West Kent Housing Association (202000668)

REPORT

COMPLAINT 202000668

West Kent Housing Association

19 January 2023

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 the landlord’s response to the resident’s reports of defects with his new build property.

Background and summary of events

Background

2. The resident is a shared ownership leaseholder at the property of the landlord. The landlord is a registered provider of social housing. This service has not been provided with a copy of the shared ownership lease agreement, however, the landlord has confirmed that the resident and his partner are shared owner leaseholders.
3. The property is a new build house. The resident moved into the property in May 2019. There was a 12 month defect period for the property during which the property developer would attend to any reported defects.
4. The property developer uses published defects standards in order to assess what is considered a defect.
5. The landlord operates a two stage complaints policy.

Summary of events

6. In or around June 2019, having moved into the property in May 2019, the resident reported a number of defects with his new build property to the landlord. These included, among others, bubbling on the flooring and around the door, creaking of floors, and an issue with the oven door. The landlord subsequently requested further information and suggested it complete an inspection. It is not evident whether this inspection took place.
7. The resident reported further defects of a similar nature in July 2019 and again in August 2019, and September 2019. In each communication, he also enquired as to when the landlord would address the defects.
8. The landlord has provided this service with its internal communications from the period of the complaint. It is evident that following the resident’s communications, the landlord liaised with the property developer to determine what reported defects would be addressed and when. The landlord in turn provided updates to confirm a number of the works had been booked, however, it is not evident it provided a definitive list of which reported defects had been agreed by it.
9. In early April 2020, the landlord noted that the 12 month defects period was due to end on 30 April 2020. It advised, however, that due to COVID-19 restrictions, it would be unable to attend the property to complete a final inspection. It instead requested that the resident provide a list of all defects that he considered outstanding. On or around 28 April 2020, the resident provided a list of approximately 50 defects, which included, among others, scratches to the cupboards, gaps in various seals, ongoing noise from the pipes, and uneven walls and surfaces.
10. Throughout August and September 2020, the landlord liaised with the property developer about which reported defects would be accepted. In or around October 2020, the landlord informed the resident of which defects it had accepted. It rejected some defects, such as uneven plastering, on the basis that these were within “normal tolerances.” It also referred the resident to the property developer’s defects standards.
11. The resident disputed the landlord’s position that some of the issues reported were not defects and subsequently an inspection took place in November 2020. Following the inspection, further works were arranged for January 2021, however, it is not evident that the resident was informed at this time what would be repaired.
12. Following the works, the resident reported that there were still a number of defects to be addressed and a further inspection took place in May 2021. The resident also noted that the property developer’s defects standards stated that uneven surfaces up to 5mm were within tolerances, but that a number of the issues he had reported had uneven surfaces greater than 10mm.
13. In June 2021, the landlord confirmed its position that it still did not consider several of the reported issues to be defects, and signposted the resident to make a formal complaint. The resident continued to express his position that the issues should be considered defects, and also expressed his dissatisfaction with some of the rectification works completed. The landlord confirmed it had raised this as a formal complaint on 28 June 2021.
14. As part of its complaint investigation, the landlord discussed with the resident the full list of outstanding defects, which it in turn discussed with the property developer. It provided its stage one response on 8 July 2021, in which it gave its position on each defect. It acknowledged there were still some outstanding defects, but on the remaining reported issues, it confirmed it had discussed them with the property developer and that it did not consider them to be defects. Among the issues rejected were the loft lining, which the landlord disagreed was a defect and noted that the photos were received after the defects period had ended. It also advised that minor cracks in the plaster were not considered defects.
15. The resident escalated his complaint and in July 2021, a further inspection was carried out by a different surveyor who was new to the issue. The surveyor, along with the property developer, provided their comments to the landlord on the outstanding issues.
16. The landlord provided its stage two response on 19 August 2021. Of the approximately 24 remaining issues, the landlord accepted that two of the issues were defects, specifically the issues with the pipes and bubbling of the floor. The landlord confirmed that should the property developer not accept these, it would arrange for these to be completed itself. Seven of the reported issues related to, among other things, various scratches on cupboards, missing warranty for the oven, and other gaps that required filling. The landlord advised it did not consider these to be defects, but accepted these were valid issues, but that it considered these to be minor and not something it would arrange works for. Instead, it offered £250 compensation in recognition of the issues. The landlord has advised this service it considers this to be equivalent to the cost of a handy man to rectify the issues. Finally, the landlord confirmed its position that it did not consider the remaining items to be defects and that it would not be taking further action.
17. The landlord also provided a copy of the surveyor’s report for the resident’s records. The surveyor’s notes refer to a number of gaps of 5mm and that various pipes were slightly sagging, but described these issues as “not a defect.” The surveyor also noted a number of the issues were not “obvious to the eye,” and also that “some settlement is to be expected.” Regarding the reported issue with the roof lining, the surveyor acknowledged it was torn and that if the “roof covering fails then water could enter through these holes.” The landlord subsequently noted that no works were planned as this had been reported “after the defects period ended.”

