Newlon Housing Trust (202013332)

REPORT

COMPLAINT 202013332

Newlon Housing Trust

19 December 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:
1. Response to the resident’s reports of water ingress through their ceiling;
2. Complaint handling.
The Ombudsman has also considered the landlord’s record keeping.

Background and summary of events

Background

The resident is a shared owner of a two-bed, fifth floor flat which is located within a seven storey block of flats. The lease began in December 2012.
Under the terms of the lease the landlord is responsible for repairing the structure of the building including the roof, external walls, and installations for the supply and removal of water. The resident is responsible for repairing and keeping the property in “good and substantial repair”.
The landlord’s repair policy provides the following repair guidelines:
1. Emergency repairs (including leaks from overflows, major plumbing leaks, and leaks causing damage to electrics) – attendance within 24 hours
2. Urgent or routine repairs – attendance within 20 working days with a target average of 10 working days
3. Where damage is caused to a resident’s decoration or belongings by a leak which is not the landlord’s fault, the repairs policy states the resident would be expected to claim through their household insurance.
The landlord has a two stage complaints process:
1. Stage one complaints should be responded within ten working days.
2. Stage two escalations should be responded to within 20 working days.
The policy states the complaint will be closed when all remedies outlined in the stage two letter have been actioned.
The landlord’s compensation policy outlines that:
1. Where there have been delays in repairs it will pay £10-£25 per week.
2. Where there has been a service failure eg poor communication, broken appointments, or failure to meet timescales, £25 is payable.
3. Rent may be reduced where there is a ‘total loss’ of a room or where a room is only ‘partially usable’.

Summary of events

In July 2017 the resident reported that water was coming through his kitchen window when it rained. The landlord advised the resident to contact his insurance provider and a surveyor and contractor attended the following day to inspect the leak. The landlord’s repairs log indicates that no further reports were received until June 2019.
On 11 June 2019 the resident reported that he was experiencing leaks to the kitchen and living room ceilings. The resident expressed concern that the water could damage the electrics in the property. The landlord advised that a surveyor would attend the following day. The landlord’s repair log shows that a repair was raised for a plumber to attend and that the resident contacted the landlord on 18 June 2019 to advise that because the leak was external “no plumber [was] required.”
On 7 August 2019 the landlord advised the resident that:
1. It had contacted the occupant of the flat above his property to request that they have a plumber inspect and remedy any leaks issues.
2. Buildings insurance was included in his service charge.
The landlord’s repair records do not detail any further reports of leaks from the resident between June 2019 and 12 December 2020.
The resident raised a formal complaint on 12 December 2020. He attached photographs to his complaint which show small areas of peeling paint and historic staining, along with some fresh areas of water ingress on the living room ceiling. The resident stated that:
1. he had been reporting a leak to his property since 2017
2. the landlord had ignored the issue and was behaving neglectfully
3. the matter was a health and safety issue and he would take legal action.
On 15 December 2020 the landlord acknowledged the resident’s complaint and advised that whilst it aimed to respond within ten working days there may be some delays due to staffing because of the COVID-19 pandemic. The landlord advised the resident that if water was still penetrating he should contact the customer service centre to arrange for a contractor to attend.
The resident replied to the landlord’s acknowledgement email on 15 December 2020 pointing out that this was a health and safety matter as the leak could affect his electricity. On 17 December 2020 the landlord acknowledged the resident’s concerns that the leak could affect his electricity and again directed him to contact the customer service centre to “diagnose your repair and send an operative to make safe”.
The resident emailed the landlord again on 17 December 2020 highlighting his concerns about the safety of his property due to the leak.
On 28 December 2020 the resident again contacted the landlord to highlight health and safety concerns as the leak was now also affecting his bedroom ceiling above his window.
On 5 January 2021 the landlord sent a holding response to the resident stating that it was still gathering information and would respond within a further ten working days. Within its holding response the landlord asked the resident to confirm whether he had contacted its customer service centre to arrange to make safe the ceiling areas.
The landlord responded to the stage one complaint on 18 January 2021 and stated:
1. The matter was being managed by a special projects team as “legal implications caused delays in works being completed”.
2. It suspected the issue was related to the ventilation system.
3. The contractor would attend that day to attempt to resolve the matter.
4. The works may take up to three days to carry out.
5. An officer had tried to contact the resident to schedule an appointment as work would be required to the resident’s ceiling.
6. The ceiling would be made good and painted after the repair.
Within its stage one response the landlord acknowledged that the issue had been ongoing “for a while” and apologised for the resident’s experiences in communicating the issue. No offer of redress was made.
On 4 February 2021 the resident requested that the landlord escalate his complaint to stage two because he felt the landlord had acted neglectfully in not investigating the leak for four years. He stated he was experiencing stress, insomnia, panic attacks and depression due to the situation. Within his stage two escalation the resident requested that the landlord:
1. move him to suitable alternative accommodation whilst the leak was fixed as he stated that the property was “not suitable” to live in; or
2. buy his share of the property as he was unable to sell it due to the leaks.
3. Provide him with a copy of the project team’s report on the leaks.
On 5 February 2021 the landlord contacted the resident and said:
1. It would not buy back properties as this would not be an appropriate use of its resources.
2. It had a number of buildings with similar problems which it was working hard to address.
3. It was trying to meet the costs of the repairs as much as possible without passing on the costs through service charges.
4. It was not possible to temporarily relocate him to another apartment because:
  1. The affected room was not unusable.

