the resident and did not respond to her request on 5 August 2019 for a copy of the report or the request from her solicitor on 4 November 2019. This was unreasonable as the resident had significant concerns about the condition of the property and wanted to understand the landlord’s findings.

98.        The resident’s solicitor stated on 4 November 2019 that the managing agent had been waiting for the landlord to provide 2 quotes to reinstate the resident’s property following the flood in April 2019. The Ombudsman has not seen any evidence that the landlord responded to this request. This was unreasonable as the resident needed to understand the landlord’s role, if any, in the process of dealing with the flood damage work. The lack of communication from the landlord therefore added to the resident’s uncertainty and frustration. If appropriate, the landlord should have explained why it did not consider itself responsible for obtaining the quotes.

99.        The resident’s solicitors commissioned their own survey, which took place on 4 December 2019. The report highlighted the defects to the windows, with only 2 openable throughout the property, and the back door, which also could not be opened. The report also identified various defects to the communal areas and substantial rat droppings under the hallway floor requiring decontamination work.

100.   The resident’s solicitor sent a copy of the report to the landlord on 15 January 2020. Between January and March 2020, the resident’s solicitor exchanged letters with the landlord’s solicitor in order to establish responsibility for the defects. The resident’s solicitor wrote to the landlord’s solicitor on 5 April 2020 to confirm they had agreed that the freeholder was responsible for maintaining the window frames, external doors and the common parts.

101.   The Ombudsman has not seen any evidence that the landlord contacted the freeholder or agent about the defects after the solicitors had agreed the freeholder was responsible for addressing them. This was unreasonable as the landlord had a contractual relationship with the freeholder through the head lease and was therefore able to enforce the covenants. The resident had no direct relationship with the freeholder and therefore had no contractual means of enforcing the covenants. The resident’s solicitor had made this point to the landlord’s solicitor in its letter dated 5 April 2020.

102.   It was particularly concerning that most of the sash windows in the property and the back door could not be opened due to distortion or having been painted shut. Some of the window sills had also been identified as suffering from wet rot due to a lack of painting and protection from the elements. The Ombudsman has not seen any evidence that the freeholder or managing agent served a Section 20 notice or produced any plans with timescales to show when the windows or the back door would be repaired or replaced.

103.   The survey report from the inspection on 4 December 2019 stated that the lack of openable windows meant the property was inadequately ventilated and represented a problem in terms of escaping from a fire. The survey report mentioned that the resident had previously arranged for the removal of black mould from the windows. The Government’s Housing Health and Safety Rating System guidance states that mould growth is related to dampness and one of the causes is ”reduced ventilation levels”. The lack of ventilation would also have exacerbated the reported strong smells in the property from the rats’ urine and droppings, which the resident had notified the landlord about on 5 March 2019.

104.   As the resident had made the landlord aware she had respiratory issues and there were ventilation issues due to the defective windows and back door, it was unreasonable that the landlord had not urgently raised the defects with the freeholder. Despite the landlord’s own surveyor identifying the problems with the windows in June 2019, no repairs had been carried out to the windows or back door by the time of the solicitor’s letter on 5 April 2020.

105.   In terms of the back door, the resident had stated that the non-operational back door, together with the defects to the retaining walls meant that she could not use her garden. This had been noted by the landlord’s surveyor in June 2019. In the Ombudsman’s view, the resident’s lack of access to the garden added to the urgency with which the landlord should have pursued the freeholder about the repairs. The resident had made it clear that the garden was an important amenity to her and therefore it was unreasonable that the landlord had not tried to enforce the freeholder’s covenant to repair the back door so she could access the garden.

106.   On 13 May 2021, the landlord’s solicitor wrote to the resident’s solicitor to confirm the landlord would not pay for repairs to the windows or external doors as these were the freeholder’s responsibility. Again, the Ombudsman has not seen any evidence that the landlord took action during this time to enforce the freeholder’s covenants to keep the structure and exterior in good repair. This was again unreasonable as the resident’s solicitor had repeatedly stated that the resident was unable to enforce the covenants in the head lease.

