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Peabody Trust (202016801)

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REPORT

COMPLAINT 202016801

Peabody Trust

31 August 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 tenant 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

  1. The complaint is about the landlord’s:
    1. response to the tenant’s reports regarding a leak from her neighbour’s balcony;
    2. complaints handling.

Background and summary of events

Background

  1. The tenant is a leaseholder of the property of the landlord. The landlord is registered provider of social housing. The property is a second floor flat and has another flat with a balcony above it. At the time the issues occurred, the tenant did not reside at the property and rented the property to a sublessee.
  2. The landlord operates a two stage complaints policy. The policy notes that it does not consider initial reports of a repair to be a complaint. The policy also notes it will only investigate complaints within six months of when the event complained about occurred.
  3. The landlord operates a compensation policy. The policy notes the landlord can offer up to £300 for an “urgent defect” that is not addressed within its timescales, the example for which is noted as a “slow leak.” The policy also notes it can offer up to £400 for “time, trouble, and inconvenience,” and up to £100 for poor complaints handling.
  4. The landlord operates a repairs policy. The policy notes that roofing and damp works will be completed within 60 calendar days. The policy also includes a list of leaseholder repair responsibilities. The list does not note leaks from other balconies but does note leaks from roofs to be the landlord’s responsibility.
  5. The lease notes that the ceiling joists, the structural parts of the balcony, and the external structure of the property remain the responsibility of the landlord.
  6. The landlord employs a contractor to carry out repair works.

