Notting Hill Genesis (202002469)

REPORT

COMPLAINT 202002469

Notting Hill Genesis

21 April 2021

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.

Complaint

1. The complaint is about the landlord’s handling of the resident’s request for an inspection and report of the faults reported with the sprinkler system in the building. 

Background and summary of events

2. The resident became the leaseholder of his property in October 2019. The landlord is the freeholder of the building comprising the resident’s property and others. It is a new build property.
3. From the information available it would appear that on 14 December 2019 a neighbouring property experienced a leak from the building’s fire sprinkler system. The housebuilder attended the property on 16 December 2019 and informed the landlord on 18 December 2019 that the matter was being investigated by its contractors. On 16 December 2019 it appears the resident formally complained to the landlord about its handling of this and other reported leaks of the fire sprinkler system, as he was concerned there might be an underlying problem with the sprinkler system. The landlord, however, has told the Ombudsman that this was an isolated incident and that no other leaks have occurred on pipes supplying water to the sprinkler heads.
4. On 20 December 2019 the landlord updated residents that the earlier ‘isolated incident’ was due to a split sprinkler pipe, which had been sent by the housebuilders for analysis and it would update residents further in the new year. It said in the meantime it would be issuing hatch keys to residents to enable them to turn off supply to the system in the event of a leak, but that it did not expect a recurrence. It made clear supply should only be turned off in an emergency. In its newsletter to residents that month it also said it considered the incident to have been an isolated one, but that it was investigating and would report back.
5. On 3 January 2020 the landlord provided its Stage 1 complaint response to the resident. It reiterated the above position, saying it expected the results of the analysis in the new year and would then update residents as to why the leak had happened.
6. It said it had not issued hatch keys previously because of the safety purpose of the system but had since reviewed and revised that decision.
7. On 5 January 2020 the resident emailed the landlord in response. With reference to the incident on 14 December 2019, he told the landlord that ‘….even with the Xmas break you should have an answer by now. Until we know the outcome and until a full system inspection takes place no one knows if this life preservation system is working correctly. This is a serious concern for residents.’ He reiterated what he said he had previously told the landlord during its meeting with residents, that there had been other reports of leaks and his concern that there could be a wider problem with the sprinkler system pipework. He asked that the landlord expedite the report and share it with all residents within seven days.
8. On 14 January 2020 the landlord replied, explaining that the housebuilder’s contractors had said the investigation of the issue would take up to three weeks to complete and so, allowing for closure during the holiday period, the report was due by 22 January 2020. It said it would continue to pressure the housebuilders to provide the report as soon as possible and once received it would update residents and take any action necessary.
9. In January 2020 the landlord’s property management officer implemented a system of weekly updates to residents on any issues with the properties in the development.  This was done through a link to a spreadsheet of issues and updates, and also by emailing residents on a routine basis with a summary of the main updates.
10. On 17 January 2020 the update notes the housebuilder was chasing a report on the sprinkler pipe but that the incident was considered to be an isolated issue. On 31 January 2020 it reported that the housebuilder’s report on the pipe had been inconclusive and that it would investigate further. The landlord requested a copy of the report from the housebuilder and asked that the pipe be sent for investigation.
11. It appears the resident then requested escalation of his complaint and on 6 February 2020 the landlord provided its Stage 2 review response. It said that the housebuilder’s report of results of tests on the sprinkler pipe had proved inconclusive and that the housebuilder was arranging further investigations into the cause of the leak.
12. The landlord apologised for the delay, acknowledging the resident’s frustration, and said it had requested a copy of the report within the next two weeks along with details of what the housebuilder’s further investigations involved. It said once it received the report it would relay material aspects of it to the resident and provide all residents with weekly updates on the further investigations. It said it had asked the housebuilders for a ‘realistic and reasonable timeframe for completing the investigation so the matter does not ‘drag’ out.’  With regard to any further reports of leaks the landlord undertook to log all incidents and report any trends to the housebuilder to ensure incidents were not considered in isolation.
