Westminster City Council (202122645)

REPORT

COMPLAINT 202122645

Westminister City Council

30 June 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

The complaint is about:
1. The landlord’s handling of a leak into the resident’s property.
2. This Service has also considered the landlord’s complaint handling approaches.

Jurisdiction

What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
After carefully considering all the evidence, in accordance with paragraph 42 of the Housing Ombudsman Scheme, the following aspect of the complaint is outside of the Ombudsman’s jurisdiction.
This Service cannot make findings on damages to property caused by a landlord’s actions or inaction. This Service understands that the resident has brought a claim through the landlord’s insurers which is ongoing.

Background and summary of events

Background

The resident is a leaseholder of the property via the landlord and has lived here since 1987. The property is a two-bedroom flat within a converted house.
The flat above the resident’s property is also a leasehold property via the landlord. The landlord is a local authority.
The resident has explained that leaks from the flat above her property occur on a frequent basis, causing water ingress into her property.
The landlord’s systems show that they do not have any vulnerabilities recorded on their systems for the resident. However, the resident has advised this Service that she is currently undergoing treatment for cancer.

Scope of investigation

Information reviewed by this Service shows that the resident had experienced leaks from the property above since 2019. This investigation has primarily focussed on the landlord’s handling of the resident’s recent reports from April 2021 onwards that were considered during the landlord’s complaint responses. This is because residents are expected to raise complaints with their landlord in a timely manner so that the landlord has a reasonable opportunity to consider the issues whilst they are still ‘live’, and whilst the evidence is available to reach an informed conclusion on the events that occurred.

