Westminster City Council (202106105)

REPORT

COMPLAINT 202106105

Westminster City Council

25 April 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

The complaint is about the landlord’s response to the resident’s reports of water ingress at his property.

Background and summary of events

Background

The resident has been a leaseholder of the property of the landlord since 27 April 2015. The landlord is a local authority.
The property is a flat within a building containing other flats. Above the property is another flat with an external paved walkway and terraced area.
It is a term of the lease that the landlord will keep the external structure and roof of the building in which the property is situated in good repair.
The landlord uses a repairs contractor to carry out some repairs.
The landlord operates a two stage complaints policy.
The landlord operates a compensation policy. This policy notes the landlord may offer discretionary compensation where there has been a service failure by the landlord resulting in distress, or time and trouble for the resident. The policy notes it may offer £500 per year for a failure to carry out a “minor” repair, and £500-£2000 per year for distress and inconvenience, depending on the severity.

Summary of events

The resident has advised that he has experienced multiple instances of water ingress ever since he moved into the property. On each occasion, the landlord has attempted repairs. One such occasion in January 2018 included significant repairs to the upstairs neighbours’ terraced areas and communal walkway. Additional reports of water ingress and subsequent attempts to repair occurred in October 2019, February 2020, and June 2020.
On 7 October 2020, the resident again reported water ingress into his bedroom which he considered was originating from the terraced area above. On the same date, the landlord acknowledged this report and advised it was treating the resident’s concerns as a formal complaint.
The landlord has provided this service with extensive internal communications from this period. Its internal communications noted that several other properties had reported similar water ingress. The landlord subsequently raised an order to inspect the water ingress on the same date.
The landlord’s internal communications from this period include a number of different surveyors from the landlord and also from its repairs contractor. On a daily basis, there were multiple communications requesting investigations and subsequent quotes for work be expedited and the need for urgency is referred to throughout. Some internal emails from the landlord’s repairs contractor have also been provided which demonstrate their surveyors chased their own finance team to expedite quotes being issued to the landlord.
It is also evident from the landlord’s internal communications that the inspections involved multiple properties on the same level as the resident’s property, as well as the properties on the level above. This was required to comprehensively inspect the drainage system across all properties to determine where the water ingress was originating from. It is evident that on several occasions the landlord had difficulty in arranging access to each property for its contractors to attend, which led to delays. It is also evident that the landlord began legal proceedings against one property in order to arrange access, which led to further delays.
The landlord provided its stage one response on 3 November 2020. It apologised for the delay to this response. It noted the history of reports from the resident and advised that on each occasion, it had attended to the repairs in line with its obligations. Regarding the report on 7 October 2020, it advised that it had initially raised a repair job with the incorrect contractor but had corrected this on 8 October 2020. In recognition of the delay this caused, it offered £20 compensation. It advised that its inspections into the cause of the water ingress was ongoing and that it was awaiting a start date for subsequent repair works. The landlord also noted the resident’s concerns over damage to his possessions and advised that the resident should begin a claim with its building insurer in relation to this.
Based on its internal communications, the landlord completed works to reseal the terrace areas on 3 December 2020. It subsequently visited the resident’s property on 13 December 2020 and discovered that water ingress was still occurring. It discovered that other properties were also being affected and raised a further repair order for its contractors to return and reassess.
It is evident that in or around early January 2021, the resident requested an escalation of his complaint. He also advised he was seeking to sell his property and requested the landlord assist with internal redecoration prior to the water ingress being rectified. The landlord’s internal communications indicate it advised that it would be unable to do this.