107.   The resident’s MP wrote to the landlord 2 years later on 27 April 2023 and advised that the resident had been unable to occupy her property due to the presence of black mould, broken windows and rat faeces. The landlord replied on 10 May 2023 and stated that some of the repairs were the resident’s responsibility and some were the responsibility of the freeholder. It added that the resident’s dispute was therefore with the landlord. However, it suggested that the resident list the issues, identify the solutions she was seeking and the landlord would then advise the freeholder accordingly.

108.   The Ombudsman’s view is that landlord’s advice to the resident’s MP was unhelpful and inappropriate given that it had been advised on a number of occasions about the defects, including those to the windows, back door and retaining walls. The landlord’s response lacked urgency and empathy for the resident’s situation.

109.   The Ombudsman recognises that the landlord faced challenges working with the freeholder and managing agent and that it was not directly responsible for carrying out the repairs. However, the view of this Service is that the landlord did not pay sufficient regard to the landlord-resident relationship. It was inappropriate for the landlord to have stated that the resident’s dispute was with the freeholder given that the resident did not have a contractual relationship with the freeholder.

110.   The Ombudsman expects landlords to own the relationship with their residents and be proactive in pursuing resolution on their behalf. The landlord’s failure to refer matters to the freeholder/managing agent and take appropriate enforcement action in relation to the freeholder made the resident feel unsupported and this caused her additional distress and frustration.

111.   The resident advised the landlord on various occasions that there was disrepair to the communal areas. The most significant issues were the reported defects to the boundary and retaining walls as these were impacting on the resident’s ability to use the garden as mentioned previously. The Ombudsman has again not seen any evidence that the landlord was proactive in contacting the freeholder or the agent regarding the defective walls.

112.   The landlord’s solicitor wrote on 22 January 2020 that the freeholder was in the process of carrying out consultation under Section 20  for communal repairs, including the walls. Therefore, although the freeholder was taking some action in relation to the walls and other communal matters, the time taken to progress the repairs was excessive and should have been of concern to the landlord. Therefore, given the impact of the defective walls on the resident’s ability to use her garden, the Ombudsman considers the landlord’s failure to pursue the freeholder about the repairs was again unreasonable.

113.   In its letter dated 28 June 2023, the landlord proposed that one of its surveyors would inspect the property and produce a ‘schedule of dilapidations’. In the Ombudsman’s opinion, this was a reasonable proposal from the landlord as it had not inspected the property since 2019 and therefore needed to understand the current condition. The landlord repeated the request in its stage 2 reply dated 23 August 2023.

114.   The landlord also stated that it would produce an action plan by 30 September 2023 to address the issues raised by the resident. Again, this was a reasonable suggestion as it showed that the landlord intended to take more of an active role in relation to the reported disrepair issues. It is important when responding to issues involving multiple parties that the landlord develops clear action plans with timescales/milestones and trigger points for taking action to enforce covenants where necessary.

115.   The landlord accepted in its stage 2 reply that it had placed more emphasis on the resident’s repair obligations than on offering advice and support or on rectifying the problems. It also said that the resident’s complaint had highlighted the need for it to take a more active interest in DIYSO properties. This Service welcomes that the landlord had acknowledged the need for it to adopt a more proactive role.

116.   Whilst the landlord’s proposals to inspect the property and draw up an action plan were reasonable, the delay in the landlord deciding to take these steps was wholly unacceptable. Although not directly responsible for the repairs, the lack of proactive engagement by the landlord with the freeholder undoubtedly added to the resident’s frustration and distress.

117.   The Ombudsman has noted that the managing agent wrote to the landlord on 13 June 2023 and stated that under the terms of the head lease the landlord was prohibited from selling a share of the property. The agent added that the landlord had breached the terms of its lease by subletting the property and this was preventing the agent from carrying out major works. Clearly, it is important that the landlord engages with the freeholder urgently to resolve this matter as soon as possible so that the major works can proceed. The Ombudsman has therefore included an order to this effect.

