Islington Council (202109673)

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REPORT

COMPLAINT 202109673

Islington Council

18 April 2023

 

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 an ongoing leak issue including the standard of workmanship and the service provided.
  2. The resident has also complained that the landlord did not inform him of the leak prior to the sale of the property, therefore that he has paid a higher price for the property and higher rent given the actual market value, for which the landlord should compensate him.
  3. The Ombudsman has considered the landlord’s complaint handling.
  4. The Ombudsman has also considered the landlord’s record keeping.

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 42(g) and 42(p) of the Housing Ombudsman Scheme, the resident’s complaint that the landlord did not inform him of the leak prior to the sale of the property, therefore that he has paid a higher price for the property and higher rent than given the actual market value, for which the landlord should compensate him is outside the Ombudsman’s jurisdiction.
  3. Paragraph 42(g) of the Housing Ombudsman Scheme states “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, other tribunal or procedure.
  4. Paragraph 42(p) of the Housing Ombudsman Scheme states “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion concern matters where the complainant is seeking an outcome which is not within the Ombudsman’s authority to provide.
  5. The resident has advised this Service that the landlord’s legal team has informed him that it is a buyer’s responsibility to ensure that the property is free from defects (‘Caveat Emptor”).  He has argued that the landlord has breached the statutory provisions of the Consumer Protection from Unfair Trading Regulations 2008 through “misleading omissions”.  Ultimately, the resident has entered into a legally binding contract with the landlord for the purchase of his share of the property at an agreed price.  The Ombudsman does not have the power to overturn or vary the terms of the lease, nor to determine whether the landlord has breached the Regulations or other Acts. However, the court has the power to adjudicate on whether the landlord has acted illegally, whether the resident paid too high a sale price and whether he should be compensated and / or reimbursed. Therefore, this complaint is outside of the Ombudsman’s jurisdiction.

Background and summary of events

  1. The resident is a joint shared-ownership leaseholder of the landlord with his partner.   The lease commenced on 5 February 2016 with the resident purchasing a 25% share.  His property is a ground floor two-bedroom flat.  There are brick planters on the floor above.  He advises that the day after moving in the landlord’s contractor came to his property to inspect a damp patch and that from 28 March 2016 there have been leaks in one of the bedrooms. On 12 December 2016, he reported damaged brickwork and on 13 February 2017, black mould on a wall.  The landlord initially raised repair orders to remedy leaks suspected as coming from the balcony, the stack and the roof. Having believed that it had satisfactorily reported the leak at the time, a contractor completed decoration works in August 2018.
  2. The lease confirms the landlord’s obligation to keep in good repair:
    1. the structure of the Building and in particular the exterior and interior walls … and the roofs foundations timbers joists beams chimney stacks gutters and rainwater and soil pipes thereof and the frames of the windows of the demised premises.
    2. the passages landings and staircases and other parts of the building.
  3. The landlord’s Housing Repairs Guide, confirms the landlord’s statutory obligation to “Keep[ing] the structure and exterior of the property in repair, including:
    1. External walls, external doors, external window frames and sills;
    2. drains, gutters, external pipes;
    3. access paths and steps to individual properties;
    4. the roof and chimney (but not sweeping);
    5. the internal structure; and
    6. external decoration”.
  4. The Guide states that “sometimes damp problems in the home are the result of a leak or water  penetration from outside the property, for example a blocked gutter causes overflowing rain water to make an internal wall damp and mouldy. The council is responsible for repairing water leaks and water penetration issues affecting your home”.
  5. With regards to repairs priorities and response times, the Guide states: 
    1. Routine Repairs “covers non-urgent repairs e.g. minor repairs to plasterwork or resealing around a bath. The service will attend on the next available appointment. Some jobs will need an inspection first”. These works should be completed within 20 working days.
    2. Recall – “This category is assigned to any works which are believed to be a recall job. A recall is raised for work that needs to be repeated due to a problem with the work done originally or a failure of a part used” and should be completed within 5 working days.
  6. The landlord operated a two-stage complaints procedure (updated December 2020) at the time of the resident’s complaint:
    1. Stage 1 – The first stage is investigated and responded to locally by the service area in which the complaint originated. A full investigation will be conducted and a final response will be sent within 21 calendar days of receipt.
    2. Stage 2 – Chief Executive’s stage this second stage of the complaints procedure gives the customer the right to request that an investigation of their complaint is undertaken by the Corporate Customer Service Team on behalf of the Chief Executive. A full response is provided to the customer within 28 calendar days of receiving the complaint (excluding bank holidays).
    3. The complaints procedure further states that “the reasons for a request for an investigation at the CE stage and any new supporting evidence must be looked at by the receiving officer/service with a view to review the stage 1 investigation and its findings. This can be dealt with as a Stage 1 review and must be acknowledged within 3 working days and completed within 10 working days of receiving the new information”.
  7. The landlord Compensation Policy (November 2019 and the updated version dated April 2022) states:
    1. “Compensation is payable where any room is unavailable for use for 4 weeks or more as a result of Islington Council failing to take reasonable steps to carry out repairs. Compensation is not payable in cases where repairs cannot reasonably be completed within 4 weeks due to the nature of works required. Compensation should be calculated as follows: Weekly gross rent divided by (total number of habitable rooms + 1) x number of rooms affected x number of weeks out of use”.
    2. “As a rule of thumb the following bands are considered reasonable (in cases of uninhabitable rooms)”:

Degree of inconvenience

Band to consider

Slight inconvenience

500 – 1000 per annum (pro rata)

Moderate inconvenience

1000 – 1500 per annum (pro-rata)

Severe inconvenience

1500 – 2500 per annum (pro-rata)

 

  1. “In certain circumstances Islington Council may have no direct liability to make payment to a resident who has suffered damage or disturbance.  As a good social landlord, however, it will sometimes be in our interests to make an ex-gratia payment on a ‘without prejudice’ basis”.

Summary of Events

  1. The resident reported that the leak returned on 20 December 2019 with water running down walls to sockets. At this time the landlord could not recall the builder due to expiry of the defect liability period. It therefore referred the repair to its responsive repairs contractor.
  2. The landlord in its Stage 2 response of January 2022 referred to repairs being completed on 12 March 2020, which proved to be unsuccessful.  It has not provided this Service with contemporaneous evidence to confirm that repairs were carried out and if so, the specification of the works.
  3. The resident’s timeline indicates that he reported water ingress on 2 October 2020. In its Stage 2 response, the landlord advised that it had carried out repairs on 16 November 2020 which proved to be unsuccessful; however, again there is no contemporaneous evidence to confirm that repairs were carried out at this time.
  4. On 13 January 2021, the resident reported the leak again, stating it had been ongoing for five years and also that there was a crack in the external brick wall. The landlord arranged an inspection, carried out on 5 February 2021, confirming that a bedroom was affected by water ingress. The resident has advised this Service that the surveyor advised him that previous works had been completed in the wrong areas.
  5. In a response to a member’s enquiry sent on 18 March 2021 the landlord advised its contractor attended on 12 March 2021 and would provide a specification of works on 26 March 2021. In the interim the resident sent emails to the landlord advising that the contractor did not attend further appointments on 19 and 22 March 2022 and enquiring when it would attend.   The landlord has not provided evidence that works were specified at this time by the contractor.
  6. On 29 April 2021 the resident reported a surveyor had attended unannounced and noted that the two planters above the flat (one leftwards above the bedroom, the other rightwards above the kitchen) had never been tanked therefore water would go down into his flat, weepholes on the planters were too high to work and the pointing on the wall was substandard.  After the resident chased up a response by phone and email, on 26 May 2021 the landlord confirmed it would carry out works to remedy these issues by lifting slabs, rebuilding the planter above the bedroom and waterproofing the walkway underneath when the weather was dry, under the reference J16DNG.  It would also rake out and repoint cracked pointing. It would drill weepholes at the base of the planter above the bedroom.
  7. The landlord in the Stage 2 response advised that it had raised works to a contractor which did not have the resources to complete the works therefore the order was passed to another contractor which carried out works on 3 June 2021.  However, the landlord has not provided this Service with contemporaneous evidence of the order raised or works completed.  Between 1 and 17 June 2021 the resident sent several emails asking whether works had been completed and whether the landlord would pay the £150 excess for his insurers so that its contractor could commence internal works.
  8. On 16 June 2021, the landlord sent a Review at Stage 1 response in which it stated that works raised under the reference J16DNG had been completed. In his email of 17 June 2021, the resident disputed that the works notified in the email of 26 May 2021 had been completed. He highlighted that waterproofing was not completed all along and within the planter, and the pointing on the wall on the edge of walkway was substandard and crumbly. The resident also noted that although he was disappointed, he had not raised a formal complaint.
  9. On 18 June 2021, the landlord advised it would pay the insurance excess of £150 and the resident subsequently instructed the insurers to complete internal repairs.
  10. On 15 July 2021 the resident advised that he had not received a response to his email of 17 June 2021. He noted that the insurer’s contractor had stripped back damaged plaster but found the ceiling insulation still wet therefore it believed the leak had not been fixed, and therefore stopped its works. On 25 July 2021 the resident reported water dripping directly into the room, running down walls. Further correspondence from the resident confirms that the landlord’s contractor attended on 30 July 2021, taking photos but not carrying out a survey and on 12 August 2021 the landlord cancelled a joint inspection 25 minutes into the allocated time frame.
  11. On 28 July 2021 the resident had raised a formal complaint contending that when he purchased the property the landlord did not advise him of persistent water ingress in the bedroom.  He advised “the attempted repairs that took place for 5 years have been in the wrong location (in and around the planter on the walkway above our kitchen rather than above our bedroom). The most recent repairs appear to be in the correct position but are completely unsatisfactory. Although I am a lay person I was able to tell you that the repairs did not go far enough and asked for reasons why certain parts of the repair that should have been done had not been carried out. For example I asked: why the front of the planter was not waterproofed all the way along the length of the planter, why the planter was not rebuilt with waterproofing put inside (something which your own surveyor said should be done) and why the pointing on the wall had not been replaced (again a recommendation by your own surveyor”. The resident also noted that the landlord had been advised of his partner’s asthma since the start of the lease.
  12. On 24 August 2021 the landlord carried out a joint inspection with its contractor. According to an email sent by the resident that day, it found that both planters needed to be rebuilt with tanking installed inside, waterproofing needed to be extended to the end of the planter above the kitchen and the sealant on the wall of the walkway needed replacing. The resident expressed frustration that these works were not completed after this visit of 29 April 2021. He highlighted that since the insurers attended six weeks previously, the leak was more unmanageable with holes in the bedroom ceiling and walls with no plasterboard to funnel and catch the water.