i He still had other rooms available.

The leak did not mean the whole property was uninhabitable.

Its contractors had been unable to find the cause of the water ingress and so had left a portion of his ceiling open to monitor the water.
An abseil team would be carrying out external investigations and to carry out works to an external downpipe.

The landlord confirmed on 9 February 2021 that it had escalated the resident’s complaint. It advised there was a “considerable backlog” of cases waiting to be considered at appeals panel but that the case was being looked at with a view to trying to offer earlier resolution.
In February 2021 the landlord’s contractor attended the property to investigate the leak. At this time the resident requested that the areas opened by the contractor be left exposed so any further issues could be more easily monitored.
The landlord commissioned an abseil survey of the external areas of the building for the cause of the leak on 11 February 2021 which was inconclusive.
The landlord’s records of 10 March 2021 show that it believed that it had traced the leak to a soil vent pipe from a neighbouring flat which it had sealed. The landlord was waiting to see if a period of heavy rainfall would prove that the water ingress had stopped.
On 15 May 2021, ten weeks outside of the landlord’s complaint timescale, it wrote to the resident to advise that his appeal would be heard at the next panel meeting on 21 May 2021. The resident was provided with a copy of the records which would be considered by the panel and advised he could add further representations by email if he wished. The landlord stated that the panel:
1. would consist of two residents plus the quality officer
2. would discuss the case and make a decision
3. would inform the resident of the outcome within ten working days of the meeting
4. was the final stage of the complaints process.
On 16 May 2021 the resident contacted the landlord to advise that his living room ceiling was leaking again. The landlord responded advising the resident that its original contractor had gone into liquidation and it was arranging for a specialist contractor to investigate and rectify the leak.
The resident complaint panel considered the resident’s stage two complaint on 21 May 2021. Minutes from the meeting show that the panel considered:
1. The landlord’s:
  1. service standards

ii complaint policy

compensation policy.

The resident stated he had been reporting a ceiling leak since 2017 but that it was still ongoing.
The resident had raised a formal complaint on 12 December 2020 which was responded to on 18 January 2021 – the delay was due to a legal matter.
The resident had escalated his complaint on 4 February 2021.
Investigations had sourced the leak to a neighbouring downpipe in March 2021.
The resident had declined the landlord’s offer to make good the internal décor until there had been a heavy period of rain to check there was no reoccurrence of the leak.

The landlord provided its final response on 6 July 2021 – 18 months after the resident’s initial complaint and 21 weeks after he escalated the complaint. The response noted:
1. There had been delays in responding to the resident’s initial complaint.
2. Considerable delays in the repairs had been contributed to in part by the landlord’s contractor going into liquidation, but this did not account for the vast majority of the delays.
3. Poor communication had caused delays and contributed to repairs not being fully understood by the landlord.
4. In May 2021 the repair had been deemed to be complete however the water ingress continued.
5. Scaffolding was required to look at the cladding and the complaint would remain open until it was confirmed the repair had been fully completed.
6. There had been significant delays in the complaint reaching the panel.
In its letter of 6 July 2021 the panel:
1. Found service failures in:
  1. delays to repairs

