Leeds City Council (202101525)

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REPORT

COMPLAINT 202101525

Leeds City Council

29 March 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 the landlord’s response to the resident’s reports regarding the structural integrity of his property.

Background and summary of events

The resident occupied a two-bedroom semi-detached house with his daughter under a secure tenancy with the landlord. The tenancy began on 6 January 2017. While the landlord had no vulnerabilities recorded for the resident, the resident informed the landlord that he had a disabled son and a baby daughter born in May 2019. As of November 2019, the resident was recovering from a mental health breakdown.

The legal and policy framework

Under the tenancy agreement, the landlord was responsible for repairing and maintaining the structure and exterior of the dwelling house (including drains, gutters, external pipes and external decoration). It should carry out repairs in a reasonable time and would send the resident written confirmation of their request for a repair (unless it was an emergency). The resident had an obligation to allow the landlord and its contractors to enter their home at all reasonable hours for any of the reasons when the resident had been given reasonable written notice (usually 24 hours) in order to inspect the condition of the property, to carry out maintenance, repairs or other works or safety checks, whether or not the landlord had responsibility for such works.
As a matter of law, a landlord may be liable for disrepair works not undertaken within a reasonable period. However, it may not be liable where the resident does not provide access to the property.
The repairs policy specified that the landlord was also responsible for the paths at the property. It defined a responsive repair as a repair or replacement to parts of the property, generally due to wear and tear; to ensure the resident’s health and safety or to protect the building where there was an immediate risk of damage. This included small external repairs which would be carried out within 20 working days.
The landlord would not repair or replace parts in the following circumstances:
1. Where they were old, as long as the parts were working properly,
2. Cracks to internal walls or brickwork pointing, if they were less than 5mm wide.
3. Any paved areas to remove a trip hazard, if the difference in levels was less than 25mm (unless the user was affected by a mobility issue).
“Batched” repairs were non-urgent repairs that could require a pre-inspection, and/or where the landlord needed time to order and/or manufacture materials. They included minor non-urgent repairs to paths, external walls and repairs to paths or steps. They would be completed within 60 days.
Planned maintenance works were programmes of work which were repeated at regular intervals to protect health and safety and to maintain buildings, equipment, and installations in a good condition.
Works such as resurfacing and relaying of paths and paved areas brickwork pointing and major repair to walls were deemed to be improvements and would be delivered through a planned programme of work set out in the landlord’s annual investment plan.
Before the repair was undertaken, the landlord would:
1. Inform the resident of timescales.
2. Arrange an appointment where possible, alert the resident it was on its way, and explain the purpose of the visit.
The complaint policy set out a two-stage process. The landlord would send its first response within 15 days. The resident could request that the landlord escalated the complaint within 28 days. The landlord would need the resident’s reasons for escalation. If the complaint were escalated, the landlord would respond in 15 days or update the resident with a fresh timescale.

