One Housing Group Limited (202011085)

REPORT

COMPLAINT 202011085

One Housing Group Limited

29 June 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.

The complaint

The complaint is about:
1. The managing agent’s response to the resident’s reports of defects in the property including issues with the property’s heating system and Heat Interface Units.
2. The managing agent’s response to the resident’s reports of a defect to the windows in the property.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.

The managing agent’s response to the resident’s reports of other defects in the property including issues with the property’s heating system and Heat Interface Units.

Paragraph 39(a) of the Housing Ombudsman Scheme states that the Ombudsman will not consider complaints which, in the Ombudsman’s opinion are made prior to having exhausted a member’s complaints procedure, unless there is evidence of a complaint handling failure and the Ombudsman is satisfied that the member has not taken action within a reasonable timescale.
After carefully considering all the evidence, in accordance with paragraph 39(a) of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction:
It is understood that the resident has raised a new formal complaint regarding other defects issues on 31 January 2021. As there is no evidence that this new complaint has exhausted the managing agents formal complaints process, this is not something that can be adjudicated on at this stage, as the managing agent needs to be provided with the opportunity to investigate and respond to this aspect. If the resident remains dissatisfied with the managing agent’s response having exhausted its complaints procedure, the resident could then bring the complaint to this Service for review.

Background and summary of events

The resident is a leaseholder of a third party landlord, which not a member of the Ombudsman’s Scheme. The property is managed by a member landlord, acting as a managing agent of the third party landlord, and are referred to as ‘‘the managing agent’’ in this report.
The property is a converted flat that forms part of a Grade II listed building containing similar properties. The lease commenced on 14 March 2019 and, in accordance with the landlord’s Homeowners Handbook, the Defects Liability Period (DLP) covers a two-year period.
The managing agent’s internal records, dated 15 January 2020, state that the resident first raised an issue with the developer regarding a ‘‘large amount of condensation around all windows’’ on 9 December 2019, with the resident contending that this had caused damage to the windowsills. The managing agent emailed the developer on 15 January 2020 to request they contact the resident with an update.
In an email, dated 29 January 2020, the resident provided the site sales team with a video and photographs of the condensation, which included two photographs to show damage caused to his curtains as a result of water dripping from the windows. The resident requested that a specialist be instructed to inspect the windows as soon as possible. Internal emails confirm that a meeting with the management agent and site sales team took place on the morning of 29 January 2020, whereby the managing agent asked for a specialist to review the condensation issue.
The resident requested an update from the site sales team on 3 and 4 February 2020 as the issue with condensation persisted and he had yet to receive a response from the developers.
On 5 February 2020, the site sales team informed the resident that it had spoken with the developers who were, in turn, awaiting a response from their window contractors. The site sales team confirmed that the developers would be on site on 13 February 2020 and would inspect the windows then.
In the resident’s email to the site sales team of 11 February 2020, he reiterated that the issue with condensation persisted and was causing damage to his windowsills, curtains, and blinds. He contended that the issue was now a health and safety concern, as the conditions could facilitate mould growth. He therefore requested that a health and safety specialist attend on 13 February 2020 as well. In addition, the resident said that he had consulted with several window specialists who suggested that three of the windows would need to be replaced because they were not the required thickness.
On 13 February 2020, the window contractors attended the resident’s property and inspected the windows. However, the resident contacted the site sales team to report that the window contractors had not returned to the property later that day as agreed and nor did a health and safety inspection take place. He again requested that a health and safety inspector attend to review the mould as a matter of urgency. The site sales team replied to inform the resident that his request for a health and safety inspection, as well as the highlighted issues with the window contractor’s inspection, would be forwarded to both the managing agent and the developers. They also confirmed that the window contractors who attended would send a report to the developers with their findings.
