Brent Council (202003321)

REPORT

COMPLAINT 202003321

Brent Council

13 Janurary 2022

Our approach

The Housing Ombudsman’s approach to investigating and determining complaints is to decide what is fair in all the circumstances of the case. This is set out in the Housing Act 1996 and the Housing Ombudsman Scheme (the Scheme). The Ombudsman considers the evidence and looks to see if there has been any ‘maladministration’, for example whether the landlord has failed to keep to the law, followed proper procedure, followed good practice or behaved in a reasonable and competent manner.

Both the resident and the landlord have submitted information to the Ombudsman and this has been carefully considered. Their accounts of what has happened are summarised below. This report is not an exhaustive description of all the events that have occurred in relation to this case, but an outline of the key issues as a background to the investigation’s findings.

The complaint

The complaint is about the landlord’s response to the resident’s reports of:
1. A leak at the property and the subsequent repairs and associated damage.
2. Asbestos at the property.
3. The landlord’s complaint handling, communication and customer service.

Background and summary of events

Background

The resident is a leaseholder at the property and is subject to the terms and conditions of the lease agreement. The landlord is a local authority.
The landlord operates a two-stage complaints policy, the policy states that the residents must be kept updated throughout the complaints process. If the resident made a complaint at the first stage, the landlord should formally respond within 20 working days. If the resident is dissatisfied with the response, the resident can request a peer review of the landlord’s decision and the landlord should provide a response within 30 working days.
The lease agreement outlines that it is the landlord’s responsibility to repair the structure and exterior of the property including balconies, drains and pipes. The repairs policy highlights that the landlord aims to repair a leaking roof within 7 days and perform priority three repairs within 28 days of the issue being reported by the resident.
The landlord’s asbestos policy states that leaseholders are responsible for all fixtures and fittings within the property which includes floor tiles. The landlord remains responsible for the building structure and communal areas. Items suspected to contain asbestos are best left in place if in good condition. If the resident would like to remove asbestos materials it recommends that the resident contact an asbestos removal contractor licensed by the Health and Safety Executive to carry out removal.
The landlord’s customer promise requires all of its operatives to respond to calls and messages within one working day and provide up to date information on request.
The landlord does not have a compensation policy.

