Optivo (202012054)

REPORT

COMPLAINT 202012054

Optivo

11 May 2021

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 was about the landlord’s response to the resident’s request for redress for a delayed roof repair.

Background and summary of events

Background

The resident is the leaseholder of a two bedroom flat for which the landlord is the freeholder. [As the Ombudsman understands it, the resident does not live at the property.]
The landlord has provided repair records regarding the roof which show:
1. January and February 2018 it attended to reports of a leak from the roof but could not gain access to the property.
2. November 2018 it attended to a report of rain water coming through a light fitting on the top floor.
3. February 2019 it checked communal areas after a roof leak.
4. April 2019 it raised a repair for damage to the communal ceiling outside the resident’s flat.
5. May 2019 it raised a request to trace and rectify a leak from the roof.
6. November 2019 a repair raised for a leak from guttering was cancelled on the grounds of no access.

Summary of events

On 28 April 2020 the resident raised a repair request for a leak through a bedroom loft. [Under its responsive repairs policy the landlord undertakes to complete repairs within ‘as little time as possible’ and aims to do so in one visit.] On 15 June 2020 the landlord advised the resident that its contractors had completed the roof repair by removing and refixing damaged tiles which were causing the leak but that as she was a leaseholder she would be responsible for the repair to her ceiling. [The landlord’s records indicate the repair was completed on 9 June 2020.]

Formal complaint

On 18 June 2020 the resident formally complained to the landlord. [Under its complaints resolution policy the landlord undertakes to investigate and respond to a complaint within 10 working days.] The resident said the landlord’s failure to repair and maintain the roof since 2017 had caused water ingress and damage to her property and that a hallway leak remained unresolved. As a result she said the landlord was liable for:
1. the cost of repair of the internal damage to her property.
2. any additional service charges for inadequate repairs to the roof since 2017.
3. compensation for her loss of convenience and comfort as result of the leaks.
4. the immediate repair of the roof.
It appears the landlord’s surveyor conducted a post-repair inspection which confirmed the leak had been rectified, but identified repair needed to the ceiling plaster in the communal area. He said he had got no answer from the resident’s flat and so could not inspect for damage inside.

Complaint response

On 2 July 2020 the landlord provided its Stage 1 response. It said that under its complaints resolution policy it could only investigate matters arising in the last six months, and explained as follows:
1. Its records showed one repair request for the roof in 2020, which was received on 28 April 2020 and resolved on 9 June 2020.
2. Any costs or damage incurred as a result of the roof or other leaks would be for the resident to claim via her buildings insurance and that it would send her the relevant forms if she wished to make a claim.
3. It had resolved repairs within its repair responsibilities and so any repairs carried out would be subject to a service charge.
4. Under its compensation policy it was unable to compensate individual residents for communal repair issues.
5. Its resident liaison officer would contact her to arrange for a surveyor to attend and a post inspection would determine if all leaks were resolved and no further repairs required.

Request for review

On 7 July the resident requested a review on the grounds that the leak was not resolved. She said the fact of the current leak showed previous repairs since 2017 had not been effective and so the landlord ought to be responsible for the cost of the resulting damage. [The landlord’s complaint process includes a review stage. There are grounds on which the landlord can decline to escalate a complaint for review, which include if it has provided the outcome sought, but it must notify the resident of its decision not to escalate within 10 working days of receiving the request.] In order to resolve her complaint the resident requested the landlord take responsibility for the following:
1. pay her the cost of repairs for the internal damage through its own insurance.
2. any additional service charge from 2017 with respect to the roof repairs and to not include the 2020 repairs costs in the service charge.
3. compensation for her loss of convenience and comfort as a result of the leaks.
On 23 July 2020 the landlord’s surveyor and contractor visited the property, and spoke with the resident’s tenant who said there was no damage inside the property. They found the leak in the hallway to be resolved but raised a repair for the damage to the hallway ceiling. It would appear contractors attended again on 24 July 2020, could not gain access to the flat, but confirmed the leak in the communal hallway had been resolved.

