Lewisham Council (202103310)

REPORT

COMPLAINT 202103310

Lewisham Council

9 May 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

This complaint is about the landlord’s handling of external works to resolve a damp problem at the resident’s property.

Background and summary of events

Background

The resident is a leaseholder who holds a lease that commenced on 1 February 1988 and describes the property as a one-bedroom ground floor flat. The property is a flat within a property conversion.
The landlord is a local authority and has a social housing provider that manages its housing stock on its behalf. For the purposes of this report, any actions taken by the social housing provider will be referred to as being taken by ‘the landlord’.
The lease agreement sets out that the landlord should keep in repair the external walls of the property. It also obliges the resident to pay the landlord a fair proportion of the expenses incurred by it in carrying out this responsibility and to gain prior written consent for any building work.
The landlord’s website has a repairs guide that shows that it will respond to emergency repairs within two hours, urgent repairs within one working day, non-urgent repairs within three working days and other repairs within 20 working days. It defines an urgent repair as one that is needed ‘to prevent immediate damage to the property, to overcome serious inconvenience to the household or where there is a possible health, safety or security risk’.
Under Section 20 of the Landlord and Tenant Act 1985 (the Act) a landlord is required to consult with a leaseholder before it undertakes any work which will cost any leaseholder more than £250, including repairs, maintenance and improvements to the building and estate in which their property is situated.
The landlord’s website shows that it has a three-stage ‘housing complaints procedure’ where responses are issued within 10 working days (at stage one), 20 working days (at stage two) and 30 working days (at stage three) respectively. An ‘independent adjudicator’ is responsible for investigating stage three complaints and their recommendations are binding on the landlord.

