Lewisham Council (202335053)

REPORT

COMPLAINT 202335053

Lewisham Council

16 August 2024

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 handling of:
1. Damp and mould in the property.
2. A leak into the property from upstairs.
3. A radiator repair.
4. A replacement bath.
The Ombudsman has also considered the landlord’s record keeping and complaint handling.

Background

The landlord told the Ombudsman that the resident has a secure tenancy of a two-bedroom property. The Ombudsman has not seen a copy of the resident’s tenancy. The resident lives with her husband and two children and the household has no noted vulnerabilities.
The resident has said that she experienced persistent dampness in the bathroom and toilet since June 2009. The resident told the landlord that this got worse over the last two years and was primarily in the bathroom and toilet.
The resident said that her bath had “eroded” and that a plumber told her on 28 February 2023 that it needed replacing.
The resident also said that on 17 March 2023 the landlord repaired half of her bathroom ceiling and one wall and a half of the ceiling in the toilet.
The resident said the landlord changed the radiator in the bathroom on 10 November 2023, but this damaged the hallway wall.
The resident complained to the landlord on 13 November 2023. The landlord provided its stage 1 response on 5 December 2023 and said:
1. it made an appointment to track and trace the leak in the upstairs property in October 2023 but could not gain access
2. its specialist leaks access team made another appointment for 8 December 2023
3. it booked an appointment to renew the bath for 17 January 2024 and to repair the hallway on 2 February 2024
4. its heating department would make contact to reinspect the leaking radiator
5. it upheld the complaint as it failed to do works within its “service level agreement.”
The landlord conducted a “trace and remedy exercise” in the upstairs flat on 6 December 2023 to find the cause of the leak. According to the landlord this established that there was a “defective waste fitting” on the bath upstairs that caused the leak.
The landlord replaced the resident’s bath on 17 January 2024. The resident escalated her complaint on 24 January 2024. This service contacted the landlord on 10 May 2024 to ask it to provide a stage 2 response.
On 15 May 2024 the landlord provided its stage 2 and said:
1. it attended the upstairs property on 6 December 2023 to trace the leak and found the leak was caused by a “defective waste fitting” on the upstairs bath
2. it was sorry that its specialist leaks access team had not contacted her about the appointment
3. it reattended on 7 February 2024 to complete the repairs, it knocked on the resident’s door, but she was not in
4. its heating contractor attended on 29 January 2024, replaced a radiator valve, and cleaned the “exchanger”
5. it upheld the resident’s complaint, although it dealt with the repairs its communication was unsatisfactory.
The resident has told the Ombudsman that the landlord repaired her radiator and replaced her bath but that she still has a leak in the bathroom and toilet. The resident has told us that the housing conditions have impacted her mental health and affected her enjoyment of the property. The resident also explained that her children have developed allergies because of the housing conditions.

Assessment and findings

Jurisdiction

What complaints we can and cannot consider is called the Ombudsman’s jurisdiction. This is set out in the Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons of why a complaint will not be investigated.
Paragraph 42(a) of the Scheme states:

“The Ombudsman may not consider complaints which, in the Ombudsman’s opinion: are made before having exhausted a member’s complaints procedure unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable time scale.”

After carefully considering all the evidence, the Ombudsman cannot consider the resident’s complaint about damp and mould under paragraph 42(a) of the Scheme.
This is because although the resident has referred to “dampness” from water leaks she did not specifically raise any issues regarding damp and mould generally within her complaint. She has referred to general damp and mould in the property to this service. As such, the landlord has not addressed the general issues of damp and mould in its complaint responses. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. Specifically, we have looked at the issues surrounding the leak, but not the general reports of damp and mould across the property. This is because the landlord needs to be given a fair opportunity to investigate and respond to the resident’s dissatisfaction before the involvement of the Ombudsman. It is open to the resident to pursue a complaint about the landlord’s handling of damp and mould directly with the landlord.

