Nuneaton and Bedworth Borough Council (202011526)

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REPORT

COMPLAINT 202011526

Nuneaton and Bedworth Borough Council

22 February 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

  1. This complaint is about:
    1. The landlord’s response to the resident’s reports of water and vegetation ingress at the property’s garage following a refurbishment project;
    2. The landlord’s response to the resident’s concerns about being charged for services that were not received during the project.

Background and summary of events

Background

  1. The resident is a leaseholder of the property. The property is a two–bedroom second-floor flat in a low-rise block (the building).
  2. The landlord was unable to supply a copy of the resident’s lease agreement. It provided supporting evidence showing the agreement was unavailable from the Land Registry. Instead, it provided a sample agreement which applies to another flat in the same block. The sample document was used for the assessment.
  3. The sample agreement shows the lease includes a garage. It confirms the landlord is obliged to maintain and repair the structure of the building including the garage. The resident is responsible for the property. The agreement shows the resident is also responsible for a portion of the landlord’s maintenance costs in the form of a service charge.
  4. The landlord provided a repairs policy effective from March 2021. It shows the landlord responds to repair requests as follows:
    1. Emergency repairs are prioritised, and the landlord will respond within 24 hours where risks to health, safety or property are identified.
    2. Routine repairs are required to be completed in accordance with Right to Repair legislation.
    3. Inspection priority is assigned where information is incomplete, or a decision cannot be made from the information supplied. There is no set timescale for responding to an inspection priority repair.

The Ombudsman was unable to find a more relevant policy document online.

  1. The landlord operates a two stage complaints policy.

Summary of events

  1. On 6 January 2017, the landlord issued the resident written notice it intended to employ an external contractor to remove cement roof sheets containing asbestos from the resident’s garage. The works would be undertaken in line with health and safety guidance as part of a project involving multiple garage units. The roofing would be replaced with a steel alternative incorporating an anti-condensation barrier. A consultation period would last until 10 February 2017.
  2. A further letter on 13 February 2017 confirmed the landlord had obtained three quotes for the works and opted for the cheapest contractor. It said no leaseholders had nominated a contractor. Details of the resident’s contribution calculation method were provided along with an estimated cost. The document shows the resident sought clarification around the calculation method during the consultation period. This was on the basis he felt his contribution may be too high.
  3. A method statement from 2 March 2017 shows the landlord had arranged a separate project to install a large number of replacement garage doors. No evidence has been seen to confirm the date the resident’s door was replaced.
  4. The resident submitted a formal complaint on 29 September 2019. The main points were:
    1. The resident had previously experienced several maintenance related problems with the landlord.
    2. He recently paid £1300 towards garage roofing works. During a recent visit he found the flooring had flooded and vegetation was penetrating the garage.
    3. The quality of the new garage door was inferior, and the unit was now less secure.
    4. The resident felt major vegetation growth behind the garages had caused the roofing to need replacing along with some concrete panels to the rear.
    5. A meeting had been scheduled with the landlord to discuss the garage on
      9 October 2019.
  5. The landlord inspected the garage on 9 October 2019. Its inspection notes identified mature vegetation, including a tree, to the rear of the garage block and in a small gap to the side of the resident’s garage. The notes said the vegetation was previously cut routinely, but it was now becoming overgrown. Recommendations were made to obtain quotes to remove the vegetation and conduct a subsequent survey of the block to assess any damage. 
  6. The landlord issued a stage one response on 14 October 2019. It thanked the resident for attending the scheduled meeting with its surveyor. It said:
    1. Water and shrub ingress into the garage were confirmed during the inspection. The landlord was in discussions with its landscaping contractor about options for long term vegetation removal. However, the work was problematic given the narrow space to work in and the fragility of the new roofing on the garages.
    2. The resident was charged £1213.88 for the garage works. He also received a 5% refund for paying the invoice within 30 days. This invoice included costs associated with the removal of vegetation. The total cost of this removal was £575. Since these works were not included within the notice of intention, it would be unreasonable to include them in the invoice.
