London & Quadrant Housing Trust (L&Q) (202114179)

REPORT

COMPLAINT 202114179

London & Quadrant Housing Trust

25 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

This complaint is about the landlord’s:
1. Response to the resident’s report of a defect;
2. Complaint handling.

Background and summary of events

Background

The Ombudsman has seen the resident’s tenancy documents from June 2017. They show he was an assured shorthold tenant at this point. During the timeline below, the landlord referred to him as an IMR(intermediate market rent) tenant. The property is a one-bedroom flat on the second floor of a block. It is next to an internal shaft designed to ventilate the block in the event of a fire. The landlord’s correspondence shows the block was constructed in 2010.
The landlord operates a two-stage complaints procedure. Its complaints policy shows it aims to respond to complaints within ten working days at stage one. At stage two, it aims to respond within 20 working days. An additional ten working days is available at both stages providing the resident is kept informed.

Summary of events

From the resident’s later correspondence, the property was affected by significant damp and mould problems between 2014 and 2017. The information seen suggests the resident’s belongings were damaged during this period. It indicates damp and mould had also impacted the property before.
On 6 February 2021 the resident emailed the landlord about the fire shaft next to the property. He said the shaft had flooded affecting a neighbour’s flat and the block’s electrical safety systems.
In late February 2021, the resident told the landlord repairs were underway to the electrics. He said pooling water in the fire shaft was creating a damp problem that would eventually impact the property. He was concerned the situation had happened before and would happen again.
The landlord’s internal correspondence from 1 March 2021 shows its surveyor inspected the property that day. The surveyor said “every time” there was a pipe failure or flood from above, water built up in the fire shaft on the second floor. Further, this water was affecting the walls in the surrounding flats. The surveyor’s main points were:
1. Tanking works to the shaft could possibly divert the water into a nearby drain.
2. Historically, the landlord had made large compensation payments to residents affected by contaminated water rising on the block’s internal partitions. This water had previously caused mould growth.
3. It was “very important to note” it was a question of when, not if, the leaks would affect the block’s fire protection system.
On 28 July 2021 the landlord raised a repair order to address damp in the property. Its repair history said the whole property smelt of damp following a flood. The wording used likely reflected the resident’s report.
On 9 August 2021 the resident raised a formal complaint. He said, since moving to the property in 2010, he had experienced several “major” incidents of damp and flooding relating to the fire shaft. Further, during the last incident (understood to be in 2017): environmental health (EH) were involved, extensive repairs to the property were required and compensation was awarded. However, the landlord had not undertaken any additional works to protect the property. His main points were:
1. A foul smell was currently penetrating the property from the shaft, which lacked adequate flood protection.
2. During the recent inspection, the landlord’s surveyor advised it was a question of when the property would be affected by damp again.
3. The doors for the fire shaft system were “still” not working correctly. This was a fire hazard.
The landlord acknowledged the complaint the same day. It said it would respond by 20 August 2021.
The landlord’s specialist damp contractor inspected the property on 10 August 2021. This was around nine working days after the repair order was raised. The inspection report said there were indications of damp in the property and mould was visible. Further, “excessive water” leaking into the fire shaft was being absorbed through the property’s walls. It recommended repairs to: a bathroom wall, a bath panel and a thermostat. It said “clean and shield” works had been completed to three surfaces in the property.
The landlord’s correspondence confirms the following events occurred on 17 August 2021:
1. The landlord’s insurer advised building defects were excluded under the terms of the landlord’s insurance policy.
2. The landlord issued a stage one response by email. It said trapped water in the fire shaft was due to a building design defect. However, the block’s surveying team had advised no immediate remedy was available. A surveyor would attend the property on 26 August 2021 to discuss the situation. The discussion would consider alternative solutions, in addition to pursuing the matter as a latent defect.
3. The resident asked to escalate his complaint. He also asked to be moved given the situation was difficult to resolve. He said his walls were now wet and he did not want to relive his previous experience of damp. Further, the landlord should have addressed the situation when it first occurred.
The parties exchanged emails on 20 August 2021. The landlord said its maintenance team was unable to undertake repairs to address the design fault. Further, the resident should liaise with its housing department in relation to the move. The resident replied he was unhappy the complaint had not been escalated. He also said his move request should be handled as part of his complaint.
The resident reiterated his previous concerns during a letter to the landlord the following day. He said his correspondence was an official complaint. Several days later, he approached the landlord’s housing department about moving.