Throughout January 2021 and early February 2021, the landlord arranged for CCTV inspections of the drains and also for areas of the terraces and communal walkway to be repointed. Again, its internal communications show on multiple occasions its attempts to expedite these inspections, and again its trouble with gaining access to all the properties. It is evident that throughout this period, the landlord queried if any interim works could be carried out. Its surveyors subsequently advised that there were no interim works that could be done as the water ingress was originating from the drainage system which needed to be thoroughly inspected before it could be determined what works were required.
On 30 January 2021, the resident expressed his dissatisfaction with the ongoing delays. He also reported that the damage from the water ingress was getting worse, and there was now damage to multiple rooms in his property. He expressed concern about the electrical installations and also reported some plasterwork from the ceiling had fallen down.
The landlord provided its stage two response on 4 February 2021, which included the following:
1. It noted that its initial attempts to solve the issues following the resident’s reports had been delayed, but that this had been due to the requirement for multiple agencies to inspect and determine works. It had also been legally required to carry out a Section 20 procedure given that the works exceeded the £250 threshold for works relating to leasehold properties. This had added to the delay but was unavoidable.
2. Following the return of the water ingress, it was still carrying out inspections and was obtaining quotes for further works. It advised all terraces had to be inspected which was a lengthy process.
3. Regarding the costs incurred by the resident following the damage to his possessions, it reiterated that the resident should make an insurance claim.
4. It advised that its complaints policy would usually exclude it from considering earlier leaks older than 12 months, but that in this instance, it would consider the period from its repairs in January 2018 to date. It advised that its inspections indicated that the repairs it had attempted in January 2018 had not been adequate in solving the leak. On that basis, it offered compensation for the period of January 2018 to date.
5. It offered a total of £3,175 compensation, broken down as follows:
  1. £1,500 for failing to solve the leak in January 2018 (being £500 per year);
  2. £1,500 for distress and inconvenience caused to the resident (being £500 per year);
  3. £105 for the resident’s time and trouble in pursuing the complaint;
  4. £50 for not considering in its stage one response the impact of its earlier failed repair attempts;
  5. £20 as initially offered for the delay caused by initially instructing the wrong contractor.
On 8 February 2021, the resident thanked the landlord for its response and offer of compensation. He advised, however, that given the issues were ongoing, he would defer his acceptance, and requested that the landlord provide a further response once the works were complete. He also provided photos of dye entering his property following a recent dye test and requested that the landlord provide an update.
It is evident from the landlord’s internal communications that inspections and the approval of quotes continued across March 2021 and that repair works were subsequently completed in early April 2021.
It is also evident that the resident proceeded with an insurance claim, and that the insurer assisted with internal repairs to the resident’s property. On 4 May 2021, the resident advised the landlord that he was experiencing difficulties and delays with the insurer. He also expressed his dissatisfaction that the landlord had not offered a further response following the completion of the works.
On the same date, the landlord replied that as noted in its stage two response, the response was its final response and that should the resident remain dissatisfied, he should refer the complaint to this service.
From its internal communications, it is also evident that the landlord contacted the insurer on behalf of the resident and requested it provide him with updates about any ongoing internal rectification works.
On 14 May 2021, the resident reported that following heavy rain, further water ingress had occurred. The landlord subsequently raised a further works order for an inspection and given that its dye tests following its earlier repairs had indicated there were no further leaks, it arranged for a specialist leak detector to inspect the building.
The resident reported to this service that the landlord subsequently discovered that the concrete base of communal walkway retained water which subsequently gradually entered the properties below rather than draining correctly. The resident further advised that the landlord carried out works to prevent this, but that he remains concerned that further instances of water ingress may occur.