Chronology

On 20 July 2018, according to the landlord’s repair records, the resident reported cracks in the property. The resident was of the view they were structural. He reported that they had occurred in nearly every corner of the property.
At the resident’s request, the landlord carried out an inspection. The date of the inspection is not clear but it would appear to have been carried out on 6 August 2018. The landlord’s notes stated that it concluded that repairs were required, including some repointing, repairs to a loose drain and sealing and filling a hole. It would also address issues with the windows and window frames and other miscellaneous repairs. The target date for the repairs was 30 August 2018.
According to the landlord’s repair records, the landlord was due to carry out the joinery and bricklaying works on 5 September 2018, but the resident declined the appointment stating, according to the landlord, that he did not want the works to be carried out. The repairs records also noted that the contractor had reported on 5 May 2019 that the resident had declined the works.
On 23 January 2019, according to an internal email, the landlord noted that the concrete slabs of the property were twisting out of alignment. The associated photographs showed cracks and gaps.
On 20 February 2019, the landlord undertook asbestos removal from the soil stack.
According to the repair records, a CCTV drain survey was carried out on 6 June 2019 in order to investigate movement to the concrete path and exterior concrete wall slabs. According to the landlord’s notes, photographs were taken and sent to the landlord’s structural engineer in anticipation of an inspection and any subsequent recommendations.
On 30 July 2019, the resident reported that a technical officer of the landlord had attended the property and that he was awaiting an inspection by a structural engineer regarding his front path.
The resident reported on 7 August 2019 that the garden path had large cracks and was uneven. It had dropped where it reached the shed foundations.
A structural engineer carried out an inspection on 7 August 2019 and made the following recommendations in a report dated 11 September 2019:
1. It identified some spalling and cracking of precast concrete cladding panels/plinth/cills and slight misalignment in places between adjacent panels.
2. The spalled concrete should be repaired by removing any loose concrete, cleaning the exposed steel and the reinstatement of the concrete using a proprietary repair mortar and repairs to the cracked joints including reinstating the infill.
3. The cracked joints between the panels should be cut back to a sound base and the surface roughened. The infill should then be reinstated with a shrinkage compensated mortar.
4. Any damaged internal finishes may be repaired using a renovating plaster.
According to the resident in his email of 20 November 2019, a week after the engineer’s inspection (approximately 14 August 2019), the contractor attended with a subcontractor in order to estimate the works. They informed the resident of the outcome of the engineer’s survey. Also, according to the resident, which the landlord later accepted, the contractor did not think the works would be sufficient to address the issues at the resident’s property. According to the landlord, the resident declined those works.
On 12 August 2019, the landlord raised an order to carry out bricklaying works which had been due to take place on 2 May 2019. They were works related to the recommendations made in the report dated 7 August 2019. According to the landlord’s repair records, the resident declined the works.
On 20 November 2019, the resident wrote to his councillor. The councillor forwarded the email onto the landlord who treated it as a complaint. The resident stated as follows:
1. The issue regarding the exterior of the property had not been resolved. A building surveyor inspected the property briefly and agreed with everything the resident said in relation to the exterior panels being over 40 years past life expectancy. The engineer had stated that the house needed a brick skin, the foundation at the rear of the property needs underpinning and the path that was situated from the front of the property all the way round to the back needed replacing as it had dropped around two inches due to the foundation blowing which had caused multiple deep cracks that constituted very bad trip hazards.
2. The landlord’s contractor attended subsequently and agreed that “extensive work” was required, even though the surveyor’s report had only recommended regrouting. The contractor informed the resident that another surveyor would undertake a survey on 12 November 2019, but no one attended. His son was unable to play in the garden due to the extremely uneven ground. Every interior wall had cracks due to the panels dropping on the exterior.
As at 9 December 2019, the landlord was waiting to hear from its contractors.
On 11 December 2019, according to an internal email, the landlord had spoken to the resident that day who stated he wished for a new structural engineer to attend. The resident also stated he was going to commission his own report and that he was going record any visits, but he did not specify whether this would be audio and/or video recording.
On 12 December 2019, the landlord wrote its first stage response as follows:
1. It summarised the complaint as follows:
  1. It set out the contents of the resident’s email to the councillor.
  2. At further inspection, a team leader of the landlord and sub-contractor agreed that extensive work needed to be done, while the engineer’s report stated it just needed re–grouting.
