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Southwark Council (202014304)

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REPORT

COMPLAINT 202014304

Southwark Council

27 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

  1. The resident’s complaint is about the landlord’s handling of issues of water ingress to the property. The landlord’s complaint handling has also been considered.

Background and summary of events

Scope of Investigation

  1. In the letter of 18 June 2020 the landlord stated that it was not able to consider issues which occurred more than 12 months ago, however it did refer to the way it handled the complaint in 2015. It does not appear that the customer engaged meaningfully with the landlord’s complaint handling processes between 28 October 2015 and 3 January 2020. In light of this, the Ombudsman considers it appropriate that it investigates the landlord’s complaint handling of the stage one 25 August 2015 complaint because the landlord dealt with this in its June 2020 letter. However, the landlord did not deal with the substantive issues which occurred more than 12 months earlier.
  2. The Ombudsman notes the long history of this case, and has taken this into account as background and important context for this investigation and our consideration of the matter. However, and taking into account that the resident did not progress the earlier complaint of 2015 at the time, as well as the Ombudsman’s jurisdiction, the  Ombudsman considers it appropriate to focus this investigation on the landlord’s handling of the substantive water ingress issue from mid-2019 – being six months before the resident lodged a complaint with the landlord on 3 January 2020.

Case history

  1. The property is a three bedroom house. The resident entered into a Tenancy Agreement with the landlord on 22 December 2003 which is a secure tenancy.
  2. In 2006 the resident made the Repairs department of the landlord aware of issues with water ingress in the loft room. The Repairs department took the view that it was a structural issue. At some point around 2017 the matter was passed over to the Major Works department of the landlord. The landlord replaced the roof surface. The resident’s view is that there was inadequate communication between the different departments, including that it was the landlord and not the resident who laid floorboards in the loft.
  3. On 25 August 2015 the resident submitted an online complaint about a roof leak. The landlord sent the resident a stage one response on 28 October 2015. It apologised and advised that investigations were ongoing.
  4. On 3 January 2020 the resident submitted a complaint online stating that there had been a problem with the roof since 2004 and setting out a timeline and the impact on the resident and his family.
  5. On 6 January 2020 the landlord sent an acknowledgement and on 27 January 2020 the landlord sent a holding response.
  6. On 31 January 2020 a consultant advised the landlord that “condensation appears to be the current issue” relating to the use of the loft (?) room as habitable use.
  7. On 3 February 2020 the landlord sent the resident a stage one complaint response. The landlord set out the findings of contractors who had visited the property and set out that the option agreed was that a vapour layer would be taped and insulated plaster board installed so building regulation requirements were met. 
  8. On 19 February 2020 the landlord visited the property. On 20 February 2020 the landlord wrote to the resident confirming an action plan which included internal works being undertaken once approved, another water test would be undertaken to identify whether there was a leak with the roof, the landlord would provide a full repairs history and the landlord would enquire about storage. Different options were discussed internally through April 2020.
  9. On 11 May 2020 the resident complained to the landlord “Repairs” department. The resident complained that there had been leaks in the roof since May 2006 and there were unresolved ongoing complaints, including ongoing issues with major works being undertaken. 
