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London Borough of Barnet (202315988)

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REPORT

COMPLAINT 202315988

London Borough of Barnet

10 October 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

  1. The complaint is about the landlord’s handling of a leak into the resident’s property from a neighbouring property which resulted in damp and mould.

Background

  1. The resident is a leaseholder of the property, and the landlord is the freeholder. At the time of the leak, the resident was renting her property to a tenant.
  2. In February 2022, the resident reported that there was a leak in her property and stated that it was affecting the inside structure of the property.
  3. On 11 October 2022, the resident submitted her complaint to the landlord. She explained that she previously reported a leak entering her property from the flat above. The resident stated that the buildings insurance company would not complete the works, due to the landlord not providing information about the cause of the leak and confirmation that the leak had been repaired. She explained that because of this delay her property was damaged, and the flat was no longer safe to live in. She stated that the mould to the kitchen and bathroom was now severe and extensive.
  4. On 28 October 2022, the landlord sent the resident a letter explaining that her stage 1 complaint response was delayed. It stated that it would provide the resident with a full stage 1 response by 31 October 2022.
  5. The landlord provided its stage 1 complaint response to the resident on 31 October 2022. It apologised for the lack of communication and inconvenience caused and stated it was upholding the resident’s complaint. The landlord explained that its roofing contractors had attended the property and identified no issues with the roof. It stated that it would have the communal tanks inspected to ensure that any leaks were located and repaired.
  6. On 4 December 2022, the resident requested her complaint to be escalated to the next stage of the landlord’s complaints process. The resident stated it was 10 months since she first reported the leak to the landlord and explained that the insurance company could not complete the repairs to her property, as the leak had not been repaired. She stated she would like her complaint forwarded to stage 2 of the landlord’s complaints process.
  7. The landlord provided its stage 2 complaint response to the resident on 11 January 2023. It acknowledged that the way it approached the outstanding leak repair was completely unacceptable and stated that its communication had been poor. The landlord explained it had a range of reports and documentation ruling out issues as the cause of the leak, but nothing to evidence the cause of the leak into the resident’s property. The landlord stated to resolve the situation, it would arrange a date to visit the resident’s property to inspect the damage and potential causes of the leak. In addition, it stated it would arrange a visit to all the neighbouring properties to conduct a full plumbing inspection. Then, on completion of the visits, it would provide the resident with a list of proposed actions and outcomes, including timescales for the work to be completed.
  8. The resident remained dissatisfied with the landlord’s response and submitted her complaint to the Ombudsman. She stated that her desired outcome was for the landlord to explain the cause of the leak and also repair the leak so she could make a claim on her insurance for the repairs to the inside of her property. She also stated that she would like compensation for the distress and inconvenience caused and loss of rental income during the period when the property was unsafe to live in due to the leak.

Assessment and findings

Scope of investigation

  1. The resident has also stated as part of her complaint to the Ombudsman that the damp and mould in the property damaged her soft furnishings. Normally, damage to a resident’s belongings would be considered as part of a claim under the resident’s own contents insurance policy (if they have one). When there is alleged negligence by the landlord or its contractors, residents may be able to raise a claim under the landlord’s liability insurance. Landlords are entitled to use liability insurance to manage such claims, and the landlord would not be required to pay a claim itself rather than using insurance. A landlord’s insurer is usually a separate organisation, and the Ombudsman cannot look at the actions of insurers, only at the actions of the landlord. Therefore, we cannot comment on the outcome of any claim made to a liability insurer. It is unclear whether the landlord provided the resident with its liability insurance details. If it has not done so already, it should provide the resident with the details.

Policies and Procedures and lease agreement

  1. The resident’s lease agreement states that the leaseholder should not permit any water or liquid to soak through the floors of the flat, and in any event of this happening, the leaseholder would be responsible for rectifying and making good all damage.
  2. In addition, the lease agreement states that the landlord is responsible for repairing the structure and foundations of the block and the roof, including gutters and rainwater pipes. Also, it states that the landlord is responsible for repairing service installations such as cistern tanks, sewer drains and wastewater pipes.
  3. The landlord’s repairs policy explains that it will respond to an emergency repair within 24 hours, a routine repair within 15 working days and programmed works within 25 working days.