Review response

On 7 August 2020 the landlord wrote in response to the resident’s review request. With reference to the complaint about the unresolved roof leak and the outcomes sought by the resident, the landlord said it had decided not to escalate the complaint for review as it was agreeing to the outcomes sought. It said:
1. It would repair the damage to the communal hallway ceiling.
2. Despite the tenant saying there was no internal damage, as a result of her claim that there was it would inspect the property on 14 August 2020 to assess damage and raise repairs to make good any damage.
3. With respect to the cost of repairing internal damage it directed her to making a claim under its buildings insurance.
4. Despite being unable to gain access to the property on occasion, it ought to have resolved the roof repair sooner and apologised for this.
5. It agreed to remove any cost of previous roof repairs from the service charge.
6. It offered the resident £250 compensation for the inconvenience caused (and that this was the maximum allowed under its compensation policy.)
On 14 August 2020 the inspection was carried out and on 22 August 2020 the resident emailed the landlord. She requested the forms necessary to make the insurance claim; the date for repair to the damaged communal ceiling; confirmation that the cost would not be included in the service charge and for confirmation of the amount of service charge refund she would be due.
On 8 September 2020 the landlord provided the necessary claim form; confirmed work to repair the communal ceiling damage would start on 11 September 2020; no service charge would be levied for this; confirmed it would remove all repair costs from the service charge for all residents and its home ownership team would be in touch to confirm the amount once accounts were finalised. It said it would process the £250 compensation if she signed to accept in full and final acceptance. [The Ombudsman has seen no evidence this was accepted by the resident.]
On 30 September 2020 the resident submitted a claim to the landlord’s insurers for the damage to her bedroom ceiling. [This claim was subsequently declined.]
On 1 October 2020 the resident contacted the landlord for an update on the communal ceiling repair and the amount of the service charge refund. Following further chasing, the landlord replied on 3 December 2020 to say the repairs had been due for completion on 30 November 2020 but it was awaiting confirmation of this. And that the service charge figures were taking longer to calculate and adjust for each resident ‘due to the amount of works and time passed’ but it said all residents would be contacted within the next few weeks. The landlord undertook to keep the resident updated.
In January 2021 the resident again chased the landlord for an update regarding the service charge refund and, unhappy with the delay, she referred her complaint to the Ombudsman. The landlord replied to say the amount of refund was agreed in late 2020, and would be applied to her service charge account when finalised for year–end 2020/21. At that point she would be able to request the refund via a bank transfer.
On 19 January 2021 the repair to the communal ceiling was completed. After further communication between the parties in February 2021 the landlord confirmed its service charge refund would cover the entire period back to 2017 but could not confirm if it would include interest.