  10. On 18 June 2020 the landlord provided a response to the resident’s complaint. The landlord stated that there was a limited amount it could deal with in its letter as the resident had an “ongoing complaint with Major Works” and there were issues which occurred more than 12 months ago. It stated that if the resident was unsatisfied with the response to the complaint with Major Works he could escalate that to stage two and any failings by Major Works would be investigated.  It stated that the stage one complaint response was limited because the landlord could not consider historic issues. It apologised for the delay in the stage one response but stated that it did not believe that this would have impacted the resident significantly. It stated that it could not consider whether compensation should be awarded as this would need to be considered by Major Works. With respect to the 2015 complaint the landlord stated that it considered that the response was adequate given that the situation was ongoing. It acknowledged that it should have explained in the response that it did not pay compensation for lost earnings, as the resident had sought and that it would not pay compensation for the scaffolding. It therefore stated that the complaint was not upheld.
  11. On 4 August 2021 an external consultancy advised the landlord that their view was that “the issue has been one of condensation enhanced by the regular use of the loft space, in particular during winter”. The consultant noted that remedial works had been undertaken to adapt the battens at the party wall to enable the escape of any future build up of condensation. The consultant notes that he did not recall it being mentioned that the loft was being used as a habitable room.
  12. On 18 August 2021 the landlord sent a stage two complaint response to the resident. The landlord noted that it had already provided compensation for one missed appointment and the use of electricity for a dehumidifier. The landlord stated that its position was that the issue was “one of condensation enhanced by the adjoining properties use of their lofts as a habitable space, when it was in fact designed to be a cold space.” The landlord based this conclusion on reports from a contractor and consultant, taking into account that the water ingress did not occur during summer with “occasional torrential rain”, the degree of condensation on the underside of the roofing panels and two water tests which showed that the water ingress was not from an external source. The landlord states that as part of remedial works battens were adapted to form an unobstructed route to discharge condensation into the gutter. The landlord stated that the issue “could have been passed over to the housing management team to address the causes of the issues in the neighbouring properties”, but this was not done and the remedial works were undertaken due to the length of time which it had been going on for and the impact on the resident. The landlord acknowledged that previous correspondence had incorrectly stated that the resident had undertaken works to board out the rafters and install a door, when in fact the landlord had done these works. The landlord acknowledged the impact on the resident and the work he had done to prevent further damage to the property. The landlord offered the resident compensation made up of: £150 for time and trouble; £500 for distress; £500 for delays.
  13. On 18 August 2021 the resident responded to the landlord’s stage two complaint response. The resident stated that he declined the landlord’s offer of £1,150 compensation because he considered it “unreflective of the period of time that we have dealt with this issue”. He stated that as far back as October 2018 they had been dealing with having to empty buckets of water after the roof replacement. The resident referred to the water tests that were undertaken. The resident noted that the landlord was aware of the use of the adjoining properties’ loft space but did not take steps to request that the use of the loft space be returned to the original design (as a cold space) and the landlord gave permission to one neighbour to use the space.
  14. On 6 December 2021 the landlord confirmed to this service that its position is that the issue was the result of condensation caused by the conversion of the two adjoining properties lofts into habitable rooms. The landlord stated that it was not a repairs issue. It confirmed that it undertook tests (erecting a scaffold and undertaking dye tests) which confirmed that the roof was water tight. It took measures to mitigate the issue. However, it stated that it did not need to do this and it was “for resident services to ensure the neighbouring properties return their cold storage areas to their original design.” It acknowledged that there were some delays by the contractors and due to the Covid pandemic.

