Optivo (202008137)

REPORT

COMPLAINT 202008137

Optivo

1 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 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 response to the resident’s reports of leaks into her property and into the building and communal areas.

Background and summary of events

Background

The resident is the shared ownership leaseholder and the landlord is the freeholder of the property. The property is a two-bedroom, upper-floor flat, situated in a building with other similar properties. The building is a new build development built in March 2019. The defect liability period (DLP) is 12 months from the date the building was completed. However, the landlord has explained that the leaks into the building have exceeded the defect period because a resolution had not been found. The liability therefore remained with the developer and the developer’s builders throughout the duration of the complaint.
The resident has further suggested that the issue with leaks in the communal hallway were identified in April 2019. Work was carried out; however, this was deemed insufficient as it had now spread to “several different places”. It is unclear as to when the landlord was advised of this issue, and no further information on this is held from the resident.

Summary of events

The landlord’s repairs history sheet details an issue being logged on 29 April 2019, regarding a leak into the communal ceiling on the top floor, this being the resident’s floor. This is listed as “financially complete”, with a target response date of 28 July 2019.
On review of the information provided by the resident, the leak in the property directly below hers was first identified in November 2019. The resident referred to “about four” visits to try to fix the issue. Because the leaks were emanating from the resident’s property, contractors would often require access to the property. There are no further details of the communications or actions taken by either party prior to the 20 February 2020.
The landlord’s repairs history sheet details an issue being logged on 14 January 2020, highlighting damp patches above the window and on the ceiling in the resident’s kitchen. This is listed as a “job issue recommitment” with a target response date of 19 January 2020.
On 5 February 2020, an end of defects inspection was completed on the resident’s property. The following defects were noted:

Condensation was noted on the windows. The landlord was to liaise with the window company to discuss this, with the ventilation system to be taken into account.
There was a new water mark on the resident’s kitchen ceiling following heavy storms, which the landlord needed to investigate and rectify.
An extension of the rainwater pipe required extending below the decking of the resident’s balcony.

The landlord’s repairs history sheet details an issue being logged on 19 February 2020, highlighting leaks to five flats within the same building, including the resident’s. The last job event for this to inspect the leaks on the same date is noted as being “cancelled”.
On 20 February 2020, the landlord recorded that the builders visited the building to carry out a number of tests, and noted a number of possible entry points for water into the building from the roof. Some remedial work was carried out to fill in some gaps between the pipe and the brickwork. It was noted that no water ingress was apparent into the properties during the dye tests. No defects were found to the waterproofing either, so it was suggested that there be further investigation to exclude any possible entry points. Although absorbent lift shaft blockwork was considered to be the main source of the water ingress, for which the existing paint finish was deemed to provide ineffective waterproofing.
On 5 March 2020, the resident emailed the landlord to raise a stage one formal complaint regarding the leaks in the building and at her property. This is summarised as follows:

In November 2019, the resident said that she was informed by her neighbour, living in the property below her own, of a leak coming into their living room, which was directly beneath the resident’s balcony/flat roof. She said that ever since then there had been no “real action” from the landlord or the developers. The resident explained that there had been visits to the property to carry out work; however, the resident said she had never received a report of the work that had been completed to address the issue.
As a result of the continued leaks, the family living below had several buckets in their living room to catch the drips, and they had a two-year old child in the property. The resident also referenced a call she had with the developer’s builders on 28 February 2020, in which she reported that they had said that they had “no idea” what the source of the problem was.
She understood that repair works had been carried out that week to the building’s roof, but she was unaware of what had been undertaken and she was unsure if they had found the source of the leak.
She highlighted that she had paid £350 for an independent snagging survey. However, despite the findings being reported to the landlord and the developers, “they were just dismissed”. The resident expressed concern that the developers were “doing anything they [could] to avoid doing the extensive work” which the resident believed was required.
The resident also mentioned “severe” leaks in the corridor on the third floor, with “water pouring into several different places”, which she said was first noticed in April 2019. The resident had been advised that a new-build insurance claim was going to be submitted, but the resident was concerned that this would not be done with the urgency it required.
She said that there were also damp patches appearing on her kitchen ceiling, which she advised had been reported. Following the arrangement of a meeting booked for 24 February 2020, for which her mother took time off work, the developer did not turn up to this. The resident confirmed that, on the same day as the above meeting, she had provided photographs to the landlord, but that she had received no updates on when these would be looked at.

