Clarion Housing Association Limited (201912335)

REPORT

COMPLAINT 201912335

Clarion Housing Association Limited

1 March 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 is about the landlord’s:
1. response to the resident’s report of a leak
2. complaint handling.

Background and summary of events

Background

The resident is an assured tenant of the landlord. The tenancy commenced in 2017 and the landlord since merged with another landlord. The resident is a vulnerable adult with mental health conditions and lives beneath a property which is occupied by a leaseholder. The landlord has said the property is privately owned but that it remains responsible for the repair of the pipes within the building, suggesting that it is the freeholder. The Ombudsman has not had sight of the leaseholder’s lease. The resident had been experiencing a leak which was coming from above and into his property, causing him distress.

Complaint policy

The landlord has a two stage complaint process under its complaint policy. The policy does not stipulate the timescales for each stage. However, it promises to tell residents what will happen next, to take ownership of the issues raised, to keep residents informed, to resolve the complaint quickly and manage expectations.

Compensation policy

The landlord’s policy states it may make discretionary payments to residents where inconvenience has been caused by the landlord’s actions or failure to act. Examples include time taken to resolve complaints, inconvenience or disruptions to the household, consideration of household vulnerabilities, recognition of failure to follow processes and repeat visits for an outstanding problem.

Repair policy

Under the repair responsibilities on its website, the landlord is responsible for repairs to pipes (in respect of leaks), electrical testing (in respect of electrics), walls, ceiling and plaster (in respect of interiors and decoration).
Repairs to communal areas should be appointed dependent upon the nature of the work (emergency or non-emergency as outlined above) but must always be completed within 28 days. Contractors should also attend planned estate inspections in accordance with their specific contract when required. The policy is silent on repairs which are the responsibility of private occupiers/leaseholders, however, the landlord would be expected to take reasonable steps to address its resident’s concerns and to enforce the repair obligations of its leaseholders.