Assessment and findings

The basis for a landlord/tenant relationship for leasehold properties is a contractual one. The lease agreement notes that the landlord is responsible for repairs to the external structure of the building. The timeframe for completing such repairs will inevitably vary depending on factors such as the complexity of the repairs. The Ombudsman must assess whether the landlord’s response was reasonable in the circumstances and whether there was any undue delay to any repairs. The Ombudsman would also expect a landlord to provide reasonable updates to a resident throughout the period of repairs.
It is not disputed that there have been a number of similar instances of water ingress since the resident moved into the property. It is also not disputed that the landlord attempted repairs on each occasion, although following each attempted repair, further instances of water ingress have occurred. Based on the resident’s comments, water ingress would usually occur after heavy rainfall.
Following the resident’s reports of water ingress on 7 October 2020, the landlord has advised in its stage one response that it initially provided incorrect instructions to its repair contractor, before correcting those instructions on 8 October 2020. This service has not been provided with communications containing the initial incorrect instructions, however, as noted by the landlord, it is correct that this error would have created a delay to the repairs, in this instance, a one-day delay. It was reasonable, therefore, that the landlord apologised for this delay, and offered compensation. For this particular service error, given that the delay was only one day, and the landlord apologised, the amount of £20 compensation provided reasonable redress in the circumstances.
Based on the landlord’s internal communications provided to this service, following this one-day delay, the landlord took reasonable steps to arrange for an investigation of the water ingress and subsequently obtain quotes for repair works. It is evident that numerous members of staff from the landlord were involved in arranging these repairs, which were required for several properties in the building, all of whom were proactive in their communications to arrange the repairs. The landlord frequently requested its contractor expedite their investigations and subsequent reports. In turn, the landlord’s contractor also put pressure on its own financial department to expedite their quotes being issued.
As noted above, a repair of this nature will often involve multiple experts and investigations, which can cause delays. A landlord will have acted reasonably as long as they did not cause undue delays. Throughout, the course of the investigations, multiple expert contractors were required to carry out CCTV inspections of drainage systems, and dye tests to determine the locations of water ingress across multiple properties. As with above, the landlord’s internal communications indicate it sought to expedite these investigations wherever possible. On one occasion, it even informed its contractor a proposed timeframe for the CCTV investigation was unacceptable and demanded it be brought forward.
The Ombudsman also notes that the landlord requested its surveyors assess for any interim works that could be carried out to alleviate ongoing water ingress, and that while the surveyors advised this was not possible, it was nevertheless an appropriate step taken by the landlord, in line with what the Ombudsman would consider best practice.
It is evident that on several occasions, further delays were caused by issues with access to the multiple properties experiencing water ingress, and the properties located above these whose terraced areas were the source of the water ingress. Given that the drainage system was connected across these properties, all had to be investigated prior to repair works being finalised. Again, the internal communications provided to this service demonstrate that the landlord was proactive in seeking access, and even sought legal action regarding access for one of the properties. While the delays caused by access issues would have been frustrating for the resident, the landlord’s attempts to expedite the process as much as possible were reasonable.
As noted above, while some delays are reasonable, the Ombudsman expects a landlord to keep a resident informed of any delays. Following the resident’s formal complaint, it is evident from the landlord’s internal communications that at various points, it could have provided formal updates about when certain inspections would occur, or provided updates that inspections were ongoing and that it did not yet have a date for the works. While the resident has referred to informal updates from staff members of the landlord, based on the evidence provided to this service, the landlord did not provide formal updates, despite the various delays experienced, and requests from the resident. This would have left the resident frustrated and led to his time and trouble in chasing updates.
In its stage one response, the landlord appropriately provided an update regarding its investigations, and it is evident that the resident would have been aware of the initial works carried out in December 2020. Following its discovery in December 2020 that water ingress was still occurring, the landlord again failed to provide regular formal updates to the resident, leading to him expressing his dissatisfaction on 30 January 2021.
In its stage two response, the landlord appropriately addressed the time and inconvenience caused to the resident in having to chase updates, for which it apologised and offered compensation of £105. The distress caused to the resident in not knowing how the repairs were progressing is also reflected in the landlord’s offer of £1,500 compensation for distress and inconvenience. As noted above, the Ombudsman expects a landlord to provide reasonable communication throughout the period of any repairs, which in this instance, the landlord’s communication fell short of, constituting service failure. It was therefore appropriate that the landlord apologised and offered compensation, which in the Ombudsman’s opinion, was in line with what the Ombudsman would expect and amounted to reasonable redress in the circumstances.
When a landlord receives reports of damage to a resident’s property, the Ombudsman expects it to carry out a reasonable investigation. Following the resident’s initial reports in October 2020, as discussed above, the landlord’s attempts to arrange investigations of the issues reported were reasonable. On 30 January 2021, the resident reported that the damage caused by the water ingress was spreading throughout his property and that plaster was falling down. He also expressed concerns that the electrical installations in his property may become unsafe. It is not evident that following these reports, the landlord took any steps to investigate the resident’s property. While it is evident it was arranging works to solve the problem, given that the level of damage had changed, the Ombudsman would have expected the landlord to attend the resident’s property to determine if the electrical installations were safe and whether any interim works could be carried out. It is not evident that the landlord did this, which in the circumstances, would have constituted maladministration. As discussed further below, in its stage two response, the landlord accepted that it failed to carry out reasonable repairs across this period and offered an apology along with compensation which covered this period. In the Ombudsman’s opinion, the amount of compensation offered was sufficient to amount to reasonable redress for this maladministration.