  3. The resident had a disabled son and a baby daughter. The resident was recovering from a mental health breakdown. His son could not play in the garden due to the unlevel ground. Every interior wall had cracks in them.
2. The landlord reported that the structural engineer disputed the version of this conversation. He reported that there had been a discussion about what could be done in an ideal world situation. The landlord was unable to comment as it could not prove or disprove either version of the conversation.
3. Its contractor’s team leader attended with its sub-contractor who had been asked to provide a quotation for the works specified in the engineer’s report. The contractor thought, in his opinion, that works other than those that had been suggested were required. In the circumstances, the landlord requested that the structural engineers review its report with this information in mind. The engineer confirmed that the works he recommended remained, in his professional opinion, the correct works to resolve the issues.
4. It had arranged for a second opinion from a different engineer to be provided within 35 days.
5. It would review the further report and would complete all works recommended by the structural engineers after the second visit.
6. It invited the resident to share his report with the landlord for discussion with its structural engineers. It would share the further report with the resident.
7. It apologised for any stress this had caused and it would try and resolve the issues.
8. The structural engineer had advised that there was no risk from the external wall panels falling or anything falling that could be a hazard to the resident or his family. There was no mention of the footpath requiring immediate repair. However, if this were the case, it would arrange to get the works completed while waiting.
9. It offered to arrange a site meeting when the further report was ready.
According to an internal email of 20 January 2020, the landlord had spoken to the resident that day to update him. It would chase the further inspection.
On 3 February 2020, the resident chased for an update of the complaint. He reported that the garden was still a hazard to his disabled son and his heating bills were “astronomical” due to the property not retaining heat due to the condition of the exterior.
The landlord chased the structural engineer on 20 February 2020 given the resident was told it would be carried out within six weeks.
On 9 March 2020, the resident chased his complaint. He had not received the letter of 12 December 2019.
The landlord wrote to the structural engineer to chase the inspection again on 10 March 2020.
On 30 March 2020, the landlord wrote to the resident as follows:
1. The first response was on sent 12 December 2019. It had also tried to contact the resident.
2. It summarised that the issue was first reported in June 2019. Its technical officer had attended and arranged for an independent structural engineer to inspect on 7 August 2019. The report did not raise concerns over structural movement or possible issues with the foundations but identified some spalling and light cracking to the pre-cast concrete panels and some slight misalignment between some adjacent panels. In their opinion, this was normal for a property of this type of construction, and they had no concerns over the structural integrity of the building or underpinning being needed, but made some recommendations for repairs.
3. When the landlord sought an estimate and reattended, the resident refused the repairs. The works that the engineer had referred to would constitute an improvement, which would be carried out on a planned basis and would not be a responsive repair. There were no current plans to change the exterior skin of the property at that time. However, the landlord had asked the structural engineer to review the original survey. The original engineer and one of his colleagues agreed that although there were some panels out of alignment there was no justification for intrusive work to the building or foundations and again recommended that the joints were raked out and refilled with an appropriate material. The resident had disputed this.
4. The landlord had requested that a different structural engineer undertake a further survey of the property. The structural engineer had not inspected because it had concerns regarding the resident recording the visit.
5. It had been unable to contact the resident to discuss this.
6. It would offer to accompany the structural engineer during a survey in order to reassure them. The timing of the inspection was dependent on the pandemic. After receiving the report, it would provide a further and more comprehensive update.
7. It invited the resident to contact the landlord to discuss the next steps.
The landlord wrote to the engineer on 26 June 2020 and explained that the resident had wanted to record the inspection as he had felt he was told things initially which were backtracked on in the report. It offered to accompany the engineer and enquired whether it was carrying out any inspections at that time.
A joint inspection took place on either 9 July 2020 or 6 August 2020 by the landlord and two engineers, one of whom was the original engineer and the other who had signed off the previous report. The records are not clear as to the date, but it is likely it took place on 6 August 2020.
