Hyde Housing Association Limited (202011955)

REPORT

COMPLAINT 202011955

Hyde Housing Association Limited

1 April 2022

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:
1. The completeness of information/disclosure provided to the resident’s legal team as part of the disrepair claim.
2. The landlord’s views of the facts of the case and the subsequent level of compensation.

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 39i of the Housing Ombudsman Scheme, which states ‘The Ombudsman will not consider complaints which in his 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’, the resident’s complaint about the completeness of information/disclosure provided to his legal team as part of the disrepair claim is outside of the Ombudsman’s jurisdiction.
Complaints relating to information or the lack of provision for this is better suited to be addressed by the Information Commissioner’s Office (ICO). The ICO is able to consider matters including problems accessing personal information, or the landlord’s handling of a resident’s personal information. It can also consider problems about official information held by the landlord, including access to this.
Should the resident want to pursue this aspect of the complaint, he should contact the ICO directly. Furthermore, should the resident pursue legal action in relation to the disrepair claim, it will be for the courts to set out what information is shared between the parties as part of disclosure.

Background and summary of events

Background

The resident resides in a bedsit.
There have been historic repairs completed to the property in relation to water ingress, however in considering this complaint and given the disrepair claim, the Ombudsman has considered matters from 2019. This is as the nature surrounding the disrepair claim is intrinsically linked to the repairs reported around this time. Furthermore, in line with the Housing Ombudsman Scheme, the Ombudsman is usually only able to consider matters up to 6 months before they were formally complained of to the landlord.