Summary of events

  1. It is not disputed that the tenant reported a leak from her neighbour’s balcony in or around May 2014, following which the landlord undertook repair works. It is also not disputed that further reports were made and subsequent repair works were carried out across 2018 and 2019. In April 2020, the tenant’s ceiling collapsed which the tenant has attributed to the leak from her neighbour’s balcony. The tenant reported this to the landlord at the time, however, it is not disputed that the landlord, having advised it would initially treat the repairs as an emergency, later advised it would not be able to carry out repair works until after COVID-19 lockdown restrictions had ended. The tenant also reported that she had lost her tenant at the property as a result of the damage and that she subsequently arranged for preliminary repair works herself. It is evident that the tenant raised a formal complaint on or around 28 May 2020 regarding the landlord’s response, however, it is not evident that the landlord acknowledged this complaint. This service has not been provided with a copy of this complaint.
  2. The landlord has advised this service that it inspected the damage on 17 June 2020, where it was discovered that the neighbour’s balcony surface was cracked. The landlord instructed its contractor to take up the covering and decking, inspect the timber joists beneath, renew them if necessary, then implement new decking and a liquid-membrane cover with protective matting. It completed some of the works on 7 September 2020, including making the area water-tight, however, the further works were delayed until 20 October 2020 due to capacity issues. It is not disputed that the landlord informed the tenant of the delay at the time. The landlord has also advised that it offered to make good any other damage to the tenant’s ceiling but was not informed of any works required between 17 June 2020 to 7 September 2020.
  3. On 21 October 2020, the tenant contacted the landlord noting that her correspondence detailing the leak issues she had experienced dated 28 August 2020 had not been responded to. She also noted that the contractor she had used to complete the repairs had advised her the damage was indeed due to the leaks from her neighbour’s balcony and that the total cost of the repairs along with her lost rental income was £5,815.20. She also expressed concerns that the wooden joists in her property were damaged as a result of the leak.
  4. It is evident that the landlord called the tenant to discuss her complaint on 28 October 2020 and said that it would treat it as a formal complaint. On the same date, the landlord wrote to the tenant to advise that its complaints assessor was on holiday and that it would respond after 9 November 2020. It also noted it had previously mentioned to the tenant that she should pursue a claim through the building insurer, but that it had not given her any further advice on how to do so, for which it apologised. It further noted it had since given her advice on how to do so.
  5. On 15 November 2020, the tenant advised she had been given pictures of the completed works, but not of the joists as she had requested. She also noted she had requested to inspect the works along with the landlord and an independent assessor, but this was yet to be set up. It is not evident that the landlord responded to this communication.
  6. The landlord provided its stage one response on or around 28 December 2020. It noted that the tenant wished to complain about the leaks that had occurred since 2014 to date but advised that it required complaints to be made within six months of the incident occurring. It noted the tenant’s initial complaint following the ceiling collapse was on 28 May 2020 and so advised it would only consider incidents from November 2019 onwards. It noted that the tenant had requested a repair on 29 April 2020 and that she was referred to the landlord’s contractor, who initially declined to assist as the tenant was a leaseholder, until the landlord intervened and explained that the issue was to do with a balcony for which it was responsible. It noted that its contractor still had not contacted the tenant by 1 May 2020 and that it subsequently informed the tenant the issue would be treated as an emergency. It apologised for giving her this advice and advised that “we cannot attend such jobs under an emergency contract.” It subsequently noted that a repair job was booked in for 19 May 2020, but that it was then cancelled, and it “was unable to find a reason why this happened.” It also noted works were then arranged for 7 September 2020, but not completed until 20 October 2020 due to its contractor’s lack of capacity. It also noted it had offered to make good any damage to the ceiling, but the tenant did not inform it of any in the period between 17 June 2020 to 7 September 2020. It noted the tenant’s concerns about the joists and advised its contractors had advised the joists were “fine.” It also advised it had requested the contractor provide the tenant with photos of the joists, but that photos alone were not enough to determine the state of the joists.
  7. The landlord also noted the tenant’s request for redress regarding the costs she had incurred for the repairs she had carried out and advised that any such request needed to go through its building insurer as they would need to determine liability. It noted there was a £100 excess for a claim and advised it would cover this amount as a gesture of goodwill. Regarding the tenant’s loss of rental income, the landlord advised that, as it did not have a contractual relationship with the tenant, it was not responsible and recommended that she hold a suitable landlord’s insurance policy to cover such instances. It concluded by acknowledging the distress and inconvenience experienced by the tenant and the time and trouble she had gone to in order to chase up the repairs. It subsequently offered her £400 compensation to recognise this.
  8. On the same date, the tenant advised she was dissatisfied with the landlord’s response and that she wished to escalate her complaint. She advised that she considered the landlord’s maintenance of the building to have been “poor” resulting in the leak and that she was dissatisfied that it would only consider the issues of the previous six months and not the full length of time that the issues had occurred. The landlord acknowledged her escalation request on 6 January 2021 and advised it would respond by 27 January 2021. On 14 January 2021, the tenant also provided the landlord with a letter from her GP dated 22 December 2020, which stated that the tenant experienced stress and lower back pain as a result of moving materials following the ceiling collapse.
  9. The landlord provided its stage two response on 22 January 2021. It advised that due to changing contractors, and changing record keeping systems over time, it was not possible to address complaints older than six months. It advised that prior to the incident in April 2020, the previous report had been in June 2019, which it considered beyond the scope of its complaints policy. It also advised that its compensation policy was not meant to compensate financial loss, as this was what its insurance was for. Regarding the medical information the tenant had provided, it advised it did not have medical expertise to assess it and did not offer compensation for “physical impact.” It also noted it had not responded to the tenant’s initial complaint in May 2020 as it had passed it to the wrong team. It apologised for the additional delay this caused and offered an additional £50 compensation. It noted the tenant’s concerns that the damage had been due to its poor building maintenance but reiterated that this was for the building insurer to determine. It concluded by reiterating its offer of £550 compensation, being £100 for the insurance excess, £50 for failing to acknowledge her initial complaint, and £400 for distress and inconvenience.
  10. On 3 February 2021, the tenant accepted the offer of compensation on the basis that she would continue to pursue her complaint through this service.