118.   Overall, the Ombudsman has found there were significant failings by the landlord to engage proactively with the freeholder to ensure the freeholder met its repair obligations. The landlord failed to recognise the importance of its role in enforcing the freeholder’s covenants contained in the head lease. This meant that the resident had limited options available to her for ensuring the freeholder met its obligations in terms of the windows, back door and communal repairs and therefore she felt unsupported.

119.   The resident had advised the landlord on 5 March 2019 that the lack of ventilation in the property (due to the faulty windows) and the strong smells were causing her respiratory issues. Therefore, taking into account the resident’s circumstances, the landlord’s lack of action in pursuing the freeholder to meet its obligations and the period of time involved, this Service has found that the failings amount to severe maladministration. The landlord’s failings had a seriously detrimental impact on the resident because she felt unsupported, frustrated and very distressed as she was not in a position to enforce the freeholder’s obligations to keep the structure, exterior and common areas in good repair.

120.   The Ombudsman has made an order of compensation which takes into account the specific circumstances of this complaint, the resident’s rent payments, and the Ombudsman’s own Remedies Guidance.

121.   The Ombudsman considers the landlord should pay financial redress equivalent to 20% of the full rent in order to compensate the resident for the failings identified in its response to the resident’s reports of disrepair. The period used for the calculation is from 14 May 2019 when the resident’s solicitor advised the landlord that “the property was in a serious state of disrepair” until the landlord’s stage 2 reply on 23 August 2023. The amount ordered takes into account that the landlord was not directly responsible for the repairs. The following is a breakdown of the compensation ordered:

14 May 2019 – 31 Mar 2020: 323 days x £18.61 (daily rent) x 20%: £1,202

1 Apr 2020 – 31 Mar 2021: 365 days x £19.29 (daily rent) x 20%:    £1,408

1 Apr 2021 – 31 Mar 2022: 365 days x £20.25 (daily rent) x 20%:    £1,478

1 Apr 2022 – 31 Mar 2023: 365 days x £21.27 (daily rent) x 20%:    £1,552

1 Apr 2023 – 23 Aug 2023: 145 days x £22.31 (daily rent) x 20%:    £   647

         Total       £ 6,287

122.   Given the serious failings identified in this report and the Ombudsman’s awareness that the landlord has other DIYSO properties, this Service considers it appropriate to make a wider order under paragraph 54(f) of the Scheme. This is for the landlord to review its policy or practice in relation to the service failures identified in this determination, which may give rise to further complaints about the matter. We have set out the scope of the review below.

The landlord’s response to the resident’s request for it to provide alternative accommodation until the reported issues were resolved

123.   The resident moved out of the property following the flood that had occurred on 20 April 2019 when the pest control contractor damaged a water main. The resident had contacted the agent to ask about the cost of temporary accommodation and the agent had advised that any claims for damage and expenses would be dealt with through the buildings insurance.

124.   The landlord wrote to the agent on 25 April 2019 to ask whether the insurers would assist the resident with her temporary accommodation costs following the flood. The agent confirmed that the appointed loss adjuster would make this decision. It was reasonable that the landlord supported the resident by checking with the agent regarding temporary accommodation. The agent confirmed on the same day that it would pay for the resident to stay in a hotel until 20 May 2019.

125.   The loss adjuster confirmed on 16 May 2019 that the claim would not cover ongoing temporary accommodation costs for the resident as it understood she had moved out because of the smell from the rat infestation, rather than the flood. The landlord wrote to the resident’s solicitor on 6 June 2019 and confirmed that its insurers had advised they would not arrange temporary accommodation.

126.   The landlord’s internal emails dated 5 August 2019 confirm that its insurers had also advised that the landlord was not under a duty to decant the resident. The landlord also confirmed in the email that the surveyor who had inspected the property in June 2019 had not considered the property to be uninhabitable.