13. In response to the resident’s contention that it had failed to put residents’ safety first, the landlord said it shared the resident’s frustration, but explained it had done all it could to chase a response and was limited in what it could do when it was reliant on a third party’s response. It said it partially upheld the complaint, on account of the delay in providing the information requested, while noting its ability to do so having been obstructed by ‘third party involvement.’ 
14. On 7 February 2020 the landlord noted in its update that it had again chased the housebuilders but was itself unable to carry out its own tests on the pipework due to Covid restrictions. It said it considered the issue to be an isolated one and so posed no risk to other flats.
15. On 13 March 2020 the landlord’s update said the housebuilder’s report was expected by the end of the month, that it had requested the original report, and confirmed that a maintenance check of the sprinkler system would take place in June. It had explored the possibility of bringing this forward, but found that to do so could invalidate the warranty.
16. It would appear that during April 2020 there was a discussion between the landlord and the resident in which the resident raised the ongoing issue of the sprinkler system during a wider discussion about service charges. The resident considered that this would still be covered by manufacturer warrant/guarantee and queried his liability under the service charge for any associated cost. In response, the landlord explained that maintenance costs for sprinklers and other items formed part of a general maintenance cost which was not increased or amended as a result of isolated issues and so residents were therefore expected to contribute to the maintenance cost.
17. The resident raised the sprinkler issue with his local Councillor, explaining his concern that the landlord had not yet investigated sufficiently to reassure him that the sprinkler system was in full working order. In response to the Councillor’s enquiry on 20 April 2020 the landlord explained that: ‘The isolated sprinkler incident related to the development of a crack in one small piece of pipework supplying water to one sprinkler head. These pipes contain high pressure water, so this crack allowed a large volume of water to escape into the kitchen of the affected property. This leak was not indicative of a failure of the sprinkler system……the pipe was replaced and the sprinkler returned to full functionality. This issue does not have any impact on the rest of the sprinkler system servicing the development.’
18. The landlord acknowledged the resident’s concern to know why the piece of pipe failed and said that it was understandable that he would question how the landlord could be confident of preventing further leaks. It explained the housebuilder had requested further tests following the manufacturer’s inconclusive ones but that the results were now delayed as the testing facility was closed until after the Covid lockdown. But in the meantime it could assure the Councillor the outcome of tests had no immediate impact on the safety of residents or their properties.
19. The landlord confirmed a routine visual inspection of the sprinkler heads would take place later that year and that, although this could not include the concealed pipework, it reiterated the incident had been an isolated one and there was no risk to residents.
20. It appears that in total three reports were commissioned by the housebuilders into the pipe failure, two inconclusive reports followed by one it considered to be full and final. The Ombudsman is unaware of the details or date of the first two reports, although the landlord’s update spreadsheet notes that visual testing had found no issues and that samples had been taken for further testing, the results of which it had chased on 29 May 2020.
21. In June 2020 the housebuilders commissioned engineers to examine and analyse whether mastic had caused stress fractures (cracking) to the pipework.  [This appears to have been the testing delayed during lockdown.] In July 2020 the housebuilders, having been chased by the landlord, undertook to send the report w/c 27 July 2020. In a case note the property management officer noted the housebuilders had confirmed that there was ‘no cause for concern’ but that she would review the report ‘and go from there.’
