Clarion Housing Association Limited (202016583)

REPORT

COMPLAINT 202016583

Clarion Housing Association Limited

29 October 2021

Our approach

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

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

The complaint

The complaint is about the level of compensation offered to the resident further to his reports of leaks into his property.

Background and summary of events

The resident occupied a 3-bedroom house with his family. The property contained one single combined toilet and bathroom. His landlord had no vulnerabilities recorded but the resident himself reported he had vulnerabilities.

Legal and policy framework

Under the tenancy agreement, the landlord had an obligation to repair and maintain the structure of the building including the roof. It would also keep in good working order the systems for supplying water. It would carry out repairs within a reasonable time of having notice of the disrepair. The length of time would depend on how urgent the repair was and its service standards in force at the time. The landlord was also subject to the implied obligations under Section 9a of the Landlord & Tenant Act 1985 to keep the property fit for habitation in relation to freedom from damp. Under Section 11 of the Landlord and Tenant Act 1985,it should keep in repair and proper working order installations for sanitation, including baths.
The landlord’s repair policy stated that an emergency repair was defined as one that presents an immediate danger or would jeopardise the health, safety or security of the resident. Timescale for response was 24 hours. Non-emergency repairs would be attended to within 28 days.
The compensation policy provided that it would pay discretionary compensation as follows:
1. Compensation for failure to meet service standards for actions and responses but where the failure had no significant impact: £50 to £250 per quarter. The impact experienced by the complainant could include distress and inconvenience, time and trouble, disappointment, loss of confidence, and delays in getting matters resolved.
2. The impact experienced by the complainant could include distress and inconvenience, time and trouble, disappointment, loss of confidence, and delays in getting matters resolved and could include failure that had subsisted over a considerable period of time: £250 to £700
3. Where there has been a significant and serious long-term effect on the complainant, including physical or emotional impact, or both:. Awards of £700 and above.
4. The above discretionary payments would have regard for factors including the time taken to resolve a complaint any inconvenience suffered or a degree of disruption to the household, household vulnerabilities including age and disability, recognition of any failure to follow process. It would look at awarding £100 a year for each of these factors.
5. Failure to keep an appointment without giving proper notice £15.
6. Repairs which have gone over target time: £10 then £2 a day to a maximum of £50.
7. Loss of room use for example due to no electricity at all in a bathroom: 50% of the weekly rent.
8. There was no provision in the policy for damage to belongings or damage to decoration. One example cited nil for decoration.
While the landlord would pay for expenses incurred by the complainant, it would not normally compensate for personal belongings.
The compensation offered would take into account the length of time the landlord had taken to resolve the problem, difficulties the resident experienced when making their complaint. It would also take into account additional costs incurred by the resident, any relevant proof in support of a compensation claim.

Chronology

On 20 December 2019, the resident reported a leak into his bathroom ceiling and into the living room below. The resident’s report itself has not been provided to this service but the date is not in dispute. According to the landlord, the electrics were made safe on 23 December 2019. On 7 January 2020, the landlord identified that the source of the leak was from the roof. While the landlord had attended the property promptly, appointments were cancelled. The soil pipe was repaired on 27 January 2020 but an asbestos inspection was required before the works to the roof could be undertaken. The asbestos inspection took place on 9 March 2020 and no asbestos was found. The roof tiles were replaced on 16 March 2020. On 8 June 2020, the repair to the ceiling was completed.
In the meantime, the bathroom and living room lights had been disconnected on 17 February 2020 and, despite various attempts and for various reasons, were not fully reconnected till 22 July 2020.
A further leak was reported on 2 June 2020. On 22 June 2020 the landlord identified that the leak stains were caused by the resident or his children hanging the shower curtain outside of the bath when using the shower.
A third leak was reported on 7 July 2020. The landlord inspected the property on 10 July 2020. According to the landlord, the leak was caused by an issue with the sealant and blown tiles. On 17 July, a tiler attended to remove the loose tiles and a 2-week drying time was required before the tiling could be redone. On 5 August 2020, the tiles were replaced and the bath re-sealed.