The landlord’s inspection notes stated that both engineers agreed that there was no sign of structural movement in the property but some minor repairs to fill the joints were needed due to the age of the building. There was some slight movement on some panels but, as it was only slight, there was no need for “big” works and any gaps could be filled. There were no other signs of movement. The resident would not allow an inspection inside of the large cracks he had reported, due to his wife not wanting any visitors. The resident showed the landlord photos of some horizontal cracks on the window reveal, which, according to the inspection notes, appeared to be new plaster, some cracks to one internal panel which the inspection considered appeared to be sealant that had failed. Neither related to structural issues. It offered to arrange repairs to make good. The resident refused on the basis he had arranged a full structural survey.
The landlord inspected the path. It identified “some slight cracks” to the path which appeared to be standard cracking due to age. It offered to fill the cracks, but the resident refused as he considered that the whole path needed taking up and re-doing. The landlord disagreed. The rest of the path was in good condition and there were no visible trip hazards or concerns. It offered to fit some “tell tales” on the panels to test to see if they were dropping but again, he refused. There was no sign of structural movement in the property.
The resident’s report dated 19 February 2021 made the following recommendations:
1. Defects that are serious and require repair, replacement or further investigation urgently:
  1. It recommended that, in order to help preserve the future long-term integrity of the steel columns, locate and expose the external columns bases to allow treatment. The treatment would typically consist of accessing the columns from the internals of the property by removal of linings, removal of all corrosion product and treating the columns with a rust converter. The columns should then be painted with a rust–inhibiting paint protection system. It recommended works should there be any severely corroded column bases in the structure of the property.
2. Defects that need repairing or replacing, but not considered serious or urgent:
  1. The external walls have been provided with a blown mineral–fibre cavity–wall insulation material. This would prevent the cavities having a level of free air circulation. This insulation could hold moisture against the steel frame and accelerate corrosion. The report recommended employed a specialist company to remove the blown cavity wall insulation from within the original wall cavity, using raking and suction methods.
  2. Undertake essential maintenance repairs to the external concrete panels to ensure that the external envelope was watertight in order to prevent the embedded structural steel frame from water exposure.
  3. Ensure the precast concrete corner panels were adequately restrained against lateral movement by securing back to the corner columns.
3. The items classed as general repair and maintenance, noted within the report, should be repaired as part of the routine maintenance of the property to help with future preservation.
On 19 February 2021, the resident made a further complaint. His report stated that the property required significant repairs. The complaint was that the engineer did not carry out a proper survey. No repairs were undertaken. Had they done so, he would not have this issue.
On 22 February 2021, the landlord noted that it had been agreed that the resident would contact the landlord when his own survey was carried out.
On 3 March 2021, the landlord sent the resident’s survey to its structural engineer for comment. It highlighted the concerns over rusting to the steel structure and excessive displacement of the panels in the corner of the building.
The landlord wrote to the resident with its first stage complaint response on 3 March 2021 as follows:
1. It noted that the resident’s survey cost £660.
2. The landlord had visited the resident to discuss the report and forwarded the report to its own specialist and to the structural engineers who undertook the visits in 2019 and in July 2020.
3. Once a decision had been made, it would contact the resident.
4. The resident could request a review of the complaint.
According to the landlord’s records, it noted on 12 March 2021, that it had received similar queries before from surveyors who were valuing for mortgage purposes. While care had to be taken in installing cavity wall insulation (CWI), there was an overriding benefit of installing CWI in that it made properties warmer and reduced fuel poverty. Nevertheless, it took note that the report had identified rusting.
The resident requested a review of his complaint on 22 March 2021.
On 31 March 2021, the landlord responded as follows.
1. It referred to a telephone conversation of 24 March 2021. They had agreed that the landlord would respond before the structural investigation and repairs were fully completed.
2. The landlord updated the resident on 31 March 2021 that following a discussion with its structural engineers. It was arranging its contractor to attend in order to remove external panels to fully expose the steelwork so as to further investigate the identified rust.
The landlord attended with the structural engineer on 26 April 2021. It was agreed that the contractor would cut a hole in bottom of a concrete panel for inspection of steel frame to allow the engineer to re-inspect. The job had a target time of 25 May 2021. The job was raised on 19 August 2021 and was to have been carried out on 9 September 2021. However, it was suspended pending an asbestos investigation and report.
As at 22 March 2022, the asbestos report had not been completed.

