Newham Council (202004315)

REPORT

COMPLAINT 202004315

Newham Council

19 May 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 responses to the resident’s:

request for evidence of its findings following its investigation into a leak.
queries about the building insurance.

Background and summary of events

The resident is a leaseholder of the property, and the landlord is the freeholder. A third-party agent acts on behalf the landlord as a managing agent. As the managing agent is acting on behalf of the landlord, it will be referred to as ‘the landlord’ in this report.
In or around January 2020, a leak occured and affected the flat beneath the resident’s property. The landlord arranged a visual survey for 24 January 2020, to the resident’s property and the flat below.
On 30 January 2020, the resident asked the landlord for an update and copies of the contractor’s report, as well as the report from a survey completed by an independent surveyor. The landlord acknowledged the request and advised that once it clarified what exploratory works would be carried out it would advise the resident.
Around 2 March 2020, the landlord’s contractor attended to the flat below the resident’s to investigate the leak. It took photographs and reported back that the waste pipe from the resident’s property required replacement. It confirmed that it was willing to change the section of main stack pipe, the leaseholder’s waste pipe connected to, to a plastic pipe so that the waste pipe serving the resident’s flat could connect to it. It completed a temporary repair and asked the landlord to notify the resident about the repair required to their waste pipe.
On 5 March 2020, the resident arranged for their own contractor to attend their property. The contractor reported that the soil stack connecting to all the flats was leaking and noted that building management was required to address the issue.
The landlord wrote to the resident and informed them that they were responsible for the repair and they needed to organise for a plumber to attend. The resident received the letter on 6 March 2020 and submitted a formal complaint the same day.
They complained that they had not received the reports they had requested from the landlord to confirm the location of the leak and the liability for the repair. They also complained that the landlord had not responded to a query they made about whether they could claim via the building insurance for legal defence against a threat of legal action from the resident in the flat below.
The landlord responded on 9 March 2020 and sent the resident a photograph of the defective pipe taken during its contractor’s visit. It asked the resident when they would get the repair completed or, if they wanted its contractor to do the repair, which it noted would be recharged to the resident. It advised that if it had not heard from the resident by the following day, it would issue a legal notice. It said in relation to the building insurance, that this only covered the structure of the block and suggested the resident claim via their own insurance.
The resident wrote back to the landlord on 9 and 10 March 2020, reiterating that they had not received the requested reports. They said that the photograph provided by the landlord, did not show that the leak was coming from their flat and that they believed the repair was the landlord’s responsibility. They attached a report from their contractors visit on 5 March 2020. which they said supported their position. The resident asked that the landlord put them in touch with the building insurers in relation to the legal defence claim.
On 10 March 2020, the managing agent responded and reiterated the previous information it gave about the building insurance cover. It attached the feedback from the contractor’s visit and additional photographs taken at the time of the visit. It asked the resident again if they would do the repair or allow its contractor to do it and that if no repair had started by 12 March 2020, it would take legal action to gain entry and complete the work.
The resident responded on 11 March, and asked the landlord to mark on the photographs where the leak was coming from and provide a copy of the lease clause where it stipulated who was responsible for the pipe. They noted that they did not deem the landlord’s contractor as independent and requested the reports again. The resident advised that there was no need for legal action to gain entry as they were not obstructing entry to the property, but disputing the charge for the repair. They asked how much it would cost for the repair and whether the building insurance would cover the costs of repairs to the damage in the flat below and any compensation claim the residents from the flat made.
On 13 March 2020, the landlord responded with a copy of the lease and the relevant page it said showed that the pipe was associated with the flat. It confirmed that its contractor had spoken with the resident and explained where the leak was coming from. It agreed to check with the insurers about the resident’s query.
It followed up with the resident and provided the advice it received from the insurers on 23 March 2020, that the resident would need to contact the insurers directly via email. It asked the resident again, whether they would repair the leak or have its contractor attend.
Between 24 and 25 March 2020 the parties were in communication about the repair. The resident reiterated their position that they did not believe that they were responsible. The landlord referred the resident to the information it had sent about the repair, attached a map of the layout of the resident’s flat and marked where the leaking pipe was situated on this map. It provided an estimated breakdown of the costs for the repair but noted the actual costs could only be established once the work was completed. It asked the resident again if they wanted to do the work themselves or, wanted its contractor to.
The landlord’s solicitor wrote to the resident on 6 April reiterating its view that the leak was the resident’s responsibility to address. In one letter, it asked the resident to confirm within seven days that the leak was repaired otherwise, it would obtain a court order. In the other letter, they advised that the managing agent would be arranging for the contractor to carry out the repair.
The resident responded to the letter on 17 April 2020, that they were happy to arrange the repair and pay for this but did not believe that the landlord had provided sufficient evidence to support that the repair was their responsibility.
On 12 August 2020, the resident wrote to the landlord and said that their complaint had not been addressed and requested the reports from the visits it had arranged and a photograph marking the location of the leak.
The landlord responded on 12 and 13 August 2020 and referred the resident to the previous correspondence it sent and informed the matter was with its solicitor. It confirmed that the survey in January was conducted on behalf of its contractor. It confirmed the outcome of the survey was that a quote was provided to carry out the investigation works to address the leak but following the survey, its contractor attended in March and located the leak. It said that the quotation from the survey was not approved at the time it was received, but was now being reconsidered based on the resident accepting liability for the costs of the repair. It provided the resident with a copy of the quotation.
The resident contacted this service and we wrote to the landlord on 21 August 2020 and asked that it review the complaint under its formal process, as it was not clear that it had done so. It logged a stage one complaint on 15 October 2020.
Between 16 October 2020 and 12 November 2020, the parties were in communication about the repair and associated complaint. The resident noted that their own contractor had found no leak in their property and that the landlord’s contractor had advised them earlier in the year that the leak was external. They expressed their dissatisfaction with how the landlord had dealt with their requests for information about the location of the leak and the liability to repair this. The resident advised that the contractor informed them in on 27 October 2020 that it would repair the leak. They asked again for a report confirming the responsibility for the leak.
The landlord provided the resident with an illustration of the location of the leak, describing the pipework and why it considered them responsible for the repair. It suggested the resident seek expert advice regarding their liability. It offered dates that its contractor could attend and the resident confirmed an appointment for 13 November 2020.
During the visit on 13 November 2020, the landlord reported that its contractor could not access the pipe and it was therefore, looking at alternative solutions. It agreed to get back to the resident once it established the next course of action.
In December 2020, the landlord wrote to the resident with a schedule of works and requested that they arrange to have the repairs carried out by the 18 December 2020 or legal action would be taken.
The resident questioned why the repair was not carried out on 13 November 2020, denied responsibility for the repair, and said it was for the landlord to arrange an expert witness to confirm the liability for the repair.
In response, the landlord confirmed that it had sent information, including an illustration, making it clear why it considered the repair the resident’s responsibility. It said that it spoke with the resident on 24 November 2020 and explained that the pipe was embedded in concrete, which its contractor had not anticipated. It said that as a result of this, the costs of the repair significantly increased and due to this and the resident disputing the responsibility for the repair, it wrote to the resident with a schedule of works so that they could arrange their own contractor to complete the repair.
The landlord provided its stage one complaint response on 30 December 2020. It said:

In respect of the requests for the reports from the contractor and survey, it confirmed that it provided the contractor’s feedback and photographs to the resident on 10 March 2020. It noted that while the contractors email feedback has been referred to a report, it should not have and apologised for any confusion caused as a result.
That in August 2020, it had clarified that the survey carried out in January 2020 was the only survey carried out. It confirmed the ultimate decision was that its own contractor would carry out the work rather that the contractor who carried out the survey. It acknowledged that it had previously said that the contractor who did the survey would also complete the investigation and apologised for any confusion caused.
It confirmed that on 10 March 2020, it had provided the resident with the feedback from the contractor’s visit, which confirmed the location of the leak and the resident’s liability to repair it, as it served the resident’s property.
In relation to the resident’s enquires concerning the building insurance, it confirmed the advice that it provided on 10 March 2020 about this.
It acknowledged that the resident’s contractor attend and found no leak within the property but explained that on occasion, leaks may not be detected within a property due to the location of pipes.
Its position regarding the repair had been made clear to the resident since March 2020 and it had provided a response to the questions from the resident’s complaint as well as the findings from the contractors visits and photographs.
It acknowledged that the resident wanted it to arrange for an expert witness to confirm the leak was their responsibility and referred them back to the illustration provided of the leak. It advised that the resident need to instruct their own adjudicator if they disagreed with the findings.
It said that its communication in December 2020 explained why it had to retract its offer to carry out the repair due to the dispute over the liability. It said that it was commencing legal proceedings to enforce the repair, unless the resident confirmed that they were taking responsibility.

On 4 January 2021, the resident referred to the schedule of works the landlord had sent in December 2020, which advised that defective pipework from their flat and the flat below, would need to be replaced and reconnected to the communal pipework. They asked how they were responsible for a pipe that did not exclusively serve their flat. They disputed that the information the landlord had provided about the repair was evidence and said that they had provided the report from their own contractors visit in March 2020. The resident also stated that the landlord had not marked the photograph as requested, to show where the leak was coming from and reiterated that they did not believe that the repair was their responsibility.
The landlord responded and advised that the schedule of works it provided no longer applied, as it was arranging for a contractor to attend in the interest of trying to resolve the matter without solicitors.
On 19 January 2021, the resident asked the landlord to escalate the complaint to stage two. They stated that:

They believed that the landlord had told them lies specifically regarding the survey carried out in January 2020 being carried out by an independent contractor.
The landlord informed that it would carry out the repair and later decided that it would not.
They provided a report from their contractor and the landlord stated that this was not adequate to support their view that the repair was not their responsibility.
The managing agent frequently changed the correspondent for the complaint, which caused difficulty.