Summary of events

In January 2019 the resident reported mould in the property and requested an inspection. In February 2019 an order was raised to deal with a leak from a washing machine pipe. This was attended to, and it was found that a connection to the washing machine was loose. Tape was applied as well as a leak sealant to the threads and the connection tightened.
In March 2019 the resident complained that the property had affected his mental health. Records note this was in relation to the size of the property and not repairs. From May 2019 the resident complained of cracks in the ceiling and walls of the property and further works were raised. In June 2019 the resident complained that the structural condition of the property was affected. It is noted that 2 inspections organised by the landlord in June were missed and the property was then not inspected until August 2019 to assess the damage to the living room ceiling and walls.
In September 2019, an inspection could not be progressed as the surveyor’s damp meter batteries had run out, a reinspection was not carried out until the end of September 2019, when it was noted, scaffolding was necessary. In October 2019 a works order was raised regarding a leak from the roof which was making the ceiling bow and on the same day a job was raised for the erection of scaffolding, which was erected 2 weeks later.
It is accepted by the landlord that there was then a delay in completing works, with an initial appointment in November 2019, but then works did not go ahead and had to be re-booked. A further job was raised concerning a leak to the roof and at the end of November 2019, the resident complained that the damp was worse and that there was a leak from the roof and the ceiling was crumbling.
In December 2019, the resident further complained that the issue had been ongoing for two months. In January 2020 the landlord obtained quotes for replacement roof tiles and lead flashing and a works order was raised, with the works being approved at the end of the month. In February and March 2020, works were carried out and the scaffolding was subsequently removed.
In April 2020 an early notification letter under the Housing Condition Protocol was sent by the resident’s solicitors, noting that the property was suffering from severe disrepair in the form of dampness, a wall was completely blown and that it was unfit for human habitation. The solicitors asserted that that there had been serious water penetration into the property for the full six-year limitation period (and indeed beyond).
In June 2020, a surveyor, instructed by the resident’s solicitors visually inspected the property but no access to the roof was attempted. It was noted that furniture and possessions restricted access for the inspection. A moisture meter was used, and it was noted that there was a bow in the ceiling and a small hole in the ceiling which was water stained around its edges. It was noted that the only damp reading found was between two windows with a moisture reading of 999, and there was some cracking found in the kitchen and bathroom (not said to be structurally significant). There was no indication of a blown wall.
The surveyor’s view was that the property had suffered from significant and long-term water penetration through the bedsit ceiling and the first-floor landing as a result of a defective roof covering, but that it was not possible to conclusively determine this was the cause. It was noted that some water ingress was still occurring because of the damp meter reading and a temporary decant was needed for the repairs to be carried out. The surveyor did not give a view that the property was unfit for human habitation.
The landlord also arranged an inspection and sought to find temporary accommodation that would accommodate the resident and his pet. In August the resident was offered private temporary accommodation while works were carried out. Works at the property were completed in September 2020.
Following the resident’s dissatisfaction with how the property was left, he complained, and the landlord agreed that further works were required, and the property needed cleaning before the resident could return. Once this was completed, in October 2020 the landlord offered £7500 to settle the claim.
In November 2020, the landlord increased its offer to £8000 in damages and £9000 costs. The resident declined this offer.
In January 2021 the resident dis-instructed his solicitors and the landlord continued to deal with him directly in relation to his claim. The landlord made a further offer of £8000, however the resident declined, complaining that there was further water ingress from the skylight window. Records note that this was a separate issue outside of the works carried out during August and September 2020. Following this the landlord made a further offer of £9500 to settle the claim.
During February 2021, the resident sought further legal advice on his prospects of pursuing legal action. He was advised that he had good prospects of arguing liability over a period of six years at 80% diminution in value, leading to a damages assessment of over £27,000. The landlord then sought its own advice, should the matter be heard in court, this advice differed from that of the resident’s
In March 2021, the landlord’s solicitors explained to the resident that in order for there to be liability for disrepair there must be notice of the disrepair to the landlord and a reasonable time must have expired without the issue being dealt with after notice. It explained that whilst the resident believed the landlord had implied notice of the alleged water penetration for the full six-year limitation period, it did not agree. It relied on case law on the matter, noting that a landlord was not liable under a covenant to repair premises which were in sole possession of the tenant and not of the landlord unless and until the landlord had been given notice of the disrepair. Therefore, the landlord’s statutorily implied obligation to repair was triggered only when it had been given notice of the disrepair.
It explained that here, the landlord would be unaware of any want of repair affecting the roof of the property until he reported that the ceiling and walls were in a poor state. It explained that the documentary evidence did not support there being a state of constant water penetration from the ceiling as alleged and neither was there a fully blown wall. It referenced that the works order raised on 2 March 2005 appeared to be very similar to the problem that emerged in 2019, i.e., a damaged ceiling due to a leak from the loft space, but that the tenant satisfaction survey completed by him in 2005 noted works had been completed to a high standard, he was very satisfied, and the builders were excellent.
It referenced historic repair records and that, overall, it could not be concluded on the available evidence that he had suffered from water penetration from above throughout the limitation period as he contended. It advised that from the analysis of the matter, the landlord was withdrawing all previous offers of settlement made before the 18 March 2021, including (but not restricted to) the without prejudice offers dated 12 June 2020, 15 October 2020, 20 November 2020, 20 January 2021, and 26 January 2021.
The landlord’s solicitor wrote further advising that whilst the landlord agreed he had suffered from water penetration from the roof, there was also a leak from the washing machine, of which the landlord was not responsible and could have contributed to the damp and mould suffered. It accepted that there had been a delay in completing works in January 2019, but that from his surveyor’s report of June 2020, it was clear that works had been carried out to the roof, there was no blown wall as asserted, the disrepair was not severe, and the property was not unfit for human habitation.
It explained that it believed damages in the matter would focus on the period of early 2019 onwards. It reiterated that all previous offers to settle were withdrawn and the landlord’s final offer, a part 36 offer, to settle was £8000.00 in damages in full and final settlement of the disrepair claim and all necessary works at the property having been completed. It noted the resident had 21 days to accept and if accepted during this period the landlord would be liable for his costs in accordance with rule 36.13 of the Civil Procedure Rules.
The landlord under its complaint’s procedure, noted that its interpretation of the situation was based on the evidence on file and legal advice and its offer of compensation was final.
The Ombudsman is aware that following completion of the landlord’s complaints procedure, the resident requested that the landlord reoffer him the agreement to settle as per the one-day mediation. This was £9500 in damages, an apology, additional works, and reasonable costs The landlord agreed, noting that the resident had 7 days to accept this, following which the offer would revert to its part 36 offer.