Summary of events

On 13 June 2019, the resident contacted the landlord to report a leak at the property. She advised that water from a downpipe was leaking through to her kitchen wall.
In July 2019, the landlord’s operative attended the property to assess and establish the cause of the leak. It was determined that the leak had been caused by damage to the outside wall and the resident was advised that the repair would be marked as urgent and that another operative would attend to undertake the repair.
Between July and November 2019, the resident contacted the landlord nine times seeking an update and complained that no progress had been made in relation to the repair works at the property.
On 19 November 2019, the resident contacted the landlord and said that she had still not received a response to her complaint from July 2019. She advised that the leak had now spread and caused damage to her internal walls and skirting boards. The landlord advised that further investigation was required to determine if the cladding on the property above had caused the damage to the resident’s wall resulting in the leak.
In December 2019, the landlord and its contractor visited the property to assess the damage and to advise on the next steps. It advised that it was the damaged wall that caused the leak but that it was also partly due to the cladding from the property above and it would need further approval in order to move forward with the repairs. It advised that it would submit a repairs report and update the resident.
In December 2019, the resident called the landlord several times in relation to the outcome of the report and in relation to progress on the repair works however she did not receive a response.
On 23 January 2020, the landlord attended the resident’s property and advised that the leaseholder from the flat above had built a structure on their balcony without its permission and this had caused rain water to run down the rear elevation of the resident’s property and cause the leak. Works for the property were raised on 25 January 2020.
On 27 February 2020, the resident raised a complaint again with two Councillor’s and provided the landlord with evidence from her gas company that water had run into her boiler through the flue from a make-shift plastic roof from the flat above. It advised that the leak was affecting the functionality of the boiler and needed to be fixed as a matter of urgency. She advised that she had been contacting the landlord daily but had not received a response in over five weeks. She provided receipts that she had spent over £600 in boiler repairs but the problem had not been fully resolved. She said that the landlord advised her that the property was covered under insurance but has since said that it would not be covered. She advised that chasing responses from the landlord had caused significant distress and inconvenience and she felt the landlord’s operatives were not doing their job properly.
On 13 March 2020, the landlord attended the resident’s property and the neighbouring flat to inspect the balcony structure. It confirmed that the roof sheets had been moved into position and that the roof gutter was in need of repair which had contributed to the damp in the resident’s property.
On 26 March and 6 April 2020, the resident contacted the landlord chasing an update in relation to works.
On 16 April 2020, the landlord provided an update on the resident’s complaint and asked her to confirm if there had been any progress in relation to works.
On 20 April 2020, the landlord contacted the resident and apologised for not responding sooner. It advised that it would inspect the repairs to the neighbouring property to establish if the rear elevation could be rendered. The inspection was performed on 21 April 2020 and the resident asked the landlord to confirm the next steps.
On 26 April 2020, the resident contacted the landlord and asked for it to confirm the next steps and did not receive a response.
On 8 May 2020, the landlord provided the resident with a works update from January 2020 and the next steps. It advised the resident that as she and the upstairs resident are leaseholders the matter would need to be dealt with under its Building Insurance Policy.
On 12 May 2020, scaffold was erected at the resident’s property and she advised that it was only used once before being dismantled on 18 May 2020. She asked the landlord for an update in relation to the rendering works and the landlord advised it would provide an update once the dates were confirmed.
On 29 May 2020, rendering works at the property began.
On 8 June 2020, the landlord attended the property at the contractor’s request as there were issues in relation to the condition of the brickwork. The landlord advised that it had attempted to contact the resident’s neighbour to remove what was left of the balcony structure in order for its contractors to complete the rendering repair.
On 15 July 2020, the resident contacted the landlord and advised that it had been six weeks since any work had been carried out at the property and she had received no communication from the landlord and asked for her complaint to be escalated.
Between 15 July and 22 July 2020, the scaffold was again erected at the property and the guttering was cleared and the rendering fixed.
On 22 July 2020, the landlord contacted the resident and advised that its contractors would attend on 28 July 2020 to install the new gutters and downpipe.
On 24 July 2020, the resident contacted the landlord and raised concerns in relation to a rotten balcony structure that had been left overhanging the resident’s property and she suspected it had caused further damage to her kitchen.
On 28 July 2020, the resident arranged for an independent contractor to attend her property to assess the damage. During the visit asbestos material was discovered in the upstairs neighbour’s balcony structure, which was accessible from the resident’s property. The resident informed the landlord and asked that one of the landlord operatives be removed from the case for failing to recognise the asbestos on any of his previous visits.
On 28 July 2020, the landlord reassigned the case to a different surveyor and a sample of the rotten structure was taken and a test performed at the time but the test was deemed inconclusive.