The landlord provided a final response to the complaint on the 11 February 2021. It reiterated its position regarding the responsibility for the repair but said that would be undertaking an inspection of the pipework, as it wanted to complete the repair as soon as possible. It noted that this would be charged back to the resident. It stated that the report the resident had provided from their own contractor was not sufficient to counteract its own findings regarding the leak. It also said it found no evidence that the resident was misled about the responsibility for the leak and said that as a leaseholder, the resident had a responsibility to either accept liability for the repair or, counter argue its contractors findings.

Assessment and findings

The response to the request for evidence of its findings following its investigation into a leak.

This Service has not been provided with information or repair records concerning the leak prior to the survey that the landlord arranged for 24 January 2020. When the leak was reported to the flat below there was no confirmation as to where this was from. There is pipework within the structure of the building that the landlord, has the responsibility to maintain as a freeholder. This includes the main soil/stack pipe, which connects to waste pipes from individual flats’ toilets, sinks etc.
The landlord arranged a visual survey in January 2020, to assess how the investigation works would be carried out. Following this, it received a quotation to carry out the investigative works to source the leak and carry out the work on 28 January 2020. The landlord has explained that the decision was then made for its repairs contractor to attend to carry out the investigation works which it did on or around 2 March 2020. It decision to allocate the investigative works back to its contractor was reasonable given that it has a maintenance contract with it. However, there was a delay of more than a month between the survey and when the contractor did the investigation.
On receiving the findings from the investigation, the landlord promptly wrote to the resident within a week to advise of the findings and its expectation that the resident repair the leak.
By the time the resident received the letter, they had arranged for their own contractor to attend and carry out an investigation within their property. The Service has reviewed the resident’s contractors report from the visit on 5 March 2020 and the communication the resident had with their contractor following the visit. The contractor noted that no leak was found internally on the resident’s toilet but said that the soil pipe connecting to all the flats was leaking though it did not evidence how they had established this.
Following the submission of the resident’s complaint, the landlord also provided photographic evidence showing what it had found. The landlord sent the resident a copy of its contractor’s feedback however, it did not clarify that this feedback was effectively its contractor’s ‘report.’ Furthermore, it did not offer an explanation to the resident at the time that it had also received a quotation from the contractor who had completed the survey, to undertake the investigation to source the leak.
As result of the landlord not making this clear, the resident repeatedly requested reports from the survey and the contractor’s visit.
When it responded on 12 and 13 August 2020, the landlord did provide clarification on the outcome from the survey and provided the resident a copy of the quote. And in the formal response to the complaint, it acknowledged that it incorrectly referred to the contractors feedback as a report. It apologised to the resident in the complaint response because their expectations had not been managed in regard to a report being made available to them. It was appropriate that it did so as the resident spent several months requesting reports that were not available.
The resident continuously requested that the landlord provide evidence of the location of the leak and the liability for the repair through the provision of reports, marked photographs and the lease. In response to this, the landlord provided:

Photographs taken by its contractor.
A map of the flat with markings of where the leaking pipe was located.
An explanation of where the leak was located.
A copy of the lease and relevant section which it relied on to determine the resident was responsible.
An illustration of the pipe work to the flat, with details of the repair responsibility for the respective pipework in the building and an explanation as to why it considered the resident responsible for the repair.

Despite this, the resident was not satisfied that the landlord had provided sufficient evidence of the location of the leak and why it was their responsibility to repair. The resident relied on their own contractors report from 5 March 2020 to support their position.
As the resident continued to dispute, they were liable for the repairs to the leak, then the resident could have instructed their own contractor for a second opinion following receipt of the landlord’s contractor’s findings. There is no evidence that the resident did so.
The landlord’s contractor’s investigation was more extensive than that carried out by the resident’s own contractor given that its investigation extended beyond the resident’s own property into the communal areas.
Overall, the landlord’s response to the resident’s request for evidence of its findings following its investigation into a leak was appropriate. While it did not clarify its position regarding the availability of reports at the earliest opportunity when the resident first requested this in March 2020, it made reasonable efforts to provide the resident with an explanation of its contractor’s findings, the information it relied on to make those findings and why it considered the repair to be the resident’s responsibly.
The landlord found that there was a hole in a waste pipe, which serves the residents flat. In accordance with the lease, the resident is responsible for repairs and maintenance to ‘fixtures and fittings therein interior plaster work tiling and other conduits within the demised premises which exclusively serve the demised premises and whether or not below the surface of the floors walls and ceilings….’ This means that regardless of whether a fixture is beyond the surface of the walls, floor, or ceiling of the flat, it is the residents responsibility to maintain if it solely serves their flat. Based on the landlord’s contractors finding therefore, it would be the resident’s responsibility to repair, as the pipe in question serves only their flat.
This Service is not able to make legally binding decision concerning the liability for the repair and would advise the resident to seek legal advice on this if they want a definitive determination, as this would be for the court to provide.
This Service is aware that since the final response the landlord ‘s contractor attended and completed repairs to the leak in March 2021.The resident has since accepted the recharge for the repairs carried out.
The resident has also since made another complaint to the landlord and this includes their dissatisfaction with the repairs it carried out to address the leak, in March 2021. This complaint finalised the landlord’s complaints procedure on 24 March 2022 and will be considered under a separate investigation by the Ombudsman under reference 202203283.