  13. The parties do not dispute that works were carried out over 13 September 2021 to 22 September 2021. The resident has advised that planters were liquid coated and weep holes added. After the inspection of 24 August 2021, the resident contacted the landlord several times enquiring when the works would be completed so that a water test could be carried out to check the effectiveness of the works, which if successful could allow the internal works to proceed.  He stressed that until then plasterboard could not be fitted to cover the large holes in his property by the insurers.  The landlord confirmed that it would first post inspect the works on completion. Following a further report of water ingress by the resident on 2 October 2021 in which he stated that water had been caught in the plastic sheeting covering the holes in the ceiling and walls, the landlord confirmed that a water test would be carried out on 4 October 2021.
  14. Although a surveyor attended on 4 October 2022, according to the resident he did not carry out a water test as more extensive flood testing lasting several hours was required in part because neighbouring properties were also experiencing water ingress.
  15. The resident in his correspondence also noted that the repair to the cracked pointing next to the bedroom window had been outstanding since April 2021.
  16. In the interim, alongside pursuing the repairs, the resident also chased up a response to his formal complaint. In emails sent on 19 August 2021, 13 and 20 September 2021 and 15 October 2021 the resident advised that he had received no response to the complaint. On 30 September 2021, the landlord sent another Review at Stage 1 response. It noted that works referred to in a response dated 16 July 2021 had been completed and as these works were not successful it had completed further works on 22 September 2021.  It noted it had arranged a water test for 4 September 2021 (It is understood that the landlord intended to refer to the water test of 4 October 2021). In his response the resident stated that he had not received a response dated 16 July 2021.  The landlord did not provide him with a copy of this response nor has a copy been provided to this Service.
  17. On 15 October 2021 the landlord and its contractor  attended to carry out a joint inspection and water test.  However, according to an email sent by the resident that day, they did not carry out a flood test as no works had been done to rectify the leak since he had reported further water ingress on 2 October 2021. The resident advised the landlord told him “that about 20m² needs to be coated. 2 metres either side of the wall dividing flats …, all the way from the walls of those flats to the parapet wall of the walkway. The weep holes are still too high on the planter outside … and they need to be brought down to ground level”.
  18. After the resident chased up the water test and reported further water ingress following rain on 20 October 2021, the landlord advised that there would be works to an expansion joint of 5 November 2021.
  19. Both parties have confirmed that further works were completed on 11 November 2021.  However, after sending several emails seeking an update on the status of the works and asking exactly what works were completed, on 22 November 2021 the resident asked that his complaint be escalated as there was no communication.  Within this period this Service had also written to the landlord, on 25 October 2021 and 1 November 2021, asking the landlord to respond to the resident. On 29 November 2021 the landlord relayed to the resident that the contractor had completed works and intended to carry out a water test on 1 December 2021.
  20. The resident’s correspondence indicates that the water test of 1 December 2021 was unsuccessful as the contractor did not have a water supply and had to connect a hose to his bathroom tap which lacked pressure and was ill-fitting. Furthermore the contractor turned up late and dirtied his property with the hose. It did not attend a further appointment for 3 December 2021.  Following further correspondence, the landlord agreed to carry out a joint inspection for 7 December 2021.
  21. After the resident pursued an acknowledgment to his complaint through this Service, the landlord advised this Service on 8 December 2021 that it had accepted fault and a final compensation offer would be made once the latest works were complete.
  22. On 11 January 2022 the landlord confirmed the works that had been carried out since 15 October 2021 which included removing and replacing slabs, liquid coating and repointing the parapet wall either side.  However, the resident had reported further ingress so the landlord agreed to inspect and discuss further works.  A planned water test was not carried out on 14 January 2022 as the contractor did not have the correct adaptor, so was rescheduled for 21 January 2022.  The water test of 21 January 2022 caused water ingress into the resident’s property so the contractor agreed to return on 26 January 2022 to repair and retest the defective area. However, the resident advised the landlord that he wanted a comprehensive water test of all areas to rule out all possible defects. The contractor attended on 26 January 2022, and according to the resident, sealed up some lower weep holes that were recommended from the visit of 29 April 2021 and repaired a tear in the waterproof lining.  The resident again advised the landlord that the water test was insufficiently intensive and stated he would have to wait until heavy rain to see if the leak had been resolved.
  23. On 26 January 2022  the landlord sent the stage 2 response to the complaint. It advised:
    1. It was not aware of an ongoing leak at the time of purchase of the property. The Legal Team had confirmed that it is the buyer’s responsibility to ensure the property is free from defects at the time of purchase. It therefore would not reimburse the resident for the difference in sales price had “all the facts about the property had been disclosed” or the difference in rent if rent was calculated at the amended sales price.
    2. If the works carried out in January 2022 did not resolve the leak, it would pay for a leak detection specialist to attend.
    3. On the assumption that the leak would be resolved by 28 February 2022 it would offer a total of £2583.16 comprising:
      1. £100.00 – late stage 2 response
      2. £1083.16 – Delay in carrying out and poor management of repairs @ £500 pro rata since December 2019 – February 2022 (26 x £41.66)
      3. £300.00 – Time and effort to complain and make enquiries
      4. £300.00 – Inconvenience
      5. £300.00 – Distress
      6. £150.00 – Insurance policy excess fee previously awarded
      7. £500.00 – Ex gratia payment towards decorative works (as it was unlikely that the resident’s insurer would consider a claim at this stage)
      8. £150.00 – less policy excess fee previously provided.

