Hightown Housing Association Limited (201915457)

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REPORT

COMPLAINT 201915457

Hightown Housing Association Limited

29 September 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

  1. The resident has complained about the landlord’s handling of requests that it carry out work to remedy various faults found when he moved into his shared ownership property in November 2019. 
  2. The resident has complained about the landlord’s handling of his report of a leak in his bathroom.
  3. The resident has also complained about the landlord’s actions in relation to the faults in his property following the final complaint response of 15 October 2020.

Jurisdiction

  1. 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.
  2. After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction.
  3. Paragraph 39(a) of the Housing Ombudsman Service states that “The Ombudsman will not investigate complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure”. A landlord should have the chance to consider and resolve a matter complained of within its Complaints Procedure before this Service can assess how it dealt with the matter complained of.  In line with paragraph 39(a) this investigation has focussed on the matters raised within the complaint that exhausted the landlord’s complaints procedure on 15 October 2020 and the landlord’s actions in relation to the faults in his property following the final complaint response of 15 October 2020 is outside the jurisdiction of this Service to consider.
  4. Events occurring after the completion of the complaints procedure have been summarised to place the resident’s complaint in its current context. It is noted that the resident has raised another complaint with this Service under the reference 202009996 which covers the rectification of defects after the 12 months end of defects period and the insurer’s Technical Manual Report of 16 October 2020. Therefore, matters complained of by the resident that have arisen after 15 October 2020 may be considered within complaint 202009996.

Background and summary of events

Policies and Procedures

  1. The resident’s Terms of Offer states that there is generally a twelve-month defects period on the property effective from the date of handover to the landlord. 
  2. The lease states that it is the resident’s responsibility to “To repair and keep the Premises in good and substantial repair and condition”.
  3. The landlord’s Homeownership Handbook states with regards to “Faults in the first year”, that “Defects are faults that occur in your newly built home in the first year due to poor workmanship, quality, performance or design. Defects are not wear and tear. The builder is responsible for fixing these faults within the first 12 months of your home being built, which is referred to as the ‘defects liability period’”. The Handbook states that the landlord will reports faults/defects on the resident’s behalf and “the builder will then contact you directly to arrange a convenient time to inspect your home and fix the fault.”
  4. With regards to the timescales for fixing faults, the Handbook states: “Minor cosmetic faults (such as shrinkage cracks thicker than a £1 coin) may only be rectified at the end of defects inspection. This is because the builder will want to make sure your home has fully adjusted to being occupied”. Otherwise, the landlord will liaise with the builder and ask it to meet the landlord’s response times which are:
    1. “Emergency – Within 24 hours

A problem that puts the health, safety or security of people at immediate risk.

  1. Urgent – Within 3 working days

Fault causing discomfort, inconvenience or nuisance and likely to lead to further deterioration of the building.

  1. Routine – 20 working days

Fault that does not cause serious discomfort, inconvenience or nuisance.”

  1. With regards to complaints about defects, the Handbook states: “If you have a complaint about the way your defect is being dealt with, this will be looked at informally under our defects complaints process below.
    1. 1. Please bring the matter to the attention of the Development Officer for your home. They will liaise with the builder and seek to resolve the matter to your satisfaction within 7 working days.
    2. 2. If you are still dissatisfied, please ask for the matter to be escalated to the Development Manager who will seek to resolve the matter with the builder within 10 working days.
    3. 3. If the problem has still not been resolved you can ask for the matter to be considered by the Head of Development who will decide whether it is appropriate for Hightown to step in to carry out the work (and then recharge it to the builder) within 10 working days.
    4. 4. If you are still dissatisfied then you can escalate your complaint through our formal complaints process.”
  2. The resident’s and landlord’s building insurer provides latent defects insurance (Structural Warranty) covering structural defects. The building insurer has a Dispute Resolution Service department which provides a free conciliation service where the insurer attempts to bring both the policyholder and builder together to ensure all valid defects are rectified. During the first two years of the warranty, known as the Defects Insurance Period, it is the obligation of the builder to remedy any defect as notified to them by the policyholder(s). The Dispute Resolution Service is offered should the policyholder(s) not be satisfied with the builder’s response.
  3. Under the Structural Warranty, a defect is defined as “a failure to comply with a Functional Requirement of the Technical Manual which is in force at the time the Policy is executed”.