127.   As stated earlier, the Ombudsman is not in a position to determine whether the property was habitable. The role of this Service is to assess the landlord’s response to the resident’s request for it to provide alternative accommodation. In this case, the landlord had taken advice from its insurers to determine whether it had an obligation to decant the resident and had spoken to its surveyor to check whether the property was habitable. The landlord was entitled to rely on the advice from its insurer and from its surveyor and therefore, in the Ombudsman’s view, had acted reasonably.

128.   The evidence seen shows that the resident wanted the property to be decontaminated because of the rats’ droppings under the flooring and because of the flood damage. The question of liability for cleaning the rat’s droppings has already been covered earlier in this assessment. In terms of the flood damage, the resident’s solicitor had confirmed on 30 April 2021 that the resident’s insurance claim had been settled with the pest control contractor’s insurers. It was therefore reasonable for the landlord to believe that the flood damage had been appropriately settled via the insurance process.

129.   Overall, the landlord’s response to the resident’s request for temporary accommodation was reasonable in that it took advice from its insurer regarding its decant obligations and consulted its surveyor on whether the property was habitable. The Ombudsman has not seen any evidence to show that the landlord had a legal duty to provide alternative accommodation for the resident given that it was not directly responsible for carrying out repairs to the property.

The landlord’s response to the resident’s request to stop charging her rent until the reported issues were resolved and to reimburse her for previously paid rent

130.   Under the terms of the sublease with the landlord, the resident is obliged to pay rent for the share of the property that is owned by the landlord.

131.   The resident’s solicitor wrote to the landlord on 15 January 2020 and requested the landlord to stop charging rent until the resident could occupy the property. The resident repeated this request on various occasions and also requested reimbursement of previously paid rent. She included these requests in her stage one complaint on 14 June 2023 and in her stage 2 complaint dated 10 July 2023. In the latter case, she had specifically emphasised her dissatisfaction that she had not received a response to her request.

132.   The Ombudsman has not seen any evidence that the landlord had an obligation to pause the rent charges as it was not directly responsible for the repairs to the property or to the communal areas. However, the landlord should have responded directly to the resident’s question about whether it would stop the rent charges and reimburse her for previously paid rent. It was unreasonable that the landlord had not responded as the resident had stated she was experiencing financial hardship and therefore needed to know whether there was any prospect of the landlord pausing the rent charges. The landlord’s failure to address the question added to the resident’s sense of frustration regarding her situation.

133.   In summary, this Service has not seen any evidence that the landlord was either legally obliged or was required through its policies to pause the rent charges. However, the resident was entitled to expect a clear and timely response to her enquiry. The Ombudsman has therefore found there was a service failure because the landlord had failed to provide her with an answer. It meant she had to spend additional time and effort seeking a response.

134.   The Ombudsman has ordered the landlord to pay compensation of £100, which is within the range of financial redress specified in the Ombudsman’s Remedies Guidance for instances where there has been a service failure.

The landlord’s response to the resident’s concerns about the quality of the information it provided to the DWP regarding her rent

135.   The resident was in receipt of UC for the rent she was obliged to pay in relation to the 75% share of the property owned by the landlord. On 25 April 2023, the resident received an electronic message from the DWP stating that the landlord had advised them that it did not recognise the property. The resident uploaded additional evidence onto the DWP portal and they were able to process the resident’s claim.

136.   The resident stated in her stage one complaint on 14 June 2023 that the landlord had failed to confirm her status as a tenant and this had affected her benefits. The landlord stated in its letter dated 28 June 2023 that it did not know which DWP or UC issue the resident was referring to and asked the resident to clarify.

137.   The resident included further information in her stage 2 complaint dated 10 July 2023 in which she stated that the landlord had repeatedly failed to provide the DWP with the necessary information on annual rental increases. She also wrote to the landlord on 26 July 2023 and stated that she had received a rent statement incorrectly showing that the landlord had not received any housing benefit payments from her.