The scope of the investigation

The resident reports there is a long history of persistent dampness and leaks at the property going as far back as June 2009. While the Ombudsman acknowledges this, it would not be fair or practical to investigate as far back as this. This is because the records may not be available and the lapse in time would make it impossible to fairly investigate. The Ombudsman will investigate complaints that residents have raised within a reasonable time of matters arising. This would usually be within 12 months of the matters arising.
The resident has told the Ombudsman that her landlord’s actions impacted on her mental health and the health of her children. The Ombudsman was set up to investigate maladministration based on the documentary evidence provided by the parties. Where an individual explains that they have being injured or harmed by the landlord’s actions or inactions, that is often better dealt with as a personal injury claim. This is because in these types of claims, an independent medical expert would usually be appointed to report on the diagnosis, prognosis and cause of any illness or injury. The expert’s duty would be to the court to ensure impartiality. These reports are usually called medico-legal reports. Where there is a dispute over the cause of the injury, the courts will then test the evidence and this could include oral testimony or the evidence from other experts.
For these reasons, it would be fairer, more reasonable and more effective for the resident to make a personal injury claim via the courts. The resident is entitled to seek legal advice on their prospects of successfully making the claim. In summary, the Ombudsman has not investigated how the landlord’s actions may have affected the health of the resident or her family. We have, however, considered how the landlord responded to the resident’s reports and whether this was reasonable in the circumstances.

The landlord’s repair policy and repair obligations

The landlord’s repair policy states that it will:
1. adopt a “right first time” approach where it manages repairs without a resident having to chase them
2. schedule appointments where it cannot complete work on a single visit and keep residents updated
3. complete emergency repairs within 24 hours, for example to avoid flooding
4. complete urgent repairs within three working days to prevent damage to property or to avoid a health, safety, or security risk
5. complete routine repairs within 20 working days.
The landlord was responsible for the disrepair to the bath and radiator under the resident’s tenancy agreement.

Record keeping

In this case it is difficult to determine the exact course of events due to the lack of contemporaneous evidence. As part of this investigation the Ombudsman asked the landlord to provide:
1. the resident’s reports concerning the leak or water penetration into the property
2. the resident’s repair reports in relation to the bath and radiator
3. copies of correspondence or information provided by the resident or third parties relating to the leak or repairs to the bath and radiator and their ongoing attempts to resolve the issues
4. copies of information provided by the landlord’s staff or contractors, any inspection or survey reports conducted in response to the leak or disrepair of the bath and radiator
5. an explanation of any issues identified by the landlord during its investigation into the resident’s reports
6. copies of any information provided to the resident about how the landlord addressed the issues, including any further planned work or repairs
7. information about the neighbouring property where the landlord decided the leak came from.
The landlord has not provided the above, despite the Ombudsman requesting this on 13 June 2024, 16 July 2024 and sending a final chaser on 26 July 2024. It is a concern that the landlord has been unable to provide this information.
Paragraph 10 of the Scheme states that a member must provide copies (without charge) of any information requested by the Ombudsman that is, in the Ombudsman’s opinion, relevant to the complaint or assessment of compliance with the Complaint Handling Code.
Record keeping is a core function of a repairs service. A landlord should keep accurate and detailed records to create an audit trail and to ensure that it can effectively monitor and manage repairs.
The Ombudsman’s spotlight report on complaints about repairs, published in March 2019, states that “…it is vital landlord’s keep clear, accurate and easily accessible records to provide an audit trail. The landlord and its contractors should keep comprehensive records of residents’ reports of disrepair and their responses, including details of appointments, any pre and post inspections, surveyors’ reports, work carried out and completion dates.”
The landlord’s record keeping has affected this services’ ability to conduct a thorough investigation, as highlighted at various points throughout this report. This was a failure by the landlord that contributed to the other failures identified in this report.
The landlord’s poor record keeping highlighted above and what follows is likely to have contributed to the poor communication and delays in repairs which increased the resident’s distress. Therefore, the Ombudsman has made a determination of severe maladministration in relation to record keeping.

