Gateshead Metropolitan Borough Council (202012425)

REPORT

COMPLAINT 202012425

Gateshead Metropolitan Borough Council

19 November 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 landlord’s handling of: –
1. The resident’s report of a flood in her bathroom.
2. The resident’s reports of consequential damage to the bathroom and kitchen.
3. The resident’s complaint.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. 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, in accordance with paragraphs 39 (a) and (i) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
The resident’s complaint to the landlord centres around a flood which took place in her property on 26 August 2020. She considers it was caused by a previous repair in her bathroom, which she concludes was inadequate. She reported significant damage in her property to the landlord and has complained about the way the landlord handled this issue. This is the complaint which was considered through the landlord’s internal complaints procedure.
The resident has raised additional issues with the landlordthis Service. Firstly, she has stated that the leak led to the discovery that the water supply to the property was contaminated and that this has had a detrimental impact on her children’s health. Her water supplier has been involved concerning this issue. Secondly, she has stated that she made an insurance claim against the local authority’s insurance, but, in her view, the landlord failed to provide the correct information to enable that claim to be properly considered. Thirdly, she has stated that damp arose in the property, and this has affected her child’s health.
This Service will not consider complaints which have not formally proceeded through the landlord’s internal complaints process. As a result, the additional issues detailed in paragraph 5 (above) will not be considered in this report, although they are referred to as they provide context to the current complaint.
Our position is in accordance with paragraph 39(a) of the Housing Ombudsman Scheme (the Scheme) which provides that the Ombudsman will not consider complaints which are made prior to having exhausted a landlord’s internal complaints procedure. Thus, the resident is advised to consider making a formal complaint to the landlord with respect to these matters in the first instance. Specifically, that she considers the landlord responsible for the contaminated water and that it did not provide the required documents to the insurer. It must be clarified, however, that this Service would be unable to investigate any issues which have been considered through an insurance claim.
Further, assessing whether an injury to health has been caused as a result of a landlord’s actions and/or omissions, raises technical legal issues more suited to a court of law. This Service does not have the expertise to determine such issues. The resident may wish to seek legal advice about this, as a personal injury claim may be a more appropriate way of dealing with this aspect of her complaint.
Our position here is in accordance with paragraph 39(i) of the Scheme which provides 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’.

Background and summary of events

Background

The resident’s property is a three-bedroom semi-detached house let to her by the landlord under a secure tenancy.

Scope

As stated above, the formal complaint put to the landlord was about its handling of the immediate flood aftermath and the repairs that the leak caused, and not about the three additional issues.