It is evident that the resident, as part of his complaint, expressed concern that the most recent incidence of water ingress was related to the previous occurrences. Given that these earlier occurrences happened over a period of years and were over 12 months prior to the present complaint, it would have been reasonable for the landlord to have advised that it was not able to consider these as part of its complaint response. Should it have taken such a position, it should have made this clear in its stage one response, however, the landlord did not refer to the earlier incidences of water ingress and whether it was able to consider them. It was therefor appropriate that in its stage two response, it identified it failed to acknowledge this part of the complaint and offered £50 compensation for its service failure. Given that it also apologised and that it went on to consider this in its stage two response, this compensation amounted to reasonable redress in the circumstances.
In its stage two response, the landlord identified that its earlier attempts to resolve the water ingress in January 2018 had been unsuccessful. The stage two response did not go into detail about what element of these earlier repairs were unsuccessful or why. The surveyor’s reports provided to this service note that various elements of the terraced areas of the properties above the resident’s were inadequate, but the reports did not specifically point to this being caused by failed earlier attempts to repair the issue and it is not clear what elements of the terrace design were present before or after the earlier repair attempts. It would have been helpful had the landlord provided greater clarity into its investigation and why it reached the conclusions it did.
The Ombudsman would not make a finding of service failure where a reasonable attempt at a repair had been made, even when the repair later proved to be unsuccessful. A finding of service failure would, however, be made where an earlier attempt to repair was carried out in a substandard manner, or in any other way that fell short of being reasonable. In the absence of any specific evidence relating to the January 2018 repair, this service is not able to make any specific comments about the standard of that repair. Given, however, that the landlord identified that this repair did not meet its standards, it was appropriate that it apologised and offered compensation in line with its compensation policy. While the compensation policy notes that the amount offered is in line with a “minor repair,” a term which may not fully articulate the inconvenience caused to the resident, given that the resident continued to be able to use his property during periods of damage and subsequent repairs, the amount of compensation offered was reasonable and in line with what the Ombudsman would expect.
The landlord’s stage two response advised that it was the final response as part of the landlord’s internal complaints procedure and signposted the resident to this service should he wish to escalate his complaint. Following receipt of the stage two response, the resident advised he wished for the landlord to provide a further response following the completion of the repair works, and he later expressed his dissatisfaction that such a further response was not offered. The landlord subsequently made it clear it would not offer a further response, however, it would have been helpful had it provided this position following the resident’s initial request. As it had not raised the resident’s expectations that it would do so, in this instance, this would not constitute service failure.
Following the stage two response, the resident reported to the landlord that the dye test it had carried out resulted in dye entering his property. It is concerning that once again, the landlord did not provide a formal update regarding its ongoing investigations and repairs. It is evident however, that the landlord subsequently did complete repair works and carried out subsequent tests to ensure they had been successful. Following the discovery that the issues were persisting, the landlord also appropriately arranged for experts to carry out specialised tests and the resident has reported further repair works were subsequently completed. These actions were reasonable and in line with the landlord’s repair obligations.
As part of his complaint, the resident expressed concerns about damage to his possessions as a result of the water ingress. The landlord’s complaints procedure and compensation policy relates to its service failure and not for indemnifying a resident for damage to their possessions. It was reasonable, therefore, for the landlord to have referred the resident to its building insurer, and it is evident the landlord chased the insurer on the resident’s behalf to expediate remedial internal works.
Additionally, the resident has expressed concerns that the ongoing issues prevented him from selling his house. The Ombudsman would not expect a landlord’s internal complaints procedure to address this concern and any assessment as to the causation of such a loss is beyond the scope of this investigation. Such a determination is better suited to the civil courts and the resident is not prevented from seeking legal advice as to any further legal action.
In summary, it is evident that the landlord took reasonable steps to investigate the resident’s reports of water ingress, and that it went to some lengths to expedite the process when possible. Due to the complexity of the investigation, the difficulties arranging access across multiple properties, and the need for a section 20 procedure, the delays experienced were reasonable in the circumstances. The landlord’s communication with the resident, however, fell below what the Ombudsman would expect, which would have resulted in distress for the resident, as well as time and trouble in chasing updates. It was appropriate, therefore, that it offered apologies and compensation in recognition of this, which in the Ombudsman’s opinion, amounted to reasonable redress in the circumstances. Having identified that its earlier attempts to rectify the leak were lacking, it was also appropriate that it also offered further compensation across the period that the repairs remained outstanding, which was in line with what the Ombudsman would expect.

Determination (decision)

In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its maladministration regarding its response to the resident’s reports of water ingress at his property.

Reasons

While the landlord took reasonable steps to investigate the causes of the water ingress and to arrange for repairs, its communication in relation to this and lack of updates regarding the various delays would amount to maladministration in the circumstances. The landlord appropriately identified this in its stage two response and offered its apologies and compensation, which in the Ombudsman’s opinion, amounted to reasonable redress in the circumstances.

Recommendations

If it is yet to be accepted, the landlord to write to the resident within four weeks of the date of this determination and reiterate its offer of compensation.