Royal Borough of Kensington and Chelsea (202200791)

REPORT

COMPLAINT 202200791

Royal Borough of Kensington and Chelsea

21 December 2022

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:
   1. The resident’s reports of a water leak at his property.
   2. The resident’s temporary decant.
   3. The resident’s complaint, including his claim for compensation.

Background

2. The resident is the secure tenant of a four bedroomed ground floor flat. In July 2019 he reported to the landlord that there was a water leak in his property coming from a pipe to the toilet. The landlord’s plumbing contractor diagnosed a rusted pipe as the cause, and which needed to be replaced. This was done in November 2019. At this attendance a water pipe burst, and the property was flooded.
3. On 28 January 2020 the landlord organised an urgent reattendance at the property as an under floor leak had become apparent. The landlord’s surveyor determined that the resident needed to be temporarily decanted (moved out of) the property for the necessary remedial works to take place. That decant took place on 6 November 2021 and the resident moved back into his home in around May 2022.
4. The resident complained to the landlord about its handling of the initial repair and the consequences of it. His view was that the flood and subsequent problems were caused by its contractor. He stated he had not had a working bath since these events. The resident was aware that repairs could not be carried out whilst he was in the property, and he further complained about the landlord’s handling of his temporary decant.
5. The landlord accepted that its plumbing operative had burst a pipe when dealing with the initial leak and this had caused flooding to the area. It offered compensation of £250 for that and the resident’s time and trouble in addressing the matter. It stated, however, that its handling of the decant had been appropriate. This was because finding an equivalent property had been particularly challenging, given the size needed, and this was not helped by the resident refusing properties. The landlord signposted the resident to making an insurance claim in respect of damage to personal belongings and lost earnings. It advised him to seek a referral to its “Tenancy Sustainment Team” for support in coping with his situation.
6. The resident has referred the matter to this Service because he disputes that the landlord’s handling of the decant was reasonable. He disputes that the compensation offered for the initial flood was fair and considers he should be offered further compensation for the length of time taken to resolve the situation as a whole. The resident states he was left to live in a humid, damp, and mouldy property without bathing facilities during this time; was not told he was entitled to financial assistance for the running of a dehumidifier; was not compensated for lost earnings and damaged belongings; and suffered a substantial impact to his physical and mental health. The resident stopped paying his rent in around October 2021 in protest at the situation. Arrears have accrued and the resident wants these to be written off by the landlord.

Assessment and findings

7. Before assessing this complaint, the following two points should be noted.
   1. The resident states the events outlined above have adversely impacted his physical and mental health. This Service does not have the expertise to assess such issues and determine whether there is a link between them and the landlord’s actions and/or omissions. Such a claim is more appropriately made via the courts. This Service will not consider that aspect of the resident’s complaint although it will be referred to, to provide context.
   2. This Service has been provided with some video footage of a leaking pipe/flood water. There are also some photographs contained within the written evidence. The Ombudsman is limited in the extent to which it can rely on such evidence as it is not possible for this Service to determine the location/circumstances of such images, or to confirm their validity. As a result, we do not generally place significant reliance on photographs in reaching our decisions. Reference will be made, however, to the written documentation which has been provided.

The resident’s reports of a water leak at his property.

