The Guinness Partnership Limited
5 March 2021
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.
- This complaint is about the landlord’s handling of the resident’s concerns about the condition of his windows.
Background and summary of events
- The resident holds a shared ownership lease of a mid-terraced 3-bedroom townhouse. The lease agreement was dated 8 January 2009. The resident has advised that he owns a 50% share of the property and the landlord owns the remaining 50%.
- The lease agreement requires the resident to keep the ‘premises… clean and well and substantially repaired, maintained and decorated…’.
- The landlord has a two stage complaints policy of 10 working days for each stage. The complaints policy sets out that:
‘Unless there are exceptional circumstances, we will only accept and respond to complaints that are made within six months of the event to which the complaint relates.’
Summary of Events
- A surveyor produced a defect inspection report for the property on 31 October 2019. It stated that it had inspected on 24 October 2019 and described the 1st and 2nd floor windows in question as ‘cantilevered bay windows housing timber double glazed windows with trespa panel style cladding panels at the bottom and flank of the bay windows’. It concluded that:
- there was no sign of any water ingress to the 2nd floor bay window but there was ‘cracking to the render around the cantilevered bay window’ and ‘external timbers are showing clear signs of rot and degradation as well as parts failing, including a sash bar on the lower fixed pane of the main window’
- for the 1st floor bay window, there were ‘signs of rot and external damage to the window and cracking to the render around the window’
- in general, ‘the windows were showing similar signs of degradation and damage externally, but no evidence of any internal defects, nor any movement’
- the windows at the site ‘do not appear to have been maintained properly since they were replaced in 2012, furthermore the use of a timber frame in a highly exposed area close to the coast has meant that the windows have degraded quicker than would be expected’ and ‘that it will be difficult to repair the windows now’
- it would have recommended use of PVC windows as these are lighter and easier to maintain
- The landlord wrote to the resident on 14 January 2020. It advised that a full survey had been undertaken at the property which had established that there was no latent defect and ‘provided evidence that the property has not been maintained’. It added that the windows were installed with a 12 year warranty with the National House Building Council (NHBC) and the resident was the warranty holder. It stated it would not be taking the matter further and signposted the resident to the NHBC.
- The resident wrote to the landlord on 14 January 2020 to give authority for a neighbour to deal with the matter on his behalf. The neighbour wrote to the landlord the same day – she set out a timeline of events, stating that windows had been reported as leaking by three households in 2009 and that the landlord had decided to replace them in 2011/12. She added that the windows had begun to leak again in 2014 and that the landlord had taken responsibility but been unable to persuade the manufacturer to assist. She reported that the landlord had decided to repair the resident’s windows and replace the windows at two neighbouring properties, including her own.
- The resident wrote to the landlord on 29 April 2020. He reported water ingress through the windows that he suspected was due to rotting beading. He stated his belief that the windows were replaced with a 12 year guarantee in 2011 but that he understood this may have been invalidated by repairs that the landlord undertook in 2015. He queried what the surveyor had concluded about maintenance of the windows and asked for a copy of the report.
- The resident chased the landlord on 5 May 2020 and reported that he had again experienced water ingress through a bay window. The landlord replied on 7 May 2020 to advise that the complaint response timescale was 10 working days.
- The resident again chased a complaint response on 18 May 2020 and 21 May 2020.
- The landlord responded to the resident on 26 May 2020 – it advised that it had issued a response on 10 May 2020 but it was stuck in the member of staff’s outbox so had not been sent. The complaint response concluded that:
- it would only review matters that had occurred in the previous 6 months, in line with its complaints policy
- recent correspondence between the Home Ownership Team and the resident demonstrated that the landlord had told the resident he was responsible for repairs within the home and the lease confirms this
- due to the complaints policy, it was unable to look into repairs that occurred in 2015 (so could not comment on the resident’s report that works undertaken then had affected the warranty)
- a surveyor attended and found that there were no latent defects with the windows
- any issues with the window were the resident’s responsibility and he was signposted to the NHBC
- The resident asked to escalate the complaint on 28 May 2020. He raised the following continued concerns:
- the resident again contested the outcome of the window survey, advised he was unaware of who had produced the report and added that he had not seen a copy of it
- the resident repeated the history of the windows and reported that he understood the problem with the windows had been caused by them being installed incorrectly in 2011/12 (he advised that they had been mounted ‘through the lead flashing’ which the landlord had been made aware of at the time of its 2015 works)
- the resident advised that the NHBC had in the past informed residents and the landlord that windows were not covered by them
- the resident reiterated that he had been left without a warranty on the windows due to the repairs actions of the landlord in 2015 and that its policy not to investigate events more than 6 months prior was only guidance
- The landlord acknowledged the complaint escalation on 28 May 2020. It stated there were exceptions when it would investigate issues that occurred more than 6 months previously but that considering events of 5-10 years ago was not feasible.