Summary of events

  1. Handover of the resident’s property from the builder to the landlord took place on 24 September 2019. The resident is a joint shared-owner who completed the sale of his property on 28 November 2019 with his partner. On the same day the resident raised defects with the landlord’s Sales Team.
  2. After the resident raised concerns about the workmanship at his property, the landlord met with the resident on 29 November 2019 and agreed a two-page list of defects, which it referred to the builder providing a target date of 31 December 2019.  A further visit to identify additional works to remedy defects was made on 2 December 2019 with a target date set of 2 January 2020.  A visit was made on 4 December 2019 with a target date of 9 December 2019 set to remedy a kitchen defect.  In a further exchange of correspondence, the landlord advised that the Development Officer would deal with matters in the first instance and the complaint could be escalated to a manager thereafter if unresolved.
  3. On 8 December 2019 the resident emailed photographs of issues he identified as defects in addition to those previously identified. On 15 December 2019 the resident emailed further photographs and with an Excel schedule of items which the landlord also passed to the builder. Around 600 defects were raised.  On 16 December 2019 the resident asked the landlord to escalate his complaint.
  4. On 16 December 2019 the builder with the landlord inspected the resident’s property to identify the location and nature of the defects and identified 67 defects.  The landlord’s records show that that the builder attended to several issues between 29 November 2019 and 8 January 2020 at the resident’s property.
  5. In an exchange of correspondence between 2 January 2020 and 10 January 2020 the resident reiterated his request for his complaint to be escalated and for the landlord to complete remedial works itself as the builder had advised his MP that all issues were minor. The landlord stated it was still awaiting the builder’s progress report, and that it had jointly suggested with the builder at the meeting on 16 December 2019 for the resident to contact the building insurer and ask for its attendance.  It also attached the snagging sheet, dated 17 September 2019, for the property prior to handover. 
  6. On 14 January 2020 the landlord further advised that when the resident had asked to escalate the complaint on 7 January 2020, the first set of defects reported to the builder were beyond the target date of 28 days, therefore it then asked the builder to respond within 28 days. The landlord stated that it had now received the builder’s response which stated that all defects logged apart from a repair to the back door and bath sealant, would be dealt with at the 12 months end of defects inspection, which was due by 23 September 2020.  The landlord further stated that the builder had also advised that the defects on the list of 16 December 2020 would be picked at the 12 months end of defects inspection.  The landlord also confirmed that it would now escalate the complaint.
  7. On 22 January 2020, the landlord sent the Stage 1 response to the complaint. It summarised the action taken on the case up until that point, noting that it and the builder had inspected the resident’s property on 16 December 2019 to identify defects as opposed to perceived minor blemishes too minor to be addressed.  The landlord noted that the builder identified over 60 defects and had now decided that it would deal with them (apart from urgent items) at the end of the 12 months defect period.  The landlord explained this was because the items were considered to be cosmetic and minor, and the builder had the right to delay rectification until the 12 months inspection which was the “normal opportunity” to rectify settlement cracks and other minor items.  The landlord concluded by stating that it had attended the resident’s property on several occasions to resolve issues and had been proactive in its dealings. 
  8. Also, on 22 January 2020 the kitchen manufacturer attended to examine a report of defects to the kitchen units.  Between 6 January 2020 and 9 March 2020, the landlord made 16 separate work requests for the builder to attend to defects, with 13 requests categorised as routine repairs with a 20-working day timeframe, two as urgent works and an emergency order to attend to the front door which did not lock from the outside.
  9. On 3 February 2020 the resident escalated his complaint stating that the landlord had not supported him and sided with the builder due to their contract. He advised the builder had advised his MP that the landlord was blocking works and the only issues that had been corrected were the fire strips, internal door adjustments, the sealing of the splashback to the worktop and the adjusting of the rear door.    Furthermore, he had not been informed of the issues that the builder had accepted. The landlord acknowledged the complaint on 27 February 2020 and produced a progress report on outstanding items:
    1. Mastic around the bath – rectified by the builder on 26 February 2020 and would be inspected on 6 March 2020.
    2. Leak to rear door (only sealed from the outside) – due to be attended to on 6 March 2020.
    3. Bathroom extractor fan – to be inspected on 6 March 2020.
    4. Front door (which the resident had reported as difficult to lock) – the builder had referred the item to the manufacturer to consider.
    5. Kitchen – the kitchen manufacturer had advised that there were no defects with the kitchen, but the builder had agreed to adjust the cupboard door on 6 March 2020.
  10. On 13 March 2020 the landlord with the builder and the resident’s MP attended the resident’s property.  It was agreed that the builder would initiate the dispute resolution service offered by the building insurer.  After the referral the insurer’s Dispute Resolution Service was to carry out a joint inspection to definitively list items that the builder should attend to, i.e. not within a construction satisfactory tolerance level. However, due to the introduction of Covid-19 restrictions the inspection was postponed.
  11. In an exchange of correspondence between 1 and 4 June 2020 the resident provided an updated schedule of defects and asked if the builder could attend to non-urgent defects.  However, the landlord advised that the policies of it and the builder was that only emergencies would be attended to given the Covid-19 restrictions at that time.  The resident advised the landlord that the building insurer had offered to resolve defects remotely and attached a schedule of 403 defects, of which he said 18 were resolved. The landlord asked for the contact person at the insurer as it queried whether defects could be resolved remotely, without physical attendance, but the resident did not respond.
  12. Following contact by this Service, on 24 June 2020 the landlord provided an update to the resident advising that it was awaiting the government to relax Covid-19 social distancing restrictions before it, the builder and the insurer could visit his property.  In the interim it would report additional defects to the builder, but any non-urgent items would be added to the deferred list.  The landlord further noted that the builder would contact the resident to attend to the front door and leaking rear door.
  13. The landlord forwarded the resident’s updated schedule of defects to the building insurer’s Dispute Resolution Service.  Due to Covid-19 restrictions the insurer did not arrange to inspect the resident’s property until 10 September 2020.
  14. In the final response sent on 15 October 2020 (ref 904), the landlord summarised the chronology of the case and noted that it had not yet received the building insurer’s report from the visit of 10 September 2020. It advised that once it was received it would expect the builder to produce a programme to rectify any identified defects.
  15. The landlord also stated that “in respect to the 2 specific defects raised in relation to your front and rear doors, and the shower screen, I appreciate there was a delay in responding to these. This was again due to the restrictions in force due to the pandemic, but I understand that these have now been completed satisfactorily… Throughout this whole period, you have been in contact with both Hightown’s Maintenance and Development Departments by email and telephone and have been kept fully updated on progress with [the builder] and [the building insurer].”