    3. The landlord could offer the resident an additional refund of £268.20. The figure was based on a calculation more favourable to the resident. This was reached through dividing the project cost by the total number of garages included, rather than the number of garages in the resident’s block. This was contrary to the method defined in the lease agreement.
    4. The landlord’s surveyor would review the original scope and specification of the garage project to see if the reasons for water ingress could be identified. A meeting had been arranged with the contractor to discuss recall or remedial works under warranty.
    5. Leaseholders were not charged for replacement garage doors. Security could be increased by purchasing a lock in line with the resident’s requirements.
  7. The landlord’s internal correspondence shows the resident escalated his complaint the following day. This was on the basis works completed during the landlord’s project caused the garage to become unusable. He was invoiced for the removal of vegetation and concrete panels that were still there, and the vegetation was now worse. As a result, the landlord should complete the required repairs and pay the resident compensation. While Ombudsman has not seen the resident’s original escalation email, the above rationale was included in the landlord’s internal correspondence.
  8. The landlord’s inspection notes were updated following a further site visit with a contractor on 16 October 2019. They said the contractor proposed using scaffolding over the fragile roof coverings to facilitate access. They also said, while the price quoted was reasonable, concerns remained around the contractor’s health and safety statement.
  9. The landlord issued its stage two response on 11 November 2019. It said:
    1. An appropriate consultation process was followed prior to the commencement of the works. No objections were received during this process.
    2. The landlord’s stage one response identified some of the works completed were beyond the scope of the project as outlined in the notice of intent. The resident was offered a refund for these works accordingly.
    3. Though vegetation removal works had not yet begun, the landlord was taking steps to address the issue. Works were proving difficult to arrange given the problems around access.
    4. Ultimately, the resident was only charged for the removal and replacement of the asbestos containing concrete roof sheets.
  10. The inspection notes were updated again on 15 November 2019. Though more information was received from the contractor, they showed outstanding health and safety concerns had not been overcome.
  11. The resident emailed his MP on 9 December 2019. The main points were:
    1. He had experienced continuous problems with the landlord’s maintenance since 2013.
    2. His contribution towards the landlord’s garage project included costs incurred for reroofing and vegetation removal. The landlord had also mentioned replacing concrete sections at the rear of the garage. Only the roofing works were completed.
    3. The garage ‘poured in water’ and could not be used to store the resident’s convertible vehicle.
    4. His garage contribution was over £1200 and he had been offered £200 compensation. No offer was made to make the garage watertight or vegetation free. If he had accepted this offer, he would have been out of pocket with an unusable garage.
  12. The landlord’s repairs history shows a works order was raised on 4 June 2020 to ‘cut and clear all Horsetail within the curtilage of the car park and garages.’ The order was marked complete on 27 June 2020. This was around eight months after the resident’s initial complaint was raised.
  13. The Ombudsman received the resident’s complaint on 8 January 2021. A further update from the resident was received by email 11 January 2021. It said the landlord had removed the vegetation from the garages around three months earlier.
  14. In a further email to the Ombudsman on 21 March 2021, the resident said the flat had been rented. The landlord’s service charges had also increased and the resident felt he was, in effect, paying twice for repairs. The service charges included costs for items such as window cleaning, but the resident had never seen the cleaners since taking ownership of the property. Further, the landlord had declined a claim for a damaged freezer based on the date of a receipt he provided.
  15. The landlord’s surveyor inspected the garage on 14 September 2021. Its internal correspondence shows he reported the garage was in good condition, although a small gap was noted in a “fascia” at the back corner. He said, “I visited today with our contractor but couldn’t really see what we are supposed to be repairing. Nevertheless, (contractor) are able to quote for any works that may be required on confirmation”.
  16. During a phone call on 16 February 2022, the resident said issues with water ingress into the garage were ongoing. He was also concerned the vegetation would regrow without regular treatment on the part of the landlord.