Assessment and findings

There was no evidence that the resident reported the cracks in his property prior, or significantly prior, to 20 July 2018. The landlord responded appropriately to the resident’s report at that time by raising an inspection by its surveyor which took place two weeks later, a timescale both within its policy and within its target of 30 August 2018. It was also reasonable that the landlord identified repairs and arranged for the external works to be carried out on 5 September 2018. While this was slightly later than its original target time of 30 August 2018, it was within its policy timescale of 60 days for works which required a pre-inspection and that were non-urgent. No blame is attributed to the landlord that the works were not carried out, given the resident declined those works.
It was appropriate that the landlord identified an issue with the concrete slabs and undertook a drain survey in order to investigate the path and the exterior wall. It is not clear however, why there was a significant delay, well over 60 days, from the initial inspection in August 2018 and, even if there was good reason at the time not to investigate further, from January 2019 to June 2019. Given the lack of evidence and explanation, the Ombudsman will deem the delay in carrying out the investigation to have been from August 2018 to June 2019. While the resident had declined the repairs, there was no evidence that he had declined further investigation.
It was also reasonable of the landlord to instruct a structural engineer to inspect the property. While there was a dispute about the outcome of that investigation, the landlord was entitled to accept the recommendations of an expert. Its policy was clear that it did not undertake routine repairs where materials were old and major repairs would be part of its planned works rather than responsive repairs, as the landlord explained in its response of 30 March 2020. It was appropriate that the landlord took steps promptly and offered to carry out the works, despite the resident’s prior refusal. Again, no blame is attributed to the landlord that those works were not carried out, given they were offered to the resident and the resident declined them.
It was reasonable of the landlord to treat the letter from the resident’s councillor as a complaint. It gave the opportunity to the landlord to review and address the issue. There was brief delay of a few days in its reply. In the Ombudsman’s view, the delay was not significant. There is no evidence that the landlord did not post its first stage response and therefore no blame is attributed to the landlord if the resident did not receive it at the time.
While the landlord was not present and was not responsible for the discussion between the resident and the structural engineer, it was reasonable of the landlord to make enquiries. More importantly, it was reasonable that the landlord had queried the expert’s conclusions and demonstrated it was open to enquiry.
The landlord was entitled to accept the subsequent opinion of the original engineer and a second expert over the opinion of its contractor, given it was seeking a specialist opinion. It was reasonable to nevertheless arrange an inspection by an alternative engineer and to assure the resident that it would abide by those recommendations. It was also reasonable that the landlord sought an assessment of risk to the resident’s health and safety and reassured the resident accordingly. Given the engineer’s opinion, it was reasonable that the landlord did not treat the repair as urgent.
It was appropriate that the landlord was prepared to consider repairs to the path. There was no evidence that, at the time, the level difference was less than two inches and in addition, the resident had reported that his son had a disability. It was appropriate that the landlord chased the structural engineer and, when it had ascertained the reasons for the engineer’s reluctance to inspect, it sought to resolve this by being in attendance during the subsequent inspection. Despite recording meetings being problematic, as recording would raise concerns on how the recording would be used and potential data protection issues, the landlord’s approach demonstrated a flexible and understanding attitude towards the resident’s stated intention to record the meeting, which the landlord would be able to manage at the time during the inspection. It also demonstrated its focus on progressing matters.
In terms of any delay, the evidence showed that the landlord sought to get a review of the report, but the engineers did not respond until, according to the landlord’s records, December 2019, some four months later. While the matter was not urgent, the landlord could have been more proactive, in particular as it had not secured a second opinion in August 2019. While there may have been good reasons for not doing so, there was no evidence that the landlord considered instructing a second company.
In terms of the further delay, the second inspection was due to have taken place at the beginning of March 2020, by which time the landlord had chased the engineer on at least two occasions and ascertained the engineer’s concerns about being recorded. Unfortunately, this coincided with the onset of the pandemic. While the pandemic would have impacted on timescales, this did not entirely explain why there was a further delay until August 2020, in particular as the inspection would have principally been external.