The complaint

The resident made a formal complaint on 23 May 2020 that the landlord had not dealt with disrepair to his home. He felt his family was at risk as there was no light in the bathroom and there was a large hole in the ceiling. The existence of the hole had increased his electricity bill, due to, it is implied, additional cold.
The landlord responded on 5 June 2020. It made an offer of compensation of £410 in relation to missed appointments, the time in resolving the complaint, partial loss of lighting in the bathroom and living room up to 8 June 2020, and for the disruption and inconvenience and failure to follow process.
The resident wrote to the landlord on 16 June 2020. The letter has not been provided to this service but according to the landlord, it was to request a review of the complaint for the following reasons:-
1. The light in the toilet/bathroom was still not working, and the work rectifying the damage caused by the leak was outstanding.
2. He requested further compensation for damage to personal property (sofa and flooring) caused by the leak and in relation to increased energy usage incurred due to the hole in the ceiling.
On 2 July 2020, the landlord telephoned the resident who stated that the repairs had not been completed. There was no electricity in the bathroom and he had not been given any indication of when this would be resolved. He stated that he had sent in evidence of his energy usage and the landlord had not addressed the damage to his possessions and the flooring as a result of the leak. While the living room lights were affected by the first leak, it is not clear from the landlord’s records whether the damage to the rooms below was caused by the first or third leak. However according to the landlord, the restoration to the bathroom lighting was delayed by the event of the third leak.
The landlord responded on 23 July 2020 and increased the compensation by £330, consisting of a further £50 in relation to complaint handling, it extended the period for partial loss of electricity to 7 July 2020, and £100 for inconvenience and failure to follow process. It had requested evidence in relation to the energy bills but had not received this. It stated that decorating was the resident’s responsibility and referred the resident to its insurers in order to make a claim in relation to the resident’s losses. It also enclosed the asbestos report.
The resident requested that his complaint be escalated on 24 August 2020. This service has not seen the escalation request. However, his reasons appear to be reflected in the following paragraphs.
On 1 September 2020, the resident wrote to the landlord. He stated that he had provided evidence of his decorating expenses and damaged carpets. He said his bathroom was leaking which the landlord would be attending to the next day and he was waiting for a repair to his toilet.
He requested:
1. £2,000 to “making the property liveable” (including replacing flooring) .
2. Compensation for his personal belongings (TV, sofa and carpets)
3. Compensation for the worry about exposure to asbestos whilst waiting for the asbestos report.
4. He was awaiting a statement from his energy supplier.
5. Inconvenience and emotional distress.
The landlord spoke to the resident on 8 September 2020 to discuss his complaint. The resident informed the landlord that the bathroom floor was damaged, and the toilet was leaking. Work was booked for 11 September 2020.
As a result of lack of action, the resident reported that the carpets in his property were damaged, as well as the TV and sofa. He stated that he had used buckets around the property to collect the leaking water and though the leak was eventually stopped, the follow up repair was left ”for months”.
He was claiming nearly £3,000 to replace his carpets, TV, and sofa. He was also seeking compensation for the distress and inconvenience caused to him and his family, as well as compensation for the worry caused by the late provision of the asbestos report.
It was agreed that the resident would provide photographs of the “before and after” in relation to the carpet and any receipt of the purchases made and a breakdown of his costs.
The landlord then wrote to the resident on 10 September 2020. It had already received photos of the damage in the property, the before and after pictures and receipts.
On 9 October 2020, in conclusion of the complaints procedure, the landlord wrote as follows:
1. It recognised the disruption to the family caused by the delays and missed appointments.
2. It stated that the jobs in relation to the roof leak were hindered by the Covid-19 ‘restrictions’, as well as due to a variety of services being required, including an asbestos survey.
3. It declined to pay compensation in relation to the resident’s complaint that the family was at risk from asbestos on the basis that there was no asbestos present.
4. It stated that decorating was the resident’s responsibility and declined to compensate him for costs
5. It referred the resident to his own insurers in relation to damage to the resident’s personal property and possessions, but the resident could make a claim against the landlord by contacting its insurers. It provided a list of information the insurers would require.
6. It declined to refund additional electrical costs over the period when the leak was active, as the resident did not provide evidence in the form of bills from the period of the leak and a comparable bill from the same period the previous year.
7. It increased compensation by a further £230 to a new total of £970 in compensation. The increase comprised of a further £50 in relation to complaint handling, a further £80 in relation to inconvenience and disruption for the period 20 December 2019 to 5 August 2020, and a further £80 for disruption due to repeated visits for the same period.
This brought the total compensation offered to £970 comprising of:
1. Missed appointments£30.
2. Complaint handling £150.
3. Partial loss of electricity in “lounge” and bathroom from 17 February 2020 to 21 July 2020 £430.
4. Inconvenience and disruption £180.
5. Failure to follow process £100.
6. Disruption due to repeated visits for the period 21 December 2019 to 5 August 2020£80.

Assessment and findings

A note on the evidence.

This investigation has been somewhat hampered by the incompleteness of the documents provided by the landlord. The documents are referred to in the report. The Ombudsman can only base its decisions on the documentary evidence provided to it by the parties and there is an expectation that the landlord, as the professional organisation with resources available to it, should be in a position to provide adequate evidence of its actions. The landlord should therefore ensure that care is taken to provide all necessary documentation requested by the Ombudsman for its investigations.

