Torus62 Limited (202120233)

REPORT

COMPLAINT 202120233

Torus62 Limited

4 October 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

1. The complaint is about:
   1. The landlord’s response to the resident’s reports that the pipework in her bathroom had been installed incorrectly.
   2. The resident’s concern that the property was mis-sold
   3. Various repair issues including redecoration of communal areas, gas safety and electrical issues.

Jurisdiction

2. What we can and cannot consider is called the Ombudsman’s jurisdiction. This is governed by the Housing Ombudsman Scheme. When a complaint is brought to the Ombudsman, we must consider all the circumstances of the case as there are sometimes reasons why a complaint will not be investigated.
3. After carefully considering all the evidence, in accordance with paragraph 42 of the Housing Ombudsman Scheme, the following aspects of the complaint are outside of the Ombudsman’s jurisdiction:
   1. The resident’s concern that the property was mis-sold
   2. Various repair issues including redecoration of communal areas, gas safety and electrical issues.
4. Paragraph 42(a) of the Housing Ombudsman Scheme states that the Ombudsman will not consider complaints which are made prior to having exhausted a landlord’s complaints procedure, unless there is evidence of a complaint-handling failure and the Ombudsman is satisfied that the landlord has not taken action within a reasonable timescale. From the evidence provided it does not appear that the resident’s concerns about repairs to communal areas, the cost of these repairs under the service charge, various other repair issues and issues relating to the sale of the property have been raised as a formal complaint through the landlord’s complaints process. Therefore the Ombudsman cannot include these issues as part of our current investigation. The resident can raise these issues to the landlord as a separate complaint if she wishes to. If the resident remains dissatisfied with the landlord’s final response to this separate complaint, she may be able to approach the Ombudsman at that stage for an independent investigation.

Background

5. The resident is a shared ownership leaseholder of the landlord. The property is a flat. The resident moved into the property as a new build in March 2018.
6. On 20 October 2021 there was a leak from the resident’s bathroom into a neighbour’s flat below. The plumber who contained the leak for the resident said that the cause of the leak was that the pipework had been incorrectly installed. He said “the plumbing under the bath needs completely removing and reinstalling, as none of the pipes have been clipped and are swinging loose”
7. The resident made a claim on her buildings insurance. However, the insurer said it was unable to assist with her claim as the leak was caused by faulty workmanship, which was excluded under the policy. It suggested that she make a liability claim against whoever installed the bathroom. The resident forwarded the insurer’s email to the landlord and on 12 November 2021 the landlord said that “on this occasion” it would reimburse the £180 cost of the plumber, but that payment did not “constitute any admission of liability or any acknowledgment as to the condition of the plumbing”.
8. On 18 November 2021 the resident raised a complaint and requested that the landlord pay for the following:
   1. Removal and proper installation of plumbing in the bathroom
   2. Thorough check of flooring, wood boards etc and drying out or replacing if necessary.
   3. Replacement of the bath panel and the bathroom floor tiles that were now unstable due to water damage.
   4. Reimbursement of the £180 plumber’s fee.
9. The resident also contacted her local MP, who contacted the landlord on her behalf. The Ombudsman has not been provided with the MP’s letter to the landlord. However, in its response to the MP on 1 December 2021 and its stage one complaint response on 3 December, the landlord said that as the resident had purchased the shared ownership property as part of a newbuild development, it was covered by a 12-month defects period with the developers and a 10-year structural warranty. As the 12-month defects period had expired in 2019, the resident was now responsible for all repairs to the flat, including the leak, as outlined in her shared ownership lease. It said although the plumber had said the leak was due to faulty workmanship, the landlord was satisfied that the plumbing had been fitted to the required standards as it had received certification before the building was handed over by the developers, that confirmed that it met all building control regulations and standards. It added that there was no indication of latent defects to the plumbing and therefore it was not liable to carry out any internal plumbing repairs to the property. It reconfirmed its offer to reimburse the £180 cost of the plumber.
10. The resident escalated her complaint on 14 February 2022 as she did not agree that she should be liable for the cost of damages when the buildings insurer was saying the leak was due to an installation fault. On 21 February the resident added to the complaint that her toilet was blocked and the plumber who attended had advised that the soil pipe had been incorrectly installed and would need to be refitted at the correct gradient. The landlord’s surveyor inspected the property on 3 March 2022.
11. In its stage two complaint response issued 16 March 2021, the landlord said that its surveyor had reported that though the installation in the bathroom was “sufficient”, it could be enhanced “with additional battens to reduce the reoccurrence of the pipework having excessive flexible movement” and that “enhancement to the soil stack could be made which would help alleviate further problems with the toilet “ It said that under the terms of the lease the landlord was not legally responsible for the work. It said “whilst the installation is not defective there could have been additional improvement to the installation” and that in acknowledgement of that it would like to reimburse the following:
    1. £180 previously offered for the cost of the plumber on 20 October 2021
    2. £168 for the cost of the plumber to unblock the toilet.
    3. £320 to improve the pipework and the soil pipe, which would minimise the opportunity of the leak reoccurring or the toilet being blocked again. (though it stressed that this was not defective)

