Hyde Housing Association Limited (201909494)

 

 

 

 

REPORT

COMPLAINT 201909494

Hyde Housing Association Limited

21 January 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 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:
   1. The landlord’s response to her reports of a leak in her property, specifically that the leak was caused by defects in her property.
   2. The landlord’s response to her request for her rent liability to be suspended whilst she was not living at the property.
   3. The landlord’s response to her request for her service charge to be suspended whilst she was not living at the property.

Jurisdiction

The landlord’s response to the resident’s request for her rent liability to be suspended whilst she was not living at the property

2. 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 or aspects of a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 39(i) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
4. Paragraph 39(i) of the Housing Ombudsman Scheme states that “the Ombudsman will not concern matters where the Ombudsman will not investigate complaints which, in the Ombudsman’s opinion considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure”.
5. The First-Tier Tribunal (Property Chamber), unlike this Service, can make determinations that are binding on the parties on all aspects of the liability to pay a service charge, including by whom, to who, how much and when a service charge is payable. In order to decide liability a tribunal also decides whether service charge costs have been reasonably incurred and if so whether the standard of any services or works for which the costs are charged is reasonable.  Therefore it would be fairer, more reasonable and more effective for the resident to seek a determination on her service charge liability through the tribunal. Consequently this complaint is outside the Ombudsman’s jurisdiction to consider in accordance with paragraph 39(i) of the Scheme.

Background and summary of events

6. The resident is a joint–shared ownership leaseholder of the landlord and her property is a two bedroom maisonette.
7. Although the exact date is not clear from the information provided to this Service, it would appear that there was a serious leak in the resident’s property in June 2019 and as a result the residents moved into temporary accommodation.  On 27 June 2019 the landlord wrote to the residents stating “Our Contractors recently attended your home to carry out an investigation into an ongoing leak into the loading bay. The leaks were identified from two flush pipes and lifting sealant to the shower tray. I have now had time to review the report and concur with the findings that these repairs will fall to you as the leaseholders. Sealant and pipes are not something that would be covered outside of the warranty period as these are maintainable items.”
8. On 5 September 2019, the resident raised a formal complaint to the landlord through its website.  The resident stated that there had been an internal leak in her property which had led to her having to move out for at least 6 months, and that this was the second time it had happened in two years. The resident expressed dissatisfaction with having to pay two sets of bills and that she still had to pay her rent and service charge for her property despite not being able to live there. The resident noted that the Leasehold Team had asked a surveyor to inspect over three weeks previously to confirm that the property was unfit for use and whether necessary repairs were covered by the building insurance but that she had not been informed of the outcome, despite emailing over five times and calling. 
9. After the complaint was acknowledged and initial enquiries made, on 26 September 2019 the landlord wrote to the resident stating its Product Quality Team had confirmed that sealant and pipes were not something that would be covered outside of the warranty period as these were maintainable items. As such, as it would be the resident’s responsibility to instruct a private contractor to attend and provide information to suggest the repair issue was as a result of an installation issue.  The landlord also stated that it would re–inspect the effect on the loading bay and maintained that it was the resident’s responsibility to repair in her property.
10. On or around 27 September 2019 the resident commissioned a private plumber to inspect the bathroom. The plumber did not identify the cause of the leak but raised concerns with the pipework stating that pipes he had seen were not secured or clipped, hidden sections of the pipework were plastic not copper,  and the incorrect plasterboard had been used to tile onto in the shower area and was not waterproofed.   The plumber concluded that the architect, and/or the main contractor was ultimately responsible for the leak. The resident forwarded the report to the landlord which was sent to its Repairs and Product Quality teams for assessment. On 4 October 2019 the landlord confirmed that it had passed on the plumber’s report for further consideration and it is understood that a surveyor inspected the resident’s property on 7 October 2019.
11. It is evident from the landlord’s records that between 25 September 2019 and 9 October 2019 the resident contacted the landlord several times seeking an update, in particular with regards to her request for the suspension of charges, and that phone call backs that she anticipated did not occur, on occasion.
12. The landlord sent an update to the resident on 10 October 2020 noting that the resident had submitted an insurance claim which would be dealt with separately to the formal complaint. It related the findings of the inspection of 7 October 2019, in particular that the cause of the recent moisture was historic possibly, from leaks occurring during the defect period.  The landlord confirmed that it needed to liaise with its insurers as generally plumbing issues were not defects 5 years after building completion. The landlord also confirmed that its Leasehold Team had been asked to consider whether the account charges could be put on hold whilst it awaited a decision on the responsibility for repairs.
13. On 18 October 2019 the landlord sent a holding response to the complaint, stating that it was liaising with its Insurance Team to confirm if there was a repair obligation and stating it would send the result within the next 10 working days.
14. On 22 October 2019 the landlord sent the Stage 1 response to the resident.  It advised that the resident would remain liable for rental and service charge payments as the works to resolve the leak fell within the demise of the premises. The lease provided for the suspension of rent when the property was rendered unfit for use due to a risk covered by the landlord’s insurance.  The landlord noted that the insurers had confirmed on 5 August 2019 that the resident was placed in temporary accommodation but stated rental charges were ongoing and should be paid.
15. The landlord noted that the resident had contended that the leak was as result of a defect; however, it had delivered a letter of 27 June 2019 confirming that it was the resident’s responsibility to carry out the repair as the works did not arise from a latent defect.  The landlord noted the visit of 7 October 2019 and stated that as a result, it was satisfied that the leak was not caused by any communal issues. The landlord stated that the issue was not covered outside the warranty period as pipes and sealants are maintainable items, and as such it did not have any repair obligation.  The landlord added that it would not suspend the service charge and rental payments as the leak was in the resident’s property and she remained liable. However, its Insurance Team would continue to investigate the resident’s insurance claim.
16. The landlord accepted that whilst it had explained the resident’s repair responsibilities, it had failed to respond appropriately to the resident’s further contact with its offices and that its communication during the complaint could have been clearer. For this the landlord apologised and offered £50 compensation.
17. On 25 October 2019 the landlord sent the Stage 2 response stating that it considered the Stage 1 response to be appropriate.  It noted that it had apologised for its poor communication and had outlined the resident’s repair obligation. The landlord advised that its insurers would continue to review the claim and should it identify a fault, owing to the original build, it would pursue this directly with the developer to rectify.
18. On 18 May 2020 the resident confirmed to this Service that she wished for this Service to consider her complaint although she was satisfied with repairs that had been carried out to her property.