Scope of this report

Three leaks occurred, those reported on 20 December 2019, 2 June 2020 and 7 July 2020. According to the evidence, the resident made a further report of a leak or leaks on 1 September 2020, damage to his bathroom floor and disrepair to his toilet. As these events did not form part of the resident’s complaint to the landlord, they do not form part of this investigation. This is because the landlord has not had the opportunity to respond to a complaint by the resident in this regard and its offer of compensation did not take account of events after 5 August 2020. Any claim in relation to the bathroom floor, toilet and any new leaks, would need to form part of a fresh complaint process. It is not clear from the evidence how the damage to the bathroom floor was caused, but it may be that the resident can seek to claim for it with the landlord’s insurers, discussed below. The Ombudsman, however, cannot comment on the likely success of such a claim.
The first leak was due to a leak in the roof and will be discussed in more detail below. In relation to the second reported leak, or escape of water, the evidence indicated that this was due the resident or his children not using the shower curtain correctly. There is no evidence to the contrary, therefore it is accepted that the landlord was not at fault in relation to the second leak. In any event, the landlord attended on the resident’s report of a second leak in an appropriate timescale. The third leak was also resolved in an appropriate timescale.
In summary, the Ombudsman concludes that the compensation considered in this report takes into account all disruption from 20 December 2019 to 5 August 2020, caused by whichsoever leak.
The landlord has accepted that there were failings in this case and has offered compensation as set out in the previous section. The resident’s view is that this does not adequately address the distress and inconvenience caused to him and his household as a result of the landlord’s accepted failures in this case.
It was reasonable that the landlord accepted that the period of disruption was from 20 December 2019 to 5 August 2020, even though the final repairs to the ceiling in respect of the first leak took place on 8 June 2020 and it accepted responsibility for the delays. Given the landlord took responsibility for the delays in the process, the Ombudsman’s consideration of this case focusses on the level of compensation awarded by the landlord and whether this was reasonable redress in the circumstances.
In the circumstances, the issues for the Ombudsman to adjudicate upon is the compensation in relation to:
1. The resident’s inconvenience and emotional distress, including the loss of electricity.
2. The reported damage to the resident’s property and decoration.
3. Increased energy costs.
4. The anxiety the resident reported in relation to the asbestos report.

The resident’s inconvenience and emotional distress including loss of electricity.

The Ombudsman cannot assess the extent to which a landlord’s service failure or maladministration has contributed to or exacerbated a complainant’s physical and/or mental health. It cannot assess medical evidence and does not make findings on matters such as negligence.
However, the Ombudsman may set out a remedy that recognises the overall distress and inconvenience caused to a complainant by a particular service failure by a landlord.
The evidence of the extent of the leak and the date the leak ceased is not clear. The resident reported that until the repair was effected and the leak ceased, he had used buckets around the property to collect the leaking water. The landlord has not provided any evidence as to when the leak ceased, while according to the resident, it was “months”. While an initial repair was effected on 27 January 2021, the final repair was carried out on 16 March 2020, when, according to the landlord’s letter 9 October 2020, “the roof tiles were replaced to stop the leak”. It is reasonable to conclude that the resident’s property continued to suffer leaks until 16 March 2020 and therefore the main period of disruption was 20 December 2021 to 16 March 2020. There was the onward effect on the family’s general home environment caused by damage to decorations, however, while there were other issues, such as redecoration, the ceiling was repaired on 8 June 2020.
It was inappropriate of the landlord to blame, in its second response, the repair to the leak carried out 16 March 2020 on lockdown, which did not begin till 23 March 2020. However, the explanation that the delay was due to the landlord correctly seeking an asbestos report and the different contractors required was reasonable. There is no evidence that the length of time the asbestos report took was the landlord’s fault.
When considering disputes about the level of compensation, the Ombudsman takes into account a landlord’s own compensation policy and also this Service’s own Remedies Guidance when assessing whether an offer was reasonable. The amount the landlord awarded in relation to inconvenience and disruption, was £360 including the elements referred to in the landlord’s policy ( failure to follow process and disruption due to repeat visits). The Ombudsman recognises that the resident has also suffered distress. The landlord’s discretionary awards address distress, disruption and inconvenience. Taking account of all the circumstances, the compensation of £360 offered by the landlord was in line with the landlord’s policy and the Ombudsman considers this to have been a reasonable offer of redress.

Loss of electricity

The landlord treated the loss of electricity to the bathroom and living room as a partial loss of amenity. The landlord has explained to this service that it would usually consider the “loss of a room” to be when the primary use of the room is not feasible. It further explained that as its compensation policy makes no reference to the loss of lighting, it decided to treat the loss of electricity as a partial loss of amenity to the property. It is recognised that loss of light in a bathroom would have a more significant impact than in a lounge due to the lack of alternative lighting. However, in the Ombudsman’s view, the landlord’s decision-making and approach to offering compensation for this aspect of the complaint was reasonable.