After the complaints procedure

  1. On 27 October 2020, the Dispute Resolution Service provided the Technical Manual Report, dated 16 October 2020, to the landlord which identified the defects.  The landlord’s internal records confirm that it and the builder decided that the insurer’s report should act as the End of Defects inspection report which was due on 23 September 2020. The report considered the 407 items raised by the resident against the relevant Technical Manual and asked for 222 items to be rectified.              
  2. In the Technical Manual Report, in most cases where no defect was identified, the insurer noted that “this is considered a contractual, specification or snagging issue rather than a Defect and not covered in the Technical Manual”. The insurer considers that snagging to cover minor faults, unsatisfactory or uncompleted work where the Functional Requirement is outside of what is required within the Technical Manual.
  3. Thereafter, the resident and the builder liaised with each other, firstly about remedying the defects identified by the Dispute Resolution Service and then about a cash settlement. The resident refused to sign a settlement that included the landlord and on 9 June 2021 the builder withdrew the offer.  The matter reverted to the insurer whose Claims Handling department made a cash settlement. On 16 July 2021 the insurer’ Claim Handling department confirmed to the landlord that a settlement payment had been made to the resident in relation to all defects in the report of 16 October 2020. The resident has since highlighted to this Service that the Dispute Resolution Service did not seek to identify “contractual, specification or snagging” issues and expressed his view that the landlord can take further action to remedy these issues, despite the cash settlement.

