Great Places Housing Association (202001773)

REPORT

COMPLAINT 202001773

Great Places Housing Association

16 December 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:
1. Handling of a leak.
2. Response to the resident’s concerns about defects to the boiler.
3. Refusal to refund car parking charges for the period when the resident was not living at the property.

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 paragraph 39(a) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction – the landlord’s refusal to refund car parking charges for the period when the resident was not living at the property.
Paragraph 39(a) of the Scheme says that the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.
The issue of a refund of car parking charges was raised in March 2021 after the complaint had completed the landlord’s formal complaint procedures. The landlord has refused to refund these charges on the ground that the property was not unhabitable. As this matter has not been considered formally, this Service has not seen evidence to support the resident or landlord’s position in this case and is therefore unable to reach a finding. It is open to the resident to make a fresh complaint on this matter. This report will therefore focus on the landlord’s handling of a leak and its response to the resident’s concerns about defects to the boiler.

Background and summary of events

Background

The resident’s lease with the landlord started in late 2017. A managing agent provides residential property management services to the landlord. It has no vulnerabilities recorded for the resident. The property is a in a block made up of twenty apartments.
Under the terms of the lease, the resident has an obligation, among other things, to keep all gas apparatus clean and in good and substantial repair and condition. The landlord is required to keep the building insured against loss or damage by fire and such other risks as the landlord may determine.
The definition of section 20 qualifying works is major works of maintenance, repair or improvement to a building that a freeholder is responsible for and towards which the relevant leaseholders are required to contribute under the terms of the lease. Under section 20 of the Landlord & Tenant Act 1985, freeholders are obliged to consult with leaseholders if the works are set to cost any one leaseholder more than £250. Where the works are so urgent that the landlord does not have time to consult, landlords can make an application under section 20 to ask the First Tier Tribunal to dispense with the requirements to consult.
There are three stages to the section 20 process. The landlord is required to write to leaseholders at each stage of the process.
1. Stage 1 – Notice of intention to carry out works: the landlord provides details of the works to leaseholders together with an explanation of why they need to take place. Leaseholders will be invited to comment on the proposed works and nominate a contractor to provide a quote; they have 30 days in which to respond.
2. Stage 2 – Statement of estimates: the landlord provides leaseholders with a summary of comments received from stage one; and a summary of two estimates for each item of work together with details of where they may be inspected or obtained. Leaseholders have 30 days in which to respond with their comments.
3. Stage 3 – Notice of reasons: If the selected contractor is not a nominee provided by the leaseholders or is not the lowest estimate, the landlord must serve a notice of reasons. This must state the reasons for awarding the contractor or specifying where and when the statement can be inspected.
4. The landlord can advise that it will write again to confirm which contractor has been appointed and the date that works will be carried out, together with confirmation of the cost of the works and the contribution required from each leaseholder.
The landlord’s repair policy says that an emergency repair is anything causing immediate risk to the health, safety and security of any occupants and/or visitors to our properties or causing immediate damage to a property’s structure, fixtures and/or fittings. A routine repair is where any repairs can be completed without serious discomfort, inconvenience or nuisance to the tenant or others or are not causing long-term deterioration of the building. It aims to complete all routine repairs in one visit and aim take as little time as possible.
The landlord has a three stage complaints procedure. At the first stage it aims to resolve matters informally (“nip it in the bud”) and will respond to the resident within five working days. At stage two (“right first time”), a service manager will aim to respond to the complaint within 15 working days. A resident can ask for a case review if they feel the complaint has not been addressed fully. This is stage three where an independent manager will review the complaint response and respond within 15 working days.
On 23 March 2020 the UK government announced a national lockdown due to covid-19. This was eased from June 2020 when schools and non-essential retail outlets re-opened. The government introduced new restrictions from 22 September 2020 and a second full national lockdown was announced on 31 October 2020 that came into effect from 5 November 2020. While restrictions were lifted slightly over Christmas, there was a new national lockdown from 6 January 2021.