The leak in the resident’s bathroom and toilet

The evidence shows that the resident experienced persistent leaks during their tenancy however it is not clear whether these were down to a single cause or multiple ones. Although this service cannot offer an expert opinion on the cause of the leaks it can assess how the landlord responded to them. The landlord has not provided this service with repair records making it more difficult to establish what happened.
In contrast the resident has provided a chronology of the landlord’s actions which this service has compared to the landlord’s account as far as possible. As the landlord has not disputed the resident’s sequence of events this assessment is mainly based on the resident’s account, for that reason.
The landlord’s records do not show when the resident reported the leak however the landlord was aware that there was a leak before 17 March 2023. This is because it repaired the resident’s bathroom ceiling and a wall and ceiling in the resident’s toilet on that day because of the leak. Given the available evidence it is therefore not possible for the Ombudsman to determine whether the landlord completed this repair within a reasonable time or in line with its repair policy.
The resident’s account is that the landlord was aware that the leak was still occurring approximately two months later as the plaster was still wet. The evidence does not show when the resident made the landlord aware that the leak was ongoing.
At some point the landlord decided that it needed to inspect the flat above. This was to help it determine the cause of the leak and to see who was responsible. While this was appropriate there is no evidence that the landlord took this approach promptly or that it conducted any other investigation that the landlord did in the resident’s property. The Ombudsman considers that the landlord ought to have considered this to rule out the cause of the leak from within.
The available evidence shows that the landlord sought to inspect the flat above in October 2023 but was unable to gain access on 25 October 2023. The landlord accepted in its stage 1 response that it had not investigated the flat above as of 5 December 2023.
It can take some time to arrange access to neighbouring properties, particularly if the landlord does not have a legal relationship with the occupier. The Ombudsman notes that it took the landlord until 6 December 2023 to inspect the flat above. In the absence of any explanation for the delay or the efforts the landlord made to obtain access the Ombudsman cannot be satisfied that this delay was reasonable.
The landlord told the resident that the cause of the leak was a defective waste fitting in the bath in the upstairs flat. The evidence does not state the tenure of the neighbour above or whether the landlord was responsible for repairing the waste fitting. However, the Ombudsman notes that the landlord told the resident in its stage 2 response that it completed the repairs on 7 February 2024 in connection with a reattendance.
The available evidence does not state what repairs these were or why it took the landlord from October 2023 to February 2024 to complete them, given the resident’s concerns about water ingress into her home. In the absence of this information, it is not possible for the Ombudsman to be satisfied that the landlord acted reasonably in attending and dealing with the repairs within a reasonable timescale.
The resident has told this service that the leak in the bathroom and toilet is still ongoing. The Ombudsman acknowledges that there will always be some leaks that are more difficult to identify and resolve. However, in this case the landlord has failed to show that it took appropriate action to resolve the leaks in a reasonable time. Given the significant and ongoing impact that this has had on the resident in terms of distress and inconvenience the Ombudsman considers the failures amount to severe maladministration.

The resident’s radiator

The landlord was responsible for repairing the radiators in the resident’s property under her tenancy. The landlord’s stage 1 response noted the resident’s bathroom radiator was leaking. The evidence does not show when the resident reported this to the landlord. The evidence however shows that the landlord changed the radiator on 10 November 2023 but damaged the hallway wall in the process.
The resident’s account is that the landlord visited her property on 16 January 2024 but was unable to complete a repair to the radiator until 29 January 2024. This is when it replaced a radiator valve and cleaned the “exchanger”. Based on the available evidence it is not possible to say if the landlord completed this repair within a reasonable time or in line with its repair policy.
The landlord was responsible for repairing the damage it did to the resident’s hallway under the resident’s tenancy. The landlord’s evidence is that it repaired the hallway wall on 2 February 2024 which the resident has not disputed. This was outside the 20 working days the landlord’s repair policy allows for routine repairs and was therefore unreasonable.

The resident’s bath

The records provided do not show when the resident told the landlord that her bath had “eroded”. However, the resident’s account is that the landlord’s contractor had told her on 28 February 2023 that she needed a replacement bath and the landlord replaced this on 17 January 2024. The resident’s account is that she chased the landlord for a replacement bath on 18 April 2023, 16 June 2023, 11 August 2023, and 25 October 2023.
The landlord has not contradicted or disputed the resident’s account, and it accepted in its stage 1 response of 5 December 2023 that the replacement bath was outstanding then. Therefore, the evidence is that it took the landlord at least over 10 months (28 February 2023 to 17 January 2024) to replace the resident’s bath which was outside its repair policy and was unreasonable.

Summary

The poor quality of information the landlord provided this service with is an indicator of poor record keeping and has hampered this investigation. There were significant unexplained delays and a lack of clear communication from the landlord over its handling of the leak and repairs to the radiator and bath. The delays and lack of management of the repairs caused the resident significant inconvenience and distress over a prolonged and unreasonable period. The landlord has also failed to offer any form of redress to put things right.
The resident told the landlord that the condition of her property caused by the outstanding repairs made her feel embarrassed and unable to enjoy her property. The resident disclosed that the landlord’s failures to resolve the leak to her bathroom and toilet has affected her mental health.
The resident has told the Ombudsman that she wishes the landlord to rehouse her because of the impact the housing conditions are having on her health. The Ombudsman is unable to order the landlord to do this as this may not be possible given the availability of suitable vacant properties and competing local housing need. The Ombudsman though has made a recommendation for the landlord to consider rehousing the resident.