Assessment and findings

Water Ingress

  1. It is the role of the Ombudsman to determine if the landlord has acted in a reasonable matter in considering and responding to the issues raised by the resident about water ingress to the property.
  2. The Ombudsman notes that the matter has been ongoing over a period of years. Notwithstanding the view taken on the scope of the complaint as set out above, the Ombudsman considers the longer term history is relevant to the extent that it provides context. The resident states that he first brought the matter to the attention of the landlord in 2006. The evidence indicates that the landlord has undertaken a number of investigations into the matter and different interventions have been implemented. The landlord has made changes to the roof and installed floor boards. It has adapted battens at the party wall to enable condensation to be channelled to the external gutter. It has undertaken water tests and engaged external consultants. The landlord’s final position is that it is an issue of condensation caused by the conversion of the lofts of the two adjoining properties and it has taken some preventative measures to reduce the condensation. It states that it is “for resident services to ensure the neighbouring properties return their cold storage areas to their original design.”
  3. The landlord has acknowledged that there have been unreasonable delays in it investigating the matter. It has acknowledged that there were delays in contractors attending the property and the covid pandemic had an impact on the timeliness of its investigations.
  4. The evidence indicates that the landlord has undertaken a number of investigations. Following tests undertaken in the first half of 2019, it attended the property in February 2020 and following that arranged for works to be undertaken including the erection of scaffolding, work on the battens, work on the ventilation, the installation of insulation and a vapour barrier and other internal works. There were discussions in April 2020 regarding the works including the installation of insulation and the possible need for removal of the floor in the loft room and it appear that these works were completed some time after this. The landlord’s position now appears to be that the issue is one of condensation. It appears that the works undertaken by the landlord, in particular the work with the battens to divert water to the external gutter will go some way to resolve the issue. However, it appears that it is still possible that intervention is needed in the two neighbouring properties’ use of the adjoining loft spaces to fully resolve the issue. There is no evidence that that the landlord has progressed this.
  5. The Ombudsman acknowledges that the landlord has undertaken investigations into the matter and has implemented different interventions, which appear to have had some success but not fully resolved the issue. The Ombudsman notes that the landlord has acknowledged that it could have acted more promptly with its investigations. Whilst the Ombudsman accepts that the Covid pandemic inevitably had some impact after March 2020, it is not clear why the matter was not progressed more efficiently in the second half of 2019 and early 2020. The Ombudsman finds this delay to be a failing.
  6. The Ombudsman also finds it a failing that the landlord does not appear to have progressed investigations, and possible interventions, to address the impact of the use of the adjoining properties. It appears that both the Major Works and Repairs departments have determined that the matter no longer sits with them and instead now sits with “Resident Services”. This has in other places been referred to as “the housing management team”. It does not appear that Resident Services have progressed the matter. The Ombudsman understands that it is appropriate and reasonable for the landlord to have separate departments to address different type of issues. However, it is for the landlord to manage the relationship between these different departments, to progress issues that cross over between different departments and to ensure that residents are provided with a cohesive and comprehensive service which is not adversely affected by different teams being involved. The Ombudsman finds that there has been a lack of effective and constructive collaboration between the departments and that the landlord has failed to progress the matter following its conclusion that the matter is one of condensation which is impacted by the adjoining properties.
  7. The Ombudsman also finds that it was a failing that the landlord communicated to the resident that it was him that undertook works to board out the loft room and install the door, when in fact it was the landlord who had undertaken these works sometime earlier. The landlord has acknowledged this.
  8. The landlord has acknowledged some of these failings. In its letter of 18 August 2021 it offered the following compensation to the resident:
    1. £150 for Time and Trouble – this is for the delay in response to the complaint and for the effort in dealing with the water ingress (including emptying buckets to prevent damage)
    2. £500 for Distress – for distress “including the housing management issue relating to the adjoining properties causing the condensation”
    3. £500 for Delays – this is for the delays in the plan of works being undertaken.
  9. The Ombudsman also notes that the landlord had previously paid an unspecified amount of compensation for a missed appointment and for the cost of the use of a dehumidifier. The Ombudsman considers the appropriate compensation for complaints handling separately below and deemed the £150 offered to be £75 for poor complaints handling and £75 for the effort in dealing with the water ingress. This therefore brings the total compensation the landlord has offered to the resident for failings regarding its handling of the water ingress issue to £1,075.
  10. In assessing an appropriate level of compensation, the Ombudsman takes into account a range of factors including any distress and inconvenience caused by the issues, the amount of time and effort expended on pursuing the matter with the landlord, and the level of detriment caused by the landlord’s acts and/or omissions. It considers whether any redress is proportionate to the severity of the failing by the landlord and the impact on the resident. The Ombudsman also takes into account the evidence that has been provided. Ultimately the Ombudsman considers what would be fair and proportionate. The aim of compensation is not to be punitive but to provide redress for the impact of any failings by the landlord on the resident. In the case of compensation for distress and inconvenience, we are not able to quantify a definitive loss and the intention of such an award is to recognise the overall distress and inconvenience suffered by the resident.
  11. In considering whether the amount offered by the landlord in this case is reasonable, the Ombudsman has referred to this service’s Remedies Guidance. This sets out that awards of £700 or above “are used in recognition of maladministration/severe maladministration that has had a severe long-term impact on the complainant”.
  12. The Ombudsman acknowledges that the matter has been going on for many years. However, as set out above the Ombudsman has considered the landlord’s handling of the substantive issues from mid 2019. Given this, the Ombudsman is satisfied that the amount which the landlord has offered is reasonable. The Ombudsman understands that the matter has been distressing and frustrating for the resident. However, there is no evidence that the property was uninhabitable. The amount offered by the landlord is at the higher end of amounts that this Service awards for maladministration. Whilst the Ombudsman finds that there were delays, the landlord has undertaken interventions which appear to have had an impact. The Ombudsman therefore does not consider it appropriate to require that the landlord pay further monetary compensation for its handling of the substantive water ingress issues.
  13. However, the Ombudsman considers it appropriate to require the landlord to undertake further steps to determine if further appropriate and reasonable steps can and should be taken with respect to the neighbouring properties’ use of the lofts spaces in the adjoining properties and the impact this may have on condensation in the resident’s property. The landlord should undertake an investigation and provide a report to the resident within a reasonable time of the date of this Determination. The Ombudsman notes that in doing so the landlord will need to take into account the impact on those other households and carefully balance the different needs and circumstances of all the properties.

