Westminster City Council (202301503)

REPORT

COMPLAINT 202301503

Westminster City Council

13 August 2024

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 report of a leak from the property above.
The Ombudsman has also considered the landlord’s complaint handling.

Background

The resident is a leaseholder of the landlord, which is a local authority. The lease commenced on 30 January 1992. The property is a 1 bedroom flat. The landlord has no vulnerabilities recorded for the resident.
On 21 February 2023 the resident reported that he was experiencing a leak from the property above. The landlord had difficulties gaining access to the property above to resolve the issue. When it got into the property its contractors were unable to carry out works due to its condition. On 23 March the landlord noted that the leak had worsened and the resident had no lights or electricity. The landlord applied to the court for an injunction and an order was granted on 22 August. The leak was fixed on 6 November and remedial works to the property carried out in January 2024.
The resident contacted this Service on 12 April 2023 to request our assistance with his complaint about the ongoing leak. We wrote to the landlord to ask that it provide a complaint response by 4 May.
The landlord provided its stage 1 complaint response on 26 April 2023, as follows:
1. It received the resident’s report about the leak from the flat above on 13 March. It contained dirty water that it had been unable to investigate or remedy.
2. On 13 March it raised a repair order to attend the property above the next day but could not gain access. On 15 March a new order was raised and a plumber gained access. However, they could not carry out the repair due to the condition of the property.
3. On 17 March its contractor attended again and identified the source of the leak as the toilet which was isolated to temporarily resolve the issue. There had been further repair orders issued in relation to the leak but its contractor could not carry out work due to condition of property.
4. The matter was referred to its housing team who visited the resident on 23 March. It also visited the neighbour above however, it had not been able to contact them since.
5. On 27 March and 12 April the landlord visited the resident to take photos of the leak and damage caused which were referred to its repairs team.
6. The landlord visited the resident again on 14 April. It said it would arrange for its repairs team to inspect the property and carry out electrical checks.
7. It was in the process of taking legal action to gain access to the property above and would update the resident accordingly.
8. It apologised that the leak had caused internal damage. It provided a link for further information about claiming on its building insurance. It also advised the resident that he could consider making a claim against its public liability insurance and provided a link.
9. It upheld the complaint due to the length of time taken to start legal action against the neighbour above.
10. It offered £150 compensation, comprised of:
  1. £100 in recognition of the delay in starting the no access procedure in accordance with the right to repair scheme (£10 plus £2 per day up to a maximum of £100 in total).
  2. £50 for the distress and inconvenience caused.
The resident made his stage 2 complaint on 10 May 2023, the main points being:
1. The stage 1 complaint response was not accurate, as follows:
  1. The leak was reported on 21 February, not 13 March.
  2. When he called the landlord on 13 March an electrician attended to isolate the lights in the kitchen and bathroom.
  3. The plumber did not isolate the leak in the property above on 17 March because they refused to work there.
  4. The landlord was aware on 21 February that the leak was not fixed.
2. The leak got worse and contained sewage water. It was still ongoing.
3. He made a minimum of 8 calls to the landlord and visited its office on 3 occasions but no one got back to him.
4. On his last visit to the office he managed to speak to an estate manager who visited his property to take photos.
5. On 14 April the housing officer advised that a repairs officer would visit his property but this did not happen.
6. He was advised by the insurance company that he would need to pay a £100 excess charge which he did not agree he should have to pay.
7. £150 compensation was an “insult”, considering the impact the leak had on the “health, wellbeing and state of mind of his family.”
The landlord issued its stage 2 complaint response on 15 June 2023, as follows:
1. Its housing officer had been in regular contact with the resident regarding the progress of repair. It set out the visits it had made to the property.
2. It would continue to take appropriate action, including legal action, to gain access to the property above and would update the resident accordingly.
3. It apologised that it incorrectly said the leak was first logged on 13 March, it confirmed that its logs showed it was 21 February. It said the mistake was due to user error.
4. It apologised that it had said the leak was isolated on 15 March. It said the error was due to a miscommunication between contractors about what specifically was isolated. It confirmed it was the electrics that were isolated, not the leak.
5. Its surveyor inspected the property on 5 June and observed damage in the bathroom, hallway and kitchen with damp and mould present. It should not have taken from February to June for the inspection to take place.
6. It had instructed contractors to attend the property on 22 June to carry out a mould wash.
7. It intended to apply to the court for an injunction against the neighbour above and would complete the repairs once this was granted.