Summary of events

On 31 July 2019 the managing agent sent the resident a section 20 notice of intention for interior and external redecoration works (paragraph 9).
On 19 August 2019 the resident reported a leak.
On 20 August 2019 the managing agent told residents about the leak and said it would include this issue with the upcoming decorating to avoid duplicate scaffolding costs. On the same day the managing agent told the resident it would investigate the leak.
On 3 September 2019 a notice of estimates was sent to residents (this referred to costs in relation to the original schedule of works for decorating only – paragraph 9).
On 30 September 2019 the managing agent visited the block and deemed the stains as being from historic leaks, not active ones. It offered to investigate the damp stains but the resident refused as it would have meant taking down part of the ceiling and there was still no guarantee that the leak would be traced.
On 3 October 2019 the managing agent wrote to all the residents who had reported water ingress saying it would wait until decorating works were being carried out to investigate the water ingress further. It provided insurance details so residents could make claims for damages.
On 28 October 2019 the managing agent wrote to the leaseholders detailing the additional specification of works required following re-scoping by surveyors which had been submitted as part of the invitation to tender.
On 18 November 2019 the resident made a formal complaint to the managing agent about the property being badly damaged by a leak entering the kitchen and living room. He said, despite reporting this, the managing agent had not addressed this issue. He said there were now large damp patches in the kitchen and living room.
On 27 November 2019 the managing agent sent a second notice of estimates to residents. The managing agent told this Service that, despite all the reviews carried out, it had discovered that all works within the revised scope of works had not been captured within one of the submissions received and was not therefore offering a true comparable.
On 4 December 2019 the managing agent sent a third notice of estimates to residents. The 30–day consultation would end on 3 January 2020.
On 5 December 2019 the managing agent responded to the resident’s complaint. It gave details of the section 20 process. The main points were:
1. The resident had reported a suspected leak on 19 August 2019 having noticed a stain on his ceiling and also suspected blocked gutters. A contractor advised that scaffolding would be needed and, as external decorating was already being arranged in the near future, the decision was taken on economic grounds to wait to clear the gutters when the scaffolding was erected. This information was conveyed to all residents in a letter dated 20 August 2019.
1. The property manager did attempt to arrange an inspection of the property as quickly as possible with the repairs field manager who could give technical advice. Unfortunately, he was not available to visit until 30 September 2019. During that visit it had advised that the water marks on the ceiling appeared dry and of a historic nature. It had offered to arrange further investigations (which would have involved breaking into cavity wall spaces) but that had been declined by the resident and agreement was reached that progressing the works to the gutters, down spouts and roof was the most suitable option.
2. It accepted that during recent heavy rain fall that water ingress had occurred into the property and water stains were observed during its visit on 4 December 2019.
3. It was not possible to say definitively the causes of the water ingress into the property at that stage but several potential causes had been identified, all of which had been brought together into a specification of work; this additional work had been retendered with the original decorating works.
4. It was accepted that the water ingress had caused damage to the property, including to the decorating, work top and kitchen unit. Damage of this nature would be covered by insurance, however the water ingress needed to be remedied prior to making good works within the property.
5. It explained that the section 20 consultation process had contributed to the delay in carrying out the works. It said the original notice of estimates was for the decorating work only and therefore it had to extend the scope.
6. The 30-day consultation period ended in the first week of January 2020 and every effort would be made for work to commence in the week commencing 6 January 2020.
The managing agent explained how the resident could escalate the complaint.
In an internal email dated 19 December 2019, the managing agent noted the requirement for a principle designer given that there was more than one contractor.
On 13 January 2020 the managing agent told the resident that contractors had been appointed and the work should commence on 27 January 2020. On 4 February 2020 a revised start date due to severe weather was communicated to residents via a notice on the noticeboard.
On 3 February 2020 the representative made a formal complaint to the landlord on behalf of the resident. He said that the water ingress issues had not yet been resolved satisfactorily.
On 6 February 2020 the managing agent responded to issues raised in a letter of complaint from the resident dated 30 January 2020. The main points were:
1. Contractors should have started on the repairs to address the water ingress.
1. The appointment of the project designer had delayed matters and then there was a process that had to be followed
2. With regard to the damage to the property, it said that making good any damage caused by water ingress would be covered by insurance and it would be refunded the excess charge of £100.
3. Due to the costs of scaffolding and the requirements of section 20 consultation process, it had not been possible for repair works to be undertaken any sooner.
On 26 February 2020 the managing agent wrote to the resident following a meeting with him and the representative the previous week. The main points of this letter were:
1. Scaffolding had been delayed due to inclement weather. Scaffolding was due to be in place by 27 February 2020 and a roof survey would be undertaken on 28 February 2020.
