Settle Group (202208571)

REPORT

COMPLAINT 202208571

Settle Group

23 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:
   1. The landlord’s handling of the resident’s reports of defects in his property including the length of time taken to rectify this.
   2. The associated complaint handling.

Background

2. The resident is a shared owner of the property, and the landlord is the freeholder. The property is a new build, semi-detached house and the lease agreement began in November 2020.
3. The resident initially provided the landlord with a list of defects in his property in late July 2021. The defects included: visible joins on the ceiling, poor gloss work, and a poor paint finish throughout the property, which he believed required filling or sanding. An end-of-defects inspection was completed in late October 2021, in which a damp odour emitting from the resident’s ensuite bathroom shower was reported.
4. The resident raised a complaint in February 2022 as he was dissatisfied with the outstanding defects in his property, specifically the decorating finish throughout his property. He believed the issues were taking too long to be resolved and that the odour had gotten worse. The resident explained that the defects (decorative finish) prevented him from decorating. He believed the landlord was not prepared to do anything, and asked that it compensate him £1000 to undertake the painting and decorative work himself. The resident stated that he was also considering paying a decorator to repaint his entire house and send the landlord the invoice.
5. The landlord’s contractor high–pressure cleaned the external drain around the resident’s property in November 2021 to try and resolve the odour from his shower. Its drain surveyor inspected the resident’s shower in February 2022, and reported that there was no shower trap (located beneath the shower drain to support the water flow) which it noted allowed odours to escape from the drain. The landlord’s contractor later noted that it had received misinformation from its drain surveyor, as there was already a shower trap installed. It advised that the height of the building and exposed soil and vent pipe may have caused the odour.
6. In response to the resident’s complaint, the landlord advised that it was unable to immediately resolve his complaint as it was awaiting communication from the building developer regarding the defects. It advised that it would respond by early March 2022. The landlord explained that the reports of an odour emitting from the drain had been passed to the developer to rectify as a defect, and that it would liaise with them to schedule works. Thereafter, it informed the resident that the developer did not consider the decorative condition of his property as a defect, and that no further action would be taken. It explained that the developer provided a painted finish, rather than to the standard of a professional decorator. It noted that the finish was within guidelines set by National House Building Council (NHBC), new build warranty providers, and was reflective of the price. The landlord referred to the lease agreement which stated that the resident was responsible for decoration inside the property. The landlord issued the resident a £50 voucher to contribute towards decorative costs.
7. The resident brought his complaint to this Service as he was dissatisfied that all works had not been completed, such as the odour from the shower drain and paint finish. He requested compensation or for the landlord to fix the issues.

Assessment and findings

Policies and procedures

8. The lease agreement states that the leaseholder agrees with the landlord to keep the property in good substantial repair and decorative order.
9. The lease agreement states that the leaseholder agrees with the landlord, as often as necessary, to paint, paper, treat and generally decorate in a style appropriate to the property of a like character, including the inside of the property.

The landlord’s handling of the resident’s reports of defects in his property including the length of time taken to rectify.