Assessment and findings

  1. The resident raised faults in his property from the time he moved in. The landlord carried out inspections on 29 November, 2 December and 4 December 2019 and raised orders for the builder to carry out works with timeframes in line with those stated in the Homeowner’s Handbook for urgent and routine works.  As such, the landlord’s initial response was in line with its procedure for dealing with complaints about defects as outlined in the Handbook.
  2. The landlord’s records show that the builder attended to several issues between 29 November 2019 and 8 January 2020.  However, in the interim, the resident had compiled his own lists of faults, sending them to the landlord on 8 and 15 December 2019. Given the number of additional items raised along with the need for the landlord to ascertain the details and location of the items and match them to the lists, it was reasonable that it and the builder carried out an inspection on 16 December 2019. Significantly fewer defects were accepted by the builder.
  3. In subsequent correspondence the resident asked the landlord to carry out works itself.  This was an option that was open to the landlord under the procedure for dealing with complaints about defects as outlined in the Handbook, with it then being able to recharge the builder.  However, it was not obliged to do so. The landlord had provision under the procedure to seek to resolve matters with the builder, and having decided to explore this route, it was then appropriate that it awaited the builder’s position on the faults reported in the first instance.
  4. The landlord responded on 14 January 2020 having received the builder’s response.  It did not explicitly state whether or not it would step in at that stage but by relaying the builder’s response it made clear that it accepted the builder’s position – that all defects identified by the builder apart from the door and bath would be attended to at the end of the defects period. Ultimately the landlord had carried out inspections and liaised with the builder, therefore it had taken appropriate steps to reach an informed position on the faults reported.
  5. A senior member of staff sent the response of 14 January 2020 but as the resident remained dissatisfied, the next course of action as stated in the Homeowner’s Handbook was for the formal complaints procedure to be followed. The landlord followed the procedure responding to the Stage 1 complaint on 22 January 2020.
  6. Ultimately, the resident remained dissatisfied stating in his complaint escalation of 3 February 2020 that insufficient works to remedy faults had been carried out or agreed, and that the landlord had not adequately assisted him. Given the number of items identified by the resident but disputed by the builder, and the resident’s perception that the landlord had sided with the builder, it was reasonable that the landlord suggested that the parties ask the building insurer’ Dispute Resolution Service to attend. This was because it was a third party who had recourse to find agreement between the parties through its expertise and authority to determine what remedial works should be carried out to defects.
  7. The introduction of Covid-19 restriction delayed the Dispute Resolution Service’s attendance of the resident’s property; however, the landlord (and the builder) had an obligation to follow the government guidelines at that point and therefore there was no service failure on the part of the landlord in respect of the delay.  Within this time the resident suggested that the inspection could be carried out remotely, but there was no evidence provided to the landlord that the Dispute Resolution Service wanted to proceed in this way.  It was therefore reasonable that the landlord did not proceed with this option.
  8. Whilst waiting for the Dispute Resolution Service visit the resident provided an updated list of items he considered as defects. The landlord acted appropriately in forwarding the list to the Dispute Resolution Service as the purpose of its visit was to take a view on all items in dispute therefore it required the most recent list of items.
  9. At the time the landlord sent the Stage 2 response, the Dispute Resolution Service had visited but the parties had not received its Technical Manual Report.  The landlord’s final position that the builder should produce a programme to rectify defects identified by the Dispute Resolution Service was reasonable as that was the primary purpose of involving the Service.  The End of Defects inspection was due whilst the parties awaited the Technical Manual Report.  The landlord has advised this Service that the Technical Manual report was treated as the End of Defects inspection report.  Given that the Technical Manual Report considered all the issues that the resident wanted the landlord or the builder to attend to but which they had not accepted, this was a pragmatic approach.