After the complaints procedure

  1. After the resident reported another leak caused by further rainfall on 15 February 2022, the contractor attended the following day. In emails sent on 16 February 2021 the resident expressed concern that the contractor had not applied liquid coating up to the parapet wall and advised the landlord that the contractor had shown him perforations in the waterproof coating on the walkway above his property, which he believed had been present since construction.   The resident expressed frustration that there were still huge areas above his property that had not been recoated, and with the patchwork nature of the works, given six years of leaks.  He enquired whether the landlord could now make a referral to a leak detection specialist.
  2. The resident in other emails advised that the contractor considered that the works it had just carried out were successful following some rain; however, he was of the view that further testing was needed to be certain, and therefore he could not yet redecorate the bedroom and repair the hole in the ceiling. On 2 March 2022 the resident advised that after some rain, there was more water coming into the bedroom which was collecting in the plastic sheeting and running down the walls.
  3. On 3 March 2022 the landlord’s contractor carried out a water test. It advised the landlord after that it had tested the two planters above the resident’s property and noted that after 2-3 minutes of testing, water was “cascading” down the resident’s wall. It therefore carried out works, installing weep holes and applying liquid coating.  It then carried out a successful water test the next day. The resident advised the landlord on 6 March 2022 that he doubted the efficiency of the tests as only one hose was used whilst leaks occurred after prolonged periods of heavy rain, and also because there was already water in the plastic sheeting, therefore it was not possible to tell if there was further water ingress. He also noted that the works described should have been carried out by the contractor already in September 2021 under the order reference J1D2DV.
  4. On 9 March 2022 the landlord advised that its contractor would be carrying out further water testing that day and the following day in areas around the planter to identify any breaches / defects. It advised it would use alternative methods such as electronic thermal testing if it transpired works were not successful.
  5. On 26 April 2022 the landlord advised the resident that its contractor had extended the liquid coating and that it believed this and other works completed had resolved the issue. It subsequently agreed with the resident on 4 May 2022 that internal works to make good the property would be put on hold until substantial rain, which would cause a large volume of water to build up, to confirm that the works had been successful.
  6. On 11 October 2022 the landlord advised it would visit to identify internal works, on the understanding that there had been no further leaks.  However, on 23 October 2022  the resident reported a further leak and requested that the landlord now employ a leak detection specialist.
  7. On 20 November 2022 the resident advised this Service that the leak still had not been fixed despite several repairs since the Stage 2 response on January 2022. He added that the landlord still had not arranged for a leak detection specialist to attend as promised.
  8. On 2 and 6 December 2022 the landlord carried out water tests at which it identified necessary works to the hopper heads but no further water ingress in the property.
  9. On 11 January 2023 the resident advised this Service that no work had been carried out since his email of November 2022 and that water was dripping into the room constantly. He further noted that his partner was asthmatic and now pregnant.
  10. On 17 January 2023 an independent leak specialist inspected the resident’s flat and produced a report dated 27 January 2023 which was forwarded to the resident  on 10 February 2023. The report found “the probable cause of the moisture ingress into the bedroom is through a defect in the waterproofing system within the planter outside of …. Moisture entry into the property is occurring at the position of a construction joint in the concrete roof / floor. The construction joint is considered to be in the same line as a vertical expansion joint positioned in the brickwork external back wall and parapet wall”.  The report recommended further intrusive investigations and repairs.