Complaints Handling

  1. The landlord acknowledged in its letter of 18 June 2020 that there were delays in its response. It stated that it considered that its 2015 complaint was adequate given that the situation was ongoing. However, it acknowledged that it should have explained in its response that it did not pay compensation for loss of earnings or for scaffolding, as the resident had sought.
  2. The Ombudsman finds that there was an unreasonable delay in the landlord providing its stage two complaint in June 2020. It was not until 18 August 2021 – over a year later – that the landlord provided a further second stage response from its Major Works team. The Ombudsman also finds that the landlord’s 2015 stage one response could have more clearly articulated the landlord’s position on compensation. The landlord has acknowledged this.
  3. The Ombudsman also finds that the landlord’s separation of its response to the resident’s complaint between Major Works and Repairs to be a failing. In its letter of June 2020 the landlord stated that it could not deal with many of the issues the resident raised because the resident had “an ongoing complaint with Major Works.” The landlord then provided separate responses to the resident for his “Major Works” complaint. As set out above, the Ombudsman finds it a failing that the landlord reflected its internal administrative divisions between “Major Works” and “Resident Services” in its handling of the matter. This includes in its separation of its complaint handling between the two departments. In the circumstances, the Ombudsman would expect the landlord to provide joined up and coordinated complaint handling.
  4. The Ombudsman is persuaded that these complaint handing failings in themselves caused the customer distress and inconvenience. There were additional interactions and confusion that was unnecessary over a significant period of time.
  5. The landlord offered in its August 2021 complaint response compensation for complaints handling which the Ombudsman has deemed to be £75. The Ombudsman considers that this does not reflect the extent of the impact on the resident of the complaints handling failings and requires the landlord to provide an additional £200 – to make a total of £275 compensation for poor complaints handling.

Determination (decision)

  1. In accordance with paragraph 55(b) of the Housing Ombudsman Scheme, the landlord has made an offer of reasonable redress to the resident with respect to its handling of issues of water ingress to the property.
  2. In accordance with section 54 of the Housing Ombudsman Scheme the Ombudsman finds that there has been a service failure by the landlord with respect to its complaint handling. The Ombudsman requires that the landlord pay the resident £275 compensation, which includes the £75 already offered by the landlord. The landlord must pay this within four weeks of the date of this Determination.

Reasons

  1. The Ombudsman understands that the landlord’s failings regarding its handling of the water ingress has been distressing and frustrating for the resident. However, there is no evidence that the property was uninhabitable. The amount offered by the landlord is at the higher end of amounts that this Service awards for maladministration, and the Ombudsman considers this to be reasonable redress in the circumstances. Whilst the Ombudsman finds that there were delays the landlord has undertaken interventions which appear to have had an impact.
  2. However, the Ombudsman considers it appropriate to require the landlord to undertake further steps to determine if further appropriate and reasonable steps can and should be taken with respect to the neighbouring properties’ use of the adjoining properties and the impact this may have on condensation in the resident’s property. The landlord should undertake an investigation and provide a report to the resident within four weeks of the date of this Determination.
  3. The Ombudsman is persuaded that the landlord’s complaint handing failings in themselves caused the customer distress and inconvenience. There were additional interactions and confusion that was unnecessary over a significant period of time. The amount of compensation offered for complaint handling failures by the landlord does not adequately reflect this.

Orders and recommendations

Orders

  1. The Ombudsman requires that the landlord undertake an investigation into whether appropriate and reasonable steps can and should be taken with respect to the neighbouring properties use of the adjoining properties and the impact this may have on condensation in the resident’s property. The landlord should do this and provide a report to the resident within a reasonable time of the date of this Determination.
  2. The Ombudsman requires that the landlord pay the resident £1,350 compensation within four weeks of the date of this determination. This includes the redress the landlord has already offered to the resident.

Recommendations

  1. Taking into account the Ombudsman’s comments about interaction, allocation of responsibilities and liaison with the resident in this report, the landlord should review arrangements for joint working between its repairs and major works teams. This review should consider both property related issues and how it manages complaints, and should include an action plan for any service improvements identified.