It had offered compensation in line with its policy however, it agreed that there had been further service failures with the delay, distress and inconvenience and complaint handling. It made a revised offer of compensation, comprised of:
1. £175 for the delay in arranging the repairs and failure to adhere to its ‘no access procedure’.
2. £150 for the service failure and the distress and inconvenience caused as well as time and trouble.
3. £75 for the complaint handling by failing to provide the correct information at stage 1 and the delay in its response.
It apologised for the damage caused by the leak. However, in line with the lease agreement it had advised that the resident raise an insurance claim. Its complaints policy did not cover damage.
It upheld the complaint as “there should not have been a delay in completing the repair to the leak.” There should have been better communication internally and externally which would have allowed the injunction process to start sooner. It apologised for the inaccuracies in its stage 1 complaint response and that the resident has cause to escalate his complaint to stage 2.

In his email to this Service on 4 July 2023 the resident said that the leak was ongoing.

Assessment and findings

Landlord’s obligations, policies and procedures

The leaseholder handbook says that:
1. Where damage to decorations caused by water penetration is because of a defect to the structure or the actions of other residents the resident may claim on its building insurance.
2. There is a £100 policy excess.
The tenant handbook says that:
1. It will provide an urgent response to repairs involving plumbing works within 3 working days.
2. Residents are responsible for providing access at reasonable times for repairs to be carried out. It can take legal action if a resident does not provide access when reasonably requested.
Its no access process map says it will issue 3 letters to residents who do not provide access before taking further action.
Its complaints policy says that:
1. It will respond to stage 1 complaints within 10 working days and to stage 2 complaints within 20 working days.
2. Where it needs longer to investigate it will send a holding response to explain the reason for the delay and advise when the resident should receive a full response.
Its compensation policy says that:
1. Claims for reimbursement of insurance excess charges are excluded.
2. Liability claims for loss or damage to possessions should be made to its insurance team.
3. Compensation for qualifying repairs under the right to repair scheme is set at a one off payment of £10 plus £2 per day the repair is not completed. As part of its procedure the maximum compensation for one job is £100.
4. Discretionary payments should recognise the impact caused to the resident.