The resident requested an update from the site sales team on 20 and 23 February 2020.
In the site sales team email to the resident of 26 February 2020, it relayed the following information provided by the window contractors who had carried out the inspection at the resident’s property:
1. “Windows are often the coldest part of the building fabric… and the presence of moisture on a frame and/or glass is often an indicator that a problem exists with the heating and ventilation regime within the property.”
2. “Corrections to the heating/ventilation regime should minimise the presence of condensation unless there is a more serious cause, such as interstitial condensation, where the problem occurs within the cavity wall of a building.”
Furthermore, the management agent confirmed that the developers had contacted their ventilation contractors and they would attend to inspect the resident’s ventilation system, to ensure it was working correctly.
The resident’s reply, later that same day, reiterated that the issue was with the thickness of the windows and therefore rejected the window contractor’s findings. He suggested an independent specialist carry out an inspection of the windows. He reiterated his dissatisfaction with how the issue was being addressed and reminded the management agent of his concern regarding mould in the property. He again requested a health and safety specialist carry out an inspection and expressed concern that it had been two months since he first reported the issue, yet nothing had been done to stop the damage being caused.
The site sales team reply of 28 February 2020 informed the resident that they had spoken with the managing agent who had asked that the resident ensure he was ventilating the property and that the heating was being used as suggested, to minimise the effects of condensation. The management agent confirmed that a further review of the windows would take place once the ventilation test had been undertaken, but they did not consider it necessary at this point to conduct a health and safety inspection.
On 5 March 2020, an engineer attended to inspect the ventilation system, who concluded that it was operating correctly.
The resident followed up his concerns with the site sales team via email on 5, 10, 12, and 19 March 2020, as the condensation issue remained unresolved. He also required a copy of the report following the ventilation contractor’s inspection on 5 March 2020 because he said he needed this for his end-of-defects meeting scheduled for 27 March 2020.
The end of the DLP was confirmed via a letter sent by the managing agent on 20 March 2020. The letter asked the resident to provide details of any outstanding defects to the managing agent’s Employer’s Agent (this was a separate agency who deals with defects). In light of the Covid-19 Pandemic, the managing agent informed the resident it would not be able to carry out the inspection of the property in person.
In the resident’s formal complaint to the managing agent, dated 23 March 2020, he explained that, in accordance with the defects process, he had kept the managing agent updated regarding the issue of condensation on numerous occasions, as well as the subsequent damage caused to his curtains, carpet, window frames, and windowsills, yet the issue remained unresolved. He believed that the issue was that the developers were blaming the window contractors whilst he suffered the consequences of the poor handling of his concerns, which he said had resulted in higher energy bills and an extremely cold property with excessive draft and noise. He maintained that the condensation issue was a defect due to a failure in workmanship, which had been ongoing since December 2019 and was reported within the DLP. He reaffirmed that, following consultation with various specialists, the windows’ glass and cavity were too thin and thereby defective. The resident concluded by requesting an immediate resolution to the issue and an action plan with the next steps.
The managing agent acknowledged the resident’s complaint on 8 April 2020, in which it also apologised for the delay in responding, explaining that the member of staff that the resident had sent his complaint to had been off work for a short period which had caused the delay. The managing agent said it would need time to investigate the complaint.
In a further email from the managing agent later that same day, the managing agent confirmed that it was looking into his complaint informally and was liaising with its defects department to facilitate resolving the matter.
In the managing agent’s email, dated 16 April 2020, it confirmed the current position as follows: that the condensation was likely caused by a “lifestyle issue” following an inspection of the windows and ventilation system in the property. However, it said that this can only be resolved after further investigation, although it noted that this was not possible at the moment due to the covid-19 restrictions. It confirmed that a further inspection of the property would be undertaken by its Employer’s Agent when the restrictions had been lifted, who would then go through the end-of-defects items he had identified, which included the further inspection of the windows in the property.