22. The engineers reported their findings on 11 August 2020 and the landlord shared these with residents on 21 August 2020. It reported that: ‘Testing was carried out to establish whether there were any signs of cracking on the samples, and whether the sealant used was a potential cracking agent for the pipe material. No signs of environmental stress cracking (ESC) were observed in the samples tested, and the reported failure rate upon testing revealed the risk of ESC is low. This is a positive result as whilst we had always believed the earlier sprinkler leak was an isolated incident, we now have evidence to support that the risk of another flat experiencing a sprinkler leak is low.’  The Ombudsman notes that the landlord also shared with the resident the report itself.
23. The Ombudsman has seen a copy of this report. It does not conclude that the material used caused the cracking but says further investigation of the failure of the pipe would be necessary in order to better assess the risk of failure in the remaining pipes. On forwarding this to the landlord, the housebuilder indicated that, as there was no evidence the mastic had caused the cracking, the cause of the cracking remained unknown.
24. In the meantime, it appears the landlord had issued to residents further hatch keys for the emergency (internal) shut off of valves in the sprinkler system, together with instructions and warning labels to affix. (It seems the housebuilder had previously suggested this as a further option in February 2020.)
25. On 24 August 2020 the landlord raised with the housebuilders the engineer’s recommendation that the original pipe be tested, and asked when it could expect the results. The landlord said it had shared this report with residents but was still waiting for the housebuilder to provide it with the inconclusive report. It added that it had requested this several times, and in reference to sharing with residents, noted: ‘Unless we provide details of all reports carried out I think there is going to remain a level of distrust, as it may appear we’re only sharing selected information.’  
26. On 10 September 2020 the housebuilder told the landlord that there had been no further issues since the isolated incident, which had been investigated and a final report issued, and so it would not be carrying out any further testing. To this the landlord reiterated its request for sight of the previous two reports explaining it needed these in order to be able to evidence to residents that three investigations had been commissioned. The housebuilder’s subsequent response maintained only the final report would be ‘issued’.
27. It is unclear what then transpired, but a note of a residents’ meeting with the landlord on Friday 9 October 2020 indicates the resident raised the issue of the sprinkler report and lack of update.  The landlord’s defects manager is noted as saying that, as the latest report had come back inconclusive, he had requested the ‘part’ back to enable independent testing. The manager said he had requested the previous report from the contractors, but would chase this directly with the contractor and escalate if it was not received. It would also appear that by this stage the landlord had arranged for additional sprinklers to be tested.
28. The Ombudsman has records to show the landlord’s defects manager did indeed then chase the housebuilder for follow up investigations to the final inconclusive report. On 4 November 2020 the housebuilder confirmed that, given the landlord’s ongoing concern with the sprinkler system, it could test sample sections of the system between blocks and that would hopefully reassure the landlord.
29. Meanwhile, on 30 October 2020 the landlord advised residents that its yearly sprinkler inspection had started and that they would be contacted separately about this. [The landlord has told the Ombudsman that due to the scale of the work involved the tests are done in batches.]
30. On 11 December 2020 the landlord updated residents that its engineer had in the course of its standard inspection of 10% of sprinkler heads, conducted a pressure and flow test and that all sprinkler systems were operational. However, as a result of the resident’s concerns, the landlord said that it intends to conduct a one-off inspection of all properties. The resident has told the Ombudsman that the inspection at this property identified low pressure and the need to replace a valve.
31. Following the resident’s complaint and subsequent events, the Ombudsman has been told of two further leaks. The landlord has told the Ombudsman both were minor – one in a communal area and one inside a property – involving the slow dripping of water from a join in the pipework which served the sprinkler system. For context, the landlord has explained the development contains over 1000 sprinkler heads, and these are the only two issues identified with jointing on the associated pipework since occupation of the development in 2019.
32. That said, the landlord has said it is working with the housebuilder to agree how the matter can be investigated more widely in order to reassure residents.