138.   The landlord’s stage 2 reply did not address the resident’s concerns about the information it had provided to the DWP or about the rent statement she had received. This was unreasonable as the resident had explained the problem to the landlord in her stage 2 complaint and had advised the landlord that the issue was causing her “financial loss, severe distress, and inconvenience”. The resident had also stated in her stage 2 complaint that the issue had occurred previously. Therefore, in the Ombudsman’s view, it was important for the landlord to investigate whether there was an underlying problem.

139.   The Ombudsman has not seen sufficient evidence to assess the quality of the information provided by the landlord to the DWP. However, this Service has found there was a service failure as the landlord had not responded to the specific concerns raised by the resident regarding the information it had provided to the DWP.

140.   The Ombudsman has ordered the landlord to pay compensation of £100, which is within the range of financial redress specified in the Ombudsman’s Remedies Guidance for instances where there has been a service failure.

The landlord’s handling of the associated complaints

141.   The landlord operates a 2-stage complaint process. Stage one complaints are replied to within 10 working days and stage 2 responses are sent within 20 working days. The timescales for replying at stages one and 2 may be extended by a further 10 working days, however, where this is necessary the landlord will contact the resident and explain the reasons for the extension.

142.   The resident wrote to the landlord on 14 June 2023 and stated that she wanted the landlord to treat her email as her “final complaint”. She identified several issues that she was dissatisfied with. The landlord did not issue a stage one reply but wrote to the resident on 21 and 28 June 2023.

143.   As the resident had clearly stated that she wanted her email of 14 June 2023 to be treated as a complaint, it was inappropriate that the landlord failed to do so. As a consequence, the resident did not receive a clear decision from the landlord on whether it upheld the different aspects of her complaint, which is a requirement of its complaints policy. This therefore made it more difficult for the resident to identify which elements of her complaint she wanted to escalate. The landlord subsequently stated that it would treat its reply dated 28 June 2023 as a stage one reply.

144.   The resident wrote to the landlord on 10 and 11 July 2023 and asked for her complaint to be escalated. She set out detailed reasons for her dissatisfaction and identified the outcomes she was seeking. The landlord wrote to the resident on 21 July 2023 to acknowledge her complaint. However, the landlord advised her that it would respond to the complaint under stage one of its process. This was unreasonable given that the resident had already submitted a stage one complaint on 14 June 2023.

145.   The resident spoke to the landlord on 25 July 2023 and expressed her dissatisfaction that her complaint had not been escalated to stage 2 of the process. Therefore, the landlord’s failure to properly escalate the complaint meant the resident had to spend additional time and effort in requesting the escalation.

146.   The landlord acknowledged the resident’s stage 2 complaint on 26 July 2023 and wrote to her on 3 August 2023 setting out its understanding of the complaint. This was reasonable as the resident had included several points in her complaint and therefore it was important for the landlord to understand the various points.

147.   The landlord sent its stage 2 reply on 23 August 2023, which was 32 working days after the resident had requested the landlord to escalate her complaint on 10 July 2023. It was a shortcoming on the landlord’s part that it did not reply within the advertised timescale of 20 working days. However, the landlord had written to the resident on 3 August 2023 to check its understanding of the complaint and had therefore provided some reassurance to the resident that it was dealing with her complaint.

148.   One of the points raised in the resident’s stage 2 complaint was her dissatisfaction that her original complaint of 14 June 2023 had been investigated by a staff member whose conduct and performance she had complained about. This point was not addressed in the landlord’s stage 2 reply, which was inappropriate. The Ombudsman’s complaint handling code in operation at the time stated: “The complaint handler must…take measures to address any actual or perceived conflict of interest”. Therefore, as the resident had clearly stated that in her view there had been a conflict of interest, the landlord should have investigated her concerns. The landlord’s failure to address this point was therefore unreasonable as it left the resident with doubts that her initial complaint had been investigated fairly.