- The landlord sent a final complaint response to the resident on 4 June 2020. It stated that it had investigated by reviewing the lease agreement and the window inspection report. It concluded that:
- under the terms of the lease, it was not responsible for repairing or replacing the window frames in the resident’s property and
- the outcome of the Stage 1 complaint investigation was correct.
Assessment and findings
- In reaching a decision we consider whether the landlord has kept to the law, followed proper procedure and good practice, and acted in a reasonable way. Our duty is to determine complaints by reference to what is, in this Service’s opinion, fair in all the circumstances of the case.
- The Ombudsman’s Dispute Resolution Principles are:
- Be fair
- Put things right
- Learn from outcomes
This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.
- It is not disputed that, under the terms of the lease, the resident is responsible for keeping the property in repair, including the bay windows that were the subject of this complaint. This obligation is set out in the terms of the lease and the resident has acknowledged this responsibility in his correspondence with this Service.
- This Service has not been provided with any evidence of events that may have occurred prior to an inspection that the landlord arranged in October 2019. The resident (and one of his neighbours) has laid out a timeline of events since 2009 but there has been no corroborating evidence to confirm either renewal of, or repairs to, the windows.
- The inspection arranged by the landlord in October 2019 determined that there were no defects. It did not establish signs of water ingress but found there was rot and damage to both bay windows. The decision of the landlord to conduct an inspection was reasonable – it demonstrates that the landlord did not initially reject the resident’s concerns and that it considered whether there were defects to the windows.
- However, the landlord has since failed to provide a copy of the report to the resident when this was requested during the complaints process and only offered edited versions of the inspection findings – this was unreasonable and will have caused inevitable frustration and uncertainty to the resident. The resident would reasonably have expected the full outcome of the report to have been offered to him following the inspection. Based on evidence seen by this Service, the landlord has offered no reason to the resident as to why it has not provided the report – this is unreasonable.
- The landlord signposted the resident to make a claim under the warranty to resolve his reports of water ingress through the windows. However, the resident raised the following concerns through a combination of his complaint of 29 April 2020 and the complaint escalation of 28 May 2020:
- whether the original 12 year warranty on the windows (which he stated were installed in 2011/12) had been invalidated by the repairs he reported that the landlord conducted in 2015
- he advised that the NHBC had previously told him that the windows are not guaranteed by them
- whether there was fault in the installation of the windows that had caused the water ingress (the resident has referred to damage caused to lead flashing during the installation process) and if this impacted the warranty
The landlord decided not to answer these questions on the grounds that it cannot consider complaints about matters that occurred more than 6 months previously. Whilst this approach is in line with its complaints policy, it does have the ability to use its discretion in exceptional circumstances. Given the potential impact of this matter on the resident in terms of the expense of replacing windows and the inconvenience of water ingress to his home, it would have been reasonable for the landlord to seek to answer these questions.
- The points raised by the resident were central to the complaint and the landlord’s refusal to answer them meant that it lost the opportunity to carry out a full investigation and put things right. This was therefore not in accordance with the Ombudsman’s Dispute Resolution Principles and it was inappropriate for the landlord to use the timescale limits of its complaints policy not to answer the resident’s concerns.
- This Service has seen no evidence that the landlord checked its records to determine, or comment on, whether:
- it carried out window renewals in 2011/12 and if there was a warranty for this work
- these windows were appropriately installed
- it conducted repairs to the resident’s windows during 2015 and if this impacted the original warranty
It would be reasonable to expect that the landlord would have kept records of these works and the decision-making that led to the works, particularly in the case of the alleged 2015 repairs. Given the information is likely to have an impact on the resident’s recourse to make a claim under the warranty, it would have been reasonable for the landlord to assist the resident by making some attempt to review its records – its failure to do so was unreasonable given the circumstances of the case.
- In summary, it is not disputed that the resident is responsible for repairs to his home but the landlord has unreasonably failed to attempt to answer the resident’s questions relating to the warranty on the windows and how the landlord’s past actions may have impacted this warranty. The landlord has failed to answer these questions on the grounds that its complaints policy does not require it to consider events that occurred more than 6 months previously – this approach was unreasonable given the circumstances of the case.
- In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in its handling of the resident’s concerns about the condition of his windows.
- The landlord has not answered questions that the resident raised about the warranty on his windows and whether its past actions may have impacted that warranty.
- The landlord to write to the resident to apologise for the service failure identified in this report and to pay the resident compensation of £100 in recognition of this failure.
- The landlord to review its records and write to the resident to advise:
- what records it holds of the alleged 2011/12 bay window installation at his home and who provided the warranty for this
- what records it holds of the alleged 2015 repairs at his home and what impact these had on the warranty
- The landlord to provide the resident with a copy of the October 2019 inspection report. If it is unable to do so, it should inform the resident and explain why.
The landlord should confirm compliance with these orders within 4 weeks of the date of this report.