Leak

The resident reported the leak to the landlord on 21 February 2023. There is no evidence that the landlord responded which was inappropriate. This was a failure to provide a service which caused distress to the resident and exacerbated the damage to his property. Furthermore he was caused inconvenience, time and trouble when he called the landlord on 13 March to chase.
The repair logs show the landlord attended the property above on 13 March but was unable to get access. While this was a positive step it failed to fulfil its obligations to the resident and failed to respond to the leak within the timescales set out in the tenant’s handbook.
The landlord’s internal emails show that on 15 March 2023 the resident visited its offices to seek an update on its ongoing difficulties gaining access to the property above. It is acknowledged that the landlord attempted to contact the neighbour via phone and email ‘there and then’ but was unable to make contact.
An internal email sent that day advised that during a later call with the resident he confirmed he had been able to speak with his neighbour who said a contractor was due to attend that day. However, by 3.00pm no one had attended and the resident had become “quite distressed.” It asked that a contractor attend as soon as possible to catch the neighbour above who was believed to be at home.
The repair logs show that on 16 March 2023 the landlord raised a further order to inspect the property. The notes for 17 March set out its contractor’s concerns about working in the property. On 22 March the landlord wrote to the neighbour above to request clear access to be able to investigate the leak. While this was a positive step it came a month after the leak was first reported. It is unclear why the landlord delayed in taking this action and therefore it was unreasonable. This is because the landlord did not do all it reasonably could to provide a timely resolution to the substantive issue.
Both parties agreed that when the landlord attended the resident’s property on 17 March 2023 it isolated the resident’s electrics. While this was a positive step, it came late in the process. This is because it took place almost a month after the leak was reported exposing the resident to risk of harm. This showed a lack of regard for the resident’s welfare which was inappropriate and one which undermined the landlord/resident relationship.
In its stage 1 complaint response of 26 April 2023 the landlord confirmed that it referred the matter to its housing officer who visited the resident on 23 March. He also tried to visit the neighbour above but could not gain access. The landlord visited the resident again on 27 March and 12 April to take photos of the leak and damage which were referred to repairs.
While this was a positive step it is unclear why it took the landlord a month to arrange to inspect the property and therefore the delay was unreasonable. This caused frustration and distress to the resident who could not be confident that it was committed to resolving the leak as soon as possible. Furthermore, it is unclear why the visit on 23 March did not act as a catalyst for the landlord to expedite the process to gain access to the property. Its failure to do so compounded the frustration, inconvenience, time and trouble caused to the resident. This is because he facilitated 2 further visits without being any further forwards.
The landlord’s stage 1 complaint response of 26 April 2023 apologised for the internal damage to the property caused by the leak. It advised the resident that he should make a claim on its building’s insurance. It reiterated its advice in its stage 2 response of 15 June. Given the terms set out in the leaseholder’s handbook this was an appropriate response. It is unclear why the landlord changed its position and opted to carry out the works itself. However, it is acknowledged that there was no detriment caused to the resident by its decision to do so.
The landlord failed to provide an update to the resident which was inappropriate because it caused him inconvenience, time and trouble when he chased the landlord on 23, 29 and 30 March 2023. The repair logs show that the landlord raised a further works order to “trace and remedy the leak” on 30 March.
The landlord did not raise an order to carry out a survey of the resident’s property and carry out necessary electrical checks until 14 April 2023. This was almost 3 months after the leak was first reported. The delay was unreasonable and demonstrated a lack of due care for the resident and his property because it did not consider the potential risk caused by the leak affecting the electrics.
In his stage 2 complaint of 10 May 2023 the resident said that despite being advised by the landlord on 14 April that a repairs officer would visit, they did not. The landlord’s stage 2 complaint response of 15 June confirmed that the surveyor did not attend until 5 June. This was 4 months after the leak was first reported and 2 months after the resident was told a visit would take place. The landlord acknowledged that it should not have taken so long to carry out the inspection.
In its stage 1 complaint response of 26 April 2023 the landlord confirmed that it was progressing legal action to gain access to the property above. It acknowledged that it had taken too long to do so.
As part of this investigation the landlord was asked to provide a copy of the no access policy and/or procedure which was in place at the time of the complaint. On 26 July 2024 the landlord provided a copy of its no access process map. It said that once the steps were completed it would refer the matter to its legal team to seek an injunction. The process sets out that 3 letters should be issued to residents who continue to fail to provide access. It says “no access closed and compliance date set for 365 days from third visit” if no access is provided on the third occasion. There is no evidence that the landlord issued the 3 letters referred to in the process.
There is no detail around what other checks should be made or actions carried out, and in what timescales, before taking legal action. In the interests of transparency and consistency a recommendation has been made for the landlord to consider writing a no access policy and/or procedure.
In an internal email dated 22 May 2023 the landlord considered whether there was any sign of damp and mould in the resident’s property and if so that it should arrange a damp and mould survey. Considering the Ombudsman’s spotlight report on damp and mould (2021) it was appropriate that the landlord should consider the issue of damp and mould. However, while this was a positive step it came late in the process.
A file note dated 5 June 2023 recorded the landlord’s intention to visit the resident’s property that day and decide whether forced entry was required to the property above. It is concerning that 4 months after it was put on notice it had still not exhausted its no access procedure which was key to resolving the leak. The unreasonable delay compounded the distress to the resident and damage to his property. In its stage 2 complaint response of 15 June the landlord committed to making an application for an injunction to gain access.
A file note dated 8 June 2023 said the landlord should meet to develop a “clear plan of action to follow to get the leak resolved.” During a meeting which took place on 9 June the landlord agreed it would carry out a mould wash within 5 days and carry out a damp and mould survey, in line with the Ombudsman’s spotlight report.
Its repair logs show that the order to carry out a mould wash was raised on 9 June 2023. Its stage 2 complaint response of 15 June confirmed that it had arranged to carry out a mould wash on 22 June. This was a response time of 17 days, not 5 as it had intended.
A survey of the property carried out by the landlord on 5 June 2023 included a damp and mould assessment. Therefore it is unclear why the landlord felt the need to carry out a further assessment. While there was no detriment caused to the resident the inconsistencies shows there was a record keeping and/or miscommunication failure. The report noted that there was an “intermittent leak” in the bathroom and kitchen.
In his stage 2 complaint of 10 May 2023 the resident said that he did not agree to pay the £100 excess to claim on the landlord’s insurance. In its stage 2 complaint response of 15 June the landlord confirmed that it had advised the resident to claim against its insurance in line with the terms of his lease. It also advised that its complaints policy did not cover damage. The landlord’s response was appropriate because it was in line with its compensation policy.
In his stage 2 complaint of 10 May 2023 the resident said the leak contained sewage. There is no evidence that the landlord took any steps to establish whether this was the case in order to provide reassurance to the resident. This was inappropriate because it the nature of the leak compounded the resident’s distress in addition to the inconvenience caused by the leak itself.
The landlord’s stage 1 complaint response of 26 April says that on 17 March it identified the source of the leak as the toilet. Its repair logs dated 16 March also makes 3 references to the cause of the leak being the toilet. An internal email of 22 May queried whether the leak contained sewage but there is no evidence of a response.
In an email to this Service dated 26 July 2024 the landlord confirmed that the leak was identified as coming from the kitchen waste pipe. The repair logs dated 6 November note that the pipe connected to the kitchen sink was “rusting” and had “big holes.” The old pipe was replaced, resolving the issue.
Efforts made to contact the resident as part of this investigation have been unsuccessful therefore it has not been possible to discuss this with him. The landlord’s evidence is conflicting. There is no evidence that the leak contained sewage and therefore this assessment cannot consider it as such. However, the inconsistencies in the repair logs are a record keeping failure.