It said that whilst it did not accept there was a defect, it did appreciate the situation must have been stressful and frustrating and apologised for that and awarded £50 discretionary payment for the inconvenience suffered.

12. The resident told the landlord that she did not agree that she was responsible for the repairs and asked why the landlord had not claimed on the 10-year building warranty for the property. The landlord said it had not done so as there was no latent defect in the structure of the building. The resident informed the landlord that the buildings insurance company had now agreed to pay for the damages caused by the leak, if she was able to secure the pipework to prevent a recurrence of the issue. Therefore, she accepted the landlord’s compensation payments, in order to enable her to secure the pipework and proceed with her insurance claim.
13. The resident contacted this Service as she was not satisfied with how long it had taken to receive help from the landlord and believed the stress of this had worsened a pre-existing health condition. The resident also provided this Service with information from neighbours who had experienced various problems with their flats.
14. In further correspondence with the Ombudsman, the resident has advised that she would like the landlord to buy her share of the property a “generous price” so she can move away.

Assessment and findings

Scope of investigation

15. The resident has referenced in her complaint that she believes that the stress caused by the landlord’s failure to resolve her complaint sooner has worsened an existing health condition. The Ombudsman does not doubt the resident’s comments about her health. However it is outside our remit to draw conclusions on the causation of, or liability for, impacts on health and wellbeing. This is because we cannot establish whether there was a direct link between the landlord’s actions and/or inaction and the resident’s health. This would be more appropriately dealt with as a personal injury claim through the courts or the landlord’s liability insurer (if it has one). This is an accordance with paragraph 42(i) of the Housing Ombudsman Scheme which says the Ombudsman will not investigate complaints which concern matters where the Ombudsman considers it quicker, fairer, more reasonable or more effective to seek a remedy through the courts, a designated person, other tribunal or procedure. However, consideration has been given to the distress and inconvenience the resident experienced as a result of any errors by the landlord.
16. It is noted that the resident has provided information from her neighbours regarding their experiences with the landlord. However, this Service is only able to assess how the landlord dealt with the resident’s complaint. The other residents may raise their own complaints with the landlord if they are not satisfied with any aspect of its service. If multiple residents in the building are experiencing the same issues they can raise their concerns as a group and they can appoint one resident as a representative for the group. The Ombudsman is able to consider complaints brought by groups of residents, but in order to do so the residents would all need to have complained through the landlord’s internal complaints process and all the residents would need to give written consent for the Ombudsman to investigate their concerns.
17. In her complaint to the Ombudsman, the resident has advised that she wants the landlord to offer to buy her share of the property so she can move away. It is understandable that the resident wishes to move away from the property in view of the repair issues she has experienced and the disruption this caused to her and her family. However, the Ombudsman would not order a landlord to buy a resident’s property as a resolution to a complaint and we would not specify an amount which should be offered to purchase the property. This is because the sale of a property is a legal process and the Ombudsman cannot give legal advice or make decisions concerning matters which are better suited to court to decide.