Leak into the resident’s property from a neighbouring property which resulted in damp and mould

  1. In February 2022, the resident contacted the landlord and reported a leak entering her property. The resident believed the leak was coming from the flat above her. Following this, the landlord’s contractor visited the resident’s property on 4 March 2022. However, the contractor could not gain access. Therefore, due to this, the contractor inspected the exterior of the flat and identified that the leak appeared to be coming from a high-down pipe. The landlord acted appropriately by sending out a contractor to inspect the leak. However, the Ombudsman would have expected the landlord to arrange an appointment with the resident before attending her property. There is no evidence to suggest that the landlord did this.
  2. The landlord’s contractor visited the property on 31 March 2022 to inspect the downpipe. However, during the visit, the contractor identified the leak was possibly coming from the soil stack pipe. Therefore, the landlord arranged for a plumber to inspect this. The landlord’s plumber visited the property on 6 April 2022 and found no issues with the soil stack pipe. However, the plumber believed that the leak was coming from a neighbouring flat above the resident’s flat and its plumber left a calling card for a follow-up appointment. The Ombudsman recognises it can sometimes be difficult to identify the cause of a leak. Therefore, it was reasonable to inspect different parts of the building to identify the cause of the leak.
  3. After the landlord identified that the leak was possibly coming from the neighbouring flat, there was a considerable delay in the leak being fixed. As a result, the resident submitted a complaint to the landlord on 11 October 2022 and explained that the leak was still ongoing and causing damage to her flat, which had made it no longer safe to live in. She also stated that she could not make a claim on her building insurance until the leak had been repaired, and she had received confirmation.
  4. The landlord acknowledged in its stage 1 complaint response provided on 31 October 2023, that there had been a lack of communication about the leak repair and stated that it would have the communal tanks inspected to ensure that any leaks are located and repaired.
  5. After the landlord issued its stage 1 complaint response, there were still delays in the leak being repaired. Due to this, the resident asked her complaint to be escalated to stage 2 of the landlord’s complaints process, and she explained the leak had still not been repaired. The landlord provided its stage 2 complaint response to the resident on 11 January 2023. It acknowledged that it did not handle the outstanding leak appropriately and also that its communication was poor. It’s positive that the landlord acknowledged its errors. However, it failed to offer compensation for the distress and inconvenience caused by these errors, which was unreasonable in this instance. The landlord confirmed in its stage 2 complaint response that it would arrange a visit to the resident’s property and neighbouring properties to identify and repair the source of the leak.
  6. On 26 January 2023, the plumber visited the neighbouring flat above the resident’s property and identified an overflow issue from a tank. The plumber carried out a repair and stopped the leak. It is unclear whether the resident in the flat above her is a tenant or a leaseholder. The resident informed the Ombudsman that she believes it’s a tenant. If the leak was coming from a leaseholder property, the Ombudsman recognises it’s a leaseholder’s responsibility to resolve a leak if it was coming from the inside of their property. Leaseholders are responsible for repairs within their individual property and the landlord is responsible for maintaining the outside of the building and communal areas. However, the Ombudsman would have expected the landlord to communicate with the neighbouring property and take the necessary steps to resolve the leak. The landlord has failed to provide evidence that it did this. In addition, the landlord has also not provided any evidence to show that it contacted the resident and informed her that the leak had been resolved, so she could inform the building insurer in relation to her ongoing claim.
  7. As the leak was ongoing for a considerable amount of time, it resulted in damp and mould at the resident’s property. The landlord raised a repair order to carry out a mould wash at the resident’s property. Its contractor attended the resident’s property on 7 March 2023, but they could not gain access. The landlord arranged a new appointment for 24 March 2023 to complete the mould wash and this was completed on the agreed date. This was a reasonable response by the landlord as a mould wash can be effective in resolving damp and mould in some cases. So, it was appropriate to attempt this in the first instance.
  8. Due to the level of damp and mould in the resident’s property, a survey of the property was completed in March 2023 and the surveyor’s report issued in April 2023. The report explained that a leak from the flat above had caused a high moisture reading to be obtained in the kitchen. The surveyor recommended that the flat above was inspected for plumbing defects and repaired accordingly. The surveyor also recommended works to treat and remove the mould, installation of a moisture tracker fan in the kitchen and installation of thermal boards. As the resident was a leaseholder, she would be responsible for completing these works in line with the terms referenced in the lease agreement.