Summary of Events

The resident made an enquiry to the landlord on 1 October 2019 to ask about the progress of ‘Decent Homes’ works that a surveyor had recently visited about and alerted it to a damp problem to the rear of the property that he suspected was due to an external issue.
The landlord responded on 2 October 2019 – it said that it had passed on the ‘Decent Homes’ enquiry to its major works team and asked for a surveyor’s report to demonstrate that the damp was due to an external issue.
The resident obtained a surveyor’s report following an inspection on 5 November 2019. This found that:
1. significant dampness had occurred to the bedroom and bathroom flooring which had extended into the hallway
2. it suspected that there was a defect to a soil pipe serving the upper flat and the bathroom of the resident’s property so a CCTV survey was recommended
3. render to the rear of the property was cracked and hollow which was likely to be the cause of damp to the bedroom wall so re-rendering was recommended
4. concreted areas to the rear of the property sloped towards it and there was deteriorating brickwork pointing
5. there was a defective rain water pipe to the front of the property, causing damp to the front elevation too.
The resident obtained a drainage report dated 29 November 2019 that found that:
1. the accessible drainage system was not in a satisfactory structural condition, allowing loss of water into the surrounding ground area
2. it recommended felt lining to seal pipework, water jetting of affected runs, replacement of some pipework junctions and a further CCTV camera survey.
The resident forwarded the surveyor and drainage reports to the landlord on 2 December 2019, asking for it to remedy the problems identified and to communicate with him accordingly.
The resident chased an outcome from the landlord on 7 January 2020. The landlord replied the following day to advise it had passed the enquiry to its consultation team, its service charge team were involved and it apologised for any inconvenience caused.
The resident submitted a complaint on 18 January 2020 on the grounds that there was a severe damp problem in the property and there had been little communication since he forwarded the surveyor and drainage reports to the landlord on 2 December 2019. He asked for a meeting at the property to discuss the outstanding claims, improved resources for the home ownership and consultation teams and advice on how the works would be progressed.
The landlord issued a stage one complaint response to the resident on 4 February 2020. It said that an inspection had been booked for 7 February 2020, after which it would agree the required works to resolve the damp issue and the works supervisor would contact him with any updates.
The landlord obtained a quote from a contractor on 10 February 2020 for it to conduct ‘damp remedial works’, including a CCTV drain survey, laying a new French drain system, re-pointing and re-rendering, renewing a cast iron drain pipe, creating a fall from the concrete path into the French drain and renewal of guttering and a rain water pipe at the front of the property.
The resident wrote to the landlord on 23 February 2020, asking for an outcome to the inspection earlier that month.
The landlord responded to the resident on 25 February 2020 – it said it was waiting on a reply about an enquiry from him on replacement doors and windows and that it needed to obtain a second quote for the external works before the leasehold consultation process commenced.
The resident chased the matter on 29 August 2020, noting that they were expecting a baby in April 2021 so they needed to make the property a safe environment. The resident chased progress again on 4 September 2020.
The landlord attempted to obtain information on 7 September 2020 from its housing team about the occupancy of the flat upstairs to the resident’s property so it was aware of the section 20 consultation requirements.
The resident chased progress with the landlord on 9 October 2020. He explained that he was progressing an insurance claim for the internal works but that this was being delayed by the external works being outstanding (he subsequently advised that contractors had attended to quote for the internal works but could not complete them until the external works were done).
The resident wrote to the landlord on 13 October 2020 to escalate his complaint on the grounds that:
1. he had not heard from it since 7 September 2020 and understood that it was supposed to be conducting a visit with a second contractor and checking on the status of the upstairs flat
2. he had been liaising with it to resolve a severe damp issue affecting the external garden path, bedroom, bathroom and rear corridor
3. it had been agreed that the landlord was responsible, based on drainage and structural surveys that he had paid for, and the issues were a damaged drainage system, faulty and damaged render and a faulty concrete pathway
4. the flooring was lifting, rotting and mouldy with walls suffering from damp and internal remedial works could not proceed until the external works were done.
The resident wrote to the landlord on 18 October 2020 to introduce it to the party that had been appointed to manage his insurance claim.
The landlord’s internal emails show that its repairs supervisor noted on 23 October 2020 that its contractor had attended prior to the Covid-19 lockdown and they needed to get another quote for the works. It recorded that the cost of works would exceed the section 20 consultation threshold and it would make a referral to its ‘special projects’ team so they could include the window and door replacements that the resident said had been delayed in the past. It added that it could ask the resident to allow access for a second quote if they just wanted the external garden works to proceed but that the ‘whole package’ would not be done until January 2021.
The landlord issued a stage two complaint response to the resident on 28 October 2020. It concluded that:
1. the works required to resolve the issue included repairs to the drainage system, external rendering and concrete path
2. a section 20 consultation was needed due to the costs of the repairs involved and they would be managed by its stock investment assessment team as the works fell outside of remedial repairs
3. works were due to commence early in 2021 and further contact would be made by 30 October 2020
4. it apologised for its communications delays.
The resident submitted a final complaint escalation to the landlord on 6 January 2021 on the grounds that:
1. the promised actions from the stage two complaint response had not been followed through upon
2. it had told him works were due to start early in 2021 and he asked if this was happening
3. he queried who would be doing the works, how much cost would be passed to him as the leaseholder, the schedule of works, the timescale for works and what input he would have
4. he needed the landlord to liaise with his contractors so the internal works could be arranged appropriately.

He explained the following day that he was seeking the involvement of the independent adjudicator because the previous member of staff who he had been in contact with had left and he needed works to progress. He added that repairs to the front of the property (damaged downpipe and guttering) had also been outstanding since he raised them with the landlord in late 2019.

The resident told the landlord on 15 January 2021 that he had still not been contacted by its maintenance team and asked for a site visit the following week.
The landlord sent a complaint acknowledgement to the resident on 18 January 2021 and holding emails on 15, 17 and 24 February 2021.
The landlord’s internal emails show that it reviewed the works progress in late January 2021 and noted it would have been picked up in a package of works that had been abandoned and that it would instead be completed as part of a special project within a new contract starting in April 2021.
The landlord issued its final complaint response report to the resident on 3 March 2021. This found that:
1. there were unnecessary delays in arranging works to the resident’s property and the section 20 consultation process had not even begun
2. the resident bought the property knowing some work was required but they would have expected this to be done within a reasonable timescale and works identified in December 2019 should have been done
3. communications with the resident had been poor and he had been required to chase progress
4. there had been no attempt to remedy the impact of the delay earlier in the complaints process
5. the resident had experienced unpleasant (and possibly dangerous) living conditions, could not arrange internal repairs that had been made necessary by ‘unremedied external works’, could not prepare their home for their baby and had suffered financial loss.