During internal correspondence on 26 August 2021, the landlord’s surveyor reported the findings from their inspection that day. They said evidence from a thermal imaging camera and moisture readings showed “the walls surrounding the shaft (were) bone dry”. Further, there was no evidence of dampness or excessive moisture within the property. However, old mould growth could be cleared from inside the shaft. Their main points were:
1. The resident had been advised installing guttering or tanking inside the shaft were not viable solutions. This was on the basis there was no way of discharging the water somewhere else. Further, tanking may not hold the water in the event of a flood.
2. The resident was unhappy there was no practical solution to the problem. Further, he was considering taking legal advice. The surveyor was happy to consider any solution proposed by the resident.
On 15 September 2021 the landlord asked the resident for images to support his move request. The resident replied the specialist contractor’s report contained relevant pictures.
The resident approached the Ombudsman on 22 September 2021. He said he had not received a formal stage one response. We subsequently asked the landlord to clarify the situation. During an email the same day, the landlord told the resident it had rectified “all the issues relating to the mould”. It asked him if he wanted to close the complaint. This was on the basis its surveyor found no evidence of damp in the shaft or the property. The resident replied he wanted a formal complaint response. He also said the landlord had not responded to his move request.
The landlord issued a stage two acknowledgement the following day. This was around 37 days after the resident’s initial escalation request. It said it would respond to the complaint by 21 October 2021.
The following events occurred between 1 and 20 October 2021:
1. The landlord approached its Latent Defects Team about the fire shaft. It was advised to complete a referral form to progress matters.
2. EH inspected the property at the resident’s request. It subsequently said there was no evidence of damp in the property. However, the fire shaft showed signs of historic damp and mould. Further, it was highly likely the damp would return given the issue was not fully rectified. EH said if the damp arose again the landlord may be subject to enforcement action.
3. The landlord’s repair records show its specialist damp contractor cleaned mould from the fire shaft on 12 October 2021. This was around seven weeks after the surveyor recommended cleaning works.
4. The landlord told the resident it needed to confirm the property was uninhabitable to arrange a decant. It said it would arrange a surveyor’s inspection to establish the property’s condition. It later contacted a different surveyor about the inspection.
5. On 20 October 2021 the landlord issued a stage two response. This was around two months after the resident’s initial escalation request. The landlord apologised for the delay. It said its defects department was investigating the situation. Further, another team was considering the resident’s rehousing request. The response did not detail any next steps.
6. In a number of emails the same day, the resident chased the landlord for a promised list of available properties. He also asked to view another flat in the same block.
On 21 October 2021 the landlord told the resident it could decant him to a hotel or a “semi-permanent unit” depending on the duration of the repair works. The resident replied he would not consider a hotel. Around one week later, the landlord chased its other surveyor about an inspection.
On 3 November 2021 the resident said the nearby flat was unsuitable. Further, he needed accommodation equivalent to the size of the property. During internal correspondence the following day, the landlord’s initial surveyor said a decant was not needed. This was on the basis “the property (was) perfectly fine” other than it was near the bottom of the ventilation shaft. They also said, though the resident’s frustration was understandable, the risk of flooding was common to every flat in the block.
In mid-November 2021, the landlord gave the resident details of two alternative properties in another district. During internal correspondence around the same time, the landlord said it was unable to permanently move IMR tenants. It also said it was unable to leave a unit empty due to the defect. In a subsequent email to the resident, the landlord said a temporary decant could be made permanent if the repairs took a long time.
On 19 November 2021 the landlord updated the resident by email. The email wording suggests its correspondence was prompted by a meeting with the resident that day. The landlord acknowledged the “immense” impact of the previous damp incident. It said an external contractor had been instructed to assess the current situation. It also said it would raise a further complaint in response to the resident’s concerns. The main points were:
1. The landlord could permanently move the resident to another IMR property but the rent would not match his current rate. Otherwise the resident could be temporarily decanted until any repairs were complete.
2. Given the low availability of IMR properties, the landlord would not be able to hold one for him. Nevertheless, it was willing to take a property off the market to facilitate a permanent or temporary move.
3. When the resident confirmed his preference, the landlord would provide him a range of relevant options. It would do its best to assist a move.
On 6 December 2021 an independent surveyor inspected the property and the fire shaft. The corresponding “defect report”, dated 26 January 2022, said it was tasked by the landlord to report on the flood risk associated with the shaft. The report said the property’s walls were found to be dry and there was no evidence of any previous leaks. The main points were:
1. Preventing leaks from flats above the property was unlikely to be possible. Nor wasit possible to drain the water below the shaft. This was due to a hallway below, and a lack of connections to the existing drainage system.
2. “The most economical solution” was to create a waterproof area to the floor and walls inside the fire shaft, and provide a “low level drain off point” to direct water out through an external wall. The surveyor recommended completing these works as soon as possible.
3. As soon as it entered the waterproofed area, water would be discharged away through overflow pipes that would penetrate an adjacent bedroom wall. These pipes would be “embedded into the bedroom floor screed”. Flooring would need to be made good following these works.
4. The landlord could opt to improve this system by installing an additional sump pump. This would increase the initial installation costs and ongoing maintenance would be required. Without the optional pump, the works were costed at around £20K including VAT.
On 10 January 2022 the landlord gave the resident a list of available properties that were available for a permanent move. It said three of the properties were under the same IMR scheme. Whilst another nine properties were available under different terms, the resident would lose his option to buy the property. During internal correspondence the following day, the landlord said the resident declined all the offers it had made so far.
On 31 March 2022 the landlord’s area maintenance leader emailed the local authority’s EH officer. The email was prompted by a request for a copy of the independent survey report. The Ombudsman has not seen EH’s response. The landlord said, though the report’s contents had been considered, it would not complete the recommended works at this time. This was on the basis the works were a “wish list” that, although desirable, were not essential. The main points were:
1. The building was only 12 years old and it would have complied with all relevant building regulations. The landlord had to weigh the risk of a recurrence against its available resources. Water previously entered the shaft because an “AOV” (assumed Automatic Opening Vent) was left open for several days.
2. The landlord’s decision could change if residents suffered any damage due to water ingress from the shaft. Under these circumstances, the landlord’s major works team would be responsible for taking the relevant decision.
On 28 April 2022 a local MP wrote to the landlord on the resident’s behalf. They said numerous points from their previous correspondence were unanswered. For example, the landlord failed to respond to concerns about: ongoing damp, a damaged fire safety protection system and insulation. They also said they were concerned by the landlord’s dismissive attitude towards the independent surveyor’s recommended works. The MP requested a detailed response.
The Ombudsman has seen the landlord’s undated draft response. The information seen indicates the landlord replied around May 2022. It said, following the repairs by the specialist damp contractor, there were no further signs of damp or mould at the property. Further, its surveyor did not note damaged insulation. However, a works order had been raised to decorate the property and any outstanding repairs would be captured. The landlord’s key points were:
1. The fire shaft was inspected by the landlord’s surveyor and an independent surveyor. No immediate works were identified as being necessary. Further, the shaft and the AOV was regularly checked by the landlord’s fire safety team. During a previous inspection, it was noted residents were opening the AOV, which would “always cause a risk of water ingress”.
2. Residents were in no imminent danger of flooding and the shaft was safe. However, if an accidental flood occurred the landlord would complete all the necessary remedial works. Given the property’s location, there would always be a possibility of accidental flooding from above. Further, all building designs contained good and bad elements, so the “actual issues (could not) be deemed as a defect”
3. Having been on the landlord’s rehousing list, the resident changed his mind and signed a new tenancy agreement for another year.
Little information has been seen in relation to events between June 2022 and February 2023.
The resident updated the Ombudsman during a phone call on 15 March 2023. He said little had changed since he raised his complaint. However, he now had hay fever and he was concerned about the long-term health impact of living in the property. This was on the basis the condition could be linked to damp and mould. He also said he had engaged a solicitor but the process was slow and court proceedings had not yet begun. His main points were:
1. EH was reluctant to get involved and it had not visited the property recently. However, the specialist damp contractor had attended that day to clean mould from the windows.
2. Though the walls gave higher than usual damp readings, the current condition of the property was not necessarily the problem. The resident was more concerned about the potential for future problems given the ongoing defect.
3. The resident felt the independent survey in late 2021 highlighted a potential solution. However, the landlord had declined to give him a copy. It had given the impression the survey’s recommendations were too expensive to implement.
4. The resident ultimately gave up on his rehousing request because the landlord was unable to offer him an equivalent property. It also failed to answer his questions around issues such as car-parking.