Assessment and findings

The issue of the roof leak in 2020 which gave rise to the resident’s complaint is now resolved. As it explained in its 7 August 2020 review decision, the landlord does not dispute that it took too long to complete the roof repairs necessary to resolve the leak and that with respect to the later leak above the resident’s flat it did not seek to use the lack of access as justification for the time taken to resolve this. It is unclear precisely when the roof repair was considered fixed and the leak resolved. By July 2020 the resident still considered the problem unresolved, but the evidence indicates the landlord’s inspections in June and July 2020 all confirmed that the leak had been fixed. As the Ombudsman sees it, in determining whether or not the issue was resolved the landlord was entitled to rely on the professional opinion of its officers and contractors.
Nevertheless, under its responsive repairs policy the landlord aims to complete repairs as soon as possible and within one visit. On the basis of the evidence the Ombudsman has seen of the repeated repair requests and some failures to follow up on appointments, this indicates it would appear to have fallen short of those service standards and so the landlord’s acknowledgement of service failure in this regard is an appropriate one.
The complaint has therefore centred on what the landlord then did to put matters right following the resident’s complaint about the delayed repair, the resulting damage and the detrimental impact on her of this both financially and personally.
The starting point in the Ombudsman’s assessment is therefore the landlord’s first, initial response to the complaint on 2 July 2020. The Ombudsman has found this response to have been inadequate for a number of reasons. Firstly, its reference to the landlord’s complaints resolution policy only permitting it to consider matters arising within the last six months was, in the Ombudsman’s view, too strict an interpretation of its policy. As the Ombudsman sees it, in cases such as this in which a resident claims a continuous chain of events have led up to their current formal complaint, it is unreasonable for a landlord to consider only the immediately preceding events in isolation. Doing so will unfairly prevent it from taking full account of the extent of any potential service failure and overall impact of this on the resident. And this is what appears to have happened at this stage.
The landlord considered in isolation the action it had taken to resolve repair requests within the previous six months, of which it had had just the one, ie the most recent. This meant the landlord did not consider the full extent of the resident’s complaint and whether service failure on its part had impacted her service charge, caused her inconvenience and, as she claimed, damaged the interior of her property.
Because of the limited basis of its consideration, the landlord’s response left much of the complaint unaddressed and appropriate redress inadequately considered. For instance, directing the resident to her own insurance for damage to her flat failed to acknowledge – as the landlord later did – the fact that it should have resolved the repair sooner. Similarly, by failing to engage with the substance of the complaint, namely the resident’s claim that repairs were only needed because previous repairs had failed to effectively fix the roof issues, meant the landlord failed to consider grounds for a service charge refund.
Then on the issue of compensation more generally for the inconvenience of the delayed repairs, the landlord said compensation for communal areas was not permitted under its compensation policy. The Ombudsman has seen the policy and (in Section 5: Compensation for service failure) it covers scenarios in which compensation may be considered, including when its failure or fault has caused loss or inconvenience and when it has failed to deal with an issue at the right stage. Consequently, the Ombudsman’s reading of the policy is that it reasonably did allow for compensation for a failure to address a repair in a communal area where this had some detriment for the resident.
Taken together these omissions resulted in an initial complaint response that missed the opportunity to try and resolve a complaint at the earliest opportunity. It is therefore understandable that the resident would seek the escalation of her complaint.
The Ombudsman has considered the landlord’s response to the resident’s request for escalation and although its response took rather longer than anticipated under its complaints policy and stopped short of escalation to a review panel, for the following reasons the Ombudsman considers this eventual response to have been a comprehensive one, addressing all points of the complaint and rightly focused on the outcomes sought by the resident.
Firstly, it unambiguously accepted it had failed to resolve the roof repair in a timely manner and it reasonably did not seek to use non-access as justification for this. In undertaking to make good the damage to the communal ceiling and any internal damage to the resident’s property, the landlord was taking all reasonable steps to resolve the outstanding repairs issues.
With its invitation to the resident to make a claim against its insurance if appropriate and its undertaking to refund all service charges related to roof repairs since 2017, the landlord was also taking appropriate steps to return the resident to the position she would have been in financially had it not been for its failure to resolve the repairs more promptly. [The determination of whether or not the resident incurred damage to her possessions as a result of a service failure by the landlord is for insurers and ultimately a court to determine; not the Ombudsman.]
This left the landlord’s offer to pay the resident £250 compensation for the inconvenience caused by its service failure. This was the maximum discretionary payment allowed for under its compensation policy and, at the time it was offered in August 2020, the Ombudsman considers it offered reasonable recognition of the inconvenience the resident had suffered. The resident has described that since 2017 she has had to raise requests and chase action, and that in the meantime has had to live with unsightly damage to the communal hallway and her bedroom ceiling. Set against that, the Ombudsman considers the fact that the resident does not live at the property mitigates any potential impact on her of having to live with the damage to the communal hallway ceiling. And although it is not known the extent of any damage to her bedroom ceiling, the Ombudsman notes her tenant did not consider there to be damage of any note.
Accordingly, the Ombudsman considers this to have been a fair and reasonable response from the landlord which constituted a genuine attempt to remedy and offer redress for its service failure and effectively draw a line under matters for the resident. On that basis, the landlord was entitled – under its complaints policy – not to escalate the complaint further to a review panel and its decision not to do so was, in the Ombudsman’s view, an appropriate and proportionate one.
Unfortunately, however, the landlord’s complaint response did not represent the end of matters, both in relation to the ceiling repair or the service charge refund. Although the landlord had undertaken to make good the damaged ceiling, this was not completed until January 2021, some five months later. During that time it became necessary, through October – December 2020 for the resident to chase for updates. Even allowing for an element of delay as a result of Covid restrictions as this time, this was a considerable time for the resident to wait for the work to be completed.
With regard to the service charge refund the Ombudsman appreciates the process for its calculation and application to the accounts has necessarily taken the time it has. But that being the case, and in light of the resident’s subsequent enquiries, the landlord ought to have explained the process and timescales to the resident at the time of its undertaking in August 2020. This would have helped manage her expectations and avoid the inconvenience she has been caused in chasing updates. It ought also to have been able to explain whether or not interest on the refund would be included, as leaving this aspect of the refund hanging was of understandable concern to the resident.
On this point, the landlord has told the Ombudsman that it is beginning its finalisation of the year-end account for 2020/21 and that it will action the issue of interest as part of that process, which it aims to have done by 30 September 2021. The Ombudsman considers it fair that the landlord consider this aspect of the resident’s claim. It would not be appropriate, in the circumstances, for the Ombudsman to direct the landlord on this or to calculate what interest might be due. This is because not only has the amount of service charge refund yet to be finalised but also because the extent of the resident’s claim on this point reaches back to 2017 and so beyond the matters considered by the Ombudsman. But the Ombudsman would expect the landlord’s consideration to take account of what is fair in all the circumstances of the case. And importantly, once finalised for it to provide the resident with full details of its calculation and an explanation for its decision with regard to the payment of interest, whether that be to pay it or not.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was service failure by the landlord in its response to the resident’s request for redress for a delayed roof repair.

Reasons

In responding to the resident’s request for redress the landlord failed in its initial complaint response to give adequate consideration to the extent of the resident’s complaint and redress sought. Its subsequent complaint response did so but there was then a delay in undertaking the action to which it had committed, during which time it failed to keep the resident appropriately updated.

Orders

Within four weeks of the date of this determination the landlord is ordered to:
1. renew its offer to the resident of £250 compensation for the delayed roof repairs, if not already done so.
2. make the resident a further payment of £150 compensation in recognition of the further delayed ceiling repair and its failure to respond to her enquiries about this and the service charge refund.

Recommendation

It is recommended that in its finalisation of the year-end 2020-21 account that the landlord provide the resident with a full explanation of its decision with regard to the service charge refund, including its decision with regard to the payment of interest.