Assessment and findings

Scope of Investigation

  1. The Ombudsman notes that there were historical leaks reported between 2016-2018.  The Ombudsman has not investigated the handling of these reports.  This is in accordance with Paragraph 42(c) of the Housing Ombudsman Scheme states “The Ombudsman may not consider complaints which, in the Ombudsman’s opinion were not brought to the attention of the member as a formal complaint within a reasonable period which would normally be within 6 months of the matters arising”. In view of the time periods involved in this case, taking into account the availability and reliability of evidence, this assessment does not consider any specific events prior to 2019 and is focused on the landlord’s actions in responding to the more recent events and, specifically, to the leaks reported from November 2019. The leaks between 2016-18 provide the background context to the resident’s complaint and  have only been considered with respect to the landlord’s handling of the issues in the resident’s complaint of 2021.
  2. The resident reported that the leak had recurred at the end of 2019.  Although the landlord has stated that it carried out works in March 2020 there is no evidence of this.  In any event the landlord’s initial response was outside the timeframe for routine repairs.  There is no evidence that the resident made a further report of a leak until seven months later. However again there is no evidence of works completed by the landlord in 2021 such as works in November 2020 mentioned in its Stage 2 response. In any event, and as accepted by the landlord, whatever works were completed were unsuccessful as is evident from the resident’s further reports of January 2021.  The landlord therefore failed to resolve the leak and meet its repair obligation at the earliest opportunities.
  3. Following the resident’s report of January 2021, there is no evidence that the landlord took further steps to assess the situation and ascertain what works needed to be completed until 26 April 2021, over three months later, which was an unreasonable delay, well outside the timeframe for responsive repairs.  The fact that the its contractor did not draw up a specification of works on 26 March 2021 as stated to the Councillor, coupled with missed appointments according to the resident at this time indicates that the landlord lacked control and oversight of its contractor, which contributed to the delay.
  4. The landlord did not notify the resident of the works that would be carried out after the inspection of 29 April 2021,until a month after on 24 May 2021 and only after he pursued a response which added to his time and trouble.  Although the Stage 2 response made reference to works being completed on 3 June 2021, there is no evidence that the landlord took steps to ensure that all works were completed and checked within a reasonable period.
  5. The resident made further reports of water ingress on 15 July 2021. However, the landlord decided to carry out a further inspection on 24 August 2021 which represented another delay.  The lack of urgency was unreasonable given that the resident had in the interim made a formal complaint and because he had previously reported that there was a hole in bedroom after the insurer’s contractor stopped its works.  Again the landlord failed to keep a detailed record of the outcome of the inspection confirming further failures in record keeping.  The resident’s correspondence at time indicates that works identified were similar to those identified at the inspection of April 2021 indicating that the works were not completed or not been completed satisfactorily.
  6. The parties do not dispute that works were carried out over September 2021.  Having carried out the work in September 2021 the landlord had a responsibility to test the efficacy of the works completed so as to satisfy itself that the leak into the resident’s property had been resolved, and confirmed it would do so on 4 October 2021. However, it would appear that the need to carry out  a water test was superseded by the need to carry out further works over the next four months following a further report by the resident. Whilst the Stage 2 response mentioned the landlord had replaced slabs, liquid coating and repointing the parapet wall at this time, since October 2021, there is no evidence of the works carried out, what areas of the building were covered or how they may have differed from works previously specified and understood to have been completed.
  7. At the time the landlord sent the Stage 2 complaint it noted that it had not yet confirmed that it resolved the leak and therefore it could employ a leak detection specialist if leaks continued.  It transpired the repairs completed up to January 2022 were not successful with the resident reporting further water ingress in 15 February 2022.  Given the statement in the Stage 2 response it was unreasonable that the landlord did not commission a leak detection specialist at this point, especially as the resident explicitly asked for this and again referred to his need to progress repairs in the bedroom and decorations after.