Assessment and findings

The lease

19. Schedule 1, clause 2.7. of the resident’s lease defines the resident’s property (“the Premises”) which includes “the Service Media within and exclusively serving the property”.
20. Clause 3.4 of the lease confirms the resident’s obligation “to repair and keep the premises in good and substantial repair and condition”.
21. Clause 6.6 of the lease states that “if the whole or any part of the Premises… are destroyed or damaged by fire or any other risks covered by the Landlord’s insurance so as be rendered unfit for use then (unless the insurance money is irrecoverable by reason of any act of default of the Leaseholder) the Specified Rent or a fair proportion of it shall be suspended until the Premises … are again fit for use”

The landlord’s response to the resident’s reports of a leak in her property, specifically that the leak was caused by defects in her property

22. It is not disputed that the leak in the property occurred within the resident’s property. In accordance, with the lease, specifically resident’s Schedule 1, clause 2.7 and clause 3.4 of the lease, it was the resident’s responsibility to repair. The landlord’s Repairs Policy reflects the contractual obligation insofar as it outlines “Water leaks in individual dwellings” are the responsibility of the leaseholder.  The landlord took appropriate steps to advise the resident of her responsibility and manage her expectations about repair to the leak by writing to her on 27 June 2019 to explain its findings of where and how the leak occurred, that the resident was expected to maintain internal pipes and sealants, and that the leak therefore fell under her responsibility. In responding to the subsequent formal complaint, the landlord took further, explicit steps to make clear the resident’s responsibility by referring her to the relevant clauses in her lease which ultimately provides the contractual relationship between the parties.
23. The resident contended that the leak arose because the property was originally constructed in a defective way, seeking supporting evidence from a plumber. It is noted that the resident raised concerns about the materials and workmanship in relation to pipework. A defects liability period is a period of time following practical completion of a property during which a contractor remains liable under the building contract for dealing with any defects which become apparent. After expiry of the defect liability period, the leaseholder becomes liable for the repair if in the property, in accordance with the lease.  Given that the defects liability period had expired, there were no grounds for the landlord to recall the contractor, nor did it have a responsibility to carry out repairs itself on a responsive basis.
24. However, the landlord took appropriate to steps to identify whether the leak could be considered to be the consequence of a latent defect, that may have overridden the resident’s repair responsibility, insofar as it inspected the resident’s property, prior to its letter of 27 June 2019 and on 7 October 2019. Ultimately, it was entitled to rely of on the professional judgement of its staff in this regard.
25. Whilst this finding is likely to be disappointing to the resident, it is not the role of the Ombudsman to carry out technical assessment and make judgments on repair and maintenance issues; the role of the Ombudsman is to consider the reasonableness and appropriateness of the landlord’s actions taking into account its legal obligations, policies and procedures, and good practice.
26. Landlords are required to take out buildings insurance which generally provides cover for all of the structural aspects of the building, although the scope of policies will vary. It is noted that the resident submitted an insurance claim concurrent to her complaint. This was an appropriate course of action given that there remained a dispute over the existence and significance of alleged defects. The landlord’s insurer could make a definitive judgement whether on this or any other basis the landlord or the developer should assume liability for remedying the leak / alleged defect and for any associated costs that may have been claimed for by the resident. The insurance claim was considered separately to the formal complaint therefore has not been considered as part of this investigation as the Ombudsman can only consider those matters considered within the complaints procedure. In any event, it is not within the role and remit of the Ombudsman to investigate the actions and decisions of financial institutions such as insurance companies.