Assessment

18. When the resident purchased her shared ownership property in 2018 it was covered for the first 12–months by the developer against defects and then it was covered by a 10–year warranty policy. The landlord had also received a certificate from the developer confirming that the flat complied with the building regulations in place at the time when it was handed over to the landlord. The landlord has provided this Service with the resident’s shared ownership lease which states that (once the 12-month defects period had ended) the leaseholder’s repair responsibilities are “To keep the premises in good and substantial repair.” It also states that the landlord’s repair responsibilities include the building’s framework, structure, communal parts and balconies and specifically excludes water apparatus that exclusively serves an individual flat in the building. Therefore, when the resident raised her original complaint in November 2021, as the responsibility for repairs to her individual property lay with the resident it was reasonable that the landlord did not agree to pay for the costs the resident requested. Its decision to reimburse the £180 cost of the plumber was above and beyond its strict obligations and was therefore a reasonable offer under the circumstances.
19. Once the resident escalated her complaint to stage two of the landlord’s complaints process in February 2022 and reported that a second plumber had said that pipework in the bathroom had not been installed properly (on this occasion the soil pipe), the landlord acted appropriately by arranging for its surveyor to inspect the bathroom. This was reasonable as it showed a willingness by the landlord to investigate the resident’s concerns. The internal emails that the landlord has provided to this service following the surveyors visit show that the landlord also appropriately considered whether the surveyor’s findings could be classed as a latent defect and whether other flats should be inspected for similar issues. However, ultimately it determined that the installation was not defective but could benefit from enhancement, and that it did not need to inspect all of the other flats in the building. It was however appropriate that the landlord discussed that possibility.
20. Once the landlord determined that the installation was not defective but could be improved upon to minimise the chances of the same problems recurring, the landlord acted reasonably by offering to pay the costs of the original £180 plumbing cost, the £165 plumbing cost for the blocked toilet and £320 to cover the cost of enhancing the installation of the bathroom pipework, including the soil pipe. This was reasonable as the landlord was not legally obligated to pay for the repairs but had recognised that improvements could be made and therefore went beyond what it was strictly obliged to do (At this point the resident’s insurer had also changed its position and agreed to pay for damages caused by the leak if the resident was able to undertake work to secure the pipework. The £320 payment from the landlord would allow the resident to pay for the work to the pipework to be completed so that her claim with the buildings insurer could proceed ). The figure of £320 was based on the amount the surveyor considered to be the reasonable cost of making the enhancements. When the resident questioned why the landlord had not made a claim on the 10-year warranty, the landlord explained that it had not done so as there was no latent defect identified, which was a reasonable explanation.
21. Defects and poor workmanship are generally excluded from buildings insurance policies. Therefore the fact that the buildings insurer ultimately accepted the claim is further evidence that the issue with the pipework was not a defect, otherwise it is likely that the buildings insurer would maintain its original decision not to cover the claim.
22. The landlord also acted appropriately by recognising the inconvenience caused to the resident and awarding a £50 good will gesture. The landlord has also advised this Service that although all shared owners are provided with a copy of the lease which details their repair obligations, it is taking appropriate steps to improve the repairs obligation information available to shared owners on its website.  
23. Although this Service does not doubt that experiencing a leak at her property was distressing for the resident, the Ombudsman is satisfied that there was no maladministration by the landlord in respect of its response to the resident’s reports that the pipework in her bathroom had been installed incorrectly.   
24. The resident is understandably concerned that if there are further leaks the buildings insurer will not cover the cost of repairs. If this situation occurs in future, it is recommended that the landlord considers whether a claim should be submitted to the warranty provider (if the issue occurs while the warranty is in place). The warranty provider would be able to carry out investigations at that stage to establish whether the issue with the pipework is a latent defect. However, as advised above there is currently insufficient evidence to suggest the pipework is a latent defect in the structure of the building.

Determination

25. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was no maladministration by the landlord in respect of its response to the resident’s reports that the pipework in her bathroom had been installed incorrectly.