Clarion Housing Association Limited (202012888)

REPORT

COMPLAINT 202012888

Clarion Housing Association Limited

15 February 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 handling of subsidence affecting the resident’s property.

Background and summary of events

The resident has an assured tenancy with the landlord for a ground-floor flat within a two-storey building with shared access to a communal garden.

Scope of investigation

The resident has said that she reported issues about the large trees in the communal garden for several years. The Ombudsman has not been provided with evidence of any historic complaints having exhausted the landlord’s own complaints process, and nor is there evidence of any such historic complaints having been referred to this Service for investigation. This report will therefore look at events from August 2020 onwards (when the present subsidence issue was logged by the landlord) up until the final complaint response in March 2021.
The resident has also referred to other complaint issues such as her Subject Access Request (‘SAR’) with the landlord not being actioned efficiently and matters related to her objections to the landlord’s planning permission application. With regards to the SAR application this is for the Information Commissioner’s Office to investigate; and with regards to matters about planning permission, this needs to be referred to the Planning Inspectorate in the first instance and then the Local Government and Social Care Ombudsman.

Policies, procedures, and agreements

Tenancy Agreement:

This sets out that the landlord is responsible for keeping in good repair the exterior and structure of the building, including the external walls, doors, window frames and glazing. The landlord must also take reasonable care to keep common parts in reasonable repair and fit for use.

Repairs & Maintenance Policy:

This sets out that non-emergency repairs are appointed by the contact centre at the initial point of contact. These appointments are termed as ‘at residents convenience’ offering the next available appointment that suits the resident and will be offered within 28 calendar days of the repair being reported.

Compensation Policy:

This sets out the types of compensation it can consider and gives details about the different levels of compensation it can award for service failures. It states that when discretionary compensation is offered, it will consider factors such as, the length of time it took to resolve the problem; and failure of staff to follow published policies and procedures.

Management Transfer Policy:

Management transfers will only be considered if the Police confirm in writing that there is a serious risk or threat to the tenant or their family that means it is no longer safe for the tenant and their family to continue living at the property and there is a realistic chance of a suitable property becoming available quickly.