Summary of events

The resident complained to the landlord in November 2019 about its response to his reports of a leak in the property from the neighbour above.
This was first reported to the predecessor landlord in October 2017 according to the landlord’s historic repairs record for 2016 – 2017. It was attended to on 31 October 2017 as per the landlord’s repair log. Subsequently, according to the resident’s records, the resident made further reports of leaks on:
1. 19 December 2017, details not provided.
2. 14 June 2018, water leaked through the bathroom and bedroom ceiling, affecting light switches and sockets. An inspector was due to visit the property.
3. 27 November 2018, a further report was made to the repair team. The landlord attended and took pictures, they said that they would contact the leaseholder above the resident.
4. January 2019, the landlord attended the resident’s property to take pictures of the damp before starting remedial works, the work was completed in June 2019.
Subsequently, in August 2019, the resident reported a leak again. The landlord visited, took pictures and said it would make contact with the leaseholder. The resident stated that on 14 August 2019 the landlord said it would send a surveyor to look at the leaseholder’s property. An informal complaint was logged by the resident. Several different members of staff told the resident that they would be taking ownership of the case in September – October 2019. This is corroborated by the landlord’s records of the complaint.
The resident raised a formal complaint to the landlord on 1 November 2019 in which he explained the impact of the leaks and the lack of resolution; he explained that he had to pay someone to replaster the areas three to four times within a year, incurring “financial strain”. He also said the ongoing repair issues were affecting his mental health due to sleepless nights.
The landlord acknowledged the complaint on 18 November 2019. It said that it would contact the owner of the property who was responsible for repairs to their plumbing and would carry out an inspection. It highlighted that it was not responsible for the leaseholder’s repairs, although it was happy to inspect the plumbing, and it also said it would wait “indefinitely” until the leaseholder contacted it.
The resident reported no contact from the landlord in the escalation to the Ombudsman in December 2019. There was a delay with the Ombudsman’s response, not contacting the landlord until March 2020 to request that it look at the complaint again, in light of the resident’s outstanding dissatisfaction with how the situation was being handled. The landlord confirmed that it contacted the resident again about the complaint in March 2020. It then sent a copy of its original response of November 2019, as evidence of its communication, to the resident, and asked him to let it know if he wished to escalate the complaint.
The resident escalated the complaint with the landlord on 9 April 2020 as he was dissatisfied with the level of communication and support about the repair and the lack of updates on the progress of how the leak was handled. He reported that he wanted the landlord to make every effort to gain access to the property above to identify and resolve the leak. He told the landlord of the impact of the outstanding repair on his mental health and requested compensation for the cost of decorating.
The landlord’s records state that it aimed to respond to the complaint at stage two by 18 May 2020, however, there were delays and the landlord’s records of 16 June 2020 state that the response was outstanding whilst the issue was being investigated. The landlord’s repairs team said that it had contacted the leaseholder of the property above the resident’s and advised them to arrange an inspection, but it had not received a response from them. There is no evidence of an update to the resident about the progress of the complaint.
The landlord explored its options to resolve the leak. It considered seeking advice for its options to gain access through legal proceedings. It also considered offering the leaseholder reasonable time to address the leak once access was granted. It considered that if there was a dispute over the responsibility, it would arrange a surveyor to inspect the cause of the leak. It considered to then either arrange a repair itself if the defective pipe or joint was the cause or, if the leaseholder was responsible, ask her to undertake the repair pointing to her legal obligations under the lease.
The landlord gained access to the leaseholder’s property on 26 June 2020 and established the cause of the problem and passed this back to the operatives who could not attend at the same time. This appears to be the first time it gained access since the resident’s complaint of November 2018. The landlord extended the complaint response timescale internally, but there is no evidence seen to show that the resident was kept updated.
On 29 July 2020 the landlord confirmed internally that there had been a surveyor visit which confirmed that there was an internal leak from the leaseholder and that they needed to arrange an investigation.
The resident reported that there was an uncontainable leak on 29 July 2020. The resident told the landlord the water was coming down rapidly. The landlord’s internal communication about this report revealed that this appeared to be a new leak in the shower and it was not clear that it was linked to the leak from the leaseholder’s property, which was the main leak that the landlord was occupied with. The landlord raised an emergency repair.
On 30 July 2020 the landlord’s internal communication repeated its view that the leaseholder above the resident needed to arrange an investigation to find out where the leak was sourced. The landlord acknowledged that this may require intrusive works, such as removing the flooring of the above property. In view of the active nature of the leak, the landlord expressed the possibility of completing the repair itself then recharging the leaseholder.
On 30 July 2020 the leaseholder reported back to the landlord stating that she considered the leak was from an old waterpipe running through the building. She told the landlord that she had not booked any operatives to investigate this as she did not want her floorboards taken up when it was not certain that the leak was coming from there. On 7 August 2020 the landlord asked internally for an update and whether there had been contractors arranged by the leaseholder. The response is unclear.
The landlord then sent the resident its final response letter on 9 September 2020:
1. the landlord acknowledged that in November 2019 the resident told it of the long standing leak in his home coming from the property above and it was affecting the resident’s mental and physical health
2. it said that the complaint was escalated to a peer review under stage two of its complaint procedure on 4 May 2020
3. it summarised the complaint history:
  1. after works were carried out in the property above by the private occupier in June 2018 the resident reported leaks to his property to the landlord
  2. the landlord said that the repair obligation belonged to the private occupier but it would do its own inspection once it gained access
4. the landlord acknowledged and apologised for a failure to rectify any failings in its November response and its failure to communicate the actions it could take to ensure access would be gained to the property above
5. the landlord said the resident did not make any escalation request after November 2019 and went directly to the Ombudsman
6. it said that it contacted the private occupier to confirm that the works were her responsibility, however, she felt the works were adequate, so it agreed for a surveyor to carry out an inspection to find the source of the leak
7. it sought to see if the communal pipe was the problem, and on 26 June 2020 it confirmed that the communal pipe was not the issue but it suspected the old heating pipes were the source. It then scheduled for this to be removed on 10 July 2020 but then the operative wanted a second opinion, so a joint visit took place on 27 July 2020 where the landlord said the pipes had already been removed and the remaining pipes belonged to the private occupier
8. the landlord said:

“the leaseholder has been instructed to conduct the required repairs to resolve the leak and proof of this was required by 21 August 2020, which has passed. The leaseholder has not met this requirement and we are now progressing with legal enforcement to secure an injunction”

the landlord also gave the expected timescale for how long it would take to get a hearing date and then when the hearing would likely be, it confirmed that it would update the resident on the outcome of the hearing and next course of action
the landlord acknowledged service failure in the delay in responding to the leak on 29 November 2018; it said that had it taken action initially then this would have reduced the inconvenience and compounding issues. It acknowledged that it “failed to bridge the gap” between the resident and the private occupier above, and provide the support required to progress the repair and protect the resident’s home and well being. It acknowledged “poor communication” towards the resident and private occupier; it said that it missed the opportunity to keep the resident informed at the time of the event and then at the time of the formal complaint (November 2019). It said that it implemented training to improve staff knowledge on repair responsibilities and better communication
it offered the resident £800 compensation, comprising four sets of £200 payments for time taken to resolve, inconvenience, failure to follow process and repeat visits
it offered the resident details of how to submit a personal injury claim against the landlord to its insurance department

The resident remained dissatisfied at the conclusion of the formal complaint due to the outstanding leak. On 19 November 2020 the resident reported on one occasion that “water was leaking nonstop” from the hallway ceiling; the bucket he had placed in this property was “full of water” and he contacted the leaseholder above, but she was not in, so he messaged her. The resident said that seeing the leaking was concerning for him and he feared the ceiling may collapse due to ongoing leakages.
In February 2021 the landlord confirmed the status:

“we allowed the leaseholder a further opportunity to take the necessary action, with our final warning letter being issued on 25 November 2020. We are now proceeding with an injunction and our solicitors have been contacted, but as it stands no access has been gained to the property”

Assessment and findings

Although the landlord may not have been directly responsible for the repair, as the leaseholder was responsible for the plumbing repairs within their property, the landlord remained responsible for taking reasonable steps to carry out actions within its capacity to mitigate damage caused to the resident’s home. The landlord, as the freeholder, had an obligation to ensure that the leaseholder complied with their repair obligations, particularly when not doing so was causing damage to other properties and impacting other residents.
The landlord has not addressed the resident’s complaint about a report made in December 2017, instead its records show that there was a report made in October 2017 which was attended to in the same month. The original reports of a leak according to the focus of the landlord’s complaint response and investigation stemmed from June 2018, when the leaseholder carried out work in their property. The landlord responded to the initial report of the leak from June 2018 by visiting the resident’s property and taking pictures but not following up with any action. It then did the same in November 2018 when the resident reported the leak again. The landlord said it would contact the leaseholder in November 2018 and said it would wait indefinitely until the leaseholder responded. There was a lack of action after the June 2018 visit until the leak was raised again in November 2018 (five months) and then there was no action until a visit in January 2019 to the resident’s property. These delays were not reasonable.
In January 2019, the landlord attended the resident’s property to take more pictures before carrying out work inside the property that was completed 5 months later, in June 2019. This constitutes a gap of two months between November 2018 and January 2019 and five months between the January 2019 visit and June 2019 work. The landlord’s timescale for repairs are either 24 hours for emergency works or 28 calendar days for non emergency works. The works which it carried out appear to be in relation to the damp (replastering); the timescale indicates the resident experienced a four month delay between January 2019 – June 2019 in the remedial works being completed.
Between June 2019 when the landlord completed work to the resident’s property and August 2019 when the resident raised a new report to the landlord, it is not clear whether the landlord attempted to make contact and gain access to the leaseholder’s property to diagnose the cause of the leak. Rather, its complaint response indicated that it did not find that it was responsible and would wait for the leaseholder to contact it to allow an inspection. Between August 2019 when the resident explained his concerns to the landlord in an informal complaint and November 2019 when the resident made a formal complaint, there is no evidence that the landlord took reasonable steps to facilitate the repairs, such as by engaging with the alternative options it could take given the outstanding leak and the impact on the resident. This was not appropriate.
The resident reported his dissatisfaction with the progress of the repairs to the Ombudsman in December 2019. The landlord was unaware of the resident’s dissatisfaction and escalation request until it was notified by the Ombudsman in February/March 2020. It then queried with the resident in March 2020 whether he wanted to escalate the complaint and recorded that he did in April 2020. However, the landlord would have been aware of the outstanding issue, having told the resident that it was trying to make contact or gain access to the leaseholder’s property, to carry out an inspection. It has not been demonstrated that the landlord was proactive in carrying out what it said it would do in November 2018 (make contact to arrange an inspection). After the resident’s escalation of April 2020, the evidence shows that the landlord progressed the repairs, considering its option to initiate legal proceedings. The landlord identified within its complaint actions it could take, such as carrying out the repairs and recharging the leaseholder or seeking an injunction to gain access and get the repairs carried out by the leaseholder. Both of these options would have been reasonable steps to take given the circumstances in which an active leak was causing detriment to a vulnerable resident.
The landlord failed to manage the resident’s expectations or communication through the complaint investigation. Members of staff told the resident that they would be dealing with the repair issue in September – October 2019, but there was no clear action plan or timescale discussed with the resident regarding what the landlord would do if it could not gain access and the options that were available. This was not appropriate or in accordance with its complaints policy.
The landlord said that the leaseholder had been instructed to carry out the repairs no later than 21 August 2020, which was not completed. It said that it would progress with legal enforcement to seek a legal injunction (September 2020). However, the landlord failed to follow up with this option. Instead, it wrote to the leaseholder again in November 2020 to ask them to take action. The landlord offered the leaseholder a reasonable opportunity to take action but then failed to follow through with the appropriate steps it had identified if the leaseholder did not comply. This caused a further unreasonable delay and additional inconvenience to the resident. It is not disputed that the leak remains unresolved, 21 months after it was raised, as the landlord confirmed in February 2021.
The landlord should have pursued whatever legal / enforcement options were available to it as the freeholder much sooner if the leaseholder was not complying with the landlord’s request for access or its subsequent requests for the required repair to be completed.
The resident reported that the leaks were causing him sleepless nights and that they were coming through the electrics. There is no evidence that the landlord inspected the property to see if it was safe, which would have been appropriate given the resident’s known vulnerabilities and nature of the reports, particularly in July and November 2020. The landlord has also not addressed the resident’s request for compensation to cover the cost of redecorating.
With respect to the landlord’s offer of information to the resident on how to make an insurance claim for personal injury, this was appropriate because any alleged damage to health allegedly caused by the landlord’s actions or inactions can only be decided on a by a court or insurer.