The landlord’s response to her request for her rent liability to be suspended whilst she was not living at the property

27. With regards to the residents request for her rent to be suspended whilst not living at the property, clause 6.6 of the lease explicitly states that it is only when “risks covered by the Landlord’s insurance”  render a property uninhabitable can the rent be reduced or written off in full.  As the landlord ascertained that the leak originated within the demise of the resident’s property and therefore was a repair responsibility of the resident, it was in accordance with the lease that it maintained that the resident was liable for the rent.  Its complaint response of 22 October 2019 indicated that the landlord had contacted its insurers therefore that it took appropriate steps to confirm the resident’s liability.
28. The landlord’s response of 22 October 2019 indicated that the insurers had confirmed that the residents had been placed in temporary accommodation, although it is not clear who is paying for the accommodation.  In the event of resident not having to pay for the temporary accommodation, a rent rebate would amount to double recovery, which would not be a fair or reasonable outcome.

Complaints handling

29. The landlord’s Complaints Procedure states that “We aim to respond to Stage 1 complaints as soon as is reasonably possible and not later than twenty working days”.  The landlord did not meet this timeframe insofar as the complaint was submitted on 5 September 2019 but the formal response was sent on 22 October 2019, 12 days outside the timeframe.  However, the landlord provided updates to the resident during this period, explaining what steps it was taking to investigate her complaint, which included liaising with several members of staff.  It thereby explained the delay and  provided assurance that it was making investigations into the complaint.
30. The resident’s wish for a full and final response was understandable and it is accepted that the landlord did not respond to all emails and phone calls in a timely manner. In identifying whether there has been service failure, the extent to which a landlord has recognised and addressed any shortcomings and the appropriateness of any steps taken to offer redress are therefore as relevant as the original mistake or service failure.  The landlord’s Compensation Procedure allows “payment for time and trouble … up to a maximum of £50” in respect of “the extent of inconvenience a complainant has experienced to get a resolution to their problem”.  The landlord’s offer of £50 was both in accordance with its Compensation Procedure and proportionate to the circumstances of the delays, therefore provided reasonable redress for the shortcomings in tis complaints handling.

Determination (decision)

The landlord’s response to the resident’s reports of a leak in her property, specifically that the leak was caused by defects in her property

31. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord.

The landlord’s response to the resident’s request for her rent liability to be suspended whilst she was not living at the property

32. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord.

Reasons

The landlord’s response to the resident’s reports of a leak in her property, specifically that the leak was caused by defects in her property

33. The landlord took appropriate steps to advise the resident of her responsibility and manage her expectations about repair to the leak by writing to her on 27 June 2019 and when responding to the subsequent formal complaint, in which it referred her to the relevant clauses in her lease which set out her repair obligation.
34. Given that the defects liability period had expired, there were no grounds for the landlord to recall the contractor, nor did it have a responsibility to carry out repairs itself on a responsive basis under the terms of the lease. However, the landlord took appropriate to steps to identify whether the leak could be considered to be the consequence of  a latent defect, that may have overridden the resident’s repair responsibility, insofar as it inspected the resident’s property, prior to its letter of 27 June 2019 and on 7 October 2019.

The landlord’s response to the resident’s request for her rent liability to be suspended whilst she was not living at the property

35. As the landlord ascertained that the leak originated within the demise of the resident’s property and therefore was a repair responsibility of the resident, it was in accordance with the lease that it maintained that the resident was liable for the rent.  Its complaint response of 22 October 2019 indicated that the landlord had contacted its insurers therefore that it took appropriate steps to confirm the resident’s liability.

Recommendation

36. If the landlord has not already done so, it is recommended that it pay the resident the £50 offered within the complaints procedure in respect of the shortcomings in its complaints handling.