Despite pursuing this matter, the resident remained dissatisfied because she had not received a report on the works completed to address the leaks, she was concerned that the building’s ceiling would eventually collapse, and she did not believe the matter was being taken seriously enough.
On 6 March 2020, the landlord acknowledged the resident’s stage one formal complaint, and confirmed that it would respond to this by 20 March 2020. It also requested the resident’s desired outcome to the complaint.
The landlord further highlighted that, as per its complaints resolution policy, any items already responded to as part of her previous formal complaint response, dated 23 July 2019, would not be addressed as part of this complaint, as it was already being looked into by this Service. It provided copies of its complaint response to this.
On 10 March 2020, the resident responded to this email and said that:

If the landlord’s comments in its complaint acknowledgement were about the leak in the corridor, she said that this was addressed in its letter of 23 July 2019 (this Service has not had sight of this letter). However, the resident was not happy with this response, and stated that the final stage formal response to that complaint did not mention the leak in the corridor at all.
She also advised that she considered the subsequent leaks in the corridor to be a new issue because, since the previous complaint was made in the previous year, there had been several different leaks in different parts of the corridor.
With reference to the leak into the flat below, the resident confirmed that she had not previously raised a formal complaint about this.
The resident expressed dissatisfaction, as she felt the landlord was using its complaints resolution policy to avoid fixing the issues.
The resident requested confirmation from the landlord that the corridor aspect of the complaint would be included in this present complaint.

On 11 March 2020, the landlord responded to the resident and confirmed that, having reviewed the responses sent in relation to the earlier complaint and as the corridor leak was not monitored and had resulted in further new leaks, this would be included in the new complaint. It apologised for any confusion and confirmed that it would provide a new written complaint response by 20 March 2020.
On 20 March 2020, the landlord issued its stage one complaint response to the resident and detailed the following:

It confirmed that, after “extensive investigation”, the builders completed works for the water leaks between 3 and 6 March 2020. This included full re-waterproofing of the area, and the work had resolved the issues in the resident’s property. It further confirmed that the builders would arrange “making good works” once they had ensured that there would be no further leaks. Due to the COVID-19 pandemic, it that said there may be a delay in this works.
The recent leak in the communal area was related to the Automatic Opening Vent Window (AOV). This was being monitored by the builders, and would be inspected when “prolonged rainfall” was experienced.
In respect of the damp patch next to the lift opening, this was an old leak which the builders had reported and should not recur as part of the whole remedial roof works.
It apologised to the resident for not providing its usual level of service and for the delay.

On 3 April 2020, the resident emailed the landlord to advise that she was not satisfied with the above stage one response, and she requested a further complaint investigation by it due to the following:

The resident explained that she had still not received a “proper report” for any of the work that had been conducted, despite repeatedly asking for one.
There had been water leaking in the hallway since 6 March 2020; therefore, the problem had not been fixed.

On 6 April 2020, the landlord responded to the resident. It provided final stage complaint resident panel review request forms for her to return to it by 20 April 2020 for it then discuss with its managers.
The resident provided the landlord with the completed panel review request form dated 20 April 2020. The summary of this request was as follows:

Reason for taking the case to review

The landlord had not done as requested by the resident, in providing a report of all of the work that had been carried out on the roof.
The leak by the lift was not old and had got progressively worse since January 2020.
In relation to the AOV, she highlighted that the water coming through the ceiling into the corridor had got progressively worse over the winter. The resident therefore considered that action needed to be taken, rather than more monitoring.
The resident did not feel that the landlord’s response had addressed the leak from her balcony/flat roof into the property below.
She highlighted concerns over contradictory information that she had received. As an example, she advised that, as of 28 February 2020, the builder did not know the source of the problem; however, the week after, they had “supposedly been out fixing everything”.