Summary of events

The landlord’s records show that on 10 August 2020 the resident reported possible subsidence damage to her property in the form of cracks on the internal walls which she said was allowing vegetation to come through the cracks. There was also a separate report about a windowpane being faulty and a build-up of condensation, which she said was also possibly linked to the subsidence issue.
The landlord’s records show that other issues were also reported around the same time about the trees in the communal garden, which the resident believed was causing the subsidence. The landlord acknowledged these reports and its records show that it enquired about possible tree management works, and these were due to be carried out in October. However, the landlord has not provided any evidence to show if any works were carried out at this time either in respect of the internal damage or the trees.
The available correspondence shows that the landlord referred the matter to its insurers on 21 September 2020 and a subsidence claim was initiated.
The resident wrote to the landlord on 25 September 2020 to raise a formal complaint about the handling of the alleged subsidence and the tree works. She also made a Subject Access Request at the same time. The landlord has not provided evidence of its specific response to this letter.
The resident also emailed the landlord’s repairs team on 25 September 2020 to say that whilst she had been informed that a subsidence claim had been logged, she had not had any contact from the landlord or its insurance team about the internal damage in her flat. There is no evidence of the landlord’s immediate response to this email.
On 16 October 2020 the resident’s email was forwarded to a Housing Manager to look into. The landlord’s internal emails on 19 October 2020 show that it noted the structural cracking at the resident’s flat but it had been assured by the insurance team that the property was habitable. It confirmed that the loss adjusters had inspected the internal cracks last week and they were satisfied that the property was habitable and safe and alternative accommodation was not necessary at this stage.
The internal damage was confirmed as being related to progressive foundation subsidence. It was also noted that the path outside the building had been damaged due to subsidence and it needed to be taken up and re-laid. It was confirmed that the damage to the path would not be included in the insurance claim and the landlord would need to repair this itself.
The emails also acknowledged that the internal damage to the resident’s flat and it was confirmed that this too would not be included within the insurance claim and the landlord would need to do these repairs itself. The repairs included, adjusting doors and windows; a hole in the bedroom wall (where a tree had been growing through the building from the front garden had caused extensive damage); shrinkage cracking in the bathroom and bedroom. The landlord has not provided any evidence of its response to these internal repairs at this time.
On 22 October 2020 the landlord formally logged the resident’s complaint. It was noted that the complaint was about ‘trees and subsidence issues’.
The landlord’s internal correspondence on 11 November 2020 refers to a call made to the resident where she was given general information about the mutual exchange process.
On 12 November 2020 the landlord issued its first complaint response:
1. It confirmed that a Housing Surveyor initially attended to assess the issues raised within the complaint and the matter was referred to its insurance team, and loss adjusters were appointed by the insurer to deal with the damage.
2. It explained the next steps in the subsidence claim process, which included site investigations to determine the cause of the potential subsidence. After which recommendations for remedial works will be identified. However, there will be a period of monitoring before remedial works can be finalised.
3. With regards to the issue of a decant, it said that the structural engineers had not indicated that the property was unsafe, or that a decant was required at this stage. It said it that, moving forward, once the Loss Adjuster had accepted the probable cause, engineers would contact the resident directly to arrange for site investigations and also for the periodic monitoring. At that time the landlord would provide more detail about the process and action plan.
4. The landlord explained that as the matter was now being dealt with as part of an insurance claim, it did not form part of its complaints procedure. Going forward all communication would be made through the insurers or its Neighbourhood Response team.
5. With regards to possible tree works, it said that this had not yet been decided and it would be reviewed at a later date following the site investigations.
6. As for the damaged path it said it would contact the resident about this in due course, and it will also respond to the Subject Access Request separate to the complaint procedure.
The correspondence in November and December 2020 shows that there were internal discussions about arranging a further inspection of the damaged path.
On 15 December 2020 the resident was provided with the latest monitoring report.
On 29 January 2021 the resident contacted this Service. She raised issues around the subsidence damage and the trees in the communal garden. She was unhappy that the landlord wanted her to remove her plants from the communal garden to allow for the subsidence remedial works. She said she wanted the landlord to allow her to re-plant them in another part of the communal garden. She said that the standard of communication from the landlord had been poor and she wanted to know what options she had in regard to moving to another property. She also said that there were still outstanding repairs to the property including cracks in the walls and around the windows.