On 20 August 2020, the resident made a complaint to this Service, however as the complaint had not been investigated in line with the landlord’s internal complaints policy it was referred back to the landlord for investigation.
On 21 August 2020, another asbestos sample was taken and an asbestos refurbishment report performed. The new surveyor arranged for piping to be installed following the resident’s concerns about internal damp at the property.
On 4 September 2020, the asbestos sample tested positive and works to remove the materials were scheduled for 13 October 2020.
On 15 September 2020, the landlord contacted the resident and clarified the outstanding works which included the replacement soffit and fascia above the back door, replacement gutter fitting, connecting into the newly installed downpipe and assessing the remaining length of the rear wall for the presence of damp internally. The contractor agreed to contact the resident directly to confirm an appointment for the remaining works to be carried out.
On 17 September 2020, the landlord issued the resident with its stage one response and highlighted the following:
1. It apologised that the resident’s complaints were not responded to and asked that she provide any acknowledgement and reference numbers of the complaints made so that it could investigate.
2. It acknowledged that there had been delays in completing works at the property and advised that the following works were complete:
  1. Renewal of the gutters.
  2. New downpipe and gulley.
  3. Re-rendered half of the rear lower wall downstairs.
  4. Repainted the rear external wall to the property.
3. It advised that it met with the resident and clarified outstanding works (as at paragraph 34 above).
4. In recognition of the delay, it agreed to fit a half width board to close off the gap between the decking and the wall and also to install decking to the rear step as per the original installation.
On 23 September 2020, the resident provided the landlord with six case reference numbers from her online complaints and three auto responses from between 8 October 2019 and 27 February 2020.
On 6 October 2020, works to the resident’s decking were completed.
On 13 October 2020, the landlord’s contractor visited the resident’s property but was unable to remove the asbestos from the underside of the neighbour’s balcony as it was more hazardous than originally reported.
On 15 October 2020 the resident asked for her complaint to be escalated to stage two of the landlord’s complaints process.
On 5 November 2020, the landlord’s contractors attended the property and removed the asbestos. The resident advised the landlord that the discovery of asbestos caused a delay in the down pipe and a fascia being fitted. This in turn caused orange liquid to leak from the property above onto her exterior walls. A similar issue was being experienced with a pipe on the side of the building.
On 5 December 2020, contractors attended the property and fixed the leaking pipe on the side of the building.
On 31 December 2020, the landlord issued the resident with its stage two final complaint response and provided a detailed history of events and addressed the following:
1. It acknowledged that there was an eighteen-month delay from when the resident first reported the leak and apologised for the error. It advised that the repair was not straightforward and required significant investigation to establish the root cause and therefore various inspections and minor works needed to be undertaken to fix the issue.
2. It advised that there were a number of occasions where the Council’s Customer Promise was not adhered to which included the resident not receiving call backs, having to explain the situation each time she called and not being kept up to date in relation to the progress of works. It accepted that its customer service fell below the expected standard and offered the resident an apology.
3. It advised that the neighbouring property above the resident built the outdoor structure without the Council’s permission and therefore the standard checks were not carried out when it was constructed. It stated that the damage to the resident’s property may not have been known to the owner. The landlord stated that attempts were made to arrange a site visit to assess the works undertaken by the property above and therefore the scaffold was erected again.
4. It accepted that the presence of asbestos was not identified by its surveyor or other contractors who attended at the time. It was informed by its Housing Management Service that it is not possible to identify asbestos with a non-intrusive survey conducted by an asbestos specialist.
5. It advised that the leaking pipe had been fixed on 5 December 2020 and the resident confirmed that she had made a successful insurance claim in relation to the damage caused to her property and was able to use these funds to repair her kitchen ceiling and wall.
6. It advised that external works to the property were scheduled for 4 and 19 December 2020 however due to the weather the repairs could not go ahead. It advised that an appointment was scheduled for 9 January 2021.
7. It advised that it was only responsible for the structure of the balcony and that it was the leaseholder of the flat who was responsible for the floor covering. It advised however that once the painting of the external wall was complete it would check the floor covering.
8. It stated that there were a number of different reference numbers for the resident’s complaint as the original file was closed erroneously due to technical errors. The landlord apologised for not handling the resident’s initial complaint correctly and accepted the technical error should not have happened. It acknowledged that the error resulted in months of delays and the resident spent unnecessary time chasing a response, which was not acceptable.
9. It apologised for the poor customer service the resident received, specifically in relation to communication. It advised that steps had been taken to improve communication with customers which included case trackers and regular progress meetings to avoid cases falling into abeyance. It said it would ask managers to remind all of the relevant officers about the expectations set out in the Council’s Customer Promise and to ensure officers leave their contact details when leaving voice messages for customers and otherwise.
10. It offered the resident £800 as a remedy for the ‘injustice’ experienced.