Events post internal complaints process

During July 2023 the resident attended weekly surgeries held by local councillors to ask for assistance in resolving the leak. On 18 July the leader emailed the landlord to seek an update on the situation. On 21 July the resident also contacted this Service to report that the leak had got worse.
On 22 August 2023 the court made an order for the resident above to clear the property and allow access. On 25 August the landlord phoned the resident to advise him that its housing officer was due to attend the property above that day to assess what needed to happen to allow the leak to be fixed.
The landlord’s file note of 4 September 2023 confirms that the property was cleared and works could commence. However, in a telephone call to the resident on 29 September the landlord advised that was not the case and that the property was still not clear.
In an internal email dated 13 October 2023 the landlord requested that an order be raised to trace and remedy the leak in the property above to be scheduled for 23 October. It also requested that an order be raised to reinstate the lighting to bathroom and repaint the ceiling in the resident’s property.
On 19 October 2023 the landlord inspected the resident’s property. It arranged to carry out redecoration works to the bathroom and kitchen on 24 October. It also requested asbestos testing be carried out to the artex kitchen ceiling. An order was raised on 9 November for the removal of asbestos.
A file note dated 3 November 2023 notes that the leak was not fixed so the redecoration works could not go ahead. In an email to this Service dated 26 July 2024 the landlord confirmed that the leak was fixed on 6 November 2023.
On 24 November 2023 the landlord wrote to the resident to apologise for the delay in resolving the leak, carrying out remedial works and his overall experience. It said the previous offer of compensation did not reflect the extent of the delays and its poor communication. It increased the amount of compensation offered from £400 to £750. The additional £350 comprised of £250 for the delays following the stage 2 response and £100 for poor communication.
An internal email dated 9 February 2024 confirmed that works had taken place as follows:
1. Plastering to the bathroom and kitchen was carried out on 16 January.
2. Redecoration carried out on 24 January.
3. Electrics reinstated to the bathroom and kitchen ceiling light completed on 26 January.