Summary of Events

On 11 November 2019 the resident reported a water leak coming from the bathroom in her property, into her kitchen. The landlord recorded the repair on a spreadsheet describing the leak as “minor” and attributing it to “wear & tear”.
On 28 August 2020 the resident lodged a formal complaint with the landlord. She explained that she had had “a small leak” under the bath at the property a few months previously, and that the landlord’s operative had been out to repair it. She then reported that in the early hours of Wednesday, 26 August 2020 she had discovered a significant leak of water coming from the bathroom down into the kitchen. She explained that a lot of damage had been caused to her kitchen ceiling, electric cooker, cupboard doors and to her lino flooring. The resident had reached the conclusion that the current flood was caused by the previous leak not having been repaired properly. She held the landlord responsible for this.
The resident further explained that the landlord’s emergency repairs team had arranged for a plumber and an electrician to attend the property to make it safe. She was left with the understanding that a further plumber would be out that morning, from the “day shift” but when they did not arrive, she contacted the landlord who noted this had not been arranged and wanted to send one two days later. However, the resident had been left without water and electricity in the kitchen and it was agreed a plumber would attend the next day, 27 August 2020.
At that attendance, the plumber arranged for a further electrician to attend as there were wires hanging from a light switch. This did not then take place until the following day, 28 August 2020, and only when the resident contacted the landlord to chase it up.
The resident complained about the way the landlord had handled the situation.
The landlord’s repairs spreadsheet records that also on 28 August 2020, it raised a repair for its plasterer to attend the property to check the damage to the kitchen ceiling.
On 11 September 2020 the landlord arranged a further electrician’s visit to reinstate the kitchen light after the leak and it noted that a plumber needed to attend to check the hot tap to the bath as there was grit present in the water. On 25 September 2020 a further repair was raised when “black water” was coming out of the taps and the landlord noted that the water authority had visited the property. On 29 September 2020 “major planned works” were arranged to renew the water main to the property.
On 30 September 2020 the landlord arranged with the resident for an inspection to take place at the property to determine what work was required to the kitchen ceiling and this was agreed for 6 October 2020. The landlord also recorded major planned works by way of renewal of the bath, but this was noted as cancelled by the resident as its scheduling was inconvenient.
There is no evidence that an attendance took place on 6 October 2020 but on 9 October 2020 the landlord arranged for its operatives to attend the property to remove the kitchen sink unit and reinstate it, together with the worktop and corner base unit.
The landlord’s internal records show that the visit to assess the kitchen ceiling did not then take place until 19 October 2020. At that attendance the landlord’s operative determined that the ceiling needed to be fully renewed. However, it was not clear as to whether asbestos might be involved, and an asbestos survey was required before the work could proceed. The landlord’s records show this as completed by 30 October 2020.
On 2 November 2020 the landlord’s internal records show it was now ready to raise a works order to renew the ceiling and remove and refit the light fitting.
On 26 November 2020 the landlord arranged for its operative to attend the property regarding a socket in the kitchen which was “tripping” the electrics and needed to be made safe.
The landlord’s internal records show that by 17 December 2020 the resident’s councillor had contacted it, chasing up the outstanding repairs. The landlord telephoned the resident who reiterated that there had been flood damage following a leak into the kitchen from the bathroom. She stated the current situation was that the kitchen ceiling was being held up by a piece of wood; the bath panel was rotten and had not been reinstalled; the bath was damaged internally; her new cooker was not fully working as a result of water damage; the kitchen sockets in the kitchen only worked intermittently; zinc was coming through the bathroom taps and her children had had to have checks at hospital as a result of using that water (the water board were also involved in this aspect of the situation).
The resident commented that she was unhappy that the out of hours electrician had made it clear he resented being called out in the night; the first emergency plumber had made an inadequate assessment of the situation in her opinion; and a further plumber had had to repeat the process. The resident considered these matters had been going on for too long with no resolution and poor communication over what was to happen and when. She wished to pursue her complaint.
The landlord responded the same day and confirmed that a formal complaint had been registered pursuant to the second stage in its complaints’ procedure (the first stage being informal resolution), and that a response would be supplied by 31 December 2020.
On 25 February 2021 the resident submitted an insurance claim form to the landlord for the damage to items in her kitchen totalling £572, she also claimed for damaged flooring of £350 and £60 for redecorating. She confirmed she did not have any contents or buildings insurance. She held the landlord to blame for this damage on the basis the previous repair had not been carried out properly, in her opinion.
On 5 March 2021 the landlord emailed the resident, apologised for the time it had taken to respond to the complaint, and explained as follows:
1. The COVID-19 pandemic had made it difficult to complete “multiple trade works”.
2. It had been looking to repair the bath pending a replacement. Unfortunately, the contractor it would normally use to undertake this work was not currently trading and so it would look at replacing the bath directly instead.
3. The water supply to the property had been a cause for concern and it had renewed the main supply which had not fully resolved the issue. It was working with the water authority to determine the cause of the problems.
4. An insurance claim had been referred to the Local Authority’s insurance team in relation to the cooker.
5. The work to the resident’s property had now been identified as a priority and would be done when it was safe to do so.
6. It was arranging to credit two weeks rent to her account (£200) and to pay to her £250 for the inconvenience caused.
The resident was not satisfied with this response and requested the complaint be escalated to the next stage of the landlord’s complaints procedure (review) the same day.
On 19 May 2021 the landlord emailed the resident, noting it had been contacted by this Service as her request for a review had not met with any response. The landlord confirmed it could find no record of the request and asked the resident to provide a copy of it. The resident responded that the request had been made by telephone.
On 20 May 2021 the landlord emailed the resident. Its staff member had been under the impression the resident was satisfied with the outcome of the complaint and closed it. It confirmed that if repairs were outstanding at the end of a complaint, it would not normally keep it open whilst they were carried out. However, if they were not carried out within the timeframe agreed in the complaint resolution, it would keep it open. The landlord confirmed it would now carry out the necessary review with a timescale of 20 working days. It also confirmed that the insurance claim fell outside of its complaints’ procedure.
The resident responded the same day and denied she had agreed to the complaint being closed given the kitchen ceiling had still not been repaired, there was a damp issue, and this was affecting her children’s health. She commented there had been poor communication and it had taken the intervention of this Service to get any response from the landlord. This had been ongoing for nearly a year, and she described the situation as “unbelievable”.
On 24 May 2021 the landlord raised a repair for “planned work – renew full ceiling in kitchen/electrician required to remove & refit light fitting for plasterer”.
On 25 May 2021 the landlord confirmed to the resident that a rent credit of £200.88 had been applied to her account as a partial remedy and the repairs were in hand. It asked whether the resident still wanted to escalate the complaint under the circumstances. The resident confirmed by return email that she did because, whilst the repairs were scheduled, they had not actually been carried out. She also commented that the repairs team were not answering questions raised by the Local Authority’s insurance team.
The landlord replied the same day, formally acknowledging her request for an escalation of her complaint and confirming a full response would be provided in 20 working days of receipt of her request (which it was taking to be 19 May 2021).
The work to repair the resident’s kitchen ceiling was completed on 28 May 2021.
On 11 June 2021 the Local Authority’s Insurance and Claims Officer wrote to the resident. It stated that compensation would only be offered where a resident was able to show it had been at fault or negligent in some way and it was legally obliged to make a payment. It confirmed that leaks in the bathroom at the property had been investigated and repaired in November 2019 and August 2020. The landlord maintained both were remedied within agreed timescales and were caused by normal wear and tear. Accordingly, in its view the landlord could not have anticipated or prevented either incident. It denied “there is any evidence of negligence” on the landlord’s part and confirmed it was unable to offer any compensation as a result.
On 17 June 2021 this Service chased the landlord to provide a response to the resident’s request for a review, the landlord’s stated response time having expired.
The landlord wrote to the resident that day with the outcome of its review. The reasons for escalation were understood to be that the resident felt the time taken by the landlord to resolve all issues was unacceptable; that she had had to chase matters, rather than the landlord taking a pro-active approach; that there were still some outstanding repairs; and that the resident had not heard from the Local Authority’s insurance section. Its review had reached the following conclusions.
1. The landlord acknowledged that the service it had offered to the resident had fallen below the standard it aimed to provide. It apologised for the fact it had taken so long to complete all outstanding matters and was pleased to note everything had now been completed. The landlord also apologised for the fact the resident had felt escalating her complaint was the only leverage she had to ensure the outstanding repairs were concluded.
2. The landlord offered compensation to the resident totalling £550, which it calculated as £50 for delays in the complaints process; £400 for service delays and to allow the resident to replace her cooker; and £100 decoration vouchers towards the cost of redecorating the kitchen following repair to the ceiling.
3. Finally, the landlord thanked the resident for bringing her concerns to its attention and confirmed this had given it the opportunity to identify some service improvements and changes to the way it delivered its services.
The landlord was asked by this Service to clarify how it had calculated the compensatory sum for the cooker. It responded on 10 November 2021 stating that it had actually replaced the cooker “like for like” as a gesture of goodwill.