On 17 April 2020, the managing agent emailed the resident in response to his complaint and informed him that it was unable to provide the resolution he wished, and it would take longer than expected to provide a response. It therefore advised the resident that it would like to escalate the complaint to the next stage of the complaints process; but before doing so, it asked what outcome he would like.
The resident’s email of the 18 April 2020 detailed the following:
1. He was dissatisfied that the issue of defective windows, and damages as a result of the subsequent condensation, was still ongoing despite being raised in December 2019.
2. He expected the windows in the property to be replaced to resolve the condensation issue.
3. He also expected any damage caused by the condensation to be rectified/repaired.
4. He maintained that the condensation was due to faulty windows.
On 20 April 2020, the managing agent confirmed that the resident’s complaint had been escalated.
In the managing agent’s formal complaint response of 7 May 2020, it acknowledged that there had been a delay in addressing the condensation issue but reasoned that this was due to the nature of the complaint and the process by which the issue was raised (this was referencing the resident initially reporting of the defect to the incorrect department in December 2019). It apologised for the time taken thus far but stated that the issue did not constitute a defect with the windows, which had been corroborated following “several investigations to try and identify the cause”. In light of the above, the managing agent did not uphold the complaint.
In addition, the managing agent then detailed why it did not consider the condensation issue a defect, explaining that the windows had to comply with the strict planning/conservation requirements, and the development had been signed off by the appropriate bodies; these included the planning department (including the conservation department), English Heritage, the building control body, and the structural warranty provider.
Finally, the managing agent requested evidence in support of the conflicting conclusions provided by the specialists the resident had commissioned, in order that it can review and investigate further. The managing agent ended by reiterating that it was willing to undertake further investigations as soon as the current lockdown restrictions were lifted. This concluded the managing agent’s complaints procedure.
In the resident’s email of 19 May 2020, the resident updated the managing agent on various defects, which included the issue with the windows and him not agreeing with the managing agent’s findings.
In a further update email regarding defects in the property, dated 7 September 2020, the resident said that an inspection of the windows had taken place on 15 June 2020, but the issue of condensation was yet to be resolved.
An end-of-defects inspection was carried out at the resident’s property on 28 September 2020. A note on the report stated that the managing agent would respond to the condensation issue separately.
In the managing agent’s end-of-defects inspection letter, dated 27 November 2020, it explained that the developer and various expert contractors had inspected the windows and all concluded that there was no issue with the windows in his property. They affirmed that the condensation issue was as a result of the heating and ventilation management within the property and not due to any defect. Moreover, the managing agent reiterated that the windows were installed in line with the Local Planning Authority’s requirements as well as Historic England’s requirements, the Building Control regulations, the Centre for Windows and Cladding Technology requirements and as per the Premier Guarantee requirements. The managing agent therefore considered the matter closed.
In the resident’s email of 9 December 2020, he acknowledged the final decision regarding the end-of-defect inspection but informed the managing agent that he did not accept its conclusions. He remained disappointed that it had taken so long from his initial report to respond with its final conclusions, without undertaking an independent technical inspection of the windows and without providing written reports of the inspections carried out.
The managing agent’s email response of 11 December 2020 advised the resident of how he could escalate his complaint to this Service if he remained dissatisfied.
The resident informed this Service that to resolve his complaint he would like the managing agent to, at its cost, an independent, detailed inspection of the windows in the property, with a specific focus on, but not limited to, the following:
1. The quality of materials.
2. The adequate insulation properties.
3. The installation / fitting of windows and frames.
4. For the managing agent to repair or compensate for damages to the windowsills, window frames, carpet, and curtains.

