Clarion Housing Association Limited (202002867)

REPORT

COMPLAINT 202002867

Clarion Housing Association Limited

8 December 2020

Our approach

What we can and cannot consider is called the Ombudsman’s jurisdiction and is governed by the Housing Ombudsman Scheme. The Ombudsman must determine whether a complaint comes within their jurisdiction. The Ombudsman seeks to resolve disputes wherever possible but cannot investigate complaints that fall outside of this. 

In deciding whether a complaint falls within their jurisdiction, the Ombudsman will carefully consider all the evidence provided by the parties and the circumstances of the case.

The complaint

1. The complaint is about the length of time taken by the landlord to identify the source of a leak into the leaseholder’s property, causing damage to the property and a loss of rental income.

Determination (jurisdictional decision)

2. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated. After carefully considering all the evidence, it is determined that the complaint, as set out above, is not within the Ombudsman’s jurisdiction, in accordance with paragraphs 39(i) and (r) of the Scheme.

Summary of events

3. The leaseholder purchased the property in 1999 to supplement his pension income. He does not live in the property and uses a third-party agency (the agency) to manage the property. In January 2018, the agency reported to the leaseholder that there was water ingress through the ceiling of his property and the landlord was contacted.
4. There was difficulty in identifying the source of the leak, but it was ultimately discovered that it was coming from a communal rainwater pipe. However, the leaking section of pipe was located inside the leaseholder’s property, behind some ducting. There followed a dispute between the landlord and the leaseholder regarding who, under the terms of the lease, had responsibility to identify the source of the leak.
5. A successful repair was carried out by the landlord in September 2019, eighteen months after the leak was reported. During this time, the property was uninhabitable, and the leaseholder is claiming £9,175 for loss of rental income, and £1,500 to repair and redecorate after the leak had been identified and repaired.
6. The formal complaint was made and responded to in October 2019 and, following escalation, the landlord issued its final complaint response in March 2020. This concluded that there had been omissions and delays on the part of the leaseholder and the agency, rather than any failure in service by the landlord. However, it agreed to honour a previous compensation offer of £800.

Reasons

7. Paragraph 39(i) of the Scheme states that ‘the Ombudsman will not investigate 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, a designated person, other tribunal or procedure’.
8. The parties are disputing who had responsibility for identifying the source of the leak. The pipe causing the leak was communal, but the section of pipe that was leaking was within the leaseholder’s property. Neither party has specified which clause in the lease they are relying upon when claiming that the other party has responsibility.
9. Clause 5(a) of the lease agreement places an obligation on the leaseholder to keep in good repair all walls, drains and pipes within his property, except where they are affected by the landlord’s responsibilities in clause 6(b).  Clause 6(b) places an obligation on the landlord to keep in good repair the main structure of the building, including all drains, gutters and external pipes.
10. Whilst clause 6(b) refers to external pipes, it is not specific on the responsibility for an internal pipe, albeit one which serves to drain the external common parts of the building. Matters are further complicated in that, although the landlord appears to have accepted responsibility for the leaking pipe, it has argued that the ducting which the pipe was located behind, forms part of the leaseholders responsibility as it is within his premises. The terms of the lease make the leaseholder responsible for internal walls, and this could include ducting or boxing in of pipework. Equally, it could be argued that the internal ducting forms part of the communal drainage to the building, and therefore is the responsibility of the landlord.
11. In addition, the landlord has argued that the responsibility for investigating the source of the leak, under the terms of the lease, fell to the leaseholder. Again, it is not clear which clause the landlord is relying upon in making this assertion. There is no clause in the lease which specifically refers to either parties’ responsibility to carry out any investigative work prior to identification of a repair.
12. In light of the above, it appears that the fundamental point of complaint requires an interpretation of the terms of the lease in order to definitively determine the respective rights and responsibilities of the parties. It is not within the Ombudsman’s authority to make such a legally binding decision or to determine whether the landlord is liable for the resulting damage. Such a claim would be better dealt with through the courts, as per paragraph 39(i) of the Scheme.
13. Paragraph 39(r) of the Scheme states that ‘the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion …. concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide.’
14. The leaseholder has claimed that the landlord’s failures resulted in a loss of income to him, in the sum of £9,175 and he wishes to be reimbursed for this loss. Liability for any loss of income would, in part, rely on which party had responsibility for identifying the leak, removing the ducting and ultimately repairing the leak.  For the reasons given above, these are not matters the Ombudsman can determine, and it therefore follows that the Ombudsman cannot determine whether or not the landlord has liability for the loss of earnings.
15. Whilst it is not disputed that the leak caused damage to the property and distress to the leaseholder, if he wishes to pursue his landlord for the associated costs and loss of earnings, he should seek independent legal advice and/or contact the First-Tier Tribunal (Property Chamber: Residential Property) which has jurisdiction to consider disputes over the terms of residential leases and to make the types of orders the leaseholder is seeking.