Agreements, policies and procedures

The tenancy agreement between landlord and resident sets out the legal agreement between them. It states that the landlord has responsibility for repairing the structure of the property and this includes internal ceilings. It also states that the landlord will arrange repair and keep in working order the supply of water, gas and electricity (including sockets, switches and light fittings).
The agreement also states “You [the resident] are responsible for decorating the inside of your home and keeping it decorated at all times”.
The landlord’s Home Repairs Policy divides repairs into six categories, emergency same day; emergency; urgent; routine; planned and major. The response timescales are set out as six hours; 24 working hours; three working days; 20 working days; 40 working days and 40 days respectively.
The policy states that where an out of hours call out is required as urgent “make safe” repairs are needed, “a return visit will be required to finish the repair. This return visit will be arranged according to the urgency of the repair in line with our timescales.”
The landlord operates a Complaints and Compliments Policy which sets out that its complaints process follows a three-stage procedure. The first is for an attempt to be made to resolve the issue on an informal basis. If this is unsuccessful then the landlord will carry out an investigation and it aims to provide a final response within ten working days. Should the resident remain unhappy, the landlord will carry out a review by a more senior staff member and aims to provide a response within 20 working days.
The policy states the landlord expects residents “to have appropriate insurance cover for their homes and belongings” and will only consider claims for loss or damage caused by the negligence of one of its staff members or operatives. It also states, “This policy does not cover complaints which are subject to legal action, or which are being dealt with as insurance claims”.
Once the landlord has determined that a service failure has taken place, its Financial Compensation Guidance is applied to determine “discretionary compensation” levels. It sets out that compensation can be offered to cover “quantifiable loss” and also in situations where the resident has suffered avoidable inconvenience, distress, detriment or unfair impact. It states that awards for a resident’s time and trouble in pursuing an issue might typically attract compensation of £100 – £200 with a similar amount payable for their distress and inconvenience.

Assessment

The flood

When considering this part of the resident’s complaint, it is important to note that the kitchen ceiling at the property was damaged by the flood to the extent that it had to be completely replaced. This evidences the severity of the situation. It would be reasonable for the occupant of any property, discovering this in the middle of the night, to be alarmed and distressed.
It is helpful to note the events in this case took place in the early hours of a Wednesday. The resident immediately contacted the landlord who acted appropriately in treating the situation as “Repairs out of hours” and arranging an immediate callout as provided for in its repairs policy.
The landlord’s records describe the situation as “uncontainable leak from bathroom flooding property” for a plumber to attend to; and “make safe electrics after leak” for an electrician to deal with. Both attended to make the property safe – pending normal daytime activity. A note, attached to both attendances, reads “the tenant is going to her mums – no water and no electric in kitchen. Please can you find out the follow on required. The tenant will need appointment”.
However, the landlord’s records then show that once morning had arrived, it raised a “Repairs Responsive” order categorised as “urgent within 3 working days” with a description of, “follow on – plumber to attend to repair leak under bath”, and with the narrative “minor leak where leak is containable by resident within property”. The landlord then left a message on the resident’s phone stating its plumber would attend on Friday – that is another 48 hours away.
It was only when the resident contacted the landlord to question the position that the plumber’s appointment was moved forward – that is to the Thursday.
The landlord’s records show that no appointment was made for an electrician to reattend to sort out the electrics in the kitchen (which remained switched off) until the resident’s contact and a repair was not then raised until the Thursday anyway. A same day attendance was then arranged but because the resident was not in the property, there was no access, and a repeat visit took place the following day (Friday).
In the Ombudsman’s view, even though the resident had left to stay with a relative, the landlord might reasonably have been expected to treat these follow-on actions as “emergency” and requiring an attendance within 24 hours given both the water and electricity supply were disrupted and the property was effectively uninhabitable for the resident and her family.
The evidence demonstrates that whilst the landlord’s initial reaction reflected the significance of the situation, it failed to properly identify what was needed moving forward or why it remained so urgent as to require a faster response than a responsive repair (or a same day repair not booked until the day after in the case of the electrics). The delay was short lived, but it nevertheless represented a failing in the service it offered to the resident. It has, thus, been considered below at paragraphs 66 – 70 whether the landlord’s offer of redress was reasonable in this case.
For the sake of completeness, two further issues have been noted on this part of the complaint.
Firstly, and also on the Friday, the landlord arranged for a plasterer to check the damage to the kitchen ceiling – as part of ‘the follow–on’ from the flood. It classified this as a routine repair which, according to its repairs policy, was to be dealt with in 20 working days – that is by late September 2020. Whilst the resident has referred to the ceiling being “held up by a piece of wood” there is no further evidence on this point. There is no suggestion that the ceiling was in danger of imminent collapse – making it a hazard to the resident (indeed it was not ultimately replaced for nine months and remained intact). However, the evidence does convey that it was a repair which obviously needed dealing with, and the sooner the better as far as the resident was concerned. There is no evidence from which to confirm, however, that it was an emergency repair. The question of how the landlord handled the ongoing repairs is considered further below.
Secondly, it is the resident’s view that the flood was caused by an inadequate repair being carried out previously by the landlord. This Service is unable to give an expert view on what caused this flood, and none has been provided in support of the resident’s opinion on the cause of the flood. The issue will not, therefore, be considered further.