Summary

The resident reported the leak on 21 February 2023 and it was fixed on 6 November, over 8 months later. In its stage 1 response the landlord appropriately directed the resident to make a claim on its building insurance. However, having decided to carry out the remedial works itself they were not carried out until January 2024, almost a year later.
In his email to the landlord of 10 May 2023 the resident said he had suffered 2 months of a leak which had affected the health, wellbeing and state of mind of his family. In his email to the landlord of 22 May he said he was unable to go on holiday as he did not want to leave the property unattended. An internal email dated 13 April said that the resident was in “real distress.” A further internal email of 31 May noted that the resident was an “elderly” man who was “clearly upset.” Despite this, the landlord’s complaint responses failed to demonstrate a meaningful understanding of the distress caused to the resident.
The failures identified in this report include:
1. The landlord’s failure to respond when it was first put on notice, only doing so when the resident followed up.
2. While this investigation acknowledges the complexity of the situation, the evidence shows the landlord failed to take timely action to gain access to the property above to resolve the substantive issue.
3. There is no evidence that it followed its no access process map. There was confusion and a lack of understanding on how they should gain access in emergency and urgent situations.
4. It failed to communicate effectively with the resident who had to chase for updates.
5. Its assessment of the risk caused to the resident by wet electrics and damp and mould was delayed.
6. It did not survey the condition of the property until almost 4 months after it was put on notice of the leak.
The Ombudsman’s dispute resolution principles are to be fair, learn from outcomes and put things right. The landlord has been fair because it has been transparent about its overall failures. However, there is limited evidence that the landlord has learnt from the complaint and there is no evidence that it has taken action to ensure there is not a recurrence.
The landlord used the complaints process to try to put things right by carrying out remedial works to restore the resident to the position he would have been in were it not for the leak. It also offered £1100 compensation, as follows:
1. Stage 1 –
  1. £100 compensation for the delay in starting the no access procedure, calculated in line with the right to repair scheme.
  2. £50 for distress and inconvenience.
2. Stage 2 – due to further service failures with the delay, distress and inconvenience and complaint handling the landlord made a revised offer of:
  1. £175 for the delay in arranging the repairs and failure to correctly adhere to the ‘no access procedure’.
  2. £150 for the service failure for the distress and inconvenience caused as well as time and trouble.
  3. £75 for the complaint handling failing to provide correct information at stage 1 and the delay.
3. Letter of 24 November 2023 – offered an additional £350, comprised of:
  1. £250 for the delays following the stage 2 response.
  2. £100 for poor communication.
The landlord took steps to put things right, including carrying out remedial works to put right the damage caused by the leak. It offered compensation of £400 during the complaints process. Furthermore, it attempted to put right ongoing failures beyond the complaints process by offering a further £700. This demonstrated that it recognised the ongoing distress and inconvenience caused to the resident. It was transparent about its failures however, it did not demonstrate learning and failed to set out actions taken to prevent it happening again.
Considering the above, this investigation considers that the failures amount to maladministration because there was a failure which adversely affected the resident. However, the amount of compensation awarded during the complaints process was not proportionate to the failings identified by this investigation. Therefore the landlord has been ordered to pay the resident £750 compensation which is in line with the Ombudsman’s remedies guidance where there was significant emotional and physical impact. The landlord may deduct the £400 it has offered if this has already been paid.