  8. The landlord missed a further opportunity to make a referral to a leak detection specialist after the resident again reported water ingress in March 2022.  The landlord referred the matter back to its contractor which was appropriate as it was responsible for carry out works but this would not have prevented the landlord from also consulting with a specialist.  The contractor carried out further works.  The landlord has not provided evidence of the works carried out at this time and the resident is of the view these works should have been completed in September 2021.  This further confirms that the landlord did not maintain accurate records of works carried out over time, lacked a clear view of what works were required to resolve water ingress and lacked oversight of the works carried out by its contractor.
  9. Furthermore, whilst carrying out water test the landlord advised the resident in May 2022 that it would only be able to tell if the works were successful if there was heavy rain. This indicates that it failed to carry out water tests that were sufficiently intensive and therefore effective for the intended purpose. As a consequence the resident’s uncertainty over whether the leak had been resolved and whether he could proceed with internal works was prolonged even further.
  10. It transpired that there was a further leak reported in October 2022. There is no evidence that the landlord has carried out further works and it was not until three months later that it employed the leak detection specialist. This represents a further delay in the landlord’s response to reports of leaks. As such, over three years after the resident reported a leak in December 2019 the  landlord has not still not resolved the matter and complied with its repair obligation. The fact that the resident’s partner has asthma and is now pregnant has exacerbated the distress and inconvenience caused.
  11. In summary, the Ombudsman accepts that in the case of leaks, it may take more than one inspection to ascertain and remedy the problem, particularly where the issue is complex with potentially several, possibly changing, sources of the leak, and where the leak is concealed within the structure of the building as in this case. Nonetheless, the landlord has consistently unreasonably delayed in responding to the resident’s reports, arranging inspections and works, and checking the effectiveness of the works completed.  It has also delayed in employing a leak detection specialist. There is no evidence that it has kept effective records to track the actions taken on the case and therefore it is not evident that it consistently maintained effective oversight of the actions of the contractor.  Ultimately, it has delayed in resolving the leak and by extension the damp in the resident’s property, thereby not meeting its landlord obligations.    The effect of the delay is exacerbated by the fact that the resident’s partner has asthma which puts her at an elevated risk of detriment from damp and mould. At no point has the landlord taken steps to acknowledge or mitigate the effects on the resident’s partner’s asthma such as by offering a dehumidifier. It has therefore failed to recognise the significance of how her health was potentially detrimentally affected by her living condition, adding her and the resident’s distress.
  12. Compounding this, the resident has had to send repeat emails to the landlord to chase up responses, for instance after the inspection of 29 April 2022, during June 2021 when he was seeking to confirm whether works had been completed at that time and payment of the insurance excess,  and during November 2021.  As such, the time and trouble he has expended in chasing his case is more than what would be reasonable expected. It is also noted that the resident reported missed appointments and water tests that did not take place for instance on 16 and 22 March 2021, 12 August 2021, 15 October 2021, and 1 and 3 December 2021.  This added to the inconvenience experienced by the resident from the leak. It added to his understanding that the landlord was carrying out works in a piecemeal way, not clearly understanding what needed to be completed to resolve the water ingress once and for all.
  13. Where there has been service failure, it important that landlords take steps to offer redress in line with this Service’s Dispute Resolution Principle to “Put Matters Right”. In this case, the landlord made an award in its Stage 2 response.  This was calculated pro-rata at lowest rate for slight inconvenience, £500 per annum. It is noted that the resident had use of another bedroom. Nonetheless, it is not disputed that the resident has not had full enjoyment of the bedroom affected by the leak, in particular as he had concerns with water running into the electrics and the added inconvenience caused by the hole in ceiling and walls after the truncated internal works.  Compensating at the rate of “slight inconvenience” also fails to take into account the cumulative impact leaks since the start of his lease.  The resident has also referred to his partner’s asthma which indicates that she has an elevated risk of detriment from the damp and mould.
  14. Moreover, the works noted in the Stage 2 response of January 2022 were not successful with further water ingress reported. The landlord has not updated its compensation award to reflect the ongoing situation.  Furthermore, the landlord has not recognised that the risk of the resident’s partner’s health being detrimentally affected by her living condition was elevated due to her asthma. Therefore, it is therefore considered that the landlord’s award was not fully proportionate to the circumstances of the case.