The response to the resident’s queries about the building insurance

Under the terms of the lease, the resident as a leaseholder, contributes towards the premiums for the building insurance cover that the landlord arranges. The guidance on the landlord’s website explains that the building insurance policy extends to provide cover for third-party liability as a property owner. It explains that this will protect the leaseholder if damage occurs to neighbouring property or possessions, and someone makes a claim against them for loss.
When the resident requested the insurers information in March 2020, they were advised that the building insurance policy did not cover their flat and was for the structure of the block. As the guidance on its website explains, this is not the only cover the building insurance provides so this, therefore, was not entirely correct.
When the resident then made enquiries about the extent of the policy cover and whether it would cover the damage for the flat below, the landlord’s response was appropriate. It checked with the insurer as it agreed to and it then advised the resident to contact the insurers directly and provided the relevant contact details so that they could submit their enquiries and claim if they wished to. There is, however, no evidence that the resident then contacted the insurers as advised.
When a resident makes a query about building insurance that they contribute towards via service charge, the landlord is expected to give them information about the insurance cover and how to contact the insurer.
From the evidence provided, it is not clear when the resident was provided with details of the insurance cover however, they referred to this in January 2021. It is appropriate that the landlord sent the resident the information about the insurance cover. This would provide the relevant details about the extent of the cover.

Complaint handling

When the resident submitted their complaint on 6 March 2020, the landlord responded to the points they raised however, it did not acknowledge or record a formal complaint or give the resident information on how they could escalate their complaint if they were not happy with its response.
As a result of this, while the parties were in contact over several months after the complaint was raised, the formal complaint was not considered until October 2021, which is a significant delay of seven months.
When the landlord responded to the complaint, it failed to acknowledge the delay in it responding to the complaint under its formal complaint procedure. This is a service failure. As a result of the delay, the resident was not able to progress the complaint to the Ombudsman until nearly a year after the complaint was first raised.
Since the submission of the formal complaint in March 2020, the Ombudsman published a Complaints Handling Code in July 2020. It has since revised the code in April 2022. The Code explains that on receipt of a complaint, it shall be acknowledged and logged at stage one of the complaints procedure. If the complaint is not resolved, to the resident’s satisfaction it shall be progressed to the next stage in accordance with the landlord’s procedure.
Given the above finding of service failure in the handling of the complaint, an order has been made for compensation to the resident in recognition of this. A recommendation has also been made for the landlord to ensure that its complaint handling is in line with the code.

Determination (decision)

In accordance with paragraph 54 of the Scheme there was no maladministration in the landlord’s response to the resident’s request for evidence of its findings following its investigation into a leak.
In accordance with paragraph 54 of the Scheme there was no maladministration in the landlord’s response to the resident’s queries about the building insurance.
In accordance with paragraph 54 of the Scheme, there was a service failure in the landlord’s complaint handling.

Reasons

The landlord provided the resident with sufficient evidence to support its findings following the investigation into the leak. When the resident disputed this, the landlord went to provide further explanation as to the investigation findings and why this supported its position that the leak was the resident’s responsibility to repair.
Regarding the queries about the building insurance, it provided the resident with information about the cover and the insurers contact details for the resident to direct their queries to.
There was a delay in the landlord providing a response to the complaint under its complaint procedure and the landlord did not acknowledge this delay when it responded.

Order

Within 28 days of the date of this report, the landlord is to pay the resident £50 compensation in recognition of its delay in responding to the complaint. Once the payment has been made, the landlord is to provide evidence of this to this Service.

Recommendation

The landlord is to ensure that its staff familiarise themselves the Ombudsman’s Complaint Handling Code. This is particularly important as following the recent revision of the code in April 2022, landlord’s must carry out an annual self-assessment against the Code to ensure their complaint handling remains in line with its requirements.