Assessment and findings

18. In circumstances such as these, the role of the Ombudsman is to assess the landlord’s actions, and determine if they were reasonable and proportionate in the circumstances, and whether they were in line with its own policies and best practice. The Ombudsman cannot provide a binding decision on what is or is not a defect.. The appropriate body to determine the question of whether specific concerns should be considered defects would be the courts, for which the resident may wish to seek further legal advice.
19. Regarding the landlord’s actions, the Ombudsman would expect a landlord to carry out a reasonable investigation of any concerns raised by a resident. Such an investigation may include an inspection by a suitably qualified surveyor. A landlord should complete such an investigation within a reasonable timeframe, which will be context dependent, and appropriately communicate its position and any proposed outcomes to a resident.
20. Throughout the period of this complaint, there have been a number of examples where the landlord has not been specific with the resident about the actions it will take, and which issues it will attend to. While this is in part due to the need for the landlord to also clarify the issues and proposed works with the property developer, it still missed opportunities to provide timely updates to the resident, or articulate why there was a delay. In particular, during the defects period, the resident reported a number of issues between July and September 2019, which he was left having to chase up responses for. This would have caused him some distress and he was left unclear whether the issues would be accepted. This caused him to expend time and trouble chasing further information.
21. While not all issues reported were accepted by the landlord, it is evident that some of the issues were accepted and at various points, works were carried out to rectify these issues. While such works would not require as quick a response as would be expected for an issue covered by a responsive repairs policy, the Ombudsman would nevertheless expect a landlord not to unreasonably delay any works. In this case, some delays were the result of the need to liaise with the property developer to complete the works, and it is evident that the landlord diligently followed up with the property developer on such arrangements. Additionally, as discussed further below, later works were impacted by COVID-19 restrictions. There were, however, instances where the landlord was not clear on what works would be carried out during attendances, despite queries from the resident, which again would have caused some distress.
22. Given the COVID-19 restrictions in place in 2020, it was reasonable for the landlord to forgo its usual final defects inspection and instead ask for a detailed list of any issues from the resident. In hindsight, the landlord has accepted that this led to some confusion and disagreement between the parties, as the issues were reported over a number of communications, and that in future it would simply extend the period and carry out an in–person final inspection when possible. Following the list being provided, however, the landlord appropriately sought further information where necessary, and discussed the issues raised with the property developer.
23. Given the landlord’s position that a number of the issues reported would not be considered defects as they were within its tolerances, it was appropriate that the landlord signposted the resident to the property developer’s defects standards to help clarify its position. It is not disputed that those standards suggest that uneven surfaces over 5mm should be considered defects, and that the resident reported some instances of uneven surfaces greater than 10mm. It was therefore appropriate that the landlord arranged for a further inspection to specifically investigate these concerns as part of its stage two investigation.
24. The resident also expressed concern that during an earlier inspection, the landlord’s surveyor and the property developer had been dismissive of his concerns. It was therefore appropriate that for its later inspection, the landlord arranged for a surveyor who was new to the case to carry out the inspection. The surveyor’s report does not note any instances where uneven surfaces were greater than 5mm. The Ombudsman recognises the resident’s position regarding the measurements of some of the uneven surfaces, Given, however, that the landlord’s previous inspections, along with this later inspection all concluded that the issues were within its tolerances, it was reasonable for it to rely on these expert inspections and conclude that the issues relating to uneven surfaces did not amount to defects, in the absence of any contradictory evidence.