8. The landlord operates a Repairs Policy which sets out its approach to repairs and provides its target response times. For minor leaks that can be contained, it classifies the fault as “Urgent” and commits to responding within five working days. The classification for burst pipes is “Emergency” to be dealt with in 24 hours. The landlord aims to deal with routine repairs within 20 working days.
9. The resident reported a leak to the back of the toilet at the property on 30 July 2019. The landlord’s records note this as a “responsive repair” but show a priority was not attached to the job. In the Ombudsman’s view, according to the landlord’s policy, this should have been attended to as “Urgent”. However, the landlord did not allocate the job to its plumbing contractor until 12 September 2019, who did not attend until 2 October 2019. This would represent a delay even if the job could properly have been described as “routine”.
10. The plumbing contractor reported back to the landlord setting out the work required to repair the issue and providing a quotation for that work.  That was not approved by the landlord until 5 November 2019, a further delay in the process. The water had to be turned off to the block/building the flat was situated in, notice had to be given of this fact to the other residents, and the job was not then undertaken until 20 November 2019.
11. Whilst not all repairs can be completed at a first attendance, it took the landlord almost four months to resolve an urgent repair. This was not in accordance with its policy and was inappropriate.
12. Unfortunately, during the attendance on 20 November 2019 the landlord’s contractor accidentally burst a pipe and a flood followed. The landlord has admitted this in its Stage One complaint response. There is no evidence of the landlord taking any steps to deal with any of the resulting damage from this flood and at the end of January 2020 a further under floor leak was reported by the resident. The landlord arranged for its plumbing contractor to re-attend on an “urgent” basis.
13. Whilst temporary repairs were carried out following this reattendance, it was not possible to repair all of the damage and further, more extensive works were anticipated. The resident reports having been left with no cold water feed to his bathroom, containing bath/shower, sink and toilet following these incidents and the landlord has not contradicted this. It is reasonable to conclude that the starting date for that lack of facility was on or around the end of January 2020 according to the evidence. (There is/was, however, a second toilet located separately in the property and the kitchen was in working order.)
14. Faced with this lack of facility, the Ombudsman would reasonably have expected the landlord to arrange any repairs on an urgent basis. However, the landlord has confirmed that an inspection by its surveyor did not take place until 7 February 2020, over one week after that reattendance. A report determining a decant was required, coupled with a “Decant Request Form”, was not then generated until 16 March 2020, some six to seven weeks after the event. This delay was unacceptable and demonstrated no sense of urgency on the landlord’s part.
15. The situation with the bathroom cold water feed (but not the hot water feed) continued until the resident was decanted in November 2021 – that is for approaching two years. How the landlord handled the decant and whether any of that delay could have been avoided will be considered below.
16. The resident complained to the landlord on 15 September 2021 and on 22 September 2021 the landlord commissioned a “Condition Survey Report” which states it was prepared on its behalf “for legal purposes”. It includes a court declaration appropriate to expert witnesses. The Ombudsman notes the report contains two clauses numbered 7 and headed “Conclusion”. The first states that investigation of the leak needed to take place, repairs effected and the cold water “turned back on”. The second version of the clause has been amended by the insertion of an additional sentence reading, “a decant based on my current knowledge of the conditions and household would not be required for the work to be carried out”.
17. The Ombudsman understands that this later report, written 21 months after the flood, was prepared with the benefit of the property having dried out. The landlord has asserted in later complaint correspondence to the resident that the work required to remedy the damage changed as a result of that process. There is no evidence, however, of the landlord reconsidering whether the decant could be avoided (given the reported difficulties in arranging it), either in the intervening period or after this report was received. In the Ombudsman’s view, the landlord might reasonably have been expected to review its original plans as time went on, delays occurred, a decant was looking increasingly difficult, and in the knowledge that drying out was taking place. The landlord also could have taken more aggressive action to dry the property out itself, if this was the main obstacle preventing works while the resident remained in place.
18. In the Ombudsman’s view, the landlord’s handling of the original leak reports, and the subsequent events was unreasonable. As set out above, there were delays, a lack of urgency and a failure to consider whether another plan/approach was required when the original one stalled. This represented maladministration on the landlord’s behalf.

The landlord’s handling of the resident’s temporary decant.