Following further correspondence from this Service, the landlord confirmed on 5 February 2021 that it would issue another complaint response within 20 days.
On 10 February 2021 the internal correspondence between the landlord and the insurer confirmed that the property was being monitored for movement. The first readings were taken in December 2020, and further readings will need to be taken, subject to the COVID restrictions.
The correspondence shows that site investigations had been carried out to determine the possible cause of the subsidence and to confirm what tree mitigation measures will be required. Once the mitigation measures had been undertaken further monitoring would be needed of at least several seasons to allow for the ground to consolidate before the repair could be considered.
On 11 February 2021 the landlord’s internal emails show that it inspected the resident’s property to consider if a decant was necessary. It also inspected the path and confirmed the repair that was needed. It liaised with the subsidence Loss Adjusters about the trees and plants which may require removing and this was being looked into further. With regards to the internal areas of the resident’s property, it confirmed that a decant was not required. It noted that the property needed repairs to ease and adjust all windows; ease and adjust all doors; replace a condensated windowpane in the bedroom. The correspondence stated that the resident was made aware of the current situation and agreed that a decant was not necessary at this stage.
The landlord’s repair records show that on 12 February 2021 a job was raised for easing and adjusting all doors and windows and replacing a windowpane.
On 16 February 2021 the resident was sent the latest monitoring report.
On 5 March 2021 further site investigations were authorised by the Loss Adjusters working for the landlord’s insurer.
On 25 March 2021 the landlord confirmed to this Service that it had reviewed the resident’s complaint again, and that some of the issues raised by the resident were different to those brought up in her original complaint.
On 25 March 2021 the landlord issued its second, and final complaint response:
1. Subsidence – it said that it was satisfied that the actions of the Insurance Team were in accordance with standard procedure. It said that the site report had been received and was awaiting the Loss Adjuster’s review.
2. The site report recommended a further arboriculturist report to determine the identity of the trees and shrubs around the property to establish which ones were influential and whether or not they were protected under the local authority. If the trees were protected and they needed to be reduced/removed, permission would need to be sought from the local authority. It apologised and said that it was unable to give a timeframe for this at the moment.
3. It confirmed that the Loss Adjusters had indicated that they were amenable to some temporary internal works being carried out whilst the property was being monitored and this would be discussed with the engineers. It explained that the monitoring would last up till the end of 2021 as is standard practice in a subsidence investigation.
4. Plant removal – it said that it was not aware of any instructions given to the resident about removing any plants. It confirmed that the repairs to the path may require some plants to be removed, and it said that there were other areas of the garden where plants could be accommodated. It reminded the resident that the garden was for communal use and not her sole private use.
5. Communication – it explained that the Loss Adjusters and engineers would take the lead with the trees and the subsidence works and they would be liaising directly with her. However, the Housing team would still be the first point of contact for the resident.
6. Trees – it said that as the subsidence claim was being managed by its insurers, any decision on the trees or other vegetation would be led by them.
7. Path Repair – it confirmed that the path repair was in process but may be delayed due to the possible need for planning permission.
8. Options for a move – it maintained that the property had been inspected and was safe to inhabit and there was no requirement for a decant at this stage. It said that the only other option was to consider a Management Transfer, but this would only apply if there was an immediate and serious threat to a resident’s safety that is agreed by the Police, which is not the case in this instance. Therefore, the resident could only look at a possible mutual exchange or through applying to the local authority for housing advice.
9. In conclusion, it reiterated that its Stage 1 complaint response was fair and reasonable. An inspection had already been arranged, the problem identified, and steps taken to resolve the issue. It apologised that the resolution involved a further period of monitoring and investigation but this was the nature of subsidence issues. It also recognised that there had been a delay in its complaint responses and for this it offered £25 compensation.
The landlord has provided this Service with a copy of the Arboricultural Report dated 8 April 2021. This conformed that three trees had been identified as needing complete removal. It also recommended further monitoring.

