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Stevenage Borough Council (202205029)

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REPORT

COMPLAINT 202205029

Stevenage Borough Council

31 May 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. This complaint is about the landlord’s handling of:
  1. reports of subsidence at the leaseholder’s property, and;
  2. the associated complaint handling.

Background

  1. The leaseholder purchased the lease for the property on 18 October 1999. The landlord is the freeholder of the property. The property is a two-bedroom ground-floor flat.
  2. On 8 September 2019, the leaseholder noticed cracks on the interior and exterior of the property and notified her building insurer and the landlord. Her insurer performed a preliminary report on 1 October 2019 confirming that the cause was subsidence. On 9 March 2020, the insurer requested the landlord remove a tree believed to be causing the subsidence. The landlord cut this back in July 2020. A structural engineer produced a report on 11 September 2020 recommending the removal of the tree and that the soil be left to recover over the winter. The landlord removed the tree on 24 September 2020.
  3. The landlord raised work orders for repairs to the flat on 8 February 2021. The landlord’s contractors erected scaffolding on 6 September 2021, ready for work to begin.
  4. The leaseholder complained to the landlord via a letter on 18 September 2021. She was unhappy with how the landlord handled her earlier subsidence claim from 2007. She was also concerned with the delays to the repairs, fearing these had resulted in additional damage and a loss of value to her property.
  5. The landlord acknowledged the leaseholder’s complaint on 5 October 2021 and sent its stage 1 complaint response on 25 October 2021. It did not uphold the leaseholder’s complaint saying it could not comment on the ongoing buildings insurance claim. It also explained the repair arrangement it had in place with the insurer.
  6. The leaseholder escalated her complaint on 17 January 2022. She said she was unhappy with the progress on the claim and property repairs. She also felt that following the 2007 claim, the landlord should have known that the tree could have caused subsidence. The landlord sent its stage 2 complaint response on 14 February 2022. The landlord once again did not uphold the leaseholder’s complaint. The landlord said its repairs had not progressed due to the leaseholder not allowing access to its contractors and that it was seeking legal advice regarding this.  The leaseholder was unhappy with this and escalated her complaint on 21 February 2022. The landlord provided its stage 3 response on 7 April 2022, again not upholding the resident’s complaint. In this, the landlord informed her she could make a claim for the loss of value to her property and provided details on how to do so.
  7. The leaseholder referred her complaint to this Service on 9 June 2022. She claimed that the landlord’s failure to sufficiently monitor trees adjacent to the property had twice caused subsidence damage to the property. The leaseholder was also unhappy the landlord had not completed repairs to the property. To resolve her complaint, she wanted the landlord to put her back in the same position as if this subsidence never occurred with a compensation payment for the loss of value to the property. She also wanted the paperwork showing the structural issues had been fixed. In a call to this Service, the leaseholder confirmed the landlord had now provided a schedule of works.

Assessment and findings

The scope of the investigation

  1. Under paragraph 41(b) of the Housing Ombudsman Scheme, this Service cannot consider the actions of the leaseholder’s buildings insurer as they are not covered under the Scheme.
  2. Under paragraph 42(c) of the Housing Ombudsman Scheme, this Service may not consider the landlord’s action in relation to the 2007 subsidence. This complaint was not brought to the landlord’s attention within a reasonable period after the matter occurred.
  3. The leaseholder has stated that as redress to her complaint, she would like the landlord to put her in the position she would have been if the subsidence had never occurred. For this, she would like to receive roughly £41,000 in compensation, equal to 20% of her property value. This Service is unable to determine the speculative loss or damages to the property value without direct supporting evidence. Additionally, the leaseholder considers the landlord’s response in 2007 to directly correlate to this perceived loss. This investigation report focuses on the actions related to reports of subsidence from 2019. If the leaseholder wishes to raise a claim about the speculative loss, she may wish to seek independent legal advice.

The landlord’s handling of reports of subsidence at the leaseholder’s property.

  1. The landlord first acknowledged the leaseholder raising concerns about subsidence on 10 September 2019. The landlord, as the freeholder, was obligated under the lease to perform the repairs to “the structure of the building and in particular but without prejudice to the generality thereof the roofs foundations” and “external walls” of the building. As the cause of subsidence was a tree on the landlord’s property, the obligation to address this was also the landlords.
  2. The insurer produced a preliminary report stating subsidence as the cause of damage on 1 October 2019. It appears the landlord did not visit the property with a structural engineer until 24 August 2020. The landlord has not provided this Service with a repairs policy which details how long it would aim to visit a property within to perform an inspection. However, this Service believes the time it took to do so was excessive and resulted in an avoidable delay to begin the necessary repairs.
  3. The structural engineer and the insurer informed the landlord that it failed to follow an appropriate course of action. Furthermore, they advised that the landlord did not undertake suitable inspections, and the work it had undertaken was not sufficient to prevent further damage. Overall, the landlord failed to perform the necessary inspections or to remove the tree causing the damage within a reasonable period. The landlord’s lack of action amounts to a failure to fulfil its obligations as the property freeholder.
  4. There were unavoidable delays in the repair process. Firstly, the landlord had to let the ground settle following the removal of the tree in September 2020. Upon beginning work, contractors discovered nesting starlings on the roof which meant contractors had to cease work between March 2021 and August 2021. The landlord was following statutory obligations in this scenario.
  5. The repair obligations are split between the landlord and the insurer because these fall under different insurance policies. The insurer had to perform the internal repairs with their contractor, and the landlord had to perform the external repairs. The leaseholder has stated that she feels a single contractor should perform these. However, both parties have the right to choose contractors to complete the work, and there is no obligation for the landlord to use the same contractor as the insurer.
  6. The leaseholder has told the landlord and its contractors that she did not want it to perform any external repairs as they had not been appointed by her insurer. She also said she was not made aware of what work the contractors were performing. Following this, work stopped. It is the leaseholder’s responsibility under the lease “to permit the council and its duly authorised surveyors or agents…to enter into and upon the flat or any part to thereof for the purposes of repairing any part of the building”. It is not reasonable to hold the landlord responsible for any delays resulting from this.
  7. When the resident agreed to provide access to contractors, they were unhappy that the leaseholder had CCTV monitoring equipment installed. This again caused work to stop. The landlord acknowledged these issues and informed the resident it was seeking legal advice in relation to this. It appears that there were missed opportunities to alleviate the leaseholder’s concerns about the management of works, this was noted in the landlord’s final complaint response.
  8. The landlord has been responsible for maladministration in its handling of reports of subsidence. It has failed to take the necessary steps to resolve the issue promptly, and its actions contributed to an avoidable delay in completing the necessary repairs.
  9. The landlord should pay the leaseholder £600 for its failings. It should also contact the leaseholder to determine what information it can provide regarding the structural documentation she seeks.

The landlord’s handling of the associated complaint.

  1. The landlord’s complaint policy at the time of the complaint had three stages. At stage 1, the landlord attempts to respond to a complaint within 10 working days. Its response is delivered in writing or verbally via a phone call or a visit. If the resident escalates their complaint to stage 2, this is looked at by a senior member of the landlord’s staff who attempts to provide a written response to the complaint within 15 working days. If the resident further escalates to stage 3, an alternative senior member of the landlord’s staff reviews this. The landlord says it will provide its stage 3 response within 20 working days of this referral.
  2. The leaseholder first sent a complaint letter to the landlord on 18 September 2021. The landlord acknowledged this on 5 October 2021. As the resident sent this by post, this Service cannot confirm the date the landlord received this. Given this, there is no evidence the landlord’s actions caused an additional delay. After acknowledging the complaint, the landlord requested a 10-working day extension to respond on 12 October 2021 and eventually provided its stage 1 response on 25 October 2021. The time taken for the landlord to send its response to the leaseholder appears to follow the timescales set out in its policies.
  3. At stage 2 and stage 3, the landlord’s response time complied with the dates set out in its complaints policy. There is no evidence to suggest maladministration in the timescales the landlord took handling the leaseholder’s complaint.
  4. The landlord’s complaint responses were fair and reasonable in tone and content.
  5. Overall, there was no maladministration in the landlord’s handling of the leaseholder’s complaint.
  6. The landlord’s complaint policy has been updated since the resident raised her complaint, reducing this to a two-stage process. Its complaint handling policy is now in line with this Service’s Complaint Handling Code.

Determination

  1. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in respect of the landlord’s handling of reports of subsidence at the leaseholder’s property.
  2. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration in respect of the landlord’s handling of the associated complaint.

Orders

  1. It is ordered that the landlord, within four weeks of the date of this report:
    1. Pay the leaseholder £600 for its failure to handle the leaseholder’s reports of subsidence in a fair and timely manner.
    2. Contact the leaseholder to discuss what paperwork she would like to be provided with when the repairs have been concluded.
    3. Provide evidence to this Service that it has done so.