Summary of events

The landlord’s repairs records show that on 6 April 2021, the resident reported that water was leaking through her ceiling from the flat above. The resent stated that the water was coming down from the middle of the ceiling when it was not raining outside. Its notes also show that the occupier of the flat above the resident’s property had also called to report the leak. An operative attended the same day and its notes state that a leak could not be located. A job was raised for the landlord to inspect the guttering on the exterior of the building.
On 8 April 2021, the occupier of the flat above the resident’s property called the landlord to report that water was back surging from their shower. The landlord’s repairs logs noted that scaffolding was required to assist with their investigations into the source of the leak.
Also on 8 April 2021, the resident called the landlord to report that the ceiling in her toilet had collapsed following the leak from the flat above. She advised that she would be contacting its insurers. An electrician attended the resident’s property that same day in order to make the electrics safe in the toilet. The landlord’s notes show that a further job was raised for a plumber to attend in order to inspect her property and the flat above.
On 29 April 2021, a surveyor from the landlord’s insurers attended the resident’s property and carried out an inspection regarding the leaks. It confirmed that the source of the leak was from the waste pipe of the shower tray in the flat above the resident’s property.
On 21 June 2021, the resident submitted a formal complaint to the landlord in which she stated the following:
1. The leaks from the flat above into her property were still happening.
2. She stated that she had made numerous requests to the landlord’s leaseholder team to try and resolve the situation.
3. She advised that the landlord had recently threatened legal action against her rather than trying to engage with her.
4. Its leaseholder team had not responded to her attempts to mediate, and she had suggested meeting with them to try and resolve the situation.
5. She felt it had not appropriately addressed any of her concerns.
6. She felt intimidated by the landlord’s insurers requesting access to her property.
The landlord provided the resident with its stage one complaint response on 3 August 2021. It did not uphold her complaint and stated the following:
1. It referred to the terms of the resident’s lease in which it outlines her responsibilities in allowing it access to complete repairs to the property and any other surrounding properties.
2. It stated that the letter it had sent to the resident which referred to possible legal action in the event she did not allow access was a generic letter. It apologised if it had caused her any offence.
3. It provided clarification on its position regarding alteration works in the flat above her property.
4. It advised that it was awaiting replies from its insurers and from contractors who were acting on behalf of the leaseholder in the flat above her property. It stated that once it had this information its surveyor would attend and would answer any questions that she may have.
On 17 August 2021, the resident sent an email to the landlord in which she outlined in detail why she was unhappy with its stage one complaint response:
1. She had made several attempts since March 2021 to try and meet with the landlord in order to resolve the issues.
2. She had been informed in a telephone call with the landlord that a meeting would take place on 13 August 2021, but was then informed in its stage one complaint response that it would instead wait until its surveyor had attended.
3. She felt that it did not acknowledge the lengths she had gone to resolve the issues, nor had it addressed any of the underlying issues.
4. The water leak had been an issue since 2019 and the landlord had not given her any indication of what was causing the leak or how it would fix it.
5. Works at the flat above had started without the landlord consulting her and the works had caused damage to her property. This related to the landlord accessing the shower tray of the property above through the ceiling in the resident’s property and water damage from the ongoing leaks.
6. She felt that the landlord’s communications with her were poor, and she stated that she had to wait over two months for its stage one complaint response.
7. She requested a written response to a number of technical questions regarding the repairs in the flat above and also for the landlord to provide her with a plan on how it was going to resolve the situation.
On 8 September 2021, the landlord acknowledged the resident’s request for a stage two complaint, and it apologised for its delay. It stated that it would provide her with its stage two complaint response by 6 October 2021.
On 11 October 2021, the landlord contacted the resident via email and advised that it would provide its stage two complaint response to her by 22 October 2021.
The landlord’s leasehold surveyor attended an arranged visit to the resident’s property on 19 October 2021.
On 21 October 2021, the landlord contacted the resident via email and advised that it would provide its stage two complaint response to her by 5 November 2021.
On 8 November 2021, the landlord contacted the resident via email and advised that it would provide its stage two complaint response to her by 19 November 2021. It stated that it needed to put her complaint on hold whilst the resident’s property was inspected by its surveyor and insurers.
