Optivo (201914273)

REPORT

COMPLAINT 201914273

Optivo

23 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 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

1. The complaint refers to:

a. The landlord’s handling of the resident’s concerns regarding ongoing issues with a water leak from the roof.

b. The landlord’s handling of the associated complaint.

Background and summary of events

2. The resident is a shared ownership leaseholder of the property which is a house. The landlord is the freeholder of the property.
3. The resident purchased the property from the original leaseholders who occupied the property when it was first built. 
4. It is not clear when the issues with the roof were first reported, however, the evidence shows that the previous leaseholders had emailed the resident in July 2017, when she was in the process of purchasing the property from them. They explained that they were awaiting some defect works which included replacing the seals in all windows of the property and repairing the flat roof above one of the bedrooms, as there had been some water staining. They explained that these repairs were covered by the original developers of the building and would not be at a cost to the resident, as the new owner. They confirmed that the work was supposed to be completed that month but had not been carried out yet. 
5. In August 2017, the roof was inspected and the landlord told the resident (who had since moved in) that the water leak was caused by blocked gutters. It confirmed that this would be the resident’s responsibility to manage as a leaseholder and it did not consider there to be a latent defect (a repair defect which would not be identifiable by a prospective purchaser on reasonable inspection of the property).
6. The resident followed up in this matter in September 2019 as she continued to have issues with the roof despite clearing the gutters. On 15 October 2019, the landlord responded and said that the resident would be responsible for any repairs needed to the roof.  The resident asked the landlord to check this, as the issue was first reported in 2017 during the two–year defects period after the property was built and the cost to her would be far greater now than it would have been at that time. The landlord then said that if she could provide a report stating that the roof had been installed incorrectly or there was a fault, it could review this with the developer who built the property.
7. On 18 February 2020 the landlord confirmed that it had raised an informal complaint for the resident regarding the works to her roof. The resident responded the same day and asked this to be handled as a formal complaint. She said she had been in touch with the landlord multiple times regarding the roof and it had shown little interest.
8. The landlord’s records show that it discussed the resident’s concerns with her on 19 February 2020 and arranged for a contractor to attend the property. The contractors completed some work to the roof on 2 March 2020. The resident emailed the landlord on 5 March 2020 as it had rained heavily and the leak was still an issue. Between March 2020 and May 2020, the contractors attended on a few occasions. They lifted the pooling area of the roof using a specialist filler to make the water flow more effectively. They also cleared the debris off the roof and cleared out two water outlets.
9. The landlord emailed the resident on 8 June 2020 and explained that as the resident was a leaseholder, the repair jobs should not have been raised as the roof would be her responsibility to maintain. It said that if the resident believed that the issues with the roof was a latent defect, she would need to provide a report for it to review.
10. The resident responded on the same day and explained that roofers had been sent twice to her property as it was identified that the roof was faulty. She said she had been in contact on numerous occasions and there had been a delay of four months in its communication. She said that when she purchased the house, she was told that the issue was going to be fixed by the landlord, but three years later this was not the case. She added that since the issue was reported during the defect liability period (the first two years after the house was built), it would be the landlord’s responsibility to resolve and felt that she should not need to pay £250 for a report to say that her roof was leaking. She asked the landlord to review this matter.
11. The landlord emailed the resident on 22 June 2020 and confirmed that following a telephone conversation, it had raised a formal complaint on her behalf regarding the ongoing issues with the roof. It said that it would provide a formal written response within ten working days. 
12. The landlord issued its stage one complaint response on 24 July 2020 and explained the following:
    1. It summarised the previous repair works it had completed to the roof and confirmed that under the building warranty, only load bearing or structural items were covered after the first two years since the property was built. It noted that the resident believed there to be a structural issue and asked her to provide a report to support this.
    2. It explained that it should not handle any roof repairs as this was the resident’s responsibility as a leaseholder. However, since it had already completed some work to the roof it would attend and complete further repairs. Following this, in line with the lease, the roof would be the resident’s responsibility to maintain. It asked the resident to supply photos of the internal water staining to assist with any works required. The landlord confirmed that the resident could escalate her complaint if she remained dissatisfied.
13. The resident emailed the landlord on 24 July 2020 and explained that she had hired a tree surgeon to trim the trees closest to the property and regularly arranged for the gutters to be cleared over the years which had cost over £2000. She asked the landlord to consider her requirements when it carried out repairs to the roof. She asked for the roof to be fully repaired with proper waterproofing and three layers of high quality roof membrane. She added that the repair should fix the pooling issue caused by the uneven level on part of the roof. She asked that the repair also included the installation of another gutter pipe to ensure proper drainage and asked for the repair to have a five year warranty.
14. The landlord emailed the resident on 6 August 2020 and confirmed that it would conduct a repair to the roof but it would need photos of the internal water staining and any photos after rain which demonstrated any changes in the condition of the property. This offer would not cover a new roof with a warranty and additional guttering as this would be the resident’s responsibility to pay for. It again explained that it would need to see a report which supported her claim that the roof issue was a structural defect. Once this was received it said that it might be possible to raise a claim under the building warranty. 
15. On 28 August 2020 the resident confirmed that she wanted to proceed with the repair. If the issue persisted she would get a report and continue with further discussions. She asked if the repair to the roof would also include her bedroom ceiling.  The landlord responded on 2 September 2020 and confirmed that it could continue with the repair once it had received the requested photographs. It reiterated that once it had done this repair any future repairs would be her responsibility. It explained that she would need to raise a claim under her own insurance for any internal damage to the ceiling. It also said that if the resident wanted to pursue this matter under the new build warranty, she would need to submit a claim directly to the company responsible for managing the warranty, it added that it could also look at any report she had about this. The resident sent photos to the landlord on the same day.