Conclusion

It is important to note that the Housing Ombudsman does not award of compensation in the same way a court would, but would identify a suitable remedy to reflect the landlord’s service failure, given the circumstances of the case. The Housing Ombudsman’s awards tend to be moderate. It also generally takes into account the landlord’s need to make the most effective use of its limited resources as a social landlord.
In all of the circumstances, the Ombudsman has concluded that the overall compensation of £970 is both in line with the landlord’s compensation policy and in line with the level of compensation the Ombudsman would order and, in all of the circumstances, is considered to be reasonable and appropriate.

The reported damage to the resident’s property and decoration.

The resident claimed compensation for damaged items and redecoration. There are occasions when the Ombudsman orders compensation for financial loss where there is sufficiently clear evidence, but there is not sufficient evidence in this case. The Ombudsman is unable to establish whether the leak caused the damage claimed for and quantify the resident’s claim, even if it were in possession of photographs and receipts.
The landlord’s policy did not deal with damage to possessions and decoration except to state that any loss would be included in its discretionary award. The example set out in the policy specifically stated that decoration would excluded. However, it was not reasonable for the landlord to refuse a claim for redecoration on the basis that redecoration is a matter for the resident. While this position was in line with its policy, there are circumstances where the landlord has been negligent, the landlord may be liable for any redecoration as well as damaged possessions.
Negligence is a legal term with a legal test and a matter for legal jurisdiction. The Ombudsman’s role is not to assess compensation as a court of law would and the Ombudsman cannot make a finding whether a landlord has been negligent. However, it was a reasonable suggestion for the landlord to refer the resident to its insurers. While it is an extra step for the resident, the landlord has provided guidance as to the information the insurers would require. The disadvantage would be that it is not known whether the damage the resident would be claiming for was an insured risk. Without the resident having made the claim, it is not possible to speculate.
It is a matter on which the resident may need to seek independent advice but the first step would be for the resident to make a claim with the landlord’s insurers.

The resident’s report of increased energy cost

The resident reported that his energy costs had increased due to the hole in the bathroom ceiling. The landlord’s response was reasonable in that it expressed an intention to consider compensation for increased energy costs but that it required evidence. It was reasonable that the landlord’s request was specific in that it requested the bills for the relevant period and those for the same period the year before. At 1 September 2020, the resident was still awaiting statements from his energy company. The evidence shows that the resident did not provide the bills so the landlord would have been unable to assess the claim.

The anxiety the resident reported in relation to the asbestos report.

As stated above, it is not the Ombudsman’s role to assess whether a landlord’s service failure has caused or contributed to a resident’s state of mental health. It was not reasonable that the landlord missed the point of the resident’s complaints. His complaint was that the requirement for an asbestos report caused the resident’s anxiety and his mind could have been put at rest sooner by the landlord sending him the report in March 2020 rather than in July 2020. While the landlord could have considered that asbestos does cause anxiety in people, there is no evidence that the resident ever expressed his concerns or requested a copy of the report, although it is reasonable to conclude the resident did so when escalating his complaint after 5 June 2020. Once the resident had raised the issue, the landlord responded by sending him the report which put his mind at rest.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman’s Scheme, and in the Ombudsman’s opinion, the compensation offered to the resident was reasonable redress in relation the resident’s reports of leaks into his property.

Reasons

The landlord’s offer of compensation was appropriate and reasonable. It complied with its policy and recognised the resident’s distress and inconvenience. It directed the resident to its insurers for a claim for compensation for damaged possessions where the resident could also make a claim for his redecoration. The landlord was not in a position to assess the resident’s claim for increased energy costs without the evidence requested. While the landlord could have considered sending the asbestos report to the resident, there was no obligation to do so. It sent the resident the report upon the resident raising his concerns.

Recommendations

If the resident can supply the landlord with the relevant energy bills within 8 weeks from the date of this report, the landlord should consider the resident’s claim for increased energy costs.
It is recommended that the landlord ensures that it does not incorrectly attribute fault to the national lockdowns imposed by the Coronavirus Regulations in force from time to time.
The landlord considers amending its compensation policy to address damage to possessions and damage to decoration, such as recourse to an insurance claim. The landlord can consider the Ombudsman’s guidance in relation to insurance. https://www.housing-ombudsman.org.uk/about-us/corporate-information/policies/dispute-resolution/guidance-on-complaints-involving-insurance/.
It is recommended that the landlord reviews arrangements for collating, checking and providing information to ensure that all relevant evidence is submitted.