  9. The information referenced in the surveyor’s report indicates that there was a still an unresolved leak. Therefore, based on this, it seems the landlord did not previously completely fix the leak. The resident also informed the landlord that the leak had still not been resolved. The landlord’s contractor attended the resident’s property on 14 March 2024 and 12 April 2024 to identify the source of the leak. However, it could not gain access. The Ombudsman recognises that the landlord being unable to gain access would have been outside its control. From the information provided by both the landlord and the resident, it seems that the leak has still not been resolved.
  10. The leak has not been resolved and the resident cannot claim on the buildings insurance until the leak has been fixed and confirmation has been provided by the landlord. The Ombudsman expects the landlord to carry out an inspection of resident’s property and building if necessary to identify the cause of the leak. Due to the leak being an ongoing issue, a surveyor should complete the inspection. Following the inspection, the landlord either repair the leak if it is responsible for repairing it under the lease or alternatively communicate with the neighbouring property owner if it’s a leasehold property to tell them to repair the leak if it is coming from their property.
  11. In addition, as there was a considerable delay in the landlord attempting to repair the leak, and it failed to keep the resident updated on the status of the repair. Therefore, there has been maladministration by the landlord in its handling of a leak into the resident’s property from a neighbouring property which resulted in damp and mould. The landlord acknowledged these failings in its stage 1 and 2 complaint responses. However, it failed to offer the resident any compensation for the distress and inconvenience caused. Therefore, it would be appropriate for the landlord to offer the resident £500 compensation to recognise the distress and inconvenience caused by the poor communication and delays in resolving the leak. The compensation awarded is in line with the Ombudsman’s approach to compensation, which is set out in our remedies guidance (published on our website). The remedies guidance suggests awards of £100 to £600 where there has been a failure by the landlord, which adversely affected the resident, but there may be no permanent impact.
  12. The Ombudsman recognises the resident stated that due to the leak, her tenant who was renting the property moved out of the property. It is acknowledged that it must have been difficult for the resident to deal with this. However, the landlord would not be expected to pay compensation for any distress and inconvenience which a leaseholder’s tenants experienced or the loss of rental income from a tenant. This is because the landlord does not have a contractual relationship with the tenant, so it does not have any responsibilities towards them. The landlord only has responsibilities towards the leaseholder. It is also not possible for the Ombudsman to establish with certainty that the tenant moved out as a direct result of errors by the landlord rather than as a result of the leak itself and the damage this caused to the property. There is no evidence that the landlord was responsible for causing the leak itself, so it is not required to compensate the resident for any losses she suffered as a result of this.

Determination (decision)

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling of a leak into the resident’s property from a neighbouring property which resulted in damp and mould.

Orders

  1. The landlord is ordered to:
    1. Pay the resident £500 compensation for errors in its handling of a leak into the resident’s property from a neighbouring property which resulted in damp and mould.
    2. Arrange for a surveyor to inspect the resident’s property to identify the cause of the leak. A copy of the surveyor’s report should be sent to the resident and the Ombudsman.
  2. The landlord must comply with the above order within 4 weeks of the date of this report.
  3. Following the surveyor inspection, the landlord should carry out the necessary repairs to resolve the leak if it is responsible for the repairs under the lease agreement. These repairs should be carried out in line with the timescales in the landlord’s repairs policy. Or alternatively if the leak is coming from a neighbouring leaseholder property and they are responsible for the repair it should take the necessary steps to communicate with them to fix the leak.
  4. The landlord must provide evidence of compliance with the above order within 8 weeks of the date of this report.

Recommendations

  1. It is recommended the landlord provides the resident with a confirmation in writing once the leak  has been fixed, so she can submit this information to the building insurer.
  2. It is recommended that the landlord refers the resident to its liability insurer or consider a claim itself for damage to the resident’s possessions caused by the damp and mould, if it has not already done so.