On 14 January 2022, the landlord’s litigation team manager provided the resident with a report from its surveyor who had inspected the flat above the resident’s property. They had found that the waste pipe from the shower was defective and was causing the water leaks into the resident’s property, caused by ineffective previous repairs carried out by the leaseholder. It was agreed that the works required to the shower tray in the flat above did not require access from the resident’s property, however this was against the surveyor’s view. The surveyor stated that the leaseholder in the flat above would be required to complete the following:
1. The shower waste pipe requiring rotation and sealing.
2. All loose pipework needed to checked and addressed.
3. To check all seals and joints to ensure that the shower enclosure and flooring are watertight and complete.
4. Insulation to be placed in the floor void to stop noise transferring into the resident’s property.
The landlord’s litigation team manager also stated that they would set a timescale in which the works would need to be completed, or it may complete the works on the leaseholder’s behalf. They also stated that they would be informing the leaseholder of their obligations in their lease, to complete the repairs to the required standard of the landlord, and not to cause nuisance or damage to another flat or the structure of the building.
In a further email to the resident on 21 January 2022 the landlord’s litigation team manager advised the following:
1. He had visited the flat above her property and believed that the repair required to fix the leak would be straightforward to resolve.
2. It was stated that he believed the further leaks were due to condensation on the wastewater pipes in the floor void space and that the resident had agreed with this. He stated that the insurers, surveyor, and a plumber were all in agreement with this. He also stated that the resident had agreed with this also.
3. He stated that it the repairs would be more effectively resolved from below, via access from within her property.
4. He understood the resident’s view in that she did not wish to allow access to her property for the repairs to be completed from below.
The resident responded to the landlord via email on 31 January 2022 and stated the following:
1. She asked why members of its staff had not previously responded to her concerns.
2. She stated that the works to the flat above needed to be completed from within that property, rather from access within her property. She advised that if there were to be further issues in the future then her ceiling would need to be taken down again.
3. She did not agree with the landlord’s position that the required repairs to the flat above her property were straightforward. She stated that the leaseholder had previously been able to complete repairs from within their own property.
4. She felt that the landlord’s view on the repairs being completed more effectively from within her property meant that it was easier for the leaseholder of the flat above.
5. She did not recall agreeing that the water ingress was due to condensation. She had concerns that the leaks would continue to happen.
On 15 February 2022 the landlord provided the resident with its stage two complaint response which partially upheld her complaint. It stated:
1. It confirmed that the initial water ingress into her property in 2019 and 2020 was caused by defective guttering on the exterior of the building. It stated that it had completed repairs to the guttering in February 2021.
2. It confirmed that the later leaks into her property were coming from the shower wastewater pipe in the flat above. It confirmed that the resident had allowed access to plumbers who were acting on behalf of the leaseholder above and they noted that an area of ceiling in the resident’s toilet room was saturated due to the leaks.
3. It stated that the leaseholder’s contractors had replaced the entire wastewater plumbing system in the flat above in April 2021.
4. The leaseholder’s plumber confirmed their position in that they felt the most effective way to carry out the repairs to the shower wastewater pipe was from below, from access within inside the resident’s property.
5. It noted the inconvenience to the resident of the repairs being carried out from within her property but stated that the works would take no more than one hour to complete.
6. It confirmed that a contractor had been instructed by its insurers to complete the remedial works and redecoration inside the resident’s property, but they would require access to her property. It stated that if she would not provide access, it would offer a cash amount in settlement of her insurance claim.
7. Its contractor would contact the resident to undertake the following works in her property and it enclosed a schedule of works from its insurers which included the replacement of damaged ceiling panels and redecoration works to the areas affected by water ingress.
8. It upheld the element of her complaint relating to its staff not arranging an appointment with her and it apologised for this. It stated that its leasehold surveyor did attend on 19 October 2021.
9. It offered the resident a total of £425 in compensation for the following reasons.
  1. £100 for the resident’s time and trouble in pursuing her complaint.
  2. £100 in relation to its delay in undertaking agreed recommendations from its complaint investigation.
  3. £200 in recognition of distress and inconvenience caused to the resident.
  4. £25 in recognition of its delay in providing the resident with its complaint response.
On 10 April 2022, the resident sent an email to the landlord in which she stated that she had not yet received an update on how it would address the required repairs to the waste water pipe of the shower in the flat above. She confirmed her position in that she wanted the landlord to complete any repairs from within the property above without it having to access her property. She also stated that she believed that the landlord had discriminated against her by not consulting with her before carrying out the works in the flat above.