Desired outcome

The resident requested reports of the work completed, including the details of each different part of the roof that had been worked on, and the details of the work completed.
The resident wished to be advised of the timescales for the monitoring and completion of the work to address the outstanding issues.
Compensation of £350 for the snagging survey (this Service has not had sight of this survey), which the resident felt that she had to pay to get an “honest assessment of the issues with the roof, amongst other issues within the flat”.
The resident stated that she wanted all of the issues to be resolved “properly” due to the “stress and anxiety all these leaks have caused us.” She also felt that it was “exhausting having to constantly chase” it for these repairs and to “get the same excuses with why things [were] being delayed.”
As a final request, the resident requested an update on the new-build insurance claim that she said that she was informed about previously.

The resident opted not to attend the final stage complaint resident review panel meeting, and instead submitted the above statement for the panel.
On 11 May 2020, the landlord responded to the resident’s final stage complaint resident review panel request. It decided not to escalate the complaint to review, for the following reasons:

It attached the wording from the report of the roofing works and confirmed that, following the COVID-19 lockdown being relaxed, it would instruct its own contractor to inspect the work carried out. No timescale was detailed in respect of these works.
It was unable to refund the cost of the snagging survey, as the resident had arranged this herself.
It also attached the end of defects inspection sheet and confirmed that all work would be completed following the COVID-19 lockdown being relaxed. No timescale was detailed in respect of these works.
It confirmed that its insurance cover would not cover water ingress in the first 12 months of the DLP, as this would be covered by the original developer.
It confirmed it would be inspecting the work carried out on the roof.

No further reports of water ingress were reported over the summer months.
The resident reported further water ingress around her back door on 25 October 2020. Reports of water ingress from the resident’s balcony into the flat below was also received.
An internal email between the landlord and the builders on 28 October 2020 showed that the resident had reported further water ingress above her balcony door and around her window in the lounge. (pg.196) The builders inspected the water leak in the resident’s property on 2 November 2020. The builders confirmed that they had contacted a roofer in order to conduct an invasive and thorough investigation.
On 2 November 2020, the resident brought her complaint to this Service as:

The leaks into her property, the building, and the property below were still ongoing and yet to be resolved.

b. The resident wanted the landlord to employ an independent roofing company to identify the issue causing the leak, which she said that it should have done when the leak was first reported. She said that she had repeatedly asked for reports of the works conducted between November 2019 and March 2020, which she did not receive until March 2020, and that was only for the work that it had recently carried out in March 2020.

The landlord’s repairs history sheet detailed an issue being logged on 10 November 2020, regarding rainwater leaks into the building, with a request to assess and repair the building’s roof. The “last job event” for this was “job ticket printed”, with a “job card issued” on 17 November 2020 and a target response date of 8 February 2021.
On 12 November 2020, the landlord contacted the resident in regard to a leak coming from her property into the property below hers. The landlord informed the resident that as a leaseholder, she would be responsible for resolving the matter. The resident replied the same day and contested that she was responsible, requesting a call back as she was unhappy that this had been going on for over a year.
The landlord’s email dated 13 November 2020 confirmed that the works that the builders had carried out had “clearly” not resolved the issue. The landlord confirmed that it would be instructing its own contractors to attend and carry out a full report on the water ingress. It confirmed that once it received the report back, it would be in touch with the next steps.
On 15 November 2020, the resident requested confirmation of a date that the landlord’s contactors would be attending, as the last time that they attended they required access to her property to get to her balcony. She added that the flat below had reported further leaks into their property.
On 20 November 2020, the resident emailed the landlord to request that the confirmation date be treated as urgent, as it had now been four weeks since the leaks had started again without much progress. She said that there had never been any actual water ingress in her own property, it was just “patches/water stains”. The resident highlighted that one of the patches above her balcony door looked slightly worse following the weekend’s rain. She also highlighted that paint was coming away from the walls in the same place that it had the previous year, with a similar patch appearing. The resident advised that this was only re-painted in June 2020 following the defects work, and thus contended that the issue of water ingress had not been resolved.
The resident emailed the landlord on 25 November 2020 to follow up on her request to know the date when the landlord’s contractors would attend. She also informed the landlord that she had received a call from the builders, who would be attending the next day and the following week to complete further works to her balcony door and window.
On 26 November 2020, the builders confirmed that they had attended to carry out a flood test on the building.
The landlord’s information to this Service confirmed that that the builders attended on 30 November 2020 to carry out repairs to the roof.
On 3 December 2020, the resident emailed the landlord to confirm the following:

The builders had attended her property. They removed her balcony door and discovered that it had not been installed and sealed correctly, which resulted in poor drainage and leakage. A lead tray was fitted to ensure appropriate drainage in future.
The builders also completed work on the resident’s roof to address the issues with water leaking into her flat.
She requested that the landlord cancel the scheduled appointment for the following week with the landlord’s contractors, as the builders were “pretty confident” that the issue was resolved.

On 8 December 2020, the landlord’s own contractors attended the resident’s property to inspect the works carried out.

Assessment and findings

Lease, Policies and Procedures

The landlord’s responsive repairs policy and the resident’s lease state that it must keep the structure and outside of the property in a reasonable state of repair and in proper working order. The landlord is responsible for the repair and maintenance of shared entrances, hallways, stairways, lifts, passageways, rubbish chutes, and other shared areas and communal spaces.
However, the landlord’s responsive repairs policy states that:

a. “Some of our shared ownership homes and commercial operation sites have specific leases and/or management contracts. This means the specific requirements and response times of responsive repairs may vary but the overall scope of our approach still applies. Similarly, new homes less than 12 months old (i.e. during the Defects Liability Period) may have slightly different contractual arrangements affecting repair response times.”

b. Moreover, the landlord’s defects procedure states that when “the Development Contractor hands over a new property to [the landlord] it usually enters a Defects Liability Period (DLP) for one year from the date of practical completion. During the DLP the Development Contractor is liable to rectify defects. Defects are faults or breakdowns caused by faulty design, workmanship or materials”. At the end of the DLP, the landlord will take responsibility for the maintenance and repairs of the communal areas and any repairs obligated under the lease agreement and responsive repairs policy.

The landlord’s response to the resident’s reports of leaks into her property and into the building and communal areas.

