Royal Borough Of Greenwich (202121873)

REPORT

COMPLAINT 202121873

Greenwich Council

23 January 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 complaints of gaps between the concrete floor and skirting boards in the property, and a subsequent draught and cold.

Background

2. The property is situated on the ground floor, with a basement, belonging to the landlord, underneath. On 2 December 2021, the resident reported that her property was very cold, with rising damp. She referenced a ‘gap in the hallway’ and that gaps were appearing and framework cracking in the property. The landlord conducted an inspection on 15 December 2021. It found gaps between the skirting and solid floor, through which a draught passed from the basement area below. It advised the resident that this was an internal issue with the property, rather than a structural or external issue, and to apply mastic sealant to seal the gaps and eliminate the draught. The landlord found minimal damp and mould in the property, limited to the cupboard that housed the electric meter.
3. The resident made a formal complaint on 30 December 2022 relating to what she described as rising damp emanating from the basement, and cracking and large gaps that were forming in the flooring of the hallway, which had led to a draught emanating from these gaps, causing excessive coldness. She felt the landlord should be responsible for addressing this issue. She also expressed her frustration at having to have her heating on constantly due to the coldness.
4. In its stage one response on 5 January 2022 the landlord set out the complaint to be about damp within the property and said that it would usually be the resident’s own responsibility to enlist a surveyor to determine the cause of this, and if an issue with the building fabric was found, the landlord would investigate. Nevertheless, it had arranged for a staff member to inspect on 15 December 2021, who concluded that there were no repairs required externally and that the cause of the damp was internal and made some suggestions to the resident to resolve this.
5. The resident expressed dissatisfaction with this response, noting that she had complained that gaps were showing between the floor and skirting boards, and that a very cold draught was coming through these, and said that, ‘…the problem is coming from the cold damp storage area belonging to the landlord and is affecting my home.’ She said that the building was old, neglected. and in disrepair.
6. The landlord provided its stage two response on 2 February 2022, in which it reiterated its position and advised that the repairs were the resident’s responsibility as per the leasehold agreement. It offered potential solutions to the resident, such as the use of a sealant in the gaps and advised that no repairs to the basement were required. The landlord noted that the property was in ‘immaculate condition’ and that damp and mould was only present in the small cupboard that housed the electric meter. It advised the resident that a mould wash would be sufficient to remedy this.
7. Following contact from this Service, the landlord provided a further response on 12 July 2022, as it felt it would be beneficial to reconfirm its position regarding the complaint. It reiterated the findings made by its staff member during their December 2021 inspection, and made clear its final determination, including the responsibilities of both the resident and the landlord. The resident advised this Service that she believed the landlord was still responsible for the repairs and wanted the landlord to carry them out.

Assessment and findings

Scope

8. In her communications with this Service about her complaint, the resident has referenced a number of repair issues in her property, such as problems with the windows. However, these issues did not form part of the formal complaint that was made to the landlord.  As such, the landlord has not yet had the opportunity to consider and address these matters, and so they are not considered in this investigation. This is in line with paragraph 42 (a) of the Scheme, which states that the Ombudsman may 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.

The landlord’s handling of the resident’s reports of gaps between the concrete floor and skirting boards in the property, and a subsequent draught and cold

9. When investigating a complaint, the Ombudsman applies its Dispute Resolution Principles. These are high level good practice guidance developed from the Ombudsman’s experience of resolving disputes, for use by everyone involved in the complaints process. There are only three principles driving effective dispute resolution:

a. Be fair – treat people fairly and follow fair processes;

b. put things right, and;

c. learn from outcomes.

10. The Ombudsman must first consider whether a failing on the part of the landlord occurred, and if so, whether this led to any adverse effect or detriment to the resident. If it is found that a failing did lead to an adverse effect, the investigation will then consider whether the landlord has taken enough action to ‘put things right’ and ‘learn from outcomes’.
11. In her complaint to this Service, the resident explained that she had ongoing issues with cold and dampness in the property and had noticed the skirting board in the hallway dipping, with a large gap forming that allowed a cold draught from the basement below. She explains that following this, other cracks started to appear. She says, ‘As [the landlord] state it is a concrete floor, but what exactly makes a concrete floor and wall start to crack open leaving gaps?’ The resident believes that the issue has been caused by ‘years of penetrating damp from the basement below’. She says that she has asked the landlord several times to inspect the basement, but it never has, and so would like an independent surveyor to inspect the basement and the property to determine the cause of the cracks.
12. The leasehold agreement sets out that the resident is responsible for keeping the property and every part thereof in good repair and condition. It further states that the landlord is responsible for keeping in repair ‘the structure and exterior of the property and building’. While the gaps and cracking reported were internal, the resident’s concern is that these were caused by an external issue, and so it was important for the landlord to address this. Therefore, the landlord acted reasonably and fairly by promptly conducting an inspection of the property. However, while the record of this inspection noted that there were gaps that caused a draught, there is no indication that the cause of these gaps appearing was considered.
13. The subsequent stage one complaint response set out the complaint to be about damp in the property and said that it was the resident’s responsibility to address this, but the issue of the gaps appearing and the cause of these was not referenced. In her subsequent escalation of the complaint the resident again referenced gaps between the floor and skirting boards, and that a cold draught was coming through these. The landlord’s stage two reply focused on draught and damp issues.The landlord appropriately offered advice on how the resident, as the leaseholder of the property, could alleviate the draught coming through the gaps, but there does appear to have been a fundamental misunderstanding of the issue that the resident was raising. This was a failing on the part of the landlord.
14. The Ombudsman acknowledges that the complaint that the resident put to the landlord was less clear than the complaint that she subsequently raised with the Ombudsman, and so this failing is mitigated somewhat (and a finding of ‘service failure’ is found in light of this rather than the more serious ‘maladministration’). For example, in her escalation request to the landlord the resident referenced a number of other issues, which may have made her immediate concerns less apparent. Further, while she has very clearly raised concerns with the Ombudsman about what had caused the concrete floor and wall start to crack open and gaps to form, this was not specifically asked in the complaints put to the landlord. However, overall there was a failing on the part of the landlord here to fully understand and address the issue raised: That the condition of the landlord owned basement had led to the cracks/gaps forming in the resident’s home, which had resulted in excessive cold.
15. It is also acknowledged that given that the cracks were internal, it would be open to the resident to employ a surveyor to assess the cause of these. However, given the failing of the landlord to fully address the crux of the complaint, and as an inspection would require access to and an assessment of the landlord’s basement in any case, a proportionate remedy to the failings identified here would be for the landlord to arrange for its own surveyor to carry out the inspection.

Determination

16. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s complaints of gaps between the concrete floor and skirting boards in the property, and the subsequent draught from the basement below.

Orders

17. Within one month of the date of this report, the landlord should arrange for a surveyor to carry out an inspection of the property and of the basement to assess the cause of the cracks and gaps reported. A report should be made detailing the inspection, and it’s findings. If it is found that there are any repairs that are affecting the resident’s property that are the responsibility of the landlord, it should detail these and a date by which they will be completed. If it is found that there are no repairs that are the responsibility of the landlord, this should be stated. A copy of the report should be sent to both the resident and this Service.

Recommendation

18. Complaint handlers should make contact with residents to clarify complaints, especially when these may be unclear.