Assessment and findings

The Ombudsman’s Dispute resolution principles are to:
1. Be fair.
2. Put things right.
3. 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.

The landlord’s obligations

The signed lease agreement between the resident and the landlord outlines the responsibilities of both parties in relation to repairs. It states that within a reasonable notice period, the resident should allow access to the landlord so that it can carry out repairs to its other properties.
The landlord’s complaints policy lists a two stage complaints process. It confirms that it will respond to stage one complaints with ten working days and within 20 working days at stage two.
Its compensation policy outlines that it will make compensation payments to residents where it has failed to do something which has resulted in residents experiencing, time and trouble, distress, or inconvenience as a result. It states that it will make payments of between £50 and £250 for resident’s time and trouble when having to pursue complaints.

The landlord’s handling of a leak into the resident’s property.

Although the resident’s signed lease agreement states that she should provide the landlord with access to the property so that it can carry out repairs to other properties, she later decided to stop allowing it access. She stated that the landlord should have been able to carry out the repairs from within the flat above. The landlord’s position was aimed towards enforcement of the lease agreement rather than seeking to resolve the situation by working with the resident. The resident stated that she felt intimidated by the approaches taken by the landlord. The landlord missed opportunities to engage effectively with the resident much earlier in the process and there is no evidence to suggest that it explained its position clearly and communicated that it had taken into account the resident’s views.
The landlord’s position shows that it preferred to complete the repairs from access via her property rather than minimising disruption to her by completing the repair from within the property above. Whilst it is noted that this was the quickest and most convenient way for it to complete the repair, it was a method which caused further disruption to the resident, who had already experienced significant delays in the resolution of the repair. The landlord missed the opportunity to repair its relationship with the resident by explaining its reasoning and taking into account any adjustments that she may have sought. It failed to understand why the resident didn’t want to allow access and instead took a draconian position , rather than a customer focused and pragmatic one.
The resident asked the landlord several times throughout the case if it would be willing to try and resolve the situation through mediation. There are no records to show that it considered this. Had it done so, this could have resolved the situation much sooner, and gone some way towards addressing the relationship between it and the resident. The landlord failed to respond to the resident and it missed opportunities for an effective dialogue with her. Instead it took an enforcement position, which was confrontational and not required as the resident was not failing to engage with it. The landlord’s use of a generic enforcement letter escalated the situation and broke down further the relationship between it and the resident. This was not a customer centric approach and it failed to actively listen. It was clear that she wanted to explore the options and understand the landlord’s thinking. This Service finds that the landlord did not try to work with the resident to achieve a resolution.
The resident has provided this Service with photographs of the ceiling of the toilet room which remains open, and the waste water pipework is visible. The resident has also advised this Service that the electrics within that room have been turned off by the landlord and remain out of use. This Service finds that the landlord’s actions caused unnecessary delay and inconvenience to the resident in its handling of the repairs. Its actions therefore amount to maladministration.

Complaint handling

The landlord took 32 working days to provide the resident with its stage one complaint response. It did not make any reference to this delay within its response, nor did it apologise to the resident for its delays.
The landlord’s stage two complaint response was also significantly delayed and was given to the resident 127 working days after she requested an escalation to stage two of its complaints process. Its stage two response was only provided to the resident after she had to chase it. Its stage two complaint response fell well outside of its 20-working day response timescale which it lists within its complaints policy. Although the landlord did inform the resident that it was putting her complaint on hold whilst it awaited the completion of repairs, this was not good practice. Its action in this regard left the resident within its complaints process for a long period of time, causing her further frustration and distress.
Whilst the landlord did inform the resident on four separate occasions of its delays in providing its stage two complaint response, it provided the resident with little explanation for the reasons for its delay. This Service finds that the landlord’s significant delays in providing the resident with its complaint responses was unreasonable and it missed the opportunity to resolve her complaint at the earliest possible stage. Paragraph 4.1 of this Service’s complaint handling code encourages the early resolution of issues between landlords and residents. Although it did offer the resident a compensation amount of £25 in relation to its delayed complaint response, this does not go far enough to reflect its failings and the detriment caused to the resident. This Service therefore finds that the landlord’s complaint handling approaches amount to maladministration.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s handling a leak into the resident’s property.
In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration in the landlord’s complaint handling approaches.

Reasons

The landlord’s approach to the repairs in the flat above her property has left the resident without the use of her toilet room for over two years. Whilst it is noted that the resident would not allow access to the landlord for it to complete the repairs from inside her property, the landlord missed the opportunity to work with rather than against the resident to resolve the situation, before threatening legal action against her. Had it engaged with her through the use of a mediation service, as highlighted by the resident, it could have prevented the situation from being unresolved for such a significant period of time.
The landlord did not follow its own prescribed policy timescales when dealing with the resident’s complaint. Its communications with her regarding delays to her complaint were poor and she had to chase it for its responses, which caused her further inconvenience and detriment.

Orders and recommendations

Orders

Within four weeks, the landlord is to:
1. Apologise to the resident in writing for its failings in the handling of her case and her associated complaint.
2. If it has not done so already, contact the resident and agree with her an action plan for the required works for the property above to be completed without access from within the resident’s property.
3. pay the resident £1225 compensation, which is comprised of:
  1. £425 as offered in its stage two complaint response.
  2. A further £600 in relation due to its failures in addressing the leaks into the resident’s property.
  3. A further £200 in relation to its failures in its complaint handling approaches.
4. Provide this Service with evidence of the above.

Recommendations

If it has not done so already, the landlord is to update its systems with the resident’s health and vulnerability information.