10. Generally, there is a ‘defects period’ with any new build between 6 to 24 months.  During this period the developer remains responsible for any defects/snagging issues.  Repairs are usually reported to the landlord and then addressed towards the end of the defects period (unless urgent) and signed off as completed by the resident. The landlord would be obligated to inform the resident of its position and provide updates of the next steps to manage expectations. Once the defects period has ended, any repairs required would fall under the terms of the lease agreement. However, defects reported after the end of the defects period would then be covered by the warranty/insurance for all new or newly converted homes provided by the National House Building Council (NHBC).
11. In this case, the defect liability period (DLP) ended on 29 October 2021. The resident reported the decorative defects on 31 July 2021, and as such this was within the DLP. In view of this, it was appropriate for the landlord to liaise with its building developer in regard to the next steps and expectations. It is noted that there was a delay in its conclusion regarding the outstanding defects raised (this has been addressed in the complaints handling section of this report). Nonetheless, the landlord acted appropriately by informing the resident of the delay and informing the resident of a new timeframe to provide a response. The developer concluded that the decorative finish in the resident’s home would not be classified as a defect and that no further action would be taken. It was reasonable for the landlord to explain that the finish was within guidelines set by NHBC, new build warranty providers and that it was reflected in the purchase price.
12. Accordingly, the NHBC guidance states that the wall and ceiling should have an appropriate appearance, and that painted surfaces should be reasonably smooth and free from nail holes, cracks and splits. It states that open joints should be filled, and that colour, texture and finish should be reasonably uniform. It is evident that the situation has been upsetting for the resident. However, the Ombudsman cannot comment on what repairs would be appropriate. The landlord was entitled to rely on the opinions of its qualified staff and developer when deciding what work to undertake, and accordingly its decision not to carry out works on the decorative finish was reasonable in this case. The landlord appropriately managed the resident’s expectations by informing him of its decision not to take any further action and by explaining the reasons for its decision.
13. Following the resident’s request for £1000 compensation to undertake the decorative work himself, it was reasonable for the landlord to refer the resident to its lease agreement. The lease agreement states that the resident would be responsible to paint, paper treat and generally decorate in a style appropriate to property of a like character including the inside of the property. Therefore, in accordance with the lease agreement, the resident was responsible for the decoration inside his property. It was therefore reasonable for the landlord to remind him of his responsibilities regarding decoration inside his home, as a shared owner of the property. It is acknowledged that the landlord, in this instance, used its discretion by providing the resident with a £50 voucher to contribute towards decorative costs, in order to find an amicable resolution.
14. During the end-of-defects inspection in October 2021, a report of a damp odour emitting from the resident’s bathroom shower was raised. As the report fell outside the DLP, it was appropriate for the landlord to carry out its own inspection to rectify the issue. The landlord appropriately high–pressure cleaned the external drainage around the resident’s property on 30 November 2021, in an attempt to resolve the odour. Following further reports regarding the odour, it was reasonable for the landlord to arrange a drain survey on 25 February 2022. However, despite the landlord’s inspections and survey there is confusion around the cause of the odour, the completion of works and whether or not the issue had been rectified. Furthermore, in the landlord’s stage one complaint response it advised that the issues regarding the odour had been passed back to its building developer to rectify as a defect and that it would liaise with the developer to have the works scheduled. As such the landlord should have records of correspondence and/or works regarding whether the repairs went ahead, for this Service to review. 
15. The resident advised this Service in July 2022 that the odour from the shower was still present. As part of this investigation, the landlord was asked to provide records of works regarding the odour from the shower, and confirmation as to whether or not the issue was rectified. However, only limited information was received which did not include clarification around the works completed or confirmation as to whether or not the odour had been eliminated. The landlord is expected to keep robust records of its repairs works. When there is a disagreement in the accounts of the resident and the landlord with regard to the condition of the property, the onus would be on the landlord to provide documentary evidence showing how it satisfied itself that the repair work had been completed to a satisfactory standard. If we investigate a complaint, we will ask for the landlord’s records. If there is disputed evidence and no audit trail, we may not be able to conclude that an action took place or that the landlord followed its own policies and procedures. This has also caused inconvenience to the resident as this Service is unable to investigate his concerns in full or determine whether the issue is now fully resolved due to the lack of evidence provided. This constitutes maladministration by the landlord in respect of its record keeping and compensation as detailed below should be offered to the resident in view of this.
16. In addition, the length of time taken to rectify the defects (odour) has been considered. The landlord’s repair guidance does not set out the length of time for completion of repairs. Generally, a landlord should complete non-emergency repairs within 28 working days. In this case, from the end-of-defects inspection in October 2021 to the landlord’s final update in February 2022, it is clear that the issue remained unresolved. As the landlord assumed responsibility by completing the independent drain survey and works to try and rectify the odour, it should have provided the resident with a clear plan of works to effectively manage his expectations. As such there was failure in the significant length of time taken to rectify the defects, and to adequately inform the resident of its steps to resolve. This also constitutes maladministration and compensation as detailed below should be offered.
17. As the landlord’s compensation policy does not set out the level of compensation, the Ombudsman has assessed the level of compensation that should be paid using our own remedies guidance, which is published on our website. The landlord should pay the resident £200 in compensation for the inconvenience caused by the landlord’s poor record keeping. The landlord should pay the resident £100 in compensation for the length of time taken to rectify the defects, and to adequately manage his expectations. These amounts are in line with the Ombudsman’s remedies guidance which suggests awards of £100 to £600, where there has been failure by the landlord which adversely affected the resident but had no permanent impact.

The associated complaint handling

18. The landlord has a two-stage complaint resolution procedure. At stage one it aims to respond within ten working days, and 20 working days for its stage two complaint response. The procedure states that if there are delays the landlord will contact the resident with an update and advise when a full response could be expected.
19. The resident raised a formal complaint on 2 February 2022, and the landlord issued its stage one complaint response on 28 February 2022. However, the landlord appropriately advised the resident of the delay in its complaint response, and explained that it would provide an update by 1 March 2022. This landlord’s action here was appropriate as it managed the resident’s expectations, and was in line with its complaint resolution procedure which states that if there was a delay, it would contact the resident with an update and advise when a full response could be expected.
20. The resident escalated his complaint on 11 April 2022, and the landlord issued its final complaint response on 9 June 2022, which was 39 days outside its set complaint timeframe of 20 working days. This was an unreasonable delay in providing its response, and the landlord exceeded its target response timeframe of 20 working days and failed to follow through with what it had advised the resident, and therefore failing to manage his expectations. This constitutes service failure and the compensation as detailed below is due in view of this.
21. The landlord’s compensation policy does not set out the level of compensation; therefore, the Ombudsman has assessed the level of compensation which should be paid using our own remedies guidance, which is published on our website. The landlord should pay the resident £100 in compensation for the delays in its complaint response and the distress and inconvenience caused to the resident. This amount is in line with the Ombudsman’s remedies guidance which suggests awards of £50 to £100 where there has been service failure by the landlord, such as delays, which had an impact on the resident but was of short duration and may not have significantly affected the overall outcome of the complaint.

Determination

22. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was maladministration by the landlord in respect of its handling of the resident’s reports of defects in his property including the length of time taken to rectify.
23. In accordance with paragraph 52 of the Housing Ombudsman Scheme, there was service failure by the landlord in respect of the associated complaint handling.

Orders and recommendations

24. The landlord is ordered to arrange an inspection regarding the odour within 4 weeks from the date of this letter and provide this Service and the resident with an update of the findings. If any remedial works are required, the landlord should ensure these are carried out within the timescales set out in the landlord’s Repairs Procedure.
25. The landlord should pay the resident £100 in compensation for the length of time taken to rectify the defects, and to adequately manage his expectations. This should be paid within 4 weeks of the date of this letter.
26. The landlord is ordered to pay the resident £200 compensation for the inconvenience caused by the landlord’s poor record keeping. This should be paid within 4 weeks of the date of this letter.
27. It is recommended that the landlord reviews its record-keeping practices to ensure quality of its voids and repairs inspections, along with the specific timescales set for each repair.
28. The landlord is ordered to pay the resident £100 compensation for the delays in its complaint responses. This should be paid within 4 weeks of the date of this letter.