Leak in the bathroom

  1. The resident in his correspondence to this Service on another complaint raised specific concerns about the landlord’s handling of repairs to a leak in his bathroom. Specifically, the resident stated that the leak has never been responded to as part of the landlord’s complaints process as he was advised to complain to the developers directly.  The landlord advised this Service on 4 June 2021 that “the leak to the bath / shower screen was included within the list of defects reported by [the resident] and was therefore part of his subsequent complaint no. 904. It has also been included in the report prepared by [the building insurer].” This investigation has therefore considered the resident’s complaint about the leak to the bathroom.
  2. The landlord’s records indicate that:
    1. On 29 November 2019 it raised a Routine 20-day order for “Defect Order: please attend to: Bathroom – Sealant to bath corner, paint around cistern, Repaint skirting board below towel rail”.
    2. On 25 February 2020 it raised an Urgent 3-day order for “Defect: Please attend to repair leak under bath appears to be coming from the sealant around the shower area.”
    3. On 3 March 2020, it raised a Routine 20-day order for “please attd to Resident claims bath is not installed against the wall, which will lead to ongoing issues, also noticed the lower support for the bath panel is not installed parallel to the wall and where the bath has been attached to the wall the water p.”
    4. On 8 July 2020, it raised a Routine 20-day order for “Defect Order. Despite previous visits, the bath is leaking again. Also, the tile trim in the bathroom is coming away from the tiles/grout at the end of the bath, this has the potential to allow water to leak under the bath. Please see attached photo.”
    5. On 20 August 2020, it raised a Routine 20-day order for “Defect Order. Please attend to the replacement shower screen that is leaking that is leaking in the same place as the previous screen but worse than before. Please see attached video.”
    6. On 20 August 2020, it raised a Routine 20-day order for “Defect Order. Please attend to a new leak between the bath & the wall that occurs when showering. Assumes due to the bath being raised then lowered and breaking the silicone seal. Please see attached photos.”
  3. The landlord’s records and Technical Manual Report confirm that the issue was included for consideration by the building insurer’s Dispute Resolution Service but that the builders replaced the shower screen prior to the visit of 10 September 2020. The bath was also levelled and resealed.
  4. It is evident from the above works orders that it was not disputed that there should be works to remedy the leak in the bathroom, which arose from the installation of the shower screen and bath. It is evident that the time taken for the defect to be successfully resolved was lengthy, with several visits carried out.  The delay was also exacerbated by the period when the builder could not attend due to Covid-19 restrictions, which inevitably contributed to the resident’s distress and inconvenience.  However, in raising the orders with Routine and Urgent timeframes, the landlord took action in line with the procedure for remedying faults, as set out in the Homeowners Handbook, to facilitate resolution of the leak in the bathroom.
  5. The landlord also ensured that the defects with the bath and shower screen were on the list for consideration by the building insurer’s Dispute Resolution Service, therefore enabled the matter to be resolved through this route, if necessary.
  6. The landlord provided the resident with its snagging list prior to handover on 6 January 2020, confirming that it inspected the property before handover.  It is usually the case that despite such snagging lists faults will be identified in the defects period. However, given the number of faults reported by the resident, it is recommended that the landlord review its policies and procedures prior to the handover of new build properties with a view to minimising, if possible, the number of faults that later arise.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the complaint about the landlord’s handling of requests that it carry out work to remedy various faults found when the resident moved into his shared ownership property in November 2019. 
  2. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of the complaint about the landlord’s handling of the resident’s reports of a leak in his bathroom.

Reasons

  1. The landlord’s initial response to the resident’s reports of defects was in line with its procedure for dealing with complaints about defects as outlined in the Handbook. Given the number of additional items raised along with the need for the landlord to ascertain the details and location of the items and match them to the lists, it was reasonable that it and the builder carried out a further inspection on 16 December 2019.
  2. Although the resident requested that the landlord carry out remedial works itself, it was not obliged to do so. Ultimately the landlord had carried out inspections and liaised with the builder, therefore it had taken appropriate steps to reach an informed position on the faults reported.
  3. Given the number of items identified by the resident but disputed by the builder, and the resident’s perception that the landlord had sided with the builder, it was reasonable that the landlord suggested that the parties ask the building insurer’ Dispute Resolution Service to attend. It was also appropriate that the landlord provided the Dispute Resolution Service with an updated list of items the resident considered as defects.
  4. The landlord’s final position that the builder should produce a programme to rectify defects identified by the Dispute Resolution Service was reasonable as that was the primary purpose of involving the Service
  5. With regards to the leak in the bathroom, in raising the orders with Routine and Urgent timeframes, the landlord took action in line with the procedure for remedying faults, as set out in the Homeowners Handbook, to facilitate resolution of the leak in the bathroom. The landlord also ensured that the defects with the bath and shower screen was on the list for consideration by the building insurer’ Dispute Resolution Service, therefore enabled the matter to be resolved through this route, if necessary.

Recommendation

  1. It is recommended that the landlord reviews its policies and procedures prior to the handover of new build properties with a view to minimising, if possible, the number of faults that later arise.
  2. The resident is to provide evidence of his supplier’s report alongside the cost of carpet replacement. The landlord should then consider reimbursing the cost of replacing the carpet, if it is accepted that damage was caused due to the missing damp course. If this is not accepted, the landlord should refer this to its insurers for consideration.
  3. The landlord to correct issues with nail pops as per the Home Ownership Handbook if not done so already