19. As set out above, the landlord’s surveyor originally determined that a decant was required. He sent the relevant paperwork to colleagues on 16 March 2020. This Service recognises that following this, the COVID-19 Pandemic impacted several services and restricted landlords in carrying out repairs and the movement of households.
20. Records show, however, that the landlord’s Surveyor only sent the Decant Request Form to its Lettings Team on 10 August 2020. In the Ombudsman’s view, restrictions or not, the landlord might reasonably have been expected to make some enquiries during this time, given the lack of facilities in the property, so that movement could take place as soon as this was possible. Instead, its internal email of 29 July 2020 notes that “things were put on hold”. Acknowledging that administrative steps could have been taken during this time, the landlord questioned itself “why didn’t repairs chase it sooner”?.
21. In mid-August 2020, it was confirmed internally that there were no properties available. The possibility of using a short term holiday let was considered but does not appear to have produced any positive results. It also does not appear that the landlord communicated this to the resident, and so his expectations and understanding as to why the decant had not taken place was not managed.
22. At the end of October 2020, a property had been identified and the landlord’s staff were looking at whether insurance covered furnishings for the property. The landlord noted that the resident had reported his beds had been damaged by damp and mould. The outcome relating to this property is not apparent. By the end of November 2020 enquiries were being made about a possible “serviced apartment”, and again this does not appear to have produced any positive results either.
23. In its response to this Service the landlord has explained that on 20 January 2021 a four bedroomed property did become available but was not accepted due to its location on medical grounds. The resident did, however, agree to accept a three bedroomed property if this would help the situation.
24. The landlord has not demonstrated what steps it took, if any, between January and July 2021 to identify another property. It is noted that on 7 July 2021 the resident was due to sign a temporary licence to occupy a three-bedroomed property which had been deemed appropriate, but when this property was identified is not confirmed. It is reasonable to conclude that this would not have taken six months to act on and that there was a further delay during this period. 
25. With respect to this property, the landlord’s position is that the resident turned it down when he found it unfurnished on a second viewing shortly before he was due to move in. This was despite the landlord’s confirmation that furniture had been ordered. The resident’s position is that he could not move his own furniture to the new property as it had been damaged – this applied to his bedding in particular – and the landlord had promised to remedy this. At the second viewing that had not been done, despite the proximity of the move, and the flooring had been stripped, leaving exposed nails, but no replacement put in its place. The resident felt under pressure to accept what he viewed as inadequate housing. He declined as he had no confidence in the landlord’s assurances that matters would be resolved and within time for the start of his occupation. The placement fell through.
26. In the Ombudsman’s view, the landlord’s agreement to purchase new items of furniture for the property represented an acknowledgement on its part that the resident’s belongings had been damaged and that it was fair that it should offer this assistance. It is regrettable that the resident did not feel able to wait for a (possibly) short time whilst the landlord secured delivery of the furniture and resolved the flooring issue – this might have meant the repairs at his property could have been started earlier. However, the resident’s report of a lack of trust in the landlord’s assurances is understandable in the Ombudsman’s view given the chronology of this case and the lack of facilities and appropriate sleeping conditions that existed at the time. The resident did not want to move into another property where problems existed and once the move had taken place, the impetus for the landlord to resolve any issues would be lost. 
27. By mid-August 2021 a further property had been identified and was going through void inspection/works. It was confirmed as ready for handover on 10 September 2021. Furniture was ordered and delivered on 28 September and photos sent to the resident on 4 October 2021 to prove that fact. A move was planned for 23 October but had to be rescheduled due to a possible Covid infection. This finally took place on 6 November 2021. The repairs at the resident’s property could then begin.
28. It can be seen from the above sequences of events that whilst the landlord tried several different avenues to secure alternative accommodation, there were delays along the way. The urgency of the situation is, once again, not apparent from the landlord’s actions. Further, in the Ombudsman’s view, the landlord might reasonably have been expected to check, from time to time, with the repairs department, what it’s up to date position was given the decant was looking difficult to achieve, but such action is not apparent from the evidence. This Service has seen no evidence that the landlord sought alternatives to speed up the decant for the resident, such as seeking a three-bedroom property, as the resident had suggested. The significant delay in arranging appropriate accommodation and commencing works, given the state of the resident’s property, would have meant that he was unable to enjoy his living situation for a protracted period of time. All in all, the Ombudsman is not satisfied that the landlord handled this matter appropriately.
29. For the sake of completeness, it is noted that the resident has questioned whether the landlord’s proposed rectification works were correct. This Service cannot diagnose what repairs were required as a result of the flooding to offer an opinion on this point and it will not be examined further.

The resident’s complaint, including his claim for compensation.