It recommended the following to put matters right:

an apology and compensation of £1,000 in recognition of distress and avoidable costs the resident had incurred
no charge to the leaseholders for the cost of works (which would avoid the need for a section 20 consultation)
no charge to the resident for works done under the ‘Decent Homes’ scheme given he had lost the opportunity to use a £10,000 retainer provided by the seller of the property to pay towards these works within three years of the resident purchasing it
a clear timeframe for works within two weeks with repairs to be organised ‘as swiftly as possible’
a review of any other outstanding works that it was responsible for to ensure a similar situation did not occur elsewhere.

The resident chased the landlord on 17-19 March 2021 on the outstanding recommendations. The landlord apologised for the delay and said it would update him as soon as possible.
The resident wrote to the landlord on 13 April 2021, identifying some areas of brickwork that still needed re-visiting.
The landlord advised the resident on 13 and 19 April 2021 that it was chasing progress on the recommendations. It added on 10-11 May 2021 that it had not realised that external works were still not done and it was discussing compensation.
The resident approached this Service in May 2021 on the grounds that the landlord should have awarded more compensation and it had failed to meet the recommendations made in its final complaint response two months earlier.
The resident wrote to the landlord on 11 May 2021. He thanked it for confirming contractors would be back on site on 17 May 2021 to complete works and introduced it to his contractor who he said needed assurances on works completed before £25,000 of internal remedial works could begin (the landlord and the resident’s contractor exchanged emails that date accordingly).
The resident advised this Service in July 2021 that most of the recommendations were still incomplete and he had paid £5,000 to replace the bay windows given the ‘Decent Homes’ delays.
The landlord asked the resident to provide his bank details on 26 August 2021 to allow the £1,000 compensation to be paid; the resident gave his bank details that day.
The landlord advised this Service in August 2021 that it had apologised, completed repairs, carried out stock condition surveys and agreed to waive any costs being passed to the resident for the repairs and ‘Decent Homes’ works. It added that it was processing the £1,000 compensation payment.
The resident disputed this in September 2021, advising that:
1. he had received £1,000 compensation but no apology or written assurance about costs not being passed onto him for the repairs and ‘Decent Homes’ works
2. the landlord’s contractors had completed works but there had been no assistance from the landlord and the contractors had not completed mortar or rendering works right first time
3. he had to trust that the outstanding portions of what would have the ‘Decent Homes’ works would be completed albeit he had already had to renew the windows to ensure his property was secured and insured
4. compensation totalling £9676.40 was warranted, for which he provided a breakdown, including towards his expenses in renewing the bay windows, loss of wages for appointments and paying for dehumidifiers and structural and drainage surveys.
This Service passed the resident’s compensation breakdown to the landlord in September 2021; the landlord said it would be able to review its compensation decision if it obtained evidence of the costs the resident had incurred.
The landlord wrote to the resident on 9 March 20222. It said it had received advice from this Service about the resident’s compensation review request and asked him to forward evidence of the costs incurred. It repeated on this date that it needed invoices and receipts for the items the resident had listed on its compensation breakdown.
The resident provided information to the landlord on 10 March 2022 as follows:
1. an invoice for £540 dated 17 October 2019 for a structural survey
2. a quote for £210 dated 29 November 2019 for a drainage survey
3. quotes for £3960 and £2880 dated 20 September 2020 for replacement of the bay window
4. a quote for £600 dated 1 March 2021 for painting of new bay windows
5. a screenshot showing a cost of £139.99 for a dehumidifier that runs at a rate of £2.45 per hour (and a related receipt)
6. proof of payment of £234 on 20 April 2021 for a planning application.

He added that he was also concerned that the landlord had failed to progress chimney repair works to the nextdoor property that had been identified in November 2021.

The landlord wrote to the resident on 28 March 2022, confirming the compensation award was under review and asking for proof of payment of the bay window works. The resident provided copies of emails dated 1 March 2021 and 20 July 2021 from the contractor that he said did the window works, confirming an invoice for £3828 and receipt of a deposit.
The landlord wrote to this Service on 29 April 2022, advising that it had reviewed the compensation level and awarded £10,000 compensation to the resident, including £6,000 towards costs incurred by him, which he had accepted.

Assessment and findings

The Ombudsman’s Dispute Resolution Principles are:

Be fair
Put things right
Learn from outcomes

This Service will apply these principles when considering whether any redress is appropriate and proportionate for any maladministration or service failure identified.