The consequential damage

In the absence of any evidence from which to confirm the remaining repairs caused by the flood needed to be carried out as an emergency, it is reasonable to categorise them as routine with a response time, according to the landlord’s repairs policy of 20 working days. The exception to this is the reinstatement of the kitchen light which might have been classified as urgent from a health and safety point of view and hence with a response time of three working days.
The evidence shows that it was clear to the landlord from immediately after the flood that a repair was required to the kitchen ceiling as it arranged for an attendance on the Friday – two days afterwards (28 August 2020). However, according to its records it was not until 30 September 2020 that it looked at arranging an inspection to confirm what was required. This was already outside its policy timescale. It took a further three weeks to decide the ceiling needed to be fully replaced and to identify an asbestos survey was required (19 October 2020). The latter was arranged, and the landlord was ready to proceed by the beginning of November 2020. However, the repair was not then completed until 28 May 2021, some seven months later (and nine months after the original flood).
The landlord agrees that there was an unacceptable delay, although it reports being hampered in part by the COVID-19 pandemic and the restrictions resulting from it. In the Ombudsman’s view there was a delay, and whilst it is reasonable to conclude that the restrictions did not help matters, a significant proportion of it might reasonably have been avoided.
Further, the landlord’s records show that the kitchen light was not “reinstated” until 11 September 2020, some two weeks after the flood – suggesting it was out of action during that period. Given it might reasonably have been identified as an urgent repair involving a health and safety issue, this delay was also inappropriate.
For the sake of completeness at this point, reference has been made in the evidence to other works taking place in the kitchen, relating to the refixing of the worktop and a base unit, and also to the bath needing replacing. However, the evidence does not specifically confirm that these issues were as a result of the flood. There is no evidence of works being raised to replace the bath panel. If these works were included, the evidence shows that all repairs were finalised by the time the final complaint response was provided in June 2021 and so any delays did not extend beyond those already being considered.
As stated above, as part of its complaint response, the landlord has accepted that there were delays and a lack of communication and that its service had not met its expected standards. That admission was appropriate given the circumstances of this case.
It is therefore necessary to now consider whether the landlord offered a fair resolution to the complaint, not just for the delays to the ongoing repairs but for the way it handled the initial aftermath, as set out in the first part of the complaint above.
The impact upon the resident must be considered at this point. She was put to time and trouble in chasing the repairs. In the very short term, she was left without water and electricity for longer than was necessary. In the longer term she had to live without a light in the kitchen for two weeks, and with ongoing outstanding repairs for nine months. The landlord offered compensation of £400 for this. It is noted that it also gave her a rent credit of £200. Put together, it is the Ombudsman’s view that this represented fair redress for the service failings identified.