Complaint Handling

  1. As noted by the resident, it is unclear why the landlord sent the response of 16 June 2021 as the resident had not raised a formal complaint at this point. It is also unclear why the response was not a Stage 1 response but a review of the stage 1 response. Whilst the landlord encourages the resolution of disputes through the complaints procedure, ultimately it is for a resident to initiate the process.
  2. After the resident raised a Stage 1 complaint on 28 July 2021, it took over two months for the landlord to respond, outside the timeframe for dealing with Stage 1 complaints.  Within this period the resident sent several emails pursuing a response, which were not responded to.  This added to the time and trouble he spent pursuing his complaint.  After the resident escalated his complaint on 22 November 2021, the landlord again took over two months to respond.
  3. The landlord offered £100 compensation for the late Stage 2 response. This was a discretionary award also in line with guidance provided by this Service on remedies where there are instances of service failure resulting in some impact on the complainant.  However, as the landlord did not offer compensation for the delays earlier on in the complaints process, its award was not fully proportionate to the circumstances of the case.
  4. The response timeframes outlined in the landlord’s complaints policy are not in line with the Ombudsman’s Complaint Handling Code (the Code) which specifies that stage one complaints should be responded to within ten working days and stage two complaints within 20 working days.  However, the information on the landlord’s website currently states that Stage 1 formal complaints should be responded withing ten days and Stage 2 complaints within 20 days.  The website indicates that the landlord does not now require the landlord to review the Stage 1 response before allowing the complaint to be escalated to Stage 2.  The website therefore indicates that the landlord’s current complaint procedure aligns with the Code. It is further noted that the landlord in its self-assessment against the Code dated 3 March 2023 stated that “The council’s complaints policy clearly states our target response times and are aligned with the Complaint Handling Code”.  Nonetheless, the landlord’s Complaint Policy is not published on its website. It is therefore recommended that the Complaint Policy is published so that there is full transparency about its current complaint handling procedures.
  5. The self-assessment further states that the landlord “is fully focussed and committed to improving its response timeliness for stage 2 complaint responses. This is a key area of focus and improvement over the next 8 weeks”.  With this in mind and taking account the significant delay by the landlord in dealing with the resident’s complaint at Stage 2, it is ordered that the landlord carries out a full review of its handling of this complaint to identify lessons learnt.