Assessment and findings

33. Firstly, while the resident has referenced the fact that other residents have been affected by the sprinkler issues, in coming to the Ombudsman he has made clear he is complaining as an individual resident and not on behalf of his neighbours.
34. Secondly, while it would appear that the resident’s property has not itself suffered a leak from the sprinkler system, the resident has made clear the adverse effect on him of the leak and the landlord’s response. It is clear he has been left concerned about the efficacy of the operation of the building’s fire sprinkler system and considers his attempts to obtain necessary reassurance from the landlord with regard to this had caused him time, trouble and frustration.
35. It seems to the Ombudsman that while the evidence at the time was of an isolated leak of a pipe in the sprinkler system the resident was left with an understandable concern about the sprinkler system generally. In light of that concern, he was entitled to ask the questions he did of the landlord and he was entitled to full and timely replies to his questions. For its part, under its leasehold agreement with the resident, the landlord is responsible for the ‘…gas, electrical, drainage, ventilation and water apparatus and machinery in under and upon the Building’.
36. Once the resident raised his concerns, the Ombudsman considers the landlord acted appropriately in seeking an investigation and report from the housebuilder into the December 2019 leak, while at the same time reassuring residents of its reasons for considering the matter an isolated incident. The property was a new build and presumably was still under warranty or guarantee. Furthermore, it was reasonable for the landlord to allow sufficient time over the Christmas break for this investigation to take place.  It was also reasonable that it chase the housebuilder when it first missed the January 2020 deadline. All this indicates that when the resident raised his concerns they were taken seriously by the landlord, and it took appropriate steps to identify what was necessary to prevent a recurrence and reassure the resident of the effective operation of the sprinkler system. 
37. Consequently, the landlord’s initial Stage 1 response was a reasonable one. Providing residents with hatch keys while it awaited feedback from the housebuilder was a reasonable and pragmatic approach by the landlord to the fact of the delay and potential further leaks in the meantime. In the Ombudsman’s view, however, in light of the obvious safety concerns involved in having residents intervene in the operation of the sprinklers, this must have only ever been intended as a short-term measure by the landlord, and one which will have increased the relative urgency of identifying and resolving any underlying problem.
38. However, by the time of the landlord’s Stage 2 review on 6 February 2020 – over seven weeks since the first report of a leak – matters were for all practical purposes no further forward. The landlord was still not in receipt of the housebuilder’s report (other than the fact that it was inconclusive) or details of what further investigations the housebuilder was proposing, despite having undertaken to provide the resident with details of both. The Ombudsman notes, however, that this lack of progress was not the result of inaction on the part of the landlord, during which time it had chased the housebuilders; requested the section of pipe back for testing; updated residents and reassured them the leak was an isolated incident.
39. Its Stage 2 response recognised the resident’s increasing and understandable concern and responded appropriately. The Ombudsman acknowledges that the landlord’s ability to do what it said it would do had by this stage been obstructed by the lack of conclusive information from the third party. Consequently, its imposition of a more pressing deadline with the housebuilder and its undertaking to relay ongoing issues to the housebuilder to help inform its findings was an appropriate attempt at escalation with the housebuilder and indicates the landlord appreciated the potential seriousness and urgency of the issue. Unfortunately, it also appears to indicate that the landlord itself was being held at arm’s length by the housebuilder in terms of its communication, as it seems the landlord was also to some extent in the dark about developments, such as they were. 
40. That being the case, shortly afterwards and certainly as time wore on, it became necessary for the landlord to take action to expedite matters not only to assure itself of the efficacy of the sprinkler system but also to reassure the resident and provide him with the information he had reasonably requested and was entitled to expect.
41. It seems that between February – June 2020 the housebuilder had received a second inconclusive report and commissioned a third. And while the landlord had not received the first two reports, it was aware of the action being taken by the housebuilder with regard to a third and was chasing progress. There is also evidence that the landlord was regularly updating residents on developments, for example in relation to the fact that it could not now conduct its own testing of the pipe; or the fact that it was unable to expedite the maintenance testing.