Paragraph 49 investigation

In this investigation, the Ombudsman has identified failures in the landlord’s repairs and record-keeping like those identified in case 202124577. We have not, however, made any further orders for the landlord to improve this. This is because the Ombudsman made a wider order as part of case 202124577 which the landlord has complied with. We expect the landlord to take forward the lessons and improvements it shared with this service following the wider order and monitor the progress of this. Moreover, the Ombudsman is currently undertaking a special investigation into the landlord. This is under paragraph 49 of the Scheme and allows the Ombudsman to investigate beyond an individual complaint to establish whether there is evidence of systemic failings. The findings of this report will therefore contribute to the outcome and action needed following the completion of the investigation.

The landlord’s complaint handling

The landlord has a three stage complaints policy although only two stages apply to housing complaints that the Ombudsman can consider. The landlord must deal with complaints at stage 1 within 10 working days and complaints at stage 2 within 20 working days.
The resident complained to the landlord on 13 November 2023 and the landlord provided its stage 1 response on 5 December 2023. It took the landlord 16 working days to respond against a target of 10 working days. This was outside the landlord’s complaint policy.
The resident escalated the complaint on 24 January 2024 and the landlord provided its stage 2 response on 15 May 2024 after the Ombudsman made contact with it. It took the landlord 77 working days to respond against a target of 20 working days. While the landlord said “IT issues” relating to a merger delayed it responding this was unreasonable as landlords should have contingency plans in place to deal with this. The delay was outside its complaints policy.
The landlord upheld the resident’s complaint at both stages of its complaint process but did not offer the resident any redress. This was not in line with the Ombudsman’s Complaint Handling Code which requires a landlord to put things right when it has found failures.

Determination

In accordance with paragraph 42(a) of the Scheme, the Ombudsman has not investigated the resident’s complaint about damp and mould.
In accordance with paragraph 52 of the Scheme, there was severe maladministration in the landlord’s handling of the leak from upstairs.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s handling of the radiator repair and bath replacement.
In accordance with paragraph 52 of the Scheme, there was severe maladministration in the landlord’s record keeping.
In accordance with paragraph 52 of the Scheme, there was maladministration in the landlord’s complaint handling.

Orders

Within 28 days of the date of this determination the landlord must:
1. write to the resident to apologise for its handling of the leak. The landlord’s apology should be from the landlord’s chief executive or a member of the landlord’s senior leadership team
2. pay the resident directly £2,550 in compensation made up of:
  1. £1,500 for the distress caused by its handling of the leak
  2. £500 for the distress caused by the failures in dealing with the radiator repair and bath replacement
  3. £350 to acknowledge how the landlord’s poor record keeping has impacted its complaint handling and its approach to the case and added to the resident’s distress and inconvenience
  4. £200 for time and trouble involved in the resident pursuing the complaint
3. arrange a survey of the resident’s property by a suitably qualified professional to identify the source of any leaks within the property and externally in the building. The landlord must provide the resident and this service with a copy of the survey together with any recommendations within 28 days of the date of this determination. If this is not possible the landlord must agree an extension with the Ombudsman and resident in advance
4. write to the resident to request that she provide evidence of the impact of the housing conditions on her and her children’s health. This is so the landlord may consider whether a decant or rehousing is appropriate.
The landlord must provide the Ombudsman with evidence of compliance with the above orders within 28 days of the date of this determination.
Within 56 days of the date of this determination the landlord must:
1. use its best endeavours to complete any repairs identified in the survey to identify the source of the leak
2. consider whether the condition of the property and the ongoing nature of the leak would warrant a decant or rehousing based on the resident’s medical needs and write to the resident with its decision.
The landlord must provide the Ombudsman with evidence of compliance with the orders in the above paragraph within 56 days of the date of this determination.

Recommendation

The Ombudsman recommends that the landlord inspect the property for damp and mould and agree an action plan with the resident within 28 days of the date of this determination if it finds damp and mould.