Record Keeping

  1. As noted, the landlord has not kept full repair records for the resident’s case, following the resident’s report of December 2019. Clear record keeping and management is a core function of a repairs service, not only so that a landlord can provide information to the Ombudsman when requested, but also because this assists the landlord in fulfilling its repair obligations. Accurate and complete records ensure that the landlord has a good understanding of the age and condition of the structure of the property and its fittings within the property, enable outstanding repairs to be monitored and managed, and enable the landlord to provide accurate information to residents. Staff should be aware of a landlord’s record management policy and procedures and adhere to these, as should contractors and managing agents. Regardless of its housing management arrangements, including the use of agents and subsidiaries, the landlord’s responsibility to maintain records remained.
  2. In this case, the landlord did not keep an audit trail of actions carried out following the resident’s report of December 2019. Actions taken by the landlord have largely been ascertained from email correspondence which is not a substitute for a landlord to systematically maintain repair records.  Moreover, it is largely due to the diligence of the resident who clearly noted the outcome of visits in his emails that this Service has identified actions taken.  The landlord’s failure to keep records contributed to its lack of oversight and understanding that it needed to be more proactive into finding a solution to the leaks as efforts were proving repeatedly unsuccessful. Had the landlord maintained and had fully considered the records, the need for a leak detection specialist and/or a more specialist surveyor may have been identified earlier.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was severe maladministration by the landlord in respect of its handling of an ongoing leak issue including the standard of workmanship and service provided by the landlord.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its complaints handling.
  3. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its record keeping.

Reasons

  1. The landlord has consistently unreasonably delayed in responding to the resident’s reports, arranging inspections and works, and checking the effectiveness of the works completed.  It has also delayed in employing a leak detection specialist. There is no evidence that it has kept effective records to track the actions taken on the case and therefore it is not evident that it consistently maintained effective oversight of the actions of the contractor.  Ultimately, the landlord has delayed in resolving the leak and by extension the damp in the resident’s property, thereby not meeting its landlord obligations.    The effect of the delay is exacerbated by the fact that the resident’s partner has asthma which puts her at an elevated risk of detriment from damp and mould.  Compounding this, the resident has had to send repeat emails to the landlord to chase up responses. It is also noted that the resident reported missed appointments and water tests that did not take place.
  2. There have been delays in the landlord’s complaint handling. Although the landlord has offered compensation, its award is not proportionate to the circumstances of the case.
  3. The landlord has not kept full repair records for the resident’s case, following the resident’s report of December 2019. Actions taken by the landlord have largely been ascertained from email correspondence which is not a substitute for a landlord to systematically maintain repair records.

Orders and recommendations

Orders

  1. Within the next four weeks, the landlord is ordered to:
    1. arrange for a senior member of staff to provide a written apology to the resident.
    2. pay the resident £4,300.00 for the delay in satisfactorily completing all repairs to remedy the damp and mould for the period 20 December 2019 to 2 April 2023, a period of 172 weeks. This takes into account the fact that the landlord completed some works during this period, there were periods where the resident did not make reports and the resident had use of another bedroom.
    3. pay the resident £1,000 for the distress and inconvenience experienced by its handling of the above matters. This takes into account the resident’s partner’s asthma.
    4. pay the resident £500 for the time and trouble experienced by the resident.
    5. Pay the resident £100 for missed appointments.
    6. pay the resident £150 for the delays in the complaint responses.
    7. carry out the further investigations specified by the leak detection specialist and provide a timeframe for further works identified.
    8. carry out a full review of its handling of this complaint to identify lessons learnt.
    9. carry out a root and branch interrogation of its databases to ensure that it has a full repair record history of the resident’s property.  This should include seeking and collating full information from its contractor about works completed, and cross-referencing them with inspection reports carried out.
    10. collate details of all cases of water ingress and damp and mould in blocks of the same or similar construction as the resident’s block, across its housing stock. It should then carry out a comprehensive review these cases, analysing the causes of the water ingress, so as to carry out a lessons learnt exercise. It should also note and take into account whether there is a known vulnerability or elevated risk to household members”.

Recommendation

  1. The Ombudsman recommends that the landlord publishes its full, most recent version of its Complaint Policy on its website.