25. When completing some of the repair works that the parties agreed to, the resident raised concerns that the works had been unsuccessful and that further works were required. In its stage two response, the landlord accepted that several of the issues reported were “minor issues,” although it advised that these still did not amount to ‘defects’. It nevertheless offered compensation in relation to these issues of £250. The landlord has advised this service that this was the amount it considered it would cost to rectify these issues, however, it did not provide this explanation to the resident. Given, that the resident had previously been dissatisfied with the works carried out by the landlord, it was reasonable for it to instead offer compensation to cover the costs of the remedial works, however, this should have been made clearer to the resident.
26. Among the issues raised by the resident were concerns about a tear in the roof lining. Given that the issues were not all noted in a single communication, and some were raised verbally during inspections, it is not clear when this issue was initially raised. The landlord nevertheless addressed this concern and noted in or around March 2021 that it did not consider it to be a defect. It reiterated again in its stage one response that it did not consider the issue to be a defect, and that it had only received photographs of the issue after the defects period. As part of the stage two investigation, the landlord’s surveyor identified that water could enter through the holes in the lining. This contradicts the landlord’s earlier position during its inspections that the issue was not a defect, which the landlord should have addressed in its response. Given, however, that it is not evident this concern was raised prior to the end of the defects period, it was reasonable that the landlord advised it would not carry out any further works. It should have, however, clarified if this was now considered a responsive repair and who would be responsible for such a repair.
27. In summary, there were instances throughout the period of the complaint where the landlord’s communications could have been improved, both in terms of expediency, and clarity. While this led to some frustration for the resident, this did not impact the landlord’s position regarding what it considered to be a defect, which is the focus of the resident’s complaint. Having received the resident’s reports, the landlord carried out multiple inspections, which it repeated with different surveyors. It was therefore reasonable for the landlord to rely on the multiple expert reports when reaching its position regarding what it considered to be a defect. It also appropriately provided the resident with copies of those reports in order for him to fully understand its position. As noted above, the Ombudsman cannot determine whether the dispute issues raised should be considered defects. It is the Ombudsman’s opinion, however, that the landlord’s actions were reasonable, and aside from some delays, were in line with what the Ombudsman would consider reasonable in the circumstances.

Determination (decision)

28. In accordance with paragraph 52 of the Housing Ombudsman Scheme there was no maladministration by the landlord in respect of the complaints regarding its response to the resident’s reports of defects with his new build property.

Reasons

29. While there were some instances of delays and a lack of clarity, these ultimately did not impact the landlord’s position regarding what was a defect, and did not in the circumstances amount to service failure.
30. The Ombudsman notes the resident disputes the landlord’s position regarding its assessment of the issues reported with his property. The landlord’s position was nevertheless based on multiple inspections, and it provided the resident with results of those inspections, along with the standards for which it assessed defects. This approach was reasonable in the circumstances and amounted to a reasonable investigation of the resident’s reports, in line with what the Ombudsman would consider best practice.

Recommendations

31. The Ombudsman notes that a full list of disputed defects and the landlord’s position on each was not provided until the formal response stages of this complaint. Throughout the earlier stages, the landlord (and property developer) at various points agreed to carry out works, but did not clearly articulate which concerns of the resident it would treat as a defect. The landlord should therefore review its approach to communications regarding defects with new build properties to ensure that following any reports of multiple defects, it makes its position clear from the outset what will be considered a defect and why.