Assessment and findings

A leak at the property and the subsequent repairs and associated damage.

The resident raised issues of a leak at the property in June 2019 which had led to water entering the resident’s boiler and kitchen and causing damage to her property. The impact on the resident evidently caused them great distress and inconvenience. The landlord has an obligation under its repairs policy to make the appropriate repairs within 28 days of it being reported by the resident. It is clear from the evidence provided that the landlord initially responded within a reasonable timeframe and inspected the leak however there was then a six-month delay from when the resident reported the issue to when the landlord inspected its cause which is not appropriate or in line with its repairs obligations.
Scaffolding was erected at the property on 12 May 2020 and rendering works began however there was further delay as contractors could not complete the rendering repair without the removal of the upstairs neighbour’s balcony structure. On 15 July 2020, the resident made a further complaint that it had been six weeks since works had been carried out at the property and she also raised concerns that the rotten balcony structure that was left overhanging had caused further damage to her property. Evidence suggested that the landlord attempted to contact the resident of the upstairs property and after some delay the landlord completed the rendering at the property on 22 July 2020 and installed new guttering and a down pipe to address the issues with the leak. It is clear that there was further delay at this part of the repairs process however the landlord did need to establish contact with the upstairs neighbour which contributed to the delay.
The landlord provided the resident with an update in relation to the repairs on 15 September 2020 however works were further delayed due to the discovery of asbestos which will be addressed below. Appointments were scheduled for 4 and 9 December 2020 to complete repairs however due to weather the works were not completed until 9 January 2020. The landlord agreed to perform decking work at the property as an apology for the delay however given the circumstances, the 18-month delay was not appropriate or in line with the landlord’s repairs guidelines and works should have been performed much sooner to mitigate any distress or loss to the resident.
The landlord appropriately acknowledged its failure in its stage two complaint responses, apologised and offered the resident £800 compensation however it failed to apportion specific amounts to its repair’s failures. The landlord does not have a compensation policy but given the significant service failure and the length of time taken to complete the repairs and the distress and inconvenience caused to the resident, an amount of £10 per week for the duration of the repair totalling £780 (£10 x 78 weeks) would be appropriate to compensate for the distress and inconvenience experienced and is fair and reasonable in the circumstances and in line with what the Ombudsman would expect in relation to its remedies guidance. The landlord offered the resident £800 compensation for the distress and inconvenience caused which was fair and reasonable in the circumstances of the case.
The resident also raised issues in relation to her boiler which had been affected by the leak at the property. The resident advised that the initial £600 repair cost had been covered by insurance but was still experiencing issues due to the ongoing nature of the leak. As the ongoing issue was likely a direct result of the leak the landlord is obligated to consider compensating the resident for any further related boiler repair costs.

Asbestos at the property.

The landlord has a legal duty to manage asbestos in the common areas of its residential properties (under regulation 4 of the Control of Asbestos Regulations 2012). This requires landlords to identify any asbestos containing materials, to assess the risk, and to make a plan to manage that risk. There is, however, no ‘duty to manage’ or to maintain an asbestos register for domestic properties, and no legal obligation to inform residents of where the asbestos is in their homes. A landlord is not obliged to remove asbestos from a domestic property if it is in a sound condition and can be left undisturbed.
The asbestos at the property was first discovered on 28 July 2020 during an inspection of the balcony. The resident made a complaint that the previous surveyor had missed the asbestos and the landlord appropriately advised that it can often be hard to identify. To alleviate the resident’s concerns the landlord took a resolution focused approach and assigned a new surveyor.
The landlord has provided a copy of the asbestos refurbishment report for the property carried out on 21 August 2020. This confirms that asbestos was found in the first-floor balcony. The risk was assessed as high and it was recommended that the asbestos be removed before refurbishment works continued. The landlord appropriately arranged for the works to be completed on 13 October 2020 as the asbestos was more hazardous than predicted and the works were completed on 5 November 2020.
Overall, the landlord took a resolution focused approach and had the asbestos inspected and performed the recommended works to the balcony in line with professional recommendations.

The landlord’s complaint handling, communication and customer service.