Assessment and findings

It is recognised the situation is distressing for the resident. The timeline shows it has been ongoing for a considerable period of time. Where the Ombudsman identifies failure on a landlord’s part, we can consider the resulting distress and inconvenience. Unlike a court we are unable to establish liability or award damages. In other words, we cannot establish whether the property’s condition caused the resident any health issues.
It may help to explain that this assessment is focussed on the landlord’s response to the resident’s formal complaint, which is broadly reflected in the above timeline. Any issues not addressed during the above complaint journey are beyond the scope of the assessment. Though the Ombudsman cannot consider cases that are subject to legal proceedings, our approach is that proceedings have not begun until a court is involved.

The landlord’s response to the resident’s report of a defect

The complaint centres on the potential for future flooding in the fire shaft. The timeline shows the resident previously experienced significant impacts related to similar flooding. It indicates the property has a history of associated damp and mould issues. The resident wants the landlord to implement the independent surveyor’s recommended works. His desire to avoid a repeat occurrence is understandable given the circumstances. The landlord told his MP the block’s residents were not at risk and the recommended works were non-essential.
It is recognised there are significant implications for both parties. For example, the independent surveyor’s report, dated 26 January 2022, costed the least expensive remedial works package at around £20K. It said leaks from above could not be prevented, which was consistent with comments the landlord’s surveyor made in March 2021. It was noted the landlord’s surveyor said flooding would eventually affect the block’s electrical safety systems and flats around the fire shaft. This appears contrary to the landlord’s subsequent risk assessment.
By seeking to facilitate a permanent transfer to alternative accommodation, the landlord appeared to acknowledge a degree of risk to the resident. However, the timeline indicates its position changed in 2022 based on the results of a fire safety inspection. The Ombudsman has not seen a copy of the inspection report. However, the landlord’s related comments suggest it attributed any increased risk to block residents opening the AOV. No information was seen to either support this assertion, or show the landlord took steps to prevent the AOV being opened.
Similarly, no information was seen to show the fire safety report was sufficient to override the opinion of two professional surveyors and EH, which said damp was likely to return given the situation was not fully rectified. It was noted EH suggested enforcement action against the landlord was likely under these circumstances. In contrast, the landlord’s response to the MP appeared to contain both contradictory and inaccurate information. For example, it said there was always a risk of flooding yet no imminent danger to residents.
It also failed to reflect the independent surveyor’s recommendation that the identified remedial works should be completed as soon as possible. This was arguably a key finding in the independent surveyor’s report. In other words, there was considerable information to indicate remedial works were required to address the reported defect. On the other hand, there was limited information to support the landlord’s decision to disregard the independent surveyor’s recommendations. Further, the evidence it used appeared flawed and contradictory.
Further, no information was seen to show the landlord’s major works team was involved in taking the above decision. It was noted, in March 2022, the landlord told EH that its major works team would be responsible for taking the relevant decision following any further flooding. Given significant flooding had previously occurred, and the circumstances apparently remained the same, the landlord could have reasonably involved its major works team in its decision making process. Overall, the landlord’s decision making was unreasonable given the circumstances.
In summary, there was considerable information to indicate remedial works were required to address the reported defect. In contrast, there was limited information to support the landlord’s decision to disregard the independent surveyor’s recommendations, which were consistent with observations from the landlord’s own surveyor and EH. The evidence it used appeared flawed and contradictory. Overall the evidence points to flawed and unreasonable decision making by the landlord. This amounted to maladministration on the landlord’s part.