The resident initially reported a damp problem at the rear of his property to the landlord in October 2019 that affected his bathroom and bedroom. He followed this up by providing copies of surveys to the landlord in November 2019 that demonstrated that works were needed to external walls, groundworks, drains and pipework in order to remedy the internal damp. The landlord was obliged to complete these repairs in accordance with the terms of the lease but failed to do so until May 2021, more than 18 months later – this represented an unreasonable delay on the part of the landlord.
There were mitigating factors in that the works were extensive, would usually have been subject to a section 20 consultation period given the costs involved and the Covid-19 related lockdown likely impacted the landlord’s ability to progress the matter. Nevertheless, there were periods of inaction on the part of the landlord and its communications with the resident were inconsistent. This meant that the resident had to chase progress on numerous occasions and had to live for longer than necessary in a property that the landlord later assessed to be unpleasant and potentially dangerous.
It is also not disputed that the landlord’s delays meant that the resident found it difficult to progress the internal remedial works and that there were financial losses to him such as dehumidifier costs. Further, the resident has advised that he had to privately complete window replacement works given the landlord’s simultaneous delay in expediting ‘Decent Homes’ works and that these delays impacted his ability to use a £10,000 retainer for such works that the previous owner had passed on. This Service has seen no evidence that the resident sought permission from the landlord for the bay window works (as the lease agreement required) or of the £10,000 retainer arrangement but the landlord has not disputed these points. It is therefore fair to assume that the landlord’s failings led the resident to incur these additional costs.
However, the landlord took steps during and after the complaints process to recognise the impact of its delays by:
1. paying £1,000 compensation to the resident in August 2021 which it said was in recognition of distress and avoidable costs caused to him
2. proposing to pay £4,000 to the resident in April 2022 for the additional distress and inconvenience caused to him
3. proposing to pay £6,000 to the resident in April 2022 for costs incurred by him.

This was a significant level of compensation and demonstrated that the landlord recognised the distress and inconvenience caused to the resident by its continued failings. The Ombudsman’s Remedies Guidance recommends compensation awards of more than £700 for service failure that has had a significant and serious long-term effect on the complainant. Although it took almost 12 months (after the completion of works) for the landlord to complete its final review of the compensation award, its decision to cover expenses incurred by the resident on top of a substantial amount to recognise the distress to him and his family was reasonable and represented appropriate redress for the failures identified.

The landlord has also apologised to the resident on a couple of occasions, advised in March 2021 that it intended to review outstanding works elsewhere in its housing stock and added in August 2021 that it had conducted stock condition surveys accordingly. This demonstrates that, in addition to the compensation award, the landlord acknowledged its failings and took steps to learn from the outcome of this case. In accordance with the Ombudsman’s Dispute Resolution Principles, it was therefore fair in its assessment of the service failure, took steps to put things right and demonstrated it had addressed potential learning points.
In summary, the landlord contributed to delays of around 18 months in completing external works to the resident’s property that had caused a damp problem and failed to maintain regular communications with the resident throughout this period. However, the combination of the landlord’s apologies, completion of the outstanding works, compensation awards (inclusive of costs incurred by the resident) and proposal to conduct new stock condition surveys represented appropriate redress for the service failures identified in the way it handled the external works.

Determination

In accordance with paragraph 55b of the Housing Ombudsman Scheme, the landlord has offered reasonable redress for the service failures identified in its handling of external works to resolve a damp problem at the resident’s property.

Reasons

The landlord delayed by 18 months in completing external works to the resident’s property and failed to communicate effectively with the resident during this delay period. However, it has accepted and apologised for these service failures and its compensation offer of £11,000 was fair given the circumstances of the case.

Recommendations

If it has not already done so, the landlord to pay the resident compensation of £10,000 that it proposed in April 2022.
The landlord to review its handling of this complaint and create an action plan to ensure that its social housing provider follows up appropriately on recommendations made by independent adjudicators at the final stage of its complaints process.
If it has not already done so, the landlord to write to the resident to update him on chimney repair works that he said it identified in November 2021, including the proposed schedule of works and when these are likely to be completed.

The landlord should confirm its intentions in regard to these recommendations to this Service within four weeks of the date of this report.