Assessment and findings

The Civil Procedure Rules is the procedural code which governs all actions brought in the Civil Courts in England and obliges potential Claimants and Defendants who wish to pursue a claim for disrepair to follow the steps/rules set out in the Housing Conditions Protocol before a claim is issued in court. This is mandatory.
The resident engaged solicitors who sent the landlord the appropriate early notification letter on 27 April 2020, under the Protocol. Both parties obtained surveyors evidence and in due course offers and counteroffers of settlement were made on a without prejudice basis. The Ombudsman is aware that all necessary works at the property have been completed.
In considering the resident’s complaint, the Ombudsman has considered whether the landlord has fully and fairly investigated the issues, including engaging independent expertise where appropriate, and communicated this effectively with the resident. The answer to this is yes. The landlord and the resident both engaged their own surveyors, it was then for the landlord to consider the reports and carry out any appropriate repairs and make any compensation offer. Where the issues were structural, the landlord took appropriate and reasonable steps to undertake repairs and address them. It is accepted that once the repairs were undertaken, the resident had further cause to complain, however, the landlord immediately accepted the outstanding issues and remedied these in a reasonable period of time. The landlord then reasonably considered the compensation which was warranted and made an offer. This was reasonable.
Whilst the Ombudsman is unable to make a causal link between the matters complained of and any reports of impact to one’s health, throughout its response, the expectation would have been that the landlord considered the individual circumstances of the resident, including any vulnerabilities or health issues. The Ombudsman cannot see that the landlord was provided with any medical records in order for it to give due consideration to this, however the resident did make clear that his living conditions were impacting his mental health. As such following this assertion, it was important that the landlord sought to resolve matters sooner rather than later.
Following both surveyor reports the landlord was clear in the works which needed completing. Given they were significant, the landlord was right to appropriately manage the resident’s expectations regarding timescales and offer a decant. In doing so, the landlord gave consideration to the resident’s wish to be decanted with his pet. This was considerate and reasonable in the circumstances.
Additionally, the landlord took appropriate steps to ensure the effective operation of communication channels between its own teams and the resident throughout the repairs and disrepair process. This is as the resident was given direct contact details and communications were often responded to almost immediately.
Now moving on to whether the landlord’s views of the facts of the case and subsequent compensation offered was reasonable, the Ombudsman has given due consideration to the fact that disrepair claims (as a simple breach of contract claim) lasts six years from the date of the breach. In light of the six-year rule and also based on both surveyor reports and repair records, the landlord’s limitation period was reasonable.
The landlord clearly considered both expert evidence and even prior to seeking further legal advice it made several offers of compensation. Following the resident rejecting this and offering the legal advice he had received; it sought its own legal advice on the merits of the case and the likelihood of the outcome if the case was to go to trial. In making compensation offers, the landlord reasonably acknowledged that there had been failings on its part and as such offering compensation was therefore reasonable.
The Ombudsman appreciates that any offers of settlement must reflect the landlord’s interpretation of the available evidence in relation to both liability and quantum, whilst acting on appropriate advice. Whilst the resident disagrees with the landlord’s views of the case and compensation offered, the landlord was entitled to rely on the advice received by its legal team, consider its position within the proceedings and move negotiations forward appropriately.
In doing so the landlord made a part 36 offer, however following the resident requesting that the mediated offer was reoffered, the landlord considered its position. It accepted that the additional works that needed to be carried out had carried over from the repairs completed in September 2020 and whilst it was not obliged to do so, it agreed to reoffer the higher mediated settlement amount. This was reasonable in the circumstances, and it is the Ombudsman’s opinion that the landlord made an offer of redress to the resident that satisfactorily resolved the complaint.

Determination (decision)

In accordance with paragraph 39i of the Housing Ombudsman Scheme the resident’s complaint about the completeness of information/disclosure provided to his legal team as part of the disrepair claim is outside of the Ombudsman’s jurisdiction.
In accordance with paragraph 55b of the Housing Ombudsman Scheme, in the Ombudsman’s opinion, the landlord has made an offer of redress which satisfactorily resolves the complaint.

Reasons

The ICO is the correct body to consider matters relating to information surrounding an individual and should the disrepair claim proceed in court, directions on disclosure of information will be provided.
The landlord made offers of compensation by thoroughly considering the facts of the case and the impact on the resident. Its offers were made prior to legal advice on the merits and as such it was clear that it had taken the matter seriously.

Orders and recommendations

Recommendations

The Ombudsman recommends that the landlord, if it has not done so already or matters have not progressed legally:
1. Pay the £9500 in damages.
2. Provide an apology.
3. Complete additional works.
4. And cover the resident’s reasonable costs.