Peabody Trust 2018 (202004640)

REPORT

COMPLAINT 202004640

Peabody Trust 2018

25 March 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

1. The complaint is about the landlord’s response to the resident’s request for repairs to her door, oven, and balcony.

Background and summary of events

Background

2. The resident has been a shared leaseholder of the property of the landlord since 1 August 2019. The landlord is a registered provider of social housing.
3. It is not disputed that the property is a new build and was used as a ‘show home’ prior to the resident entering into the lease. During the initial 3 months of the lease term, the property was covered by the builder’s defects warranty period.
4. The reservation form for the property dated 12 June 2019 notes that “all properties are being sold as seen at your viewing.” The terms of the lease require the resident to keep the property in good repair.
5. The landlord operates a two stage complaints policy.

Summary of events

6. On 14 August 2019, the resident advised the builder of a number of issues with the property which included among others a loose heater panel, issues with the skirting boards, a broken spy glass hole, and scratches to the oven, living room door, and balcony. The builder replied on the same date and advised its contractor would attend on 15 August 2019, however, it would only be assessing the skirting issues, a loose oven panel, and scratch to the balcony rail. It advised this assessment would be to inspect the issues only, and then provide further advice. It also advised the resident to report the other issues directly to the landlord.
7. On 16 August 2019, the landlord contacted the resident following her reports of issues and requested she provide photos of the living room door scratch and oven scratch. On 23 August 2019, the resident provided the landlord with a link to a cloud storage file, and advised it contained photos of all the issues she had reported.
8. Between 27 August 2019 and 26 September 2019, the builder attended to a number of the issues reported by the resident, including her skirting board and issues with her radiator. On 26 September 2019, the resident further reported to the builder an issue with her toilet enamel, and the floor in the living room. On 27 September 2019, the builder advised the resident to report these issues to the landlord, which the resident did on the same date.
9. On 28 October 2019, the resident requested an update from the landlord and noted that the builder’s warranty period was due to expire. On the same date, the landlord advised it had logged her issues within the period, meaning they could still be addressed following the expiry of the warranty period. The resident subsequently reiterated her request for an update regarding the scratched doors, which as she understood it were not the responsibility of the builder.
10. On 13 January 2020, the resident requested a further update from the landlord, who subsequently replied on 16 January 2020 to confirm if the marks on her flooring, scratches on her door, and the broken spyhole were the only outstanding issues. On 21 January 2020 the resident clarified the further outstanding issues which included an issue with the toilet enamel, and scratches to her balcony. On 2 February 2020 she also advised these issues to the builder.
11. On 3 February 2020, the landlord confirmed that the flooring issues had been attended to, but that the issues with the toilet enamel and scratches to the doors and balcony “would not be considered as defects and neither [the landlord] nor [the builder] will be attending to rectify.” The resident replied on 9 February 2020 and advised that the contractor who attended to the floor was yet to complete the works. She also advised that the builder’s contractor who initially assessed her property had referred to the toilet enamel as a “manufacturing defect … [and] also considered the scratches in the doors, window frame, balcony panel and rail as a defect.” The landlord subsequently advised on 13 February 2020 that it would investigate further and provide an update by 21 February 2020.
12. The landlord subsequently arranged for its surveyor to assess the issues, and on 18 February 2020, it advised its position on its responsibility for the various repairs. It advised that the builder was responsible for an issue she had reported with her tap, the balcony cladding, and the spyhole, for which it would arrange repairs. It advised it was responsible for completing the works to her flooring, repairing her skirting board, and as a “gesture of goodwill,” repairing her toilet enamel, for which it would arrange repairs. It further advised that it considered the scratches to the doors and oven to be the resident’s responsibility as “the property was ‘sold as seen,’ including wear and tear deriving from your flat being used as the show home.” It also advised she could request that the contractors also complete these works at the same time and bill her privately to reduce her costs. It is not disputed that the contractors subsequently completed works at the property on 26 February 2020.
13. On 14 April 2020, the landlord reiterated that it considered that the “scratches to your doors and walls are not considered defects but cosmetic items. As a result, this is not something that [the landlord] would attend to.” It also reiterated that the resident “accepted the property based on a ‘sold as seen’ basis which includes the aforementioned scratches.” On the same date, the resident replied and disputed that ‘sold as seen’ included the scratches. She further queried if the landlord’s insurance would cover the damage which occurred during the ‘show home’ period.
14. On 16 April 2020, the landlord reiterated its position and advised that a defect was defined as “a fault with workmanship, materials or design, which do not meet the contractual requirements of the building contract. A defect is not: a cosmetic issue, wear and tear, or vandalism.” It also advised its insurance would not cover these scratches.
15. On 14 May 2020, the resident lodged a formal complaint. She reiterated the issues with scratches to her door, oven, and balcony, and queried why the landlord had agreed to repair her floor, but not the other scratches which she considered to have been caused during the property’s use as a ‘show home’. On 2 June 2020, the landlord advised that given its earlier communications on the issue, it would respond to the complaint at stage two in the first instance.
16. On 8 June 2020, the landlord provided its stage two response. It reiterated its definition of a defect and advised that the scratches were not considered a defect and were not part of its repair responsibilities. It further reiterated its position was that the resident had accepted these scratches when she signed her lease on a ‘sold as seen’ basis. It also advised that it had carried out the repairs to her floor as a “gesture of goodwill,” but that it had not been under an obligation to do so.
17. On the same date, the resident replied and expressed her opinion that as the landlord had been responsible for the scratches during the ‘show home’ period, it was unfair for it not to rectify them. The landlord replied on 9 June 2020 and sympathised with her position but confirmed its stage two response was final.