iii the landlord’s communications

delays to the stage two complaint reaching the panel

Offered the resident £300 compensation comprising:
1. £200 – repair delays

iv £75 – poor communication

£25 – late appeal outcome

The landlord did not provide a breakdown of how it had calculated the compensation amounts awarded.
The landlord advised the resident of his right to refer the matter to the Housing Ombudsman Service in accordance with the requirements of the Complaint Handling Code.
On 28 June 2021, six months after the resident’s formal complaint, the landlord contacted the resident and acknowledged that the issue had been “ongoing for a long time” and was causing “stress and disturbance”. It advised him that contractor would be removing a section of the external cladding panels in order to try and identify and remedy the leak. Scaffolding would be required and would be in place in the following two months.
On 25 July 2021 the resident advised that there was a pipe that ran through his living room wall and that when it rained the thermal insulation within the wall in his living room became completely wet. He asked the landlord to investigate this pipe.
In August 2021 the landlord employed a specialist contractor to carry out a survey of the resident’s flat. Water staining was observed however no obvious source was found. It was determined that the soil stack of the flat above should be investigated. The soil stack was ruled out as the source of the leak by a survey of the flat above in September 2021.
The landlord emailed the resident on 22 October 2021 to advise it was trying to contact the flat above to arrange access so that contractors could investigate the leak from above.
Closed circuit television (CCTV) surveys of a number of pipes were ordered. The landlords internal communications show that between 25 January 2022 and 16 March 2022 the contractor failed to attend at least three scheduled appointments. The contractor completed a CCTV survey of waste stacks on 4 February 2022, and found no faults. This was more than one year after the resident’s formal complaint. The contractor determined that because the resident only experienced leaks during heavy rainfall and the leak did not smell of soil water this indicated that the pipes were not the cause of the leak. A further pipe required investigation on the roof but the operative did not have the appropriate safety equipment to carry this out.
On 12 February 2022 the resident advised the landlord that no progress had been made in the year since the landlord attended and made holes in his flat to investigate the leak. He advised he had refused a job working from home as he felt unable to spend time in the property and he was experiencing stress which was making him shake.
The landlord responded to the resident on 21 February 2022 stating that it shared the resident’s view that a considerable time had been taken and that the delays would form part of the review which would continue until matters had been resolved.
On 28 March 2022 the landlord advised the resident that the CCTV survey of the pipe on the roof had gone ahead and the landlord was awaiting confirmation of the next steps.
A special projects report dated 31 March 2022 noted substantial water ingress in the communal stairwell on floors six to eight. It was suggested that whilst it was unlikely that the water causing damage to the stairwell was also finding its way into the resident’s flat, this needed to be ruled out.
On 10 May 2022 the landlords records show that a further possible source of the leak was found – a rainwater pipe with a broken seal. The pipe did not track through the resident’s property but the broken seal was directly above the flat and the leaking water was suspected to be travelling along the floor slab and finding its way through.
On 13 June 2022 the resident contacted the landlord stating he had had enough of the situation with the leak which he said had been ongoing for five years. He advised that he was giving the landlord two weeks to resolve the issue or buy back his share of the property. He again highlighted the impact the leak was having on his daily living and wellbeing.
In July 2022 the landlord sourced the leak in the stair core to the door leading on to the roof which had perished and was not fit for purpose. The door was replaced and a storm guard installed in August 2022. The water ingress to the stair core stopped however the resident continued to experience leaks which indicated the door to the roof was not causing the issues in his property.
The landlord’s records demonstrate that in August 2022, three months after it was initially identified, the rainwater pipe was still being investigated as the source of the leak.
In September 2022 the landlord’s contractor removed a section of external wall insulation and found that the cement board and mineral wool were “sodden”. It also exposed a rusted overflow pipe from a balcony above and it was observed that water was missing the pipe and flowing down the concrete wall. Dye testing was carried out and confirmed that water was gradually tracking along the concrete slab into the resident’s property. On 21 October 2022 contractors removed the rusted overflow pipe and installed a larger UPVC pipe and the surround was sealed with concrete.
On 26 October 2022, 23 months after the resident raised his formal complaint, the landlord visited the resident who confirmed that whilst there had been some initial water ingress from the dye test when the works were carried out there had been no further water ingress during the recent heavy rain. The resident was advised to report any further water ingress to the landlord.