42. There is also evidence of the update the landlord gave the resident’s Councillor during this time, which included a full explanation of the context of the sprinkler leak and the basis for the landlord’s confidence of the issue having been an isolated one at that time. The Ombudsman considers that, through these updates and prompts for progress during the unavoidable delay during lockdown, the landlord was being appropriately proactive in seeking the necessary assurance about the operation of the sprinkler system and passing this on to the resident.
43. Following its receipt of the inconclusive final report in August 2020 the evidence shows the landlord did follow up the report’s recommendation with the housebuilder, albeit unsuccessfully, and also sought copies of the previous reports. That was an appropriate response. The landlord was continuing to take seriously its responsibility to the resident to ensure any potential issue with the sprinkler system was bottomed out and resolved and that residents were given information necessary to enable them to understand the context for the action being taken.
44. The Ombudsman can see that by October 2020, and the time of its meeting with residents, the landlord recognised matters had dragged on too long and that it needed to resolve the stalemate through having the sprinkler independently examined. That was a reasonable response but one that appears to have been superseded by the housebuilder’s proposal to test sample sections of the sprinkler system.
45. The Ombudsman does not know if this was ever carried out or what the results were, but notes that the subsequent annual sprinkler test, which showed the system was operating effectively, would have further reassured the landlord. It is also appropriate that the landlord undertook to extend its testing from 10% of its properties to 100% so as to be able to more fully reassure the resident.
46. The landlord had an obligation to the resident, irrespective of its relationship with the housebuilder and its contractors, to ensure the property’s fire sprinkler system was operating effectively, and once the resident raised his concern about this, the landlord had a responsibility to investigate and address that concern. The resident was therefore entitled to expect the landlord to respond to and address his legitimate concerns about the fire sprinkler system in a timely manner and to take prompt and appropriate action if a third party was obstructing it in meeting that obligation.
47. The Ombudsman considers that, through its chasing of the housebuilder for the results of its investigation and through its exploring alternative ways of investigating the issue when the housebuilder’s report became delayed, the landlord was taking appropriate steps to ensure the issue was adequately investigated to enable it to assure itself and the resident of the operational effectiveness of the sprinkler system.
48. In the Ombudsman’s opinion, however, once it had the housebuilder’s final report indicating the isolated nature of the pipe defect and its assurance of the operational effectiveness of the system, together with the results of its own sprinkler tests and the lapse of time since the isolated incident, it was reasonable for the landlord to consider it had met its obligation for the maintenance of the sprinkler system and its obligation to assure the resident that it had done so.
49. Those findings failed to reassure the resident but, as the Ombudsman sees it, although further investigations were discussed at various junctures, it was reasonable for the landlord at that stage to rely on the housebuilder’s report and findings and its own subsequent testing for the discharge of its responsibility for the maintenance of the sprinkler system and for the basis of the necessary reassurance to the resident.
50. Although getting to that point clearly took too long, the evidence indicates the time taken was down to the housebuilder and not the landlord, which in the Ombudsman’s view dealt proactively and openly with the resident throughout in responding to his concerns, keeping him updated on developments, and providing necessary assurances throughout of the operational effectiveness of the sprinkler system.
51. The Ombudsman is mindful of the fact that the two recent leaks may have understandably undermined the resident’s confidence in the functionality of the sprinkler system. This makes the landlord’s discussions with the housebuilder on a broader investigation of the issue and its decision to inspect the sprinkler heads in all the properties – as opposed to its standard 10% sample testing – all the more necessary in order to reassure the resident of the efficacy of the system and his safety.

Determination (decision)

52. In accordance with paragraph 54 of the Scheme there was no service failure by the landlord in respect of this complaint.

Reasons

53. The landlord took appropriate action to obtain and provide information to the resident about the inspection and reports into a potential issue with the fire sprinkler system and while doing so it provided him with necessary updates and the reassurance he sought about its effectiveness.

Recommendation

54. It is recommended that in light of the further leaks, and the housebuilder’s proposal (in November 2020) for sample testing, that the landlord update the resident as to what additional investigation will now be undertaken. If no further investigation is proposed, it should explain to the resident why it does not consider this to be necessary.
55. It is recommended that the landlord update the resident of its intended action to address the two issues identified during the recent inspection of his property’s sprinkler heads.