There were acknowledged failures by the landlord in relation to its handling of the resident’s complaint. The resident made her stage one complaint through her Councillors on 27 February 2020 and the landlord failed to provide the resident with a response. The landlord’s failure to respond caused confusion, distress and inconvenience to the resident.
On 20 August 2020, the resident contacted this Service and made a complaint that the landlord had not responded to her complaint. This service contacted the landlord and discovered that the complaint had not been investigated in line with the landlord’s internal complaints policy and asked the landlord to investigate the issues and provide a formal response to the resident inline with its complaints policy. The landlord issued the resident with a stage one response on 17 September 2020.
The resident asked for an escalation of her complaint on 15 October 2020 and the landlord provided its stage two formal response on 31 December 2020. This represents an unacceptable one-month delay in the landlord providing its complaint response and was not appropriate or in line with its complaints policy.
The landlord appropriately apologised for not handling the resident’s initial complaint and explained that it was due to a technical error which should not have happened. It acknowledged that the error resulted in months of delays and the resident spent unnecessary time chasing a response, which is not acceptable. Given the landlord’s acknowledged failures £150 compensation would be appropriate to compensate for the distress and inconvenience experienced and is fair and reasonable in the circumstances and in line with what the Ombudsman would expect in relation to its remedies guidance.
The landlord’s Customer Promise requires all of its operatives to respond to calls and messages within one working day and provide up to date information on request. The resident contacted the landlord on multiple occasions through email and calls in an attempt to get updates in relation to the repair and her complaint. Between July and November 2019, the resident contacted the landlord nine times seeking an update without receiving more than an acknowledgement or a call back request. The landlord regularly apologised for the delay in communication and then failed to respond to further queries from the resident.
The landlord’s communication and customer service amounted to maladministration but it appropriately offered an apology and advised that steps would be taken to improve communication with customers which included case trackers and regular progress meetings. It also said it would ask managers to remind all of the relevant officers about the expectations set out in the Council’s Customer Promise and to ensure officers leave their contact details when leaving voice messages for customers and otherwise. Considering the extent of the landlord’s failure, £150 compensation would be appropriate to compensate for the distress and inconvenience experienced.
Overall, the landlord’s combined compensation offer of £800 was not sufficient to put right all of its failures. A total compensation amount of £1100 would be fair and reasonable in the circumstances and in line with what the Ombudsman would expect in relation to its remedies guidance. It is unclear if the landlord has already paid the resident the £800 offered, however, if it has this amount will be deducted from the compensation owing.

Determination (decision)

In accordance with paragraph 55(b) of the Scheme, the landlord has made an offer of redress which, in the Ombudsman’s opinion, satisfactorily resolves the complaint about the leak at the property and the subsequent repairs and associated damage.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration in respect of the landlord’s complaint handling, communication and customer service.
In accordance with paragraph 54 of the Housing Ombudsman Scheme there was no maladministration in respect of asbestos at the property.

Reasons

The landlord acknowledged its delay in completing repairs at the property and its failure to communicate with the resident. The landlord appropriately offered the resident adequate compensation to remedy its failure.
The landlord inspected the resident’s property in relation to the issues raised regarding asbestos. It was determined that the material would need to be removed and this was carried out in compliance with its asbestos refurbishment report. The landlord also agreed to appoint a new surveyor at the property as the resident was unhappy the asbestos was originally missed.
The complaints handling by the landlord was not in line with its internal policies. The landlord failed to complete stage one and two of the complaint’s procedure within the correct time frame and failed to communicate with the resident about the delay. The landlord failed to communicate effectively with the resident or to offer an appropriate level of customer service.

Orders and recommendations

The Ombudsman orders the landlord to pay the resident compensation of £1100 in respect of:
1. £800 for the distress and inconvenience experienced by the resident as a result of the extended delays in repairing the leak at the property and the subsequent repairs and associated damage.
2. £300 in respect of the distress and inconvenience experienced by the resident as a result of its complaint handling, communication and customer service failures over an 18 month period.
3. This to be reduced by £800 if the landlord’s original compensation offer has already been paid to the resident.
The landlord is to contact the resident and arrange to compensate them for any evidenced additional boiler repair costs resulting from the leak.
This compensation is to be paid within four weeks of the date of this report.