Complaint handling

The resident contacted this Service on 12 April 2023 to ask for our assistance because he had not received a complaint response from the landlord. It is unclear when the resident made his formal stage 1 complaint response. However, following intervention from this Service, also on 12 April 2023, the landlord appropriately provided the resident with its stage 1 complaint response on 26 April.
A landlord’s complaint process should provide a framework for it to provide a swift resolution to a complaint. Landlords should take care to ensure the process itself does not give the resident cause to make a further complaint. The Housing Ombudsman’s complaint handling code (the Code) says that the complaint handler should consider all information and evidence carefully.
In its stage 2 complaint response of 15 June 2023 the landlord acknowledged that the stage 1 complaint response of 26 April contained 2 errors. The first related to the leak being reported on 21 February not 13 March. The second related to its attendance at the property on 17 March when it isolated the resident’s electrics, not the leak at the property above. The landlord apologised and offered compensation.
Furthermore, the misunderstanding around the date the leak was first reported impacted on the landlord’s assessment of compensation. This is because it calculated the delay to be 44 days instead of 64 days. While this would not have affected the right to repair calculation, which was capped at £100, it would have impacted on the assessment of distress and inconvenience.
The resident requested to escalate his complaint on 10 May 2023. The landlord provided its stage 2 complaint response on 15 June. This was 25 working days later and 5 working days over its target. There is no evidence that the landlord advised the resident of the delay, as set out in its complaints policy, which was inappropriate. Although there was a delay this investigation recognises that the detriment caused to the resident was relatively low. Furthermore, the landlord attempted to put things right by offering financial redress.
The Code says that a complaint should be resolved at the earliest possible opportunity, having assessed what evidence is needed to fully consider the issues, what outcome would resolve the matter for the resident and whether there are any urgent actions required. The landlord failed to use the complaints process to expedite the issue of access to resolve the substantive issue. Furthermore, the delay in repairing the leak continued for a further 4 months after its final complaint response which was inappropriate.
The landlord’s complaint handling failures amount to maladministration because they had an adverse effect on the resident. The landlord has offered the resident £75 compensation as a means of putting things right. However, this is not considered proportionate given the landlord’s failure to learn from the complaint set out earlier in the report and its failure to use the process to expedite resolution of the substantive issue. The landlord is ordered to pay the resident £150 compensation which is consistent with the Ombudsman’s remedies guidance where there was no permanent impact. The landlord may deduct the £75 it has offered if this has already been paid.

Determination (decision)

In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s response to the resident’s report of a leak from the property above.
In accordance with paragraph 52 of the Housing Ombudsman Scheme there was maladministration in the landlord’s complaint handling.

Orders

Within 4 weeks of the date of the determination the landlord is ordered to:
1. Pay the resident compensation of £900, comprised of:
  1. £750 for the distress, inconvenience, time and trouble caused by the landlord’s response to the resident’s report of a leak. The landlord may deduct the £400 it has offered if this has already been paid.
  2. £150 for the distress caused by the landlord’s complaint handling failures. The landlord may deduct the £75 it had offered if this has already been paid.
2. Arrange for a member of the senior leadership team to apologise to the resident in writing or verbally depending on his preference (if given verbally it should be confirmed in writing). A copy of the letter should be provided to the Ombudsman also within 4 weeks.
Within 6 weeks of the date of the determination the landlord should write to the resident to set out what went wrong and what it will do to ensure it does not happen again. A copy should be provided to the Ombudsman also within 6 weeks of the review.

Recommendations

If it has not already done so, the landlord should consider writing a no access policy and procedure.
Re-offer the £350 compensation offered for ongoing failures beyond the complaints process if this has not already been paid.