30. The landlord operates a Housing Management Complaints Policy which sets out a two stage complaints process. Stage One commits the landlord to responding to a complaint within ten working days. If the resident remains dissatisfied they can escalate the complaint to Stage Two within 20 working days of the first response. A more senior staff member will then review the complaint, providing a response within a further 20 working days. An alternative timetable may be offered where circumstances dictate that these timings cannot be met.
31. The resident complained on 15 September 2021. He referred to the length of time it was taking to decant him and carry out repairs to his property and that he had not had bathing facilities for two years. He had been offered two decant properties which were not fit for him – but had felt pressurised by the landlord’s staff to accept them.
32. The landlord sent its Stage One response on 7 October 2021 having agreed an extension to 6 October. It agreed that the burst pipe had been caused by its operative and it was important that this admission was made. The landlord set out its view of the current state of the property following an updated inspection on 17 September 2021 and a list of recommended works to remedy any defects. It offered a direct email link to the surveyor who was to be in charge of the works. It was appropriate that it provided the resident with a point of contact in this way. The landlord defended its handling of the decant, citing a difficulty in finding relevant accommodation and asserting the resident, himself, had delayed matters.
33. The landlord asserted that the resident should continue to pay his rent (after learning that he intended to stop) and signposted him to its “Tenancy Sustainment Team” as he had reported the ongoing situation was having a detrimental impact on his physical/mental health. The resident was given information about making a SAR (Subject Access Request) given he had requested “a full report” into what had gone on. Finally, the landlord stated it was not upholding the complaint, but it offered compensation of £250 for the disturbance and inconvenience of the initial flood.
34. In the Ombudsman’s view, while this did address many of the resident’s queries, ultimately, this response was inappropriate. It did not address the lack of facilities at the property in terms of the cold water supply to the bathroom and did not take the full impact on the resident into account when calculating any remedy to be offered. Given its admission that the flood had been its fault, it would have been reasonable at minimum for the landlord to have – shared details of its insurer to enable the resident to claim for his damaged goods; to have recognised the time, trouble, and inconvenience which arose from the flood; and the handling of this matter up until this time. The landlord failed to use this opportunity to thoroughly consider the impact on the resident and put matters right.
35. On 15 October 2021, the resident requested the complaint be escalated and commented that the landlord was not taking his situation seriously. It is noted that he asked the landlord why it had taken two years for him to find out he could have financial assistance for the running of a dehumidifier in the property. He had been living in a humid environment and this might have helped. The resident questioned the level of compensation and stated he wanted to claim for his damaged belongings, furniture, and loss of earnings due time off work due to stress.
36. The landlord provided its complaint response within an appropriate timescale – on 27 October 2021.  It accepted a service failure should have been admitted for the flood but continued to defend its actions in all other respects. It apologised for not previously advising that the running costs for a dehumidifier would be met. With regard to damage to belongings/furniture and loss of earnings, the landlord did advise the resident at this stage that he could make a claim on its policy if he did not have his own. It explained that the compensation was calculated according to its policy, on a “medium to high” basis.
37. In the Ombudsman’s view, however, this response did not recognise the ongoing impact on the resident as a result of the flood, the lack of cold water supply to the bathroom, nor the impact on the resident of living in a humid property. There was no recognition of the deficiencies in its handling of the decant, and no further details on how the resident could seek reimbursement for the costs incurred in running the dehumidifier.
38. Even if the handling of the decant could be said to be reasonable, the landlord might still have been expected to compensate the resident for all the impact of the flood, given its operative had caused it. It’s offer of compensation did not take these matters fully into account.
39. Further, there is no evidence of the resident being advised to make an insurance claim before the landlord’s stage two response. This Service is aware that the resident did go ahead and make a claim to the landlord’s insurer, but notes that this could have been done at a much earlier time had the landlord provided this information in its earlier responses and acted appropriately. In this way, the resident’s concerns were not fairly managed until its final response. Regard must also be had to the fact the property (and the resident’s living conditions) might have improved quicker had the dehumidifier assistance been advised earlier.
40. The offer of compensation was inadequate – it was not based on the full circumstances of the situation caused by the landlord’s operative. This represented a further service failing on the landlord’s part. An order for compensation will be made below together with an element for the deficiencies in the landlord’s handling of the complaint.
41. For completeness, while the resident has advised this Service that he seeks for his rent arrears to be wiped, this Service is unable to grant this. The resident was obligated to maintain his rent payments and this was not dependent on the outstanding repairs at his property or the resolution of his complaint. The Ombudsman is aware that the impact of non-payment was explained to the resident. What’s more, it would be a disproportionate remedy to order the landlord to remove these charges, given this Services understanding of the outstanding balance. The resident should discuss the arears with the landlord to arrange a reasonable agreement for payment.

Determination

The resident’s reports of a water leak at his property.

42. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of this issue.

The landlord’s handling of the resident’s temporary decant.

43. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration by the landlord in respect of its handling of this issue.

The resident’s complaint, including his claim for compensation.

44. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was service failure by the landlord in respect of its handling of this issue.

Orders

45. The landlord should pay the resident compensation of £1,250. This should replace the £250 previously offered, and has been calculated as:
    1. £350 to reflect the landlord’s handling of the water leak at the resident’s property.
    2. £650 to reflect the landlord’s handling of the resident’s decant.
    3. £250 for its complaint handling.
46. It should confirm with this Service that it has complied with the order within four weeks of receiving this determination.