16. The landlord’s records show that the roofers attended the property in late September 2020 and cleared the roof and outlets again. They used a roof solution to lift parts of the roof so that water flowed the correct direction to exit the roof. They noted that there appeared to be a design fault with the roof and if the problem persisted then a new downpipe and drainage system in a different location should be considered. 
17. The resident emailed the landlord on 6 October 2020 and explained that although the roofers had completed a repair the previous week, the roof had started leaking again. She said that the roofers had identified issues with the water pooling on her roof and that the lifting solution used did not work to fix the problem in the short term.
18. The landlord emailed the resident on 13 November 2020 and apologised that it had not been in touch. It confirmed that following the resident’s recent report that the previous repair had not been successful, it had arranged for a surveyor to attend the property to inspect the roof. It added that the surveyor would be in touch with the resident to book an appointment.
19. On 18 November 2020, the resident explained that she had not heard from the surveyor. The landlord confirmed that it would follow-up with the surveyor and provide an update. The resident sent a further email to the landlord on 1 December 2020 as she had not received an update.
20. A report was issued around this time following the inspection of the roof. It stated that there was a possible design fault with the roof around the downpipe. The outlet for the downpipe was not in the correct place and on every other house, the downpipe was located at the lowest point of the roof. It said that the resident’s property did not have its own downpipe but shared one with the neighbouring property. This outlet was at the highest point of the roof meaning that water could not disperse correctly. This led to pooling and puddles of water in the area that there should be a downpipe. It established that previous repairs had attempted to level the roof to avoid pooling which had reduced the amount of water, however, the downpipe was not in the correct place. It recommended that either the levelling solution was applied to the affected area of the roof, or the roof should be re-boarded, adding a new downpipe and draining system.
21. The landlord’s records show that on 6 January 2021 the outlets were cleared by the landlord’s contractors and drain guards were installed.
22. The resident asked for her complaint to be reviewed on 27 January 2021 and explained the following:
    1. She said that the repairs had not been completed effectively and the leak through the ceiling was worse than it had been before. She was concerned that this was not fixed during the defects liability period and was worried that the ceiling may collapse. She added that the coat of rubberised paint applied to the roof was not appropriate and did not fix the problem, which returned two days after the repair was completed.
    2. She asked the landlord to resolve her complaint by carrying out an effective repair to the roof with waterproofing materials and layers. She added that drainage should be added where required as her neighbour’s properties had three gutters whereas hers only had one. She had received reports from three roofers who said that the roof repairs were temporary and that the roof had not been built correctly.
23. The landlord emailed the resident on 5 February 2021 and explained that it needed further time to see if there was a defect with the roof. It confirmed that it would respond formally by 12 March 2021. The landlord sent a further email to the resident on 10 March 2021 and said that it needed further time to respond as it was reviewing responses from contractors regarding the roof. It said it would respond by 26 March 2021.
24. The landlord responded to the resident on 26 March 2021 and explained the following:
    1. It explained that it had reviewed the case and decided not to escalate the complaint to stage two of its internal complaints process. It apologised that the issue was not resolved in the defects period and that she had needed to report the issue again following the works undertaken in October 2020.
    2. It confirmed that to address the leaks, the roof had been sealed with a specialist solution, a mesh cover had been fitted over the existing drainage point to prevent a build-up of leaves and debris, and a secondary overflow pipe had been installed. It had also sealed all adjacent areas and flashing to ensure that there was no unforeseen water penetration. It now believed the roof would be free from leakage. It added that it had undertaken these works as it had not been able to claim under the new build warranty.
    3. It confirmed that in line with her lease, the resident would need to ensure that the drainage was kept clear. If she had any further issues it could send a surveyor out to review any damage. Once it was satisfied that the issue has been resolved, it would not be responsible for any leaks in the future; the resident would be responsible for repairs and maintenance of the property, including the roof, in line with her lease. It confirmed that it was fully committed to resolving the issue and would not be escalating the complaint further through its complaints process.
25. Several repair works were carried out between 16-19 March 2021. The contractors cleared the roof and installed metal mesh leaf guards. A further overflow pipe was drilled into the roof, the old sealant was removed and the roof was sealed.
26. The resident emailed the landlord on 29 March 2021 and confirmed that the work had been done, but she was struggling to understand the choices the landlord had made on this repair. She asked why the new guttering sat so high on the roof, she was not expecting the water to pool to that level and asked for this to be amended. She said that the solution that was used had not worked and did not know what to do. She said that the water was still pooling in the affected area and that there was damage to her ceiling which she had asked to be fixed.
27. The resident sent a follow-up email to the landlord on 18 May 2021 as she had not received a response. She explained that the repairs had not been successful and water was still dripping from her ceiling. The landlord’s records show that on 4 June 2021 the outlets were unblocked and a crack in the roof was sealed. The records also show that on 18 June 2021 the contractors attended and removed debris from the gutter outlets. A surveyor attended the property on 29 June 2021 to inspect the internal damage to the property and review any damage to the insulation following the leaks.
28. The landlord’s records show that it called the resident on 5 August 2021. She explained that the roof repair seemed to be okay after the recent heavy rain. The landlord emailed the resident on 5 August 2021 and confirmed that it had approved the internal works to the resident’s ceiling and any decoration required. It explained that its contractors would contact her directly to arrange any appointments. It also offered to contribute towards the cost of the resident’s insurance excess and asked her how much this cost.