Complaint handling

The landlord’s complaint response after the complaint was escalated in April 2020 (escalated internally on 4 May 2020) was provided in September 2020. Whilst the complaint policy does not stipulate a timescale, the Ombudsman expects the landlord to respond to complaints about its service in a timely manner. Where this may be contingent on outstanding repairs, the landlord is still expected to respond to the complaint with details of any action plans or to keep the resident updated as to the progress. There is insufficient evidence to demonstrate that the resident was kept updated. Therefore, there was a failure in the complaint handling.

Redress

Overall, the landlord’s failures are found to be in:
1. the repeated visits initially with no follow up action to resolve the leak
2. the unclear communication from various members of staff who contacted the resident to take ownership of the repair, with no follow up communication or progress
3. the delay between visiting the resident and carrying out works inside the property to the damp from January – June 2019 (four months outside of the repair timescale for non-emergency repairs)
4. the failure to carry out reasonable action such as seeking legal action to gain access or seeking legal action to enforce repairs, or even carrying out the repairs itself and charging the leaseholder (from November 2018 – September 2020)
5. the additional delay between September 2020 – February 2021 in which the landlord has confirmed that there has still been no action to resolve the leak and it did not fulfill its proposed action of seeking an injunction at the time
6. the impact of this was an extended delay to the repairs of over two years and the associated inconvenience to the resident, who was vulnerable
7. the lack of acknowledgement of the costs incurred by the resident in his complaint letter of 2019, this was for replastering his property due to the continuing nature of the leak, and
8. the delay in the complaint handling.
The landlord acknowledged a number of delays and service failures and offered £800 compensation, which can be calculated as £36 per month from November 2018 – September 2020. This is reasonable as it demonstrates the landlord’s acknowledgment of its failing and the impact it had on the resident through distress and inconvenience.
However, the landlord failed include within its offer of redress consideration of the distress and inconvenience caused by the delay in its complaint handling, or the resident’s redecoration due to the ongoing leak, which was exacerbated by the landlord’s failure to take action. As the leak remains unresolved and the landlord did not carry out the action it said it would in September 2020, the landlord should offer additional redress to reflect the extended timeframe which the resident’s repair has remained outstanding. The redress offered by the landlord was not proportionate to the delays and failures which the resident experienced, or the impact this had on the resident.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was a service failure by the landlord in response to the resident’s report of a leak.
In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was a service failure by the landlord in respect of the complaint handling.

Reasons

At the close of the complaint, on 9 September 2020, the leak was outstanding for approximately 21 months. The landlord failed to proactively arrange a diagnosis of the issue and progress with the options to resolve it in a timely manner. There were therefore unreasonable delays in its response to the resident’s reports of the leak. Though the landlord acknowledged a failure, it did not offer reasonable redress. The landlord’s offer of redress was not proportionate to the service failure which the resident experienced, or the impact this had.

Orders

Within four weeks of the date of this report, the landlord is ordered to:
1. arrange an inspection of the resident’s property to identify any remedial work to the ceiling or electrics as a result of the ongoing leak
2. confirm that it will progress with the repair in the leasehold property itself or that it has initiated legal action to have the required repairs completed
3. confirm with the resident the status of the repair and the timescale for any remedial works
4. pay the resident compensation totaling £1180 comprising:
  1. £180 for the inconvenience for the extended time that the leak remained outstanding
  2. £50 for the inconvenience caused by the delay in the complaint handling
  3. £150 for the inconvenience caused by the redecorations in the resident’s property
  4. the £800 offered in its stage two complaint response (if not already paid. If already paid the total additional compensation ordered is £380)

Recommendation

Within four weeks of the date of this report, the landlord is recommended to:
1. discuss with the resident any interim steps it can take while the leak is outstanding
2. review the Housing Ombudsman Complaint Handling Code, with particular consideration of section 3.11 which discusses reasonable timescales. The landlord is recommended to consider including timescales within its complaint policy to manage resident expectations. The code can be found on the website:

https://www.housing-ombudsman.org.uk/wp-content/uploads/2020/11/Complaint-Handling-Code.pdf

Compliance

The landlord is requested to confirm compliance with the above orders and its intentions with respect of the recommendations with the Ombudsman within four weeks.