1. It did not consider compensation was appropriate as it could not be responsible for issues beyond its control such as delays caused by formal consultation and contractors not acting as quickly as planned.
On 3 March 2020 the managing agent wrote to the resident saying the landlord had carried out an initial assessment of the roof which had identified a tear in the roof membrane and the need for a new hopper to be fitted to the top of rainwater pipe. It said these two repairs would be carried out as quickly as possible.
On 26 March 2020 the resident told the managing agent that the night before last his boiler had had a major leak. He said he had called out a gas engineer who found that the boiler was beyond repair. He also found that the flue was “blocked and therefore flooding down”. He asked the landlord what it was going to do.
On the following day the managing agent responded. It explained that the boiler was part of the fixtures and fittings of the property and therefore his responsibility to maintain. It added that the block had met all building regulations required and had been signed off by the relevant authorities and, while building regulations might have changed since that time, such changes were not retrospective and it was unable to offer any further assistance regards the boiler.
Also on 26 March 2020, the representative had written to the managing agent with a compensation claim for £4,000 for the resident made up of £2,000 for the delay in works being carried out; £500 for the delay in considering the complaint; £1,000 for distress and inconvenience; and £500 for time and trouble.
On 15 April 2020 the managing agent wrote to the representative in response to the compensation claim. The managing agent acknowledged that the water ingress had caused distress to the resident but said that poor weather conditions – as well as causing further leaks – had resulted in delays in the contractors/surveyors ability to access the property. However, it refused the claim saying that it was largely made up of missed work for the resident and said that meetings could have been arranged at a time that had been convenient for him such as evenings as it often did for residents.
On 4 May 2020 the managing agent wrote to the representative. It said that there was no clear evidence that it had acted with negligence. It acknowledged that the resident had suffered inconvenience and distress as a result of the water ingress. It also accepted that it had a repairing obligation and to ensure that works were carried out to protect the fabric of the building, however, as the value of the repair exceeded £250 per unit, it also had an obligation to follow the section 20 consultation procedures. It said it would consider compensation including lost income, if this could be supported by evidence.
On 12 May 2020 the representative wrote to the managing agent saying its response of 4 May had not answered when the work would be completed or when would remedial action be taken to stop damage to the resident’s property; he added that the issue of compensation had not been fully addressed.
In response to an enquiry from the representative, the managing agent wrote to him on 1 June 2020 saying the only works currently outstanding were the resealing around the external window frames of a number of the flat windows. It said that all major works including the internal and external redecoration and major roof repairs (including guttering) had been successfully completed by 23 March 2020 prior to lockdown. It added that works to the interior of the resident’s property would commence in line with government pandemic guidance on repairs inside a property. It said there was no clear evidence to support any claims that the landlord had acted in a manner than could be classed as negligent.
On 28 August 2020 the representative made a further formal complaint to the managing agent saying that the issues had not been rectified.
On 24 September 2020 the managing agent told the resident that its contractor would be back on site on 28 September 2020 to complete the outstanding works (subject to no heavy rainfall). It added that it had asked residents not to park in the two spaces they required to be empty.
On 30 September 2020 the managing agent issued its final complaint response under its formal complaints procedure. The main points were:
1. It was satisfied that it had provided detailed explanations as to why there had been delays to works noted in the section 20 consultation and subsequent progress reports. It explained that the outstanding work was the external sealing of the windows and the delay had been due to staff and contractors’ availability during the pandemic; being unable to carry out work in the weeks commencing 27 July and 28 September 2020 due to parked cars in the spaces where the cherry picker needed access; and not having a property manager in post from July to September 2020.
1. The contractor would visit the building to try to complete these works on 6 October 2020.
2. Whilst the work to the exterior was outstanding, the work to the roof and gutters had been completed which were the main sources of any leaks and water ingress. It could see no reports of further leaks or the outstanding work having a detrimental effect on being able to use their premises. It said that the resident should let it know if he was experiencing further leaks.
3. It acknowledged that there could have been more communication with residents about the contractors needing access but the work may take time to complete if it could not find the owner of the vehicles parking in those spaces. It added it did not hold registration details for vehicles and there was no allocated parking at the block.
The managing agent signposted the resident to the Ombudsman.
On 15 March 2021 the managing agent contacted the resident to arrange a refund of the building insurance excess he had paid.
When the representative approached the Ombudsman, he said that the issues had recently been resolved in October 2021 when a window near the boiler was resealed. He said that the resident was seeking compensation and for his car parking charges to be refunded for the period he was not living at the property.