Assessment and findings

The landlord’s handling of the resident’s concerns regarding ongoing issues with a water leak from the roof.

29. In line with the terms of her lease, the resident would be responsible for any repairs and maintenance needed to the roof. The landlord would be responsible for any required repairs needed to any defects in the building structure reported during the defect period. After this period, it would be the resident’s responsibility to arrange any repairs.
30. In this case, the previous owners of the property reported that the roof was leaking within the defects period. The roof was inspected in 2017 and found to have no defects, but the gutters on the roof were becoming blocked. It was reasonable for the landlord to advise that this would be the resident’s responsibility to maintain in line with her lease as there was insufficient evidence at that time to show that a defect in the structure of the building had caused the leak.
31. From the available evidence, it appears that the resident did not pursue this matter until 2019. At this stage it was reasonable for the landlord to ask the resident to provide a report which supported her claim that a defect in the roof structure caused the roof leak. It is understandable that the resident believed that this would be the landlord’s responsibility to resolve. However, due to the length of time that had passed since the issue was first reported in 2017, neither the Ombudsman nor the landlord could conclude that the roof leak was caused by the same problem as before. As such the onus would be on the resident to show that there was a defect which was present since the roof was built.
32. The length of time taken to resolve the leak issue at the resident’s property was significant. It can take more than one attempt to resolve issues such as leaks as it can be difficult to identify the cause of issue at the outset. In some case different repairs may need to be attempted before the matter is resolved and this would not necessarily constitute a service failure by the landlord. Whilst the Ombudsman notes the resident’s concerns that some of the repairs were not appropriate and different types of repairs should have been attempted, the landlord was entitled to rely on the opinions of its qualified staff and contractors when deciding what work to undertake. The Ombudsman has not seen evidence from similarly qualified contractors which contradicts the findings of the landlord’s contractors.
33. As the landlord had arranged for repairs to be carried out, it was reasonable for the landlord to continue to have involvement in the repairs until a resolution was found. However, it was not strictly obliged to do so because it had not been established that the leak in 2019 was caused by a defect in the roof’s structure. It appears from the evidence provided that the resident has not reported any further leaks from the roof since June 2021, when the final work to unblock the gutters was completed. It would now be appropriate for landlord to complete the internal repairs as agreed if it has not already done so. It would not have been appropriate to carry out the internal repairs before it was established that the leak had been fixed because if the leak was ongoing, it could damage the new decorations meaning this work would have to be redone, causing further disruption to the resident.
34. The landlord acted appropriately by directing the resident to raise an insurance claim for any damage caused to her belongings because of the leak. Leaseholders are expected to have their own home insurance for use in circumstances such as these. The landlord has offered to contribute towards the resident’s insurance excess as goodwill gesture in recognition of the time taken to resolve the ongoing issue which is reasonable under the circumstances.
35. Whilst the landlord has acted above its obligations by carrying out the repairs to the roof and agreeing to complete the required internal work to the property, there has been service failure by the landlord in respect of its communication with the resident. The landlord did not provide clear information to the resident about who would be responsible for resolving the roof leak. It asked the resident to provide a report to show that the roof leak was caused by a defect in the structure of the property, but also said that it was committed to resolving the issue and completing repairs and carried out an inspection itself. This is likely to have caused some confusion and inconvenience for the resident as the landlord did not manage her expectations effectively. In line with the resident’s lease, any future issues with repairs needed to the roof would be the resident’s responsibility, unless she can provide evidence that there is a defect which was reported and was apparent within the defects period.
36. In summary, there has been service failure by the landlord in respect of its handling of the resident’s concerns regarding ongoing issues with a water leak from the roof as it has not communicated clearly with the resident about who was responsible for the repairs. This lack of clear communication was likely to cause the resident some uncertainty and inconvenience.  In view of this, the landlord should contact the resident within four weeks to arrange the internal remedial works if it has not already done so. It is also recommended that the landlord contacts the resident to confirm its contribution towards her insurance excess once she has provided the total cost. If there is a dispute about the amount the landlord decides to contribute towards the excess, then the resident may wish to raise a separate complaint about this with the landlord.