Assessment and findings

  1. The resident has said he’s incurred significant and avoidable costs due to the landlord’s lack of maintenance. Further, he should be compensated for his inability to use the garage following the roof replacement project. The Ombudsman is unable to reach findings in respect of liability or negligence. The Ombudsman is also unable to award or calculate damages. These are legal matters which are likely to need consideration by a court.
  2. He has also raised a number of issues which have not been addressed by the landlord’s complaints process. For example, the landlord’s handling of an insurance claim, a lack of window cleaning or an increase in the level of service charges. In accordance with the Ombudsman’s remit, the scope of this assessment is limited to the issues raised during the resident’s formal complaint. This is because the landlord needs to be given a fair opportunity to investigate and respond to any issues accordingly, prior to the Ombudsman’s involvement. The resident should raise a new complaint with the landlord if he wants to pursue these matters.
  3. In respect of the landlord’s response to the resident’s reports about water and vegetation ingress into the garage, the timeline shows the problems did not manifest for around two years following the landlord’s refurbishment project. The issues were confirmed by the landlord on 9 October 2019 following the resident’s formal complaint. Further, the issue of shrub ingress was not resolved until around 8 months later, based on the landlord’s repair history, and the resident has said the problem of water ingress is ongoing more than two years later.
  4. However, the timeline also shows the landlord responded promptly to the resident’s initial reports until the point it encountered safety concerns with its chosen contractor’s proposed vegetation removal method. For example, within 12 working days of receiving the resident’s complaint the landlord had completed a joint inspection of the garage with the resident, issued a stage one complaint response, selected a contractor, and conducted a further site visit with a view to arranging the works.
  5. A period of around eight months represents a significant delay in completing the vegetation removal works. However, the evidence shows the circumstances were unusual given the characteristics of the site. It is noted the landlord’s repairs policy does not define a timescale for completing inspection priority repairs. Further, there is no evidence the resident was given a resolution timescale which was subsequently exceeded. However, the landlord’s stage one response confirmed it would investigate the issue of water ingress and the matter would be discussed with the project contractor. No evidence was seen to show that either of these actions were completed or that the resident was informed of the outcome accordingly.
  6. It is noted the landlord’s most recent inspection, completed by a surveyor on
    14 September 2021, failed to detect any significant defects with the garage which was reported to be in good condition. This was following confirmed vegetation ingress for around eight months. That said, the landlord is obliged to maintain the structure of the garage in line with the sample lease agreement, and its brief inspection report did not specifically address the problem of water ingress, which the resident reported on more than one occasion.
  7. Given the above, this assessment found the landlord’s overall response to the resident’s reports amounted to maladministration. This is primarily because its stage one response detailed an action plan for investigating the cause of water ingress, with a view to resolving the issue. There is no indication these actions were completed, and the resident has said the issue is ongoing around 28 months later. It also found the delay of eight months in commencing vegetation removal works was unreasonable overall. Though safety concerns and site-specific difficulties were acknowledged, the duration of the delay suggests the landlord failed to manage its contractor in respect of the works. It is reasonable to conclude alternative contractors could have been sought in a timely fashion. Both failures were found to stem broadly from the landlord’s management of follow up actions.
  8. The resident’s concerns about being overcharged relate to the removal of concrete sections to the rear of the garage and vegetation as part of the landlord’s roofing project. The Ombudsman is unable to determine whether service charges are reasonable or payable since the First Tier Tribunal (Property Chamber) is better placed to consider complaints of this type. This Service can consider the landlord’s administration of service charges, for example where invoiced services are not received.
  9. Neither the landlord’s original notice of intention or its subsequent statement of estimates referred to the removal of vegetation or concrete sections to the rear of the units. On that basis, it was unreasonable for the landlord to include a contribution towards the cost of vegetation removal in the resident’s invoice. It is noted there was no evidence to show any vegetation was removed around the time of the garage project. However, the landlord responded appropriately to the resident’s concerns by offering a refund accordingly. The refund was incorporated into a rebate on the overall project costs, which was calculated on terms advantageous to the resident. No evidence was seen to show the landlord was obliged take this action.
  10. No evidence was seen to show the landlord included the removal costs of additional concrete sections in its refurbishment project. It is reasonable to conclude such works would be substantial with significant costs attached. It is noted there was some inconsistency between the wording of the resident’s initial complaint and his email to his MP in respect of this matter. In any case, from the evidence, it is unclear where the suggestion the landlord would remove additional concrete panels came from. The landlord addressed the resident’s concerns appropriately in its complaint responses.
  11. Given the above, this assessment found the landlord offered reasonable redress in respect of the resident’s concerns around his contribution to the garage project. This is because the landlord invoiced the resident for a contribution towards the costs of vegetation removal. These works were not included in the landlord’s notice of intent. As a result, it was reasonable for the landlord to refund the resident’s share of these works. The refund was included in a rebate on the overall project costs, which was calculated on terms beneficial to the resident.

Determination (decision)

  1. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s response to the resident’s reports of water and vegetation ingress at the property’s garage following a refurbishment project.
  2. In accordance with paragraph 55 of the Housing Ombudsman Scheme the landlord has offered reasonable redress in respect of its response to the resident’s concerns about being charged for services that were not received during the refurbishment project.

Reasons

  1. The landlord said it would investigate the issue of water ingress in its stage one complaint response, which detailed its relevant next steps. There is no indication these actions were completed or that the resident was notified of the outcome. The resident has said the issue is ongoing around 28 months later. There was also an unreasonable delay of around eight months before vegetation was removed.
  2. The landlord confirmed the resident was charged a portion of the costs for vegetation removal during the garage project works. While it is unclear whether the works took place, these costs should not have been included based on the landlord’s notice of intention. Since the landlord refunded the charge accordingly there was reasonable redress. No evidence was seen to show the landlord was charged for other works that did not take place.

Orders and recommendations

Orders

  1. The landlord to pay the resident £200 in compensation within four weeks to redress any distress and inconvenience caused by failures and delays in following up agreed actions in respect of water ingress or vegetation growth.
  2. The landlord to undertake a garage survey within four weeks addressing the issue of water ingress. Written findings should be shared with the resident and any works identified should be scheduled accordingly.

Recommendations

  1. The landlord to consider reviewing its systems and processes for progressing outstanding complaint tasks and managing contractors. This is to ensure agreed actions are completed and issues awaiting a contractor response are chased accordingly.
  2. The landlord should provide evidence of compliance with the above orders and confirm its intentions with respect to the recommendation within four weeks.