149.   The Ombudsman has found that the landlord did not respond to all of the substantive issues raised by the resident during the complaints process. For example, it did not fully address her concerns about the enforcement of the freeholder’s covenants, issues regarding the information sent to the DWP and the specific disrepair she had reported (for example, black mould and the defective windows). The Ombudsman’s Complaint Handling Code in operation at the time stated: “Landlords must address all points raised in the complaint and provide clear reasons for any decisions, referencing the relevant policy, law and good practice where appropriate”.

150.   The landlord’s failure to address all of the points raised by the resident was unreasonable because the resident then had to spend further time and effort contacting the landlord about the same issues. The lack of detail and specific answers in the landlord’s stage one and 2 replies meant that, in the Ombudsman’s view, the resident did not receive a fair and reasonable response to her complaints.

151.   The landlord accepted in its stage 2 reply that it had placed more emphasis on the resident’s repair obligations rather than on offering advice and support or on rectifying the problems. It was a welcome step that the landlord acknowledged there had been a problem with its previous approach. However, the landlord did not take the opportunity to offer appropriate redress, including financial redress, to put things right. The Ombudsman’s Complaint Handling Code in operation at the time stated: “Effective dispute resolution requires a process designed to resolve complaints. Where something has gone wrong a landlord must acknowledge this and set out the actions it has already taken, or intends to take, to put things right”. Therefore, the landlord’s failure to offer redress to put things right was unreasonable.

152.   The Ombudsman has also noted that the landlord did not use its complaints process to identify learning in relation to its approach to other DIYSO leaseholders. The landlord had stated in its stage 2 reply that the resident’s complaint had highlighted the need for it to take a more active interest in the DIYSO properties. However, in the Ombudsman’s opinion this was vague and did not for example indicate that it would review its systems, processes or practices to avoid similar problems occurring in the future. The Ombudsman’s Complaint Handling Code in operation at the time stated: “Landlords should look beyond the circumstances of the individual complaint and consider whether anything needs to be ‘put right’ in terms of process or systems to the benefit of all residents”.

153.   In summary, the Ombudsman has found there was maladministration in the landlord’s handling of the resident’s complaints because:

  1. The landlord failed to treat the resident’s email of 14 June 2023 as a stage one complaint.
  2. The landlord initially advised the resident that it would treat her follow-up request for escalation as a stage one complaint rather than as a stage 2 complaint.
  3. The landlord did not investigate whether it had been appropriate for the stage one complaint handler to investigate the resident’s complaint given the concerns she had expressed about the officer.
  4. The landlord did not respond to all of the points included in the resident’s complaints.
  5. Although the landlord had acknowledged failings regarding its approach, it did not offer financial redress to put things right.
  6. The landlord did not use its complaints process to identify specific learning in terms of its approach to other DIYSO leaseholders and to review its systems and processes.

154.   Given the number of failings above, the Ombudsman has ordered the landlord to pay compensation of £500 for its complaints handling. This sum is within the range of financial redress specified in the Ombudsman’s Remedies Guidance for instances where there was a failure which adversely affected the resident and the landlord has made no attempt to put things right.

Determination (decision)

155.   In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in its response to the resident’s reports of disrepair, including damp and mould, structural issues and pest infestations affecting the property

156.   In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in its response to the resident’s request for it to provide alternative accommodation until the reported issues were resolved.

157.   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 request to stop charging her rent until the reported issues were resolved and to reimburse her for previously paid rent.

158.   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 concerns about the quality of the information it provided to the Department of Work and Pensions (DWP) regarding her rent.

159.   In accordance with paragraph 42f of the Housing Ombudsman Scheme, the landlord’s decision to charge the resident service charges and annual rent increases is outside the jurisdiction of the Ombudsman.

160.   In accordance with paragraph 42f of the Housing Ombudsman Scheme, the proposed cost of major repairs as shown in a recent Section 20 notice is outside the jurisdiction of the Ombudsman.