The landlord’s handling of the associated complaint.

37. The landlord’s complaint policy states that it has a two-stage process for handling complaints. In some cases, it may be appropriate for the landlord to respond to a resident outside of its complaints process initially, for example where the complaint is the first request for a service. At stage one of its internal process, the landlord should provide a response within ten working days. If the resident remains dissatisfied with its response, they can escalate their complaint to stage two. If the landlord does not escalate the complaint to stage two, it should explain the reasons why within ten working days of receiving the escalation request.
38. In this case, the resident raised her concerns as a complaint in February 2020. At this stage the landlord said it would consider her concerns as an informal complaint, despite her request to have this reviewed under its formal complaints procedure. It would have been appropriate for the landlord to consider the resident’s complaint under its formal complaints procedure at this stage as the resident continued to pursue this matter and had clearly indicated that she remained dissatisfied.
39. A formal complaint was raised on 22 June 2020 over the phone and the landlord issued its stage one complaint response on 24 July 2020. This was 14 working days outside of its timescales for handling complaints at stage one. The landlord does not appear to have acknowledged or explained this delay to the resident in its complaint responses.
40. The resident escalated her complaint on 22 January 2021 and the landlord provided its final response on 26 March 2021. This response was issued. The evidence shows that the landlord kept the resident updated as to when she would receive a response. However, the landlord should have been able to provide this response sooner as it had decided not to escalate the resident’s complaint to stage two and therefore did not need time to investigate as it was declining to respond further. This unnecessarily extended the timeframe of the complaint and prevented the resident from contacting this Service at an earlier date.
41. Furthermore, the landlord should have considered the resident’s complaint at stage two of its internal process as it has not given a valid explanation for not doing so. This would have provided the landlord with the opportunity to review its complaint handling at stage one, identify its poor communication and complaint handling failures, put things right and learn from the outcomes.
42. In summary, there has been service failure by the landlord in respect of its handling of the associated complaint. The landlord should offer the resident compensation in recognition of the inconvenience caused, as set out below.

Determination (decision)

43.  In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the resident’s concerns regarding ongoing roof and leak issues.
44. In accordance with paragraph 54 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of its handling of the associated complaint.

Reasons

45. The landlord acted above its strict obligations by completing the repair works to the resident’s roof, however, the landlord failed to clearly communicate with the resident about who would be responsible for the repairs. This is likely to have caused the resident some inconvenience as it was unclear whether the landlord was taking full responsibility for the repairs to the roof or whether at any stage the responsibility would be passed back to the resident.
46. In this case, the landlord should have handled the resident’s concerns under its formal complaints procedure sooner, there was also delays at stage one and two of its internal process, which is likely to have caused the resident inconvenience.

Orders

47. The Ombudsman orders that the following actions take place within four weeks.
    1. The landlord is to pay the resident £100 for the inconvenience caused because of errors and delays in its complaint handling.
    2. The landlord is to contact the resident to arrange the internal remedial works to her property if it has not already done so.

Recommendations

48. It is recommended that the landlord contacts the resident regarding its contribution towards her insurance excess once she has provided the total cost of this.