Again, the landlord was entitled to accept the recommendations of the expert and it was appropriate it offered repairs to both the exterior and the path. The landlord was entitled to limit the repairs as it saw fit, given it was relying on an expert assessment.
The Ombudsman does not attribute the ensuing delay from August 2020 to February 2021 to the landlord, given that the landlord offered the repairs which the resident declined, and it was agreed that the resident wished to wait for his own survey.
It was appropriate and reasonable of the landlord to consider the resident’s report, to send it to the engineers and to also accept a second complaint in relation to what was essentially the same issue, although with additional evidence. While conflicting expert evidence can be a matter of debate, the evidence showed that the resident’s report identified that there was some valid avenues of investigation, given it had identified rust on the steel frames.
Although it is not generally good practice to protract the complaint process, it was reasonable that the landlord discussed when to conclude the complaint with the resident and gave him agency over the process. The investigation concluded with the landlord seeking to undertake further investigations.
While the period after the conclusion of the landlord’s internal complaints procedures is outside the remit of this investigation, it is noted that the investigation was held up by the requirement for an asbestos report but that one year later, no progress has been made. The Ombudsman will make a recommendation in that regard.
The landlord agreed to arrange for an inspection at the resident’s request. It was entitled to accept the recommendations of its expert and to decide on its course of action. It arranged for works to be carried out within a reasonable timescale. It investigated the resident’s complaint, including his conversation with the engineer. Despite receiving the opinion of an expert, it sought a second opinion. The landlord assessed the risks in the meantime and there was no evidence of urgency at that time. Its offers of repairs were prompt. Overall, the landlord responded appropriately and reasonably.
However, there were areas of delay in the landlord’s investigations. While some of the delays were not of the landlord’s making, there were areas where the landlord could have been more proactive and considered alternatives. In the circumstances, the Ombudsman finds there was service failure in relation to some of the delay, but, given the level of responsiveness otherwise, it does not make a finding of maladministration.
While no blame is attributed to the landlord for accepting the findings of its expert, the evidence showed that there was some value in the resident’s report in that it opened an avenue of investigation that the landlord considered worth following as a consequence. It is not the role of the Ombudsman to assess the relative validity of professional assessments, but to assess the landlord’s response. While this is not a reflection on the weight and quality of the respective reports, the Ombudsman considers that the fair approach in compensating the resident for the delay that was attributed to the landlord, and in recognition that the evidence showed that the resident’s report had some value, would be for compensation to contribute to, or equate to the value of, the report.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure in relation to the landlord’s response to the resident’s reports regarding the structural integrity of his property.

Reasons

The landlord was responsive to the resident’s reports, sought a review of the initial investigations, offered repairs and further investigations. However, there were some delays which the evidence indicated could have been mitigated by the landlord. Given there was evidence that the resident’s report had some value, the Ombudsman considers it would be fair for the landlord to compensate the resident towards or to the value of the report.

Orders

On presentation of evidence of payment by the resident for the resident’s surveyor’s report dated 19 February 2021, the landlord is ordered to pay the resident compensation in the amount of that payment, limited to £660, within 28 days.
The landlord is ordered to arrange for an asbestos inspection within 28 days and the investigation of the steel frame within 28 days thereafter, if it has not done so already. If an asbestos inspection has been carried out, then the landlord is ordered to arrange for an investigation of the steel frame within 28 days and update the resident accordingly also within 28 days.
The landlord should confirm compliance with the orders to the Housing Ombudsman Service within 28 days of this report. If the landlord has yet to arrange the asbestos report, then the landlord can confirm compliance with the orders in 42 days but should update the Housing Ombudsman in the meantime, and within 28 days.

Recommendations

The landlord should ensure that it keeps the resident updated of what steps it is taking regarding its investigation and any works on a regular basis.