Assessment and findings

This report has focused on events from the resident’s first report of a leak until the managing agent’s final complaint response dated 30 September 2020.

The landlord’s handling of a leak

The landlord had an obligation to follow the section 20 process when carrying out work that will be funded by leaseholders (paragraph 9). In this case, a notice of intention had already been issued when the resident reported a leak in August 2019 (paragraphs 13 and 14). The managing agent decided that the work to resolve the leak would be included in these decoration works. At this point a new notice of intention should have been issued to inform residents of this additional work. It is obligatory for the landlord to follow the section 20 process except in urgent situations where a dispensation can be applied for from the First Tier Tribunal (paragraph 8). There is nothing to suggest that the leaks in this case were such that they required such urgent attention.
Had a new notice on intention been sent out in early September 2019 (when the notice of estimate was sent out for the decoration work only – paragraph 16) then it is reasonable to presume that work to investigate and remedy the leak would have started within six months. This time period takes into account the two consultation periods of 30 days each (paragraph 9) and giving time to appoint a principle designer (paragraph 25) and for the contractor to schedule the works.
The work started in March 2020, having been delayed by severe weather (paragraph 26). This does not suggest that the delay in the section 20 process had any great impact on the timescales in this case.
In March 2020, some seven months after the leak was reported, a potential source of the leak was identified. It was not clear from the evidence provided by the landlord when work took place but, by June 2020, the managing agent told residents that all work had been completed except for the seals around some external window frames (including the resident’s).
Work on those outstanding repairs did not start until September 2020. This Service has not seen evidence of why there was three-month delay at this stage but considers the managing agent’s explanation that it was due to staff and contractor availability during the period of lockdown (paragraph 40) to be reasonable. There were further delays in late September 2020 as the cherry picker could not get access to the building due to parked cars. Whilst this was evidently frustrating for the resident, this Service understands that the landlord does not own the car park and therefore had no power to keep spaces empty prior to the days the cherry picker was due to attend.
It was appropriate for the landlord to direct the resident to make a claim on its buildings insurance for the damage sustained to the property by the water ingress (paragraph 18. It was also reasonable that it agreed to reimburse the £100 excess (paragraph 42).
The landlord’s made a choice, albeit an economic one (paragraph 15), to include the investigation of the leak in the planned works. This resulted in a delay in the issue being resolved. The landlord had a repairing obligation under the terms of the lease (paragraph 7). The landlord assessed the leak as a non-emergency (paragraph 17) and, while it was not responsible for any delays due to section 20 and the pandemic, the time taken to repair the leak – of over two years – is not reasonable. That was a service failure.
The landlord agreed to consider compensation for the resident but has refused to pay the sum requested of £4,000 (paragraph 33). The ground for refusal was that the claim was mainly made up of lost income due to meetings and, had it been aware that arranged meetings had not been convenient for the resident, it could have re-arranged to an evening (paragraph 34). While this was not unreasonable, the landlord has failed to consider the impact of the length of time in resolving the leak on the resident.
In relation to the failures identified, the Ombudsman’s role is to provide fair and proportionate remedies where maladministration or service failure has been identified. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes as well as our own guidance on remedies.
The delays in resolving the leak evidently caused the resident frustration and inconvenience. Financial compensation is therefore appropriate in this case and an order has been made, below, that reflects the delay in resolving matters for the resident.

The landlord’s response to the resident’s concerns about defects to the boiler.

Under the terms of the lease, the boiler is the responsibility of the resident. The landlord’s response that it was not its responsibility to repair or replace was reasonable; it was also reasonable to direct him to make a building insurance claim if he believed the boiler had been damaged by the water ingress (paragraph 34).

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of a leak.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of its response to the resident’s concerns about defects to the boiler.

Reasons

The landlord decided to follow the section 20 process which, along with the pandemic, resulted in unavoidable delays. However, the landlord also had a repairing obligation, and the over two-year delay in resolving the leak was not reasonable. The landlord acted reasonably by signposting the resident to make a claim on its building insurance and refunding the excess.
The landlord is not responsible for the boiler under the terms of the lease. It acted appropriately by signposting the resident to make a claim on its buildings insurance of he believed the damage to the boiler was caused by water ingress.

Orders

The landlord shall take the following action within the following four weeks and provide evidence to the Ombudsman of such action:
1. Apologise to the resident for the delay in resolving the leak.
2. Pay the resident compensation of £250 for the inconvenience, distress and frustration caused by this delay.