Assessment and findings

The Ombudsman’s role includes an assessment of whether the landlord has followed proper procedure, good practice, and behaved reasonably, taking account of all the circumstances of the case. When considering the landlord’s handling of this matter, the Ombudsman is guided by the landlord’s policies and procedures and our own Dispute Resolution Principles, which are, ‘be fair – treat people fairly and follow fair process; put things right and learn from outcomes’.
The Ombudsman has determined this complaint on the basis of the evidence made available to it. However, the landlord is reminded of the need for thorough record-keeping, especially when dealing with complex matters potentially involving third parties. On this point it must be noted that there is a lack of detailed supporting evidence for some of the issues, and the landlord has not fully evidenced its actions.
Looking at the facts and the available evidence, with regards to the landlord’s response to the main subsidence issue affecting the building itself, it can be seen that, overall, it has demonstrated that it responded appropriately and in a reasonable manner.
The terms of the tenancy agreement state that the landlord is responsible for keeping in good repair the exterior and structure of the building. As such, the landlord responded appropriately by arranging an inspection within a timely manner. As the cause of the damage was suspected to be subsidence, the landlord acted appropriately by referring the matter to its insurer to set up a subsidence claim, and it was for the insurer to carry out the necessary investigations to fully establish the cause of the movement affecting the building.
The actions taken on the insurance claim were led by the insurer’s appointed Loss Adjusters (and not the landlord) and it is not for the Ombudsman to assess the handling of the insurance claim or the conduct of the Loss Adjusters. If the resident has concerns about the handling of the insurance claim, she may be able to refer the matter to the Financial Ombudsman Service.
In terms of the landlord’s involvement, the Ombudsman is satisfied that its decision to refer the matter to its insurers was appropriate. Whilst it did not take the lead on the repairs, it liaised appropriately with its insurance team and advised the resident accordingly of the progress of the claim. It also managed the resident’s expectations both in terms of the length of the subsidence investigations and the resident’s concerns about possibly needing a decant.
The resident’s concerns about the length of time the investigations were taking were noted by the landlord and it addressed this appropriately within its complaint responses.
However, having said all the above, it cannot be overlooked that there were also some shortcomings in the landlord’s handling of certain aspects of this case. Whilst the main issue of the subsidence affecting the building was dealt with appropriately, there were service failures in its handling of the resident’s specific concerns about the damage inside her flat.
The general gist of these failures relates to its lack of urgency and clarity of action in its responses to the resident’s concerns and reports. For instance, the landlord has not evidenced its response to the initial reports that were logged on 10 August 2020 about the cracks within the resident’s property. Its records do not clearly show if this issue was addressed at that time. Whilst the landlord is right to refer the wider subsidence issue to its insurers, it still nevertheless retains a responsibility to the resident to ensure that any repair reports are correctly responded to.
Similarly, there is no evidence to show the landlord responded with any urgency to the resident’s email of 25 September 2020 where she again reported the large cracks and problems with opening doors and windows which she said had been affected by the subsidence movement. The records show that these issues were acknowledged by the landlord on 19 October 2020, and it was agreed internally that the landlord (and not the insurer) would be responsible for dealing with the internal damage. However, no evidence has been provided to demonstrate the steps the landlord took to address the internal damage.
The records show that the landlord eventually addressed the problem with the doors and windows approximately four months later in February 2021, and it did not replace the window until June 2021. The landlord has failed to provide any evidence to explain these delays.
With regards to the resident’s reports of cracks within the walls of her property, the landlord has not evidenced its response to these concerns. Whilst it is noted that the cracks were most likely due to the subsidence movement, and this was being investigated by the insurer, the landlord has not evidenced that it engaged with the resident about this issue. It may well be the case that any repairs to the cracks would need to be decided within the insurance claim, but the landlord has not shown that it advised the resident of this and/or that it appropriately managed her concerns about this. Similarly, the landlord noted on 19 October 2020 that in addition to the doors and windows needing adjusting, there was a hole in the front bedroom wall where a tree growing through the building from the front garden had caused extensive damage. The landlord has not provided any evidence to show how it responded to this damage and what actions it took.
The landlord has rightly apologised for its delay in its complaint response, and it has offered compensation for this. However, the landlord did not recognise or address any of the service failures noted above, and nor did it consider if compensation was warranted for these failures.
In assessing the issue of compensation, the Ombudsman takes account of a range of factors including any distress and inconvenience caused by the failure, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s actions/inactions. It also considers whether any redress is proportionate to the severity of the failure by the landlord and the impact on the resident.
Looking at the facts of this case, the Ombudsman has taken into account the landlord’s overall handling of the case and the involvement of the insurer. It has also considered the impact of the failures, and the landlord’s lack of evidence, and it is satisfied that compensation is warranted in line with both the landlord’s own compensation policy and the Ombudsman’s Remedies Guidance.

Determination (decision)

In accordance with paragraph 54 of the Housing Ombudsman Scheme there was maladministration by the landlord in its handling of subsidence affecting the resident’s property.

Reasons

The landlord has dealt appropriately with the main issue of possible subsidence affecting the building by referring this to its insurers to investigate. However, there were shortcomings in its handling of the resident’s repair reports and concerns about the internal damage within her flat. It did not respond to these in a timely manner, and whilst it recognised a delay in its complaint response, it has failed to acknowledge that there were also delays in its handling of the internal damage and repair requests. It did not consider compensation for these failures.

Orders and recommendations

Orders

The landlord should, within four weeks of the date of this report:
1. pay the resident £300 compensation in recognition of any distress and inconvenience caused by the maladministration identified in its handling of the resident’s concerns about subsidence affecting the resident’s property.
Evidence of the payment of compensation to be provided to this Service within four weeks.

Recommendations

In its final complaint response the landlord confirmed that the Loss Adjusters had said that they were amenable to some temporary internal works being carried out whilst the property was being monitored. Therefore, if not already done so recently, the landlord to arrange an inspection of the resident’s property in regard to any internal damage, and to consider if any temporary internal works can be done to address any subsidence-related damage within the property.