The landlord’s complaint handling

The evidence points to several issues with the landlord’s complaint handling. For example, the resident’s initial complaint referenced a fire-hazard apparently related to water damaged electrics in the fire shaft. However, the landlord’s stage one response failed to address this reported safety issue. This was both inappropriate, given the nature of these concerns, and contrary to the Housing Ombudsman’s Complaint Handling Code (the Code). Section 3.14 of the Code, as published in July 2020, said, “Landlords shall address all points raised in the complaint…”.
The timeline shows the resident was unhappy with the format of the landlord’s stage one response. This was on the basis it lacked formality. Having considered its content in conjunction with the Code, the response failed to meet the Code’s requirements. This is because section 3.15 shows an appropriate response should include the complaint outcome. The landlord’s response lacked this information. It was also noted the response appeared to be written as a standard email. The landlord should consider using a template letter as the basis of its complaint responses.
The landlord took around 37 days to issue a stage two acknowledgement following the resident’s escalation request on 17 August 2021. During the interim period, the resident: sent a further escalation email, repeated his concerns in a letter and approached the Ombudsman. It is reasonable to conclude these actions were both unnecessary and inconvenient. Since it only apologised for the delay, the landlord apparently failed to recognise the additional inconvenience he was caused. Compensation would have been proportionate redress given the circumstances.
Despite failing to address the resident’s outstanding concerns, the landlord’s stage two response did not detail any follow up actions. For example, the landlord could have reasonably agreed to monitor its progress in relation to the defect and the resident’s rehousing request. Alternatively, it could have advised him he could speak to its complaint handler again if its investigation ultimately failed to resolve his concerns. In other words, the response and lacked a reasonable degree of proactivity. It was therefore unlikely to successfully resolve the resident’s concerns.
Overall, there was maladministration in respect of the landlord’s complaint handling. Its inappropriate stage one response overlooked a reported safety issue and failed to comply with the Code. Delays escalating the complaint prompted unnecessary correspondence from the resident. Though it later apologised, the landlord should have awarded compensation given the avoidable inconvenience to the resident. The landlord’s stage two response was not reasonably proactive.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s:
1. Response to the resident’s report of a defect.
2. complaint handling.

Reasons

There was considerable information to indicate remedial works were required to address the reported defect. In contrast, there was limited information to support the landlord’s decision to disregard the independent surveyor’s recommendations, which were consistent with observations from the landlord’s own surveyor and EH. The evidence it used appeared flawed and contradictory. The evidence points to flawed and unreasonable decision making by the landlord.
The landlord’s inappropriate stage one response overlooked a reported safety issue and failed to comply with the Code. Delays escalating the complaint prompted unnecessary correspondence from the resident. Though it later apologised, the landlord should have awarded compensation given the avoidable inconvenience to the resident. The landlord’s stage two response was not reasonably proactive.

Orders and recommendations

Orders

The landlord to reconsider its decision around the reported fire shaft defect. The following should be taken into account: its surveyor’s assessment of the risks to electrical safety systems and surrounding flats, previous compensation payments, EH findings along with the possibility of enforcement action and the independent surveyor’s recommendations. The landlord’s major works team should be involved in the decision making. The decision should not rest with the landlord’s initial decision maker. The landlord should confirm its decision and rationale to the resident and the Ombudsman within four weeks.
The landlord to pay the resident £600 in compensation within four weeks. Compensation should be paid directly to the resident and not offset against any arrears. The compensation comprises:
1. £400 to address any distress and inconvenience the resident was caused by the landlord’s flawed decision-making.
2. £200 to address any distress and inconvenience the resident was caused by the above identified complaint handling delays and failures.
The landlord to provide the resident a written apology in relation to its decision-making within four weeks. It should give the Ombudsman a copy of the apology.
The landlord to share the report’s key findings with it relevant staff for learning and improvement purposes. The landlord should evidence its actions to the Ombudsman within four weeks.

Recommendations

The landlord to use a template letter as the basis of all its complaint responses. This is with a view to ensuring responses at each stage reflect an appropriate degree of formality.
The landlord to review whether any steps have been taken to prevent residents from opening the AOV.
The landlord to ensure it responds accordingly to any reported safety issues.
The landlord should provide evidence of compliance with the above orders and confirm its intentions with regards to the recommendations within four weeks of the date of this report.