Peabody Trust (202104086)

REPORT

COMPLAINT 202104086

Peabody Trust

6 March 2023

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 handling of the resident’s dissatisfaction with the time taken to address structural cracks to her property.

Background

2. The resident has an assured non-shorthold tenancy with the landlord which began on 21 April 2008. The property is a three-bedroom house.
3. On 27 September 2019, the landlord’s surveyor inspected the property and on 4 October 2019, the landlord notified their insurer of a suspected subsidence issue with the tenant’s property. The landlord’s insurer sent their building consultant to inspect the property and the consultant prepared an initial report, dated 31 October 2019, which confirmed cracking to internal rooms caused by root exacerbated clay shrinkage subsidence.
4. A subsequent soil and root analysis, dated 27 January 2020, confirmed that there were two species of tree root identified, one of which was a cypress tree on the resident’s property, which was subsequently removed by the landlord as instructed by the insurer. The other tree was a large oak tree which was on adjoining land, owned by the local authority.
5. The landlord’s insurer commenced monitoring of the movement due to subsidence, and began negotiations with the local authority regarding removal of the tree on their land. The local authority confirmed the oak tree was in a conservation area and subject to a Tree Preservation Order.
6. The resident contacted the Ombudsman on 19 May 2021, as she was dissatisfied with the length of time it was taking to remove the tree. She explained that she had contacted the landlord via their complaints department on several occasions, but had not received a response. The Ombudsman therefore emailed the landlord on 8 June 2021, asking them to respond to the resident.
7. On 7 July 2021 the landlord wrote to the resident explaining that the complaint fell outside of its complaints policy, due to being an insurance matter. On receiving a further prompt from this Service to set out its position formally, it did so on 30 December 2021 and on receiving a request to escalate the matter, reiterated its response on 4 February 2022. The landlord maintained that the resident needed to raise the matter with its insurer and any other issues via its complaints procedure.
8. The resident has advised this Service that she remains dissatisfied with the landlord’s response. She has explained that the tree has not yet been removed.

Assessment and findings

Scope

9. Although it is noted that the resident has stated that she made reports about cracks in the walls of the property over several years, this investigation has primarily focussed on the landlord’s handling of matters up to six months prior to the resident raising her complaint in May 2021. This is because, under paragraph 42(c) of the Housing Ombudsman Scheme, the Ombudsman will not investigate complaints which were not brought to the attention of the member as a formal complaint within a reasonable period, which would normally be within 6 months of the matter arising.
10. The resident has also referred to other complaint issues regarding repairs to holes in the loft of the property in order to deal with a rodent infestation. In the interest of fairness, the scope of this investigation is limited to the issues raised during the resident’s formal complaint. This is because, as outlined in section 42(a) of the Housing Ombudsman Scheme, the resident needs to have exhausted the landlord’s complaints procedure prior to bringing a matter to the Ombudsman. This is to allow a landlord a fair opportunity to investigate and respond to any reported dissatisfaction with its actions, prior to any involvement of the Ombudsman.  The issue regarding rodent access via the loft should be pursued with the landlord as a separate formal complaint if required.

The landlord’s handling of the resident’s dissatisfaction with the time taken to address structural cracks to her property.

11. The terms of the tenancy agreement state that the landlord is responsible for repairing the structure and exterior of the property. It was therefore appropriate for the landlord to inspect the property in September 2019, to determine the cause of the cracks which had appeared in the walls of the property. As the landlord suspected subsidence, it was also appropriate to refer the matter to the landlord’s insurer on 4 October 2019, to commence a subsidence claim.
12. It is not for the Housing Ombudsman to assess the insurer’s handling of the insurance claim and whether there was any unnecessary delay in the action taken by the insurer. The Ombudsman can, however, consider whether the landlord’s response, on receiving the resident’s complaint, was reasonable in the circumstance.
13. The Ombudsman notes that the resident contacted this Service on 19 May 2021 in relation to her concerns about the landlord’s response to her reports of cracks in the property. The resident was advised to go through the landlord’s formal complaint procedure before the Ombudsman could review the matter.
14. The resident confirmed that she had contacted the landlord via their complaints department on several occasions, but had not received a response. The Ombudsman has not been provided with evidence of any complaints made via the landlord’s website in the period prior to 19 May 2021, and therefore cannot determine whether any complaints were made prior to this date, or dealt with appropriately.
15. The Ombudsman emailed the landlord on 8 June 2021, asking them to respond to the resident’s complaint, and the landlord emailed the resident on 7 July 2021, confirming the complaint fell outside of the landlord’s complaints policy due to being an insurance matter. The landlord explained that the matter was being dealt with by the its insurer, and noted that subsidence claims take some time because they necessarily involve some monitoring of movement.
16. The landlord confirmed in their email that they had not logged the resident’s contact as a complaint because it was an insurance matter, but that their surveyor was monitoring and that if the resident had any further queries she could contact the insurance team. This was a fair response.
17. Under section 4.9 of the landlord’s complaints procedure, certain matters are excluded from their complaints process. Matters which are subject to an insurance claim are specifically highlighted as matters which will not be dealt with under the landlord’s complaints procedure. The subsidence issue was the subject of an insurance claim by the landlord, so it was therefore appropriate for the landlord to inform the resident that they would not deal with it under the complaints procedure.
18. Section 1.6 of the Housing Ombudsman’s Complaint Handling Code requires that, if a landlord decides not to accept a complaint, a detailed explanation should be provided to the resident setting out the reasons why the matter is not suitable for the complaint process. The Ombudsman considers that the landlord’s response to the resident’s complaint on 7 July 2021, complied with section 1.6 of the Housing Ombudsman’s Complaint Handling Code.
19. The Ombudsman wrote to the landlord on 29 December 2021, asking the landlord to formally respond to the resident’s complaint, even if they were confirming that it fell outside of their complaints policy.
20. The landlord subsequently sent a formal stage one response dated 30 December 2021. They noted that an email had been sent to the resident on 30 November 2021 by the insurer about the tree, in which the insurer had advised the resident that they had been liaising with the appointed representatives of the tree owners. It was noted that due to the tree being located in a conservation area, it was necessary to obtain the local authority’s agreement to remove the tree. The insurer explained that the local authority had refused to allow the removal of the tree and advised that they had also put the tree under a preservation order. Due to this preservation order, the insurer advised the resident that they would continue to obtain consent, but that it could take up to 10 months. In the interim, the insurer noted that they would send a building consultant to inspect the property. The landlord concluded the response by noting that if the resident was not happy with anything, then she should contact the insurer.
21. The Ombudsman considers that the landlord’s stage one response was appropriate, updating the resident and advising her to contact the insurer if she remained dissatisfied.
22. At stage two, it was not unreasonable that the landlord proposed no further action but instead reiterated that the subsidence matter was being dealt with by their insurer. It also signposted the resident to the appropriate contact for new issues she sought to raise. This was fair. The Ombudsman accepts that the matter became an issue which the third-party insurer became responsible for and as such, it was reasonable to advise the resident to make contact with them. While it might have been useful for the landlord to have supported the resident in reaching out to the insurer, this Service has been unable to see that there was maladministration in its handling of this matter.
23. For completeness, if the resident is dissatisfied with the conduct of the insurer, it would be appropriate to follow the insurer’s complaints process and, if the issues remain unresolved, to take any complaint to the Financial Ombudsman Service.

Determination

24. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in the landlord’s handling of the resident’s dissatisfaction with the time taken to address structural cracks to her property.