Assessment and findings

Scope of Investigation

It is noted that the resident raised concerns with the managing agent about the potential impact the condensation issue and potential mould occurrence could be having on his health. Unfortunately, the Ombudsman cannot draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This would be more usually dealt with as a personal injury claim through the courts. As such, this will not be addressed further in this report.

The managing agent’s response to the resident’s reports of a defect to the windows in the property.

Generally, there is a ‘defects period’ with any new build property of between 6-24 months. During this period, the builders/developers remain responsible for any defects, snagging issues, and repairs. Repairs and defects are usually reported to a landlord or managing agent and then addressed towards the end of the defects period and signed off as completed by the resident. However, more urgent repairs should usually be addressed more promptly in accordance with their severity, as was the case in this instance.
As such, the managing agent’s role would be limited in this scenario, and it would mainly be required to facilitate the repair works by communicating with the builders/developers and, in turn, relaying the information back to the resident clearly and in a timely manner. The managing agent was not in a position to carry out the works itself and was relying on the builders/developers to effectively resolve the issue. It is clear that the amount of time taken to resolve the matter was frustrating for the resident, yet the delays could not be attributed to the managing agent as the responsibility to address the issue was limited by the fact that the issue was within the DLP.
The managing agent’s obligations as mediator during the DLP are detailed in the landlord’s Homeowners Handbook which explains what a resident can do if they are having difficulties with a developer rectifying a defect. In this particular case, it is not disputed that the time taken to finalise the position on the windows was inconvenient and a cause of distress and concern for the resident. However, the managing agent’s actions taken to fulfil its obligations as mediator were satisfactory. The managing agent has demonstrated that it took the resident’s claims seriously and fulfilled its role as mediator in attempting to find a resolution for the resident. The managing agent’s involvement has been apparent both in the background and foreground since January 2020, whereby it is evident that the managing agent was liaising with the developer to try and find a resolution.
When the resident brought his concerns directly to the managing agent as a formal complaint on 23 March 2020, the managing agent sought to investigate accordingly in accordance with its obligations. This can be evidenced in its complaint response of 7 May 2020 and its later end-of-defects inspection letter, dated 27 November 2020, whereby the overall conclusion, following numerous inspections and surveys, was that the condensation was caused by the management of the heating and ventilation within the property and not due to a defect with the windows themselves. Thus, the managing agent would not be expected to facilitate a resolution with the developer any further as the issue had been investigated and was not considered a repair nor a defect.
The managing agent clearly explained its position, how it came to its conclusions, and confirmed the next steps, thereby fulfilling its obligation as mediator by ensuring a full investigation was undertaken and relaying the findings back to the resident in a clear and timely manner. There was, of course, a delay in completing the end-of-defects inspection due to the restrictions that were in place due to the government lockdown. This was obviously unfortunate as it delayed the managing agent providing its final position by some months, which added to the resident’s frustration. However, this delay could not be attributed to the managing agent.
Furthermore, the managing agent also gave the opportunity for the resident to provide evidence in support of his position that conflicted with the findings of the developers and the window contractors, as he did not agree that the cause of the condensation was due to lifestyle. Where conflicting evidence is presented to a managing agent, there is scope to intervene and facilitate actions that it may deem necessary; for instance, it could have commissioned an independent survey of the windows as requested by the resident in this case. However, the managing agent did not deem it necessary to carry out a further inspection in light of the evidence presented. This decision was reasonable in the circumstances as there was no requirement to deviate from the findings of its qualified staff and contractors, as no evidence to support the resident’s position was provided, despite the managing agent requesting this.
In short, the managing agent has relied on the conclusions of numerous qualified staff and contractors and has based its decision not to carry out a further inspection on this basis. Ultimately, there was no evidence to substantiate the resident’s claims that the condensation issue was caused by defective windows. Therefore, the managing agent’s decision not to facilitate a further, independent inspection of the windows was reasonable.
That said, though there were no service failures identified during this investigation, it was noticeable that there were many parties involved during this process (developers, contractors, management agencies etc.), which had the potential to cause confusion or delay. In this case, it did not have an apparent impact on the managing agent’s response and it would not have changed the outcome of its final decision on the matter.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the managing agent in respect of its response to the resident’s reports of a defect to the windows in the property.

Reasons

It is acknowledged that the issue has caused the resident a considerable amount of distress and inconvenience and he has taken considerable time and effort in pursuing a resolution. It is also noted that the length of time taken to receive a final response from the managing agent and developer on the matter added to the frustration, especially as he had raised the issue in December 2019 and yet he only received a final position on the matter in late November 2020, nearly 12 months later.
However, the managing agent has a specific role during the DLP as ‘mediator’, whose obligations during that period are to facilitate and potentially expedite issues that the developer has not promptly addressed. The managing agent has demonstrated that it took the resident’s concerns seriously and fulfilled its roles as mediator in this case. It also showed a willingness to investigate further when presented with claims of contradictory evidence. Because the information was not forthcoming, the managing agent’s decision not to conduct a further inspection was reasonable in the circumstances, as there was no conflict between the findings of the developer and the window contractors, and there was no evidence presented that contradicted their findings.