Assessment and findings

There are aspects of the complaint that relate to the impact of the resident’s living conditions on his health. It is recognised that this situation has caused the resident distress as he has experienced a leak to his property over a prolonged period of time. Where the Ombudsman identifies failure on a landlord’s part, we can consider the resulting distress and inconvenience. However, unlike a court, we cannot establish liability or calculate/award damages. Though the Ombudsman is unable to evaluate medical evidence, it will be taken into account when considering the resident’s circumstances
Although it is noted that the resident initially raised the leak in 2017, this investigation has primarily focussed on the landlord’s handling of the resident’s recent reports from December 2020 onwards that were considered during the landlord’s recent complaint responses. This is because residents are expected to raise complaints with their landlords in a timely manner so that the landlord has a reasonable opportunity to consider the issues. Given the time that has passed, the historic aspects of the resident’s complaint fall outside of the Ombudsman’s jurisdiction to consider.

Landlord’s response to the resident’s reports of a leak to their ceiling

When the resident reported concerns about the safety of his ceiling and repeatedly raised fears regarding the leak affecting his electrics, he was directed to contact the customer service centre. The landlord’s approach was excessively bureaucratic and created an unnecessary hurdle for the resident in trying to resolve the repairs. Given the circumstances of this case, it would have been reasonable for the complaints team to have contacted the repairs team itself to safeguard both the resident and other occupants of the block. The landlord failed to take a proactive approach to responding to reported health and safety risks.
Following the resident’s formal complaint the landlord began to take a more proactive approach to investigate the source of the leak commissioning a number of specialist investigations.
The landlord and its contractors struggled to identify the source of the leak and over a 22 month period multiple possible sources were identified. Whilst it is reasonable that the landlord relied on the professional opinion of specialists, the overall delay caused was unreasonable and caused the resident clear frustration and distress.
For example, there were three missed appointments by one contractor which served to further frustrate the resident and damage his confidence in the landlord. The landlord has not addressed this within its complaint response.
The landlord made a decision not to buy the resident’s share of his property as this would not be an appropriate use of resources. The resident would undoubtedly have experienced frustration and inconvenience as a result of being unable to sell his property. No information has however been seen that demonstrates that the landlord was obliged to buy the property .
The landlord’s decision not to move the resident to different accommodation was not unreasonable as whilst the leak caused the resident disruption and inconvenience, no evidence has been seen to indicate that the property was uninhabitable.
In relation to the failures identified the Ombudsman’s role is to consider whether the redress offered by the landlord put things right and resolved the complainant’s complaint satisfactorily in the circumstances. In considering this the Ombudsman takes into account whether the landlord’s offer of redress was in line with:
1. the landlord’s own policy
2. the Ombudsman’s Dispute Resolution Principles: Be Fair, Put Things Right and Learn from Outcomes
3. the Ombudsman’s own guidance on remedies.
The landlord acknowledged in its final response that there had been clear service failure’s in relation to the repair and complaint handling and apologised to the resident. It awarded compensation however an explanation was not given about how the seemingly arbitrary figure was calculated and the £300 offered was neither in line with the landlord’s own compensation policy, nor proportionate to the severity of the failings or impact on the resident’s daily living and wellbeing.
The landlord’s compensation policy shows that where there has been a delay in repairs, £10-£25 per week is payable once a repair is outside of target. The resident made a formal complaint on 12 December – the leak was repaired 97 weeks later on 21 October 2022. In line with the compensation policy, this would amount to approximately £970 compensation. While the landlord has discretion in its awards of compensation, and it is acknowledged that efforts were being made during this time to resolve the leaks, it has not provided any evidence to demonstrate that its significant departure from the policy was reasonable in the circumstances of this case.
The landlord delayed unreasonably in repairing the leak to the property which caused distress and inconvenience to the resident. The landlord also failed to offer the resident reasonable and fair redress for the delay. Therefore, there was maladministration in the landlord’s response to the repair. To put things right, the Ombudsman’s orders will include instructions for the landlord to pay the resident proportionate compensation.