It is noted that the resident has advised this Service that the stress and inconvenience of her complaint has had a negative impact on her mental health. Although this of concern, this Service is unable to draw conclusions on the causation of, or liability for, impacts on health and wellbeing because these are outcomes that are not within our authority to provide in the way that a court or insurer might and so are outside the scope of this investigation.
Moreover, it is noted that the resident has referenced previous complaints in regard to leaks in June 2019 prior to the present complaint being made in March 2020. This Service will not consider complaints that were not brought to the attention of the landlord as a formal complaint within a reasonable period, which would normally be within six months of the matters arising. Therefore, while the historical incidents provide contextual background to the current complaint, this assessment focuses on events from November 2019 onwards.
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. Repairs are usually reported to a landlord 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.
In this case, the leaks reported from November 2019 were more urgent and could not wait until the end of the defect period because they repeatedly consisted of water ingress into the property below the resident’s, as well as damp patches in her own property. However, the responsibility during this period would have been for the builders/developers to carry out any repair works of this nature. As the issue remained unresolved beyond the end of the defects period, following the resident’s end of defects inspection on 5 February 2020, the landlord explained to the resident on 11 May 2020 that the liability for addressing the leaks remained with the builders/developers.
Moreover, although it is acknowledged that the issue had taken over a year to fully resolve from November 2019 to December 2020, the landlord would not have been in a position to carry out the works itself during this period due to the potential conflict that might have arisen with the builders/developers from the above liability for the works. The landlord was therefore not in a position to employ an independent roofing company to carry out the works itself, and it was required to firstly rely on the builders/developers to identify the issue causing the leak after reporting this to and liaising with them.
While the resident requested that the landlord employ an independent roofing company to identify the issue causing the leak, the builders/developers’ above responsibility for this meant that the landlord had to first permit them to seek to do so. It would therefore only have been able to take further action for this itself if it had been demonstrated that the builders/developers had been unable or unwilling to identify the source of the leak, in light of the latter’s liability for this. The ongoing, recurring leaks meant that the landlord then suggested that it might do so from 13 November 2020 until the builders/developers resolved these on 3 December 2020, which the landlord inspected on 8 December 2020.
As such, the landlord’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.
Communication to the resident from the landlord, though, was not always clear in this case. The difficulty in this situation is that the resident would also be communicating directly with the builders and developers and not necessarily with the landlord when trying to address the leaks, which could affect the clarity regarding information about the works completed to address the leaks. However, there were instances whereby the landlord could have improved its communication and helped facilitate, what was a frustrating situation, more effectively.
For example, one of the resident’s main requests for the landlord from 5 March 2020 was to receive a report of the works that the builders/developers had carried out to address the leaks. The lack of information provided about the works carried out, along with claims of contradictory information from certain contractors, did not help the situation and seemingly added to the resident’s frustration, until the landlord provided her with details of the roofing works and end of defects reports on 11 May 2020.
This may have led the resident to pay £350 in order to obtain her own snagging survey, which is concerning. Nevertheless, the landlord was instead required by the above builders/developers’ liability to rely on the above reports rather than the survey that the resident chose and had not been obliged to arrange. This and the fact that the matter may have been subject to a new-build insurance claim and due to circumstances beyond the landlord’s control meant that its compensation policy did not permit it to compensate the resident for her survey or the builders/developers’ delays.
Similarly, there was an occasion when the leaks recurred from 25 October 2020 where the landlord advised the resident on 12 November 2020 that it would be her responsibility as a leaseholder to address the issue. The landlord did quickly resolve the issue and acknowledge that this was a long-term issue with the building on 13 November 2020. However, it would have been helpful if the landlord had an understanding of the building and its history of leaks before providing a response, as this was likely to have added to the resident’s frustration.
Although the above did not significantly affect the outcome of the complaint, it would have been beneficial if the landlord would have been proactive in its communication regarding the matter. For instance, it could have provided all residents with monthly updates on the works carried out to the building, which could have lessened the frustration, as clarity could have been given about the works undertaken thus far and what the next steps and expectations were when dealing with what was not a straightforward issue.
Ultimately, the landlord was not in a position to carry out the works itself and was relying on the builders/developers to 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 landlord as the responsibility to address the issue was limited by the fact that the issue was apparent within the defect liability period. It also demonstrated that it continued to liaise with the builders/developers to seek to identify and resolve the leak from February to December 2020, which was appropriate.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports of leaks into her property and into the building and communal areas.

Reasons

As the obligation to resolve the matter lay with the property’s builders/developers as a new-build with issues that arose during the DLP, the landlord was limited with what it could do to help facilitate the works to resolve the leaks more quickly.

Recommendation

To reduce the likelihood of a similar situation occurring in the future, it is recommended that the landlord considers establishing a procedure for it to take proactive steps to communicate with residents about works that have been undertaken by builders/developers on a more consistent basis.
The landlord should contact this Service within four weeks to confirm whether it will follow the above recommendation.
The Ombudsman accepts that, because of the present restrictions due to the corona virus pandemic, the timing of the above actions will depend on what is reasonable in the light of Government guidance regarding the health of the resident and of the landlord’s staff.