Assessment and findings

Leak

  1. The lease agreement, along with the landlord’s repairs policy note that the external structure of the building, along with the balconies, are the landlord’s responsibility. While the landlord’s contractor initially erroneously cancelled the repair request following the tenant’s report on 29 April 2020, the landlord appropriately corrected them within a day that the balcony was the responsibility of the landlord.
  2. While the communications from this period have not been provided to this service, it is not disputed that the landlord’s contractor failed to follow up the repair works with the tenant, leading her to chase it up with the landlord twice. She was then informed that the issue would be treated as an emergency, however, the landlord’s repairs policy notes that roofing and damp works are not considered emergency works and will only be completed within 60 calendar days. As such, the repair works were not booked until 19 May 2020, which would have left the tenant distressed and confused at the misinformation given by the landlord and the subsequent delays to works. The Ombudsman notes that the landlord appropriately apologised in its stage one response for this misinformation.
  3. It is also not disputed that the repair works booked for 19 May 2020 were erroneously cancelled. It is not evident that any explanation was provided to the tenant at the time, and in its stage one and two responses, the landlord only noted that the works were cancelled in error. This clearly caused further delays to the repair works and further distress to the tenant. While the communications from this period have not been provided to this service, it is not disputed that the landlord subsequently advised its repair works would be delayed due to COVID-19 restrictions. Given that the ceiling collapse was not an emergency repair, this response was reasonable in the circumstances.
  4. It is evident that the landlord commenced an inspection of the works in June 2020, however, it is not evident why works did not subsequently commence until September 2020, nor is it evident that any updates were provided to the tenant during this period. Additionally, following the commencement of works in September 2020, the contractor’s capacity meant that works were not completed until 20 October 2020. While this was potentially unforeseeable for the landlord, it clearly caused further delay to the works and subsequently distress for the tenant. In the Ombudsman’s opinion, the initially cancelled works in May 2020 and the subsequent delay to the works in September constitute service failure and it is appropriate that an amount of compensation be offered.
  5. The landlord’s compensation policy notes that it will offer up to £300 when a repair is not completed within its timescales. Somewhat confusingly, it defines a “slow leak” as an urgent repair which must be completed within 30 calendar days, whereas its repairs policy notes roofing works to be non-urgent, with up to 60 calendar days to complete. Given that there were delays caused by COVID-19 restrictions, the precise amount of calendar days delayed can be difficult to calculate. The landlord’s compensation policy also notes that it can offer compensation for a tenant’s “time, trouble, and inconvenience.” The landlord’s offer of compensation in its stage two response did not specifically identify that it was in recognition of both its delays to the works and also the tenant’s inconvenience in having to chase them up, which would have been helpful so the tenant would have known on what basis the compensation was offered. In the Ombudsman’s opinion, however, in the circumstances, the compensation offered amounted to reasonable redress for both its delays and the inconvenience caused to the resident.
  6. The purpose of the landlord’s complaints policy is to rectify issues and identify service failure regarding its standards of service. Additionally, its compensation policy is to compensate for the distress and inconvenience caused as a result of such service failures. Following the ceiling collapse and prior to the landlord’s works, the tenant carried out rectification works of her own, which she subsequently requested the landlord reimburse her for. It is not evident that the cause of the damage was the landlord’s service failure, and in such instances the Ombudsman considers it reasonable for a landlord, having initially investigated the issue itself, to refer any claim to its building insurers to establish liability. It is evident that the landlord referred the tenant to its insurer on multiple occasions. It also appropriately apologised for not having initially given her appropriate guidance on how to make a claim and followed this up by giving detailed guidance. It also appropriately exercised its compensation policy by offering goodwill compensation to cover the excess for making an insurance claim. The Ombudsman notes that the landlord has not expressly denied liability. Its decision to refer the tenant to the building insurer to establish liability was therefore reasonable in the circumstances.
  7. In addition to the delays to the works as discussed above, it is evident that the tenant had to chase up a response from the landlord on two occasions following her report in April 2020. She also contacted the landlord in June 2020, to which she did not receive a response, and additionally did not get a response to her complaint in May 2020 (discussed below), nor her repeated complaint in August 2020, leading her to repeat the complaint again in October 2020. It is also evident that the tenant had to chase up the pictures of the joists she had previously requested. This would have caused the tenant distress and inconvenience in having to continually chase issues up, and it is appropriate that the landlord offered an amount of compensation, which was the maximum under its compensation policy. In the circumstances, the Ombudsman considers that this amount offered reasonable redress to this element of the complaint.
  8. The tenant has advised that she lost her rental tenant as a result of the damage in the property, and she subsequently requested compensation from the landlord for loss of rental income. The landlord reasonably responded that, as it was not a party to the rental agreement, it would not be able to offer compensation under its complaints policy. This does not, however, preclude the tenant from raising this loss with the building insurer, or seeking damages through a legal action. Similarly, the landlord’s response that it was not able to assess medical evidence in relation to any compensation was reasonable, but as with above, does not preclude the tenant from seeking other legal remedies.