In respect of the resident’s quantifiable losses, she made an insurance claim to the Local Authority for damaged belongings/flooring of £922. This claim was rejected on the basis no ‘blame’ had been proven against the landlord. The resident has suggested that this conclusion is incorrect and stems from the fact the landlord supplied incorrect information to the Local Authority’s insurance team. As indicated above, that complaint does not form part of the scope of this investigation.
In any event, the landlord’s Compensation and Compliments Policy provides that it expects residents to secure their own home contents insurance. Its insurance is only relevant where the damage is caused by its ‘negligence’. As set out in paragraph 59 above, it has not been established that the landlord was responsible for the flood. Where the resident does not possess her own home contents insurance, no obligation is created for the landlord to undertake the replacement of damaged property.
In any event, the landlord states that it replaced the resident’s cooker “like for like”, and this has been taken into account as part of the remedy. Additionally, the landlord offered compensation of £100 for redecoration. It is noted that the tenancy agreement states this is the resident’s responsibility rather than the landlord’s. It is also noted that when the insurance claim was completed by the resident, she claimed £60 for redecoration but has rejected the landlord’s stated £100 as inadequate.
In the Ombudsman’s view, a total remedy of £500 (£400 + £100 for decoration) plus a replacement cooker, and a £200 rent credit represents reasonable redress for the service failures complained of.

The resident’s complaint

The resident made her complaint on 28 August 2020. The first step in the landlord’s complaints process is for it to consider any issues raised on an informal basis. However, there is no evidence of the landlord attempting to do so. Neither did it treat the complaint as being a “formal complaint” under step two of its process. There is no evidence of the resident chasing the situation until 17 December 2020 when the landlord noted in a telephone conversation that the resident wished to pursue her complaint. This suggests that initially an informal approach was being taken.
Whilst the landlord stated it would then supply a response by 31 December 2020, it did not actually do so until 5 March 2021. The resident requested the complaint be escalated the same day as she was dissatisfied with the outcome, but a review response was not given until 17 June 2021. The landlord’s policy provides for responses to be given in 10 and 20 working days respectively and it can be seen there was a significant delay on the landlord’s part in dealing with the formal complaint at both stages. This was inappropriate in the circumstances.
Additionally, this Service had to chase the landlord to deal with the escalation request and to produce the review outcome. It is reasonable to conclude that without these prompts, the responses would have been delayed further.
Whilst the landlord did not explicitly accept a service failure in respect of its handling of the complaint within its review response, it did offer compensation “for delays in the complaints process”. It was appropriate that the landlord recognised this. The amount involved was £50. However, the resident was left without a response for a significant amount of time and was put to time and trouble in having to chase the situation, not just with the landlord but by enlisting the assistance of this Service. The landlord’s own Financial Compensation Guidance anticipates compensation of £100 to £200 under these circumstances and in the Ombudsman’s view the amount offered fell short given the amount of delay involved and the need for the resident to enlist assistance to move her complaint forward. The landlord might reasonably have been expected to offer £100 in recognition of the impact on the resident of its delays.

Determination (decision)

The Flood

In accordance with paragraph 55(b) of the Scheme the landlord has offered reasonable redress in respect of its handling of the resident’s reports of a flood in her bathroom.

The consequential damage/repairs

In accordance with paragraph 55(b) of the Scheme the landlord has offered reasonable redress in respect of its handling of the resident’s reports of consequential damage to the bathroom and kitchen in her property.

The resident’s complaint

In accordance with paragraph 54 of the Scheme there was service failure by the landlord in respect of its handling of the resident’s complaint.

Reasons

There was a flood at the resident’s property and whilst the landlord’s out of hours response was appropriate there was a small (but significant) delay in it re-establishing the water and electricity supplies at the property. The outcome of the flood was that further repairs were required, albeit on a more routine basis. There were significant delays in dealing with these, although the landlord was frustrated to some extent by the COVID-19 pandemic and the challenges it has posed.
The landlord has offered the resident compensation (including decorating vouchers) together with a rent credit and replacement cooker, which the Ombudsman considers represents fair redress for those service failings.
The landlord was slow to handle the resident’s complaint and needed prompting by this Service. It offered compensation of £50 but the Ombudsman’s view is that £100 would be a fairer offer under the circumstances and in accordance with the landlord’s own Financial Compensation Guidance.

Orders and/or Recommendations

Orders

The landlord to pay to the resident £100 compensation in respect of its handling of her complaints.
The landlord to confirm to this service within four weeks that it will comply with this order.

Recommendations

The landlord to re-offer the compensation of £500 (£400 plus £100 for decoration), if this has not already been paid, given this recognised genuine elements of service failure and the above findings are made on that basis.