Complaints handling

The Ombudsman considers that there are three principles behind effective dispute resolution, and this is reflected in the Ombudsman’s Complaint Handling Code. These principles are to be fair (treat people fairly and follow fair processes), put things right, and learn from outcomes.
Whilst the landlord failed to respond to the resident’s stage one complaint within the timescales outlined in its complaint policy by 16 working days, it advised the resident of the delay which was caused by staffing issues due to COVID-19 and legal complications with its contractor. Given the restrictions faced by the landlord this is not unreasonable.
The landlord’s response to the stage one complaint acknowledged the delays and apologised to the resident. It did not however address the timeframe that the resident had been reporting the leaks over and offered no financial redress. By not identifying exactly what had gone wrong, the landlord missed an opportunity to put things right.
On receipt of the resident’s request to escalate his complaint the landlord advised that there was a “considerable backlog” of cases. The resident waited five months for a stage two response, this far exceeds the 20 day timeframe outlined in the landlord’s policy.
The resident also had to chase the landlord for a response which further impacted on his trust in the landlord and caused the resident time and trouble.
The landlord therefore delayed unreasonably in providing a final complaint response which caused distress to the resident.
In its stage two decision the landlord stated that investigations were ongoing into the leak and that the complaint would remain open until it was fully resolved. The leak was not resolved until October 2022. Unfulfilled assurances made by the landlord have clearly damaged the resident’s trust in it and caused further distress.
The stage two complaint was outside of the timescales set out in the landlord’s complaints policy by 16 weeks. The landlord stated on 9 February 2021 that it was aware of the “considerable backlog” of complaints awaiting consideration at stage two, there is however no evidence that it considered alternative ways to resolve the complaint more quickly. Rather, the landlord delayed in providing a final response for five months. The delay in the landlord’s response to the stage two complaint was unreasonable and required the resident to invest a disproportionate amount of time due to having to chase for responses from the landlord, it also caused the resident delay in accessing the Ombudsman service as he awaited a final response. There was therefore maladministration in the landlord’s complaint handling.
The service therefore calculates the compensation for this delay at £250.

Record keeping

On a number of occasions the landlord asked the resident to confirm whether he had contacted the repairs team and whether the contractor had attended or completed works. It was unreasonable that the landlord relied on the resident for information regarding his calls for service and contractor performance. It would be reasonable to expect that the landlord would be able to access records of telephone calls and repairs logs.
The above illustrates inappropriate recording, retention or accessibility of records and as such is evidence of the landlord’s record keeping being inadequate and a finding of service failure has been made.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in its response to the resident’s:
1. reports of leaks at the property
2. complaint handling
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure in the landlord’s record keeping.

Reasons

The landlord delayed unreasonably in repairing the leak to the property which caused distress and inconvenience to the resident. The landlord also failed to offer the resident reasonable and fair redress for the delay.
The landlord delayed unreasonably in responding to the resident’s complaint. The resident also had to chase the landlord for a response which further impacted on his trust in the landlord and on his living conditions and wellbeing causing further distress and inconvenience.
The landlord was reliant on the resident to provide updates on the repair. This is unreasonable and indicates that record keeping is inadequate.

Orders and recommendations

Orders

The landlord to pay the resident £1320 comprising:
1. £970 for the delay in investigating the resident’s reports of a leak
2. £250 for the delay in responding to the resident’s complaint
3. £100 for poor recording keeping.
This amount replaces the £300 previously offered by the landlord. If the landlord has already made payment of £300 this should be deducted from the compensation ordered in this report.
The landlord to review its complaint procedures in order to:
1. Implement appropriate measures to address the backlog of cases awaiting consideration at stage two.
2. Contact residents whose cases are outside of the timescales set out in the landlord’s complaint policy, apologise for the delay, and provide an updated timeframe when they can expect to receive a final response.
The landlord to review its procedures for monitoring repairs that have been outstanding for extended periods of time and keeping residents updated regularly about repair progress.
The landlord to review its record keeping practices to ensure it captures the full details of operative attendance and whether a repair is complete.
The landlord should provide the Ombudsman evidence of compliance with the above orders within four weeks of the date of this report.

Recommendations

The landlord should review staff training to ensure that offers of compensation:
1. are calculated in line with its own policy, if departure from the policy is justified then a full explanation should be provided to the resident of why this is the case
2. provide residents with a detailed breakdown of how it has calculated the compensation amount including any adverse effect or impact of the service failure on the resident, and the time taken to resolve the failure.
The landlord review its procedures and processes to ensure that those managing complaints communicate with other teams such as repairs and customer services to assist residents to obtain a good level of service.
The landlord should provide the Ombudsman with confirmation of its intentions regarding the recommendations within four weeks of the date of this report.