Assessment and findings

18. The Ombudsman understands that the resident wishes to resolve this situation quickly, that the issues referred to were caused prior to her entering into the lease, and that she is dissatisfied with the landlord’s position on the matter.
19. It is not disputed that when the resident first reported the issues with her property to the landlord in August 2019, the property was still covered by the builder’s defects warranty. Given that the warranty was due to expire at the end of October 2019, it was appropriate that following her reports, the landlord requested further information and photographs which it did within a reasonable timeframe.
20. Following her further reports of issues on 27 September 2019, however, it is not evident that the landlord provided any further updates until 28 October 2019. The landlord does not have any published timeframes for providing a response of this nature, however, the Ombudsman would expect it to respond within a reasonable timeframe. Given that the warranty period was imminently about to expire, it would have been helpful for the landlord to have provided the resident with an earlier update, however, its subsequent explanation that issues that had been logged could be dealt with after the expiry of the warranty period was reasonable.
21. Following her further reports, it was again appropriate for the landlord to initially clarify all outstanding issues. It was also appropriate that in its communication on 3 February 2020, it clearly set out its position on what it considered not to be defects, and that it did not consider these issues to be covered by its repair responsibility. While the resident subsequently noted that the builder’s contractors had referred to these issues as “defects,” it is not evident that the landlord had agreed at any point that it considered them to be defects or its responsibility. Given that the resident had continued to express her concerns, however, it was appropriate that the landlord arranged for its surveyor to provide a further assessment.
22. Following its assessment, it was appropriate that the landlord carefully articulated its position as to which party was responsible for which issue. While it is not evident from the lease that the landlord had a responsibility to undertake repair works to the floor, given that it had already commenced works, it was appropriate that it agreed to finish them. It is also not evident that the landlord had a responsibility to undertake repair works to the toilet enamel, and again it was appropriate that the landlord agreed to the works as a gesture of goodwill.
23. Regarding its position on what it considered to be the resident’s responsibility, it was appropriate that it stated this clearly, and explained that it considered these to have been accepted by the resident due to the ‘sold as seen’ term in the reservation agreement. Following the resident’s further communications on the issue, it was appropriate that the landlord further defined why it did not considered these issues to be defects and also it was also appropriate that it provided an explanation of what it considered a defect be. It was also appropriate that it sought to assist the resident by offering for its contractor to complete the works on a private basis.
24. It is evident that the reservation agreement contains a term stating the property was sold on an ‘as seen’ basis, however, the resident has disputed that this precludes the landlord from a responsibility to make good damage which occurred during the ‘show home’ period. In the Ombudsman’s opinion, the landlord has appropriately set out its position and what it considers it is responsible for and the basis on which it has reached that decision, however, it is beyond the scope of this service to determine the correct interpretation of a contractual term and the subsequent implications. Such a determination would be better suited to the courts.
25. Following the resident’s formal complaint, given the communications the landlord had already made on the issue, it was reasonable to escalate the complaint to stage two of its internal complaints procedure in the first instance. It appropriately reiterated its position in its stage two response and once again clearly articulated its reasoning. It also appropriately addressed the resident’s query as to why it had repaired her floor, and its explanation that it had done so out of goodwill was reasonable.

Determination (decision)

26. In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints regarding the landlord’s response to the resident’s request for repairs to her door, oven, and balcony.

Reasons

27. The landlord made appropriate investigations into the resident’s reports of outstanding defects and repairs. Following its investigations, the landlord appropriately explained its position on what it was responsible for and on what basis it had reached that decision. Given that it is not evident the landlord had a repair responsibility, its decision not to carry out the repairs was reasonable.