161.   In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in its handling of the associated complaints.

Reasons

162.   There were significant failings by the landlord to engage proactively with the freeholder to ensure it met its repair obligations. The landlord failed to recognise the importance of its role in enforcing the freeholder’s covenants contained in the head lease. This meant that the resident had limited options available to her for ensuring the freeholder met its obligations in terms of the windows, back door and communal repairs and therefore she felt unsupported.

163.   The landlord’s response to the resident’s request for temporary accommodation was reasonable in that it took advice from its insurer regarding its decant obligations and consulted its surveyor on whether the property was habitable.

164.   This Service has not seen any evidence that the landlord was either legally obliged or was required through its policies to pause the rent charges. However, the resident was entitled to expect a clear and timely response to her enquiry and the landlord failed to provide this.

165.   The landlord did not responded to the specific concerns raised by the resident regarding the information it had provided to the DWP.

166.   The Ombudsman considers it more appropriate for the resident’s complaint about the service charges and annual rent increases to be dealt with by the First-Tier Tribunal. 

167.   The Ombudsman considers it more appropriate for the resident’s complaint about the proposed major works charges detailed in the Section 20 notice to be dealt with by the First-Tier Tribunal. 

168.   The landlord failed to treat the resident’s email of 14 June 2023 as a stage one complaint. It did not investigate whether it had been appropriate for the stage one complaint handler to deal with the complaint. It did not respond to all of the points included in the resident’s complaints and did not offer financial redress to put things right.

Orders

169.   The landlord is ordered within 6 weeks of this report to:

  1. Arrange for the Chief Executive of the landlord to apologise in person to the resident for the failures identified in this report.
  2. Share the report with the landlord’s board.
  3. Pay the resident a total of £6,987 made up of:
    1. £6,287 for the landlord’s response to the resident’s reports of disrepair.
    2. £100 for the landlord’s response to the resident’s request to stop the rent charges.
    3. £100 for the landlord’s response to the resident’s concerns about the information provided to the DWP.
    4. £500 for the landlord’s handling of the associated complaints.
  4. Arrange for a suitably qualified surveyor to inspect the resident’s property and produce a report with their findings and recommendations, which is to be shared with the resident.
  5. Use the report to produce a draft action plan with timescales based on the recommendations in the surveyor’s report. The plan must include action to be taken by the landlord to enforce the freeholder’s covenants.
  6. Arrange to meet with the resident and her representatives to discuss and finalise the action plan.
  7. Produce a plan with timescales for resolving the alleged breach of the head lease as outlined by the managing agent on 13 June 2023.

170.   In accordance with paragraph 54(f) of the Housing Ombudsman Scheme, the landlord is ordered to carry out a review of its policies and practices in relation to the service failures identified in this determination. The review must be carried out within 12 weeks, and be conducted by a team independent of the service area responsible for the failings identified by this investigation. The review should include as a minimum (but is not limited to):

  1. The landlord’s monitoring, oversight and enforcement of freeholders’ covenants where the landlord owns the leasehold interest in a property and there is a separate freeholder.
  2. A self-assessment against the recommendations for senior management contained in the Ombudsman’s Spotlight report on Landlords’ Engagement with Private Freeholders and Managing Agents.
  3. The production of a training plan with timescales so that staff dealing with properties where there is a separate freeholder know how they should deal with enquiries/issues relating to these properties, including escalating instances of poor performance, taking enforcement action and providing support to affected residents.
  4. A review of any active complaints where freeholders or managing agents have been mentioned by residents as a being a contributory factor.

171.   Following the review, the landlord should produce a report setting out:

  1. The findings and learning from the review;
  2. Recommendations on how it intends to prevent similar failings from occurring in the future;
  3. The number of other residents who have experienced similar issues;
  4. The steps it proposes to take to provide redress at the earliest opportunity to the residents who have been similarly affected by the identified failings.

172.   The landlord should provide a copy of the final report to its governing body and member responsible for complaints, if appointed, for scrutiny. The governing body should agree how it will provide oversight of the implementation of any recommendations made following the review. The landlord should also provide a copy of the report to the Ombudsman.