Complaints handling

  1. The landlord’s complaints policy notes that it will not consider complaints about issues that occurred more than six months prior to the complaint. The Ombudsman also considers it best practice to consider complaints within a reasonable period following the issue occurring and that a period of six months is best practice for a landlord to consider, although this is not a requirement. While it is evident that the tenant reported issues of water ingress since 2014, and that further repair works were carried out across 2018 and 2019, it is not evident that she raised a complaint about the landlord’s response until May 2020. As noted by the landlord in its stage two response, prior to the report of the ceiling collapse in April 2020, the previous repair had been carried out in June 2019. Given that this was close to 12 months prior to the complaint, and beyond what the landlord would usually consider or keep detailed records for, in the Ombudsman’s opinion, it was reasonable for the landlord to limit its response to the report in April 2020 and its actions following this.
  2. Following the tenant’s complaint letter on 21 October 2020, the landlord appropriately contacted her to discuss her complaint on 28 October 2020. The Ombudsman would expect a landlord to provide a response to a tenant’s complaint within a reasonable timeframe and provide an explanation when it is unable to do so. It is evident that the landlord discussed with the tenant that its staff member’s annual leave would delay its response, and that it gave a timeframe for when it would begin its investigation, which was appropriate in the circumstances. The landlord also appropriately acknowledged the tenant’s escalation request and provided its stage two response within a reasonable timeframe.
  3. While it has not been provided to this service, it is not disputed that the tenant made a complaint on 28 May 2020 regarding the landlord’s response to her reports about her ceiling collapse. It is not disputed that the landlord did not acknowledge this complaint, however, it did continue to liaise with her in June 2020 regarding the repair works. It was appropriate, therefore, that the landlord acknowledged in its stage two response its service failure regarding its failure to respond and apologised accordingly. It also offered compensation in line with its compensation policy, which in the Ombudsman’s opinion, provided reasonable redress in the circumstances.

 

 

Determination (decision)

  1. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, and in the Ombudsman’s opinion, there was reasonable redress offered by the landlord for its service failure in respect of its:
    1. response to the tenant’s reports concerning a leak from her neighbour’s balcony;
    2. complaints handling.

Reasons

Leak

  1. While the landlord appropriately referred the tenant to its insurer regarding the costs she incurred from carrying out repairs, and while it appropriately offered compensation in relation to the insurance excess and the distress and inconvenience experienced by the tenant, there was service failure by the landlord when it initially cancelled repairs, and then delayed in the completion of the repairs once they had commenced. It was appropriate therefore that the landlord offered compensation in line with its policy, which in the Ombudsman’s opinion, amounted to reasonable redress for the complaint in the circumstances.

Complaints handling

  1. The landlord appropriately identified that it failed to acknowledge or respond to the tenant’s initial complaint, and offered an amount of compensation that the Ombudsman considers provided reasonable redress in the circumstances.