Vivid Housing Limited (202209794)

REPORT

COMPLAINT 202209794

Vivid Housing Limited

24 April 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 resident’s request for the landlord to bear the costs for works required to the blown windows of the leasehold property.

Background

2. The resident is the shared owner of the property, a flat, owned by the landlord.
3. In January 2021, shortly after moving into the property, the resident started to experience issues with condensation in some of the windows on the flat. The resident advised the landlord that the beading on the external part of the window frames had appeared to have rotted, which was possibly the cause of the condensation.
4. On 13 April 2021, the resident raised a complaint with the landlord over who was responsible for repairing or replacing the affected windows. The resident also included elements in her complaint regarding scaffolding erected at the property, and because an external light was broken.
5. The landlord’s stage one response addressed the issues with the scaffolding and external light, and it offered the resident £60 compensation in recognition of service failures in these areas. However, it advised that the terms of the lease stated that the window panes were the responsibility of the leaseholder, and therefore it would not cover the cost of repair.
6. The resident escalated the issue to stage two, claiming that the beading which had rotted, was classed as part of the external structure, which would put the responsibility in the hands of the landlord and not the resident. The stage two response from the landlord referred to the lease again, and reiterated that the responsibility for the windows lay with the leaseholder.
7. The resident remained dissatisfied with the landlord’s response as she stated that it should bear the costs for the works.

Assessment and findings

8. The main factors to consider here are, what was done to establish the cause of the problem with the windows, and who is responsible for repair and replacement. However these two factors are not necessarily linked. It is therefore necessary to try to establish who is responsible, and if the cause of the damage has any bearing on this decision.
9. On reviewing the lease, the description of the premises in the first schedule part 1, states that, the window frames (except for the internal surface of the frames) are classed as part of the premises, and are therefore the responsibility of the landlord. The lease also states that the windows of the premises (including glass) and the internal surface of the window frames and (if any) window furniture (including locks, catches, fastenings, hitches and stays) are not part of the premises, and are therefore the responsibility of the resident.
10. Clause 3(3) of the lease states that the leaseholder covenants to keep the premises clean and in good and substantial repair and condition, and in particular as occasion requires, to thoroughly clean all interior and exterior surfaces of the windows of the premises.
11. Clause 5(3) of the lease states that the landlord remains responsible for repairs to the main structure of the building, and all parts of the building that are not the responsibility of the leaseholder.
12. When the resident noticed the problem with the windows, she notified the landlord immediately. The resident stated that the double-glazed windows in the property had blown and that the reason for this was the external beading and sealant. They also advised that they had spoken to other residents with south-facing windows, whose windows had the same fault. There is no evidence to suggest that the resident had sought advice on the cause of the condensation at this point, which suggests that the conclusion about the failure of the beading and sealant was the resident’s own assessment.
13. The landlord’s internal correspondence confirms that it checked its insurance, and ascertained that wear and tear would not be covered by the policy. However it is unclear how the determination was made that the problem with the windows was a result of wear and tear.
14. The resident communicated directly with the landlord’s insurers directly. Although it was confirmed that wear and tear would not be covered under the policy, the insurer did comment that the cost should be covered by the landlord with respect to its responsibility for external maintenance and damage. This is however the opinion only of the insurers, and does not establish responsibility.
15. The landlord investigated the issue by interviewing other residents. It noted that residents, in south-facing flats only, had the same issues with their windows. There is no suggestion that any previous complaints have been made regarding the issue, although the issues with the external beading appear to have happened over time.
16. The resident, in raising her complaint to the landlord stated that there was evidence that the external beading had rotted away due to incorrect materials used at the time the windows were fitted. However, no evidence has been provided to this Service in support of her assertions.
17. On investigating the complaint, the internal communication advised that there is no specific beading that is required for south-facing windows. It suggested that they could be responsible for the windows, although it would depend on the terms of the lease. It also suggested that the glazing units could have failed, which is a possible cause of the condensation. A further email expanded on this assessment, stating that the gas tight seal on the windows was the source of failure. Finally the landlord commented that building warranties and guarantees would have expired, as the property was handed over in 2010.
18. When the landlord arranged an inspection of the property, it established that the windows in the resident’s bedrooms and lounge were blown. There was no damage to the window panes themselves. The landlord inspected other properties on the development and agreed with the resident’s assessment that windows on other south-facing properties had the same problem. The landlord acknowledged that there was a common theme, and flagged it up internally to see what redress could be offered.
19. Despite the landlord acknowledging that this was an issue affecting multiple residents, there is no evidence that further enquiries were made, in order to determine the cause of the condensation. Multiple reasons were suggested by both the resident and the landlord. However no investigation was made to confirm which was the correct cause, or if there was another cause for the condensation.
20. The stage one response to the complaint does not indicate that further investigation was carried out to determine the cause of the condensation. The response advised the resident to refer to schedule one of her lease, which advised on responsibility for the windows. The response did address the other elements of the complaint, and these appear to have been resolved without further escalation.
21. On receipt of the stage one response, the resident stated that the terms of the lease were ambiguous, and that one of the other residents was seeking legal advice on how the lease should be interpreted. On reading the lease, there appears to be some ambiguity. While the lease states who is responsible for the external and internal surfaces of the frame, as well as the glass, the terms of the lease do not specify anything regarding the beading or sealant.
22. Given the ambiguity, the landlord should not have solely relied on the terms of the lease. A better approach would have been for the landlord to seek expert advice regarding whether the beading and sealant were internal or external parts of the window. The response to this could likely have provided clarity on who was responsible for the works.
23. Due to the ambiguity of the lease provisions, this Service is unable to determine on who is responsible for the cost of the repairs. However, this investigation concludes that the landlord’s did not take all reasonable action to seek clarity on the issue.
24. Given that so many windows in the development had the same problem, it would have been reasonable for the landlord to investigate more fully. As stated above, it should have sought independent expert advice on why the damage to the windows had occurred (and why only south-facing windows were affected). Furthermore, it would have been prudent to have sought professional advice on the terminology in the lease, as the lease did not cover the beading and sealant on the windows.
25. Following the stage two response, the resident did contact the landlord with evidence of further research that she had carried out. While the weight of this evidence may or may not have changed the outcome, it appears that the resident received no response. On 12 December 2022 the landlord wrote to the resident to apologise for this, and offered £150 in compensation. This offer is in line with its own policy, concerning levels of payments for poor quality correspondence in complaint handling. It, however, has not gone far enough with respect to ascertaining who is responsible for the works. This report, therefore, concludes that further compensation is warranted on its handling of this issue.

Determination

26. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure in the handling of the resident’s request for the landlord to bear the costs for works required to the blown windows of the leasehold property.

Orders

27. Within four weeks of the date of this determination, the landlord should:
    1. Seek independent expert advice on the reason for the condensation in the resident’s windows.
    2. Seek legal advice on how the terms in the lease, relating to who is responsible for the external beading and sealant on the windows, should be interpreted.
    3. Reoffer the resident the sum of £150 offer in compensation for the poor complaint handling if this has not already been paid.
    4. Pay a further £75 to the resident in recognition of the her effort and inconvenience seeking the accurate information, which